Victim’s male acquaintance breaks into her apartment and grabs her. He is in a rage because she had refused to go out with him. He roughs her up a bit, including belting her across the face and throttling her. He then forces her at gunpoint to drive him to his house, where he keeps her overnight. He specifically tells her that he will shoot her if she tries to escape. He is distraught and talks repeatedly about how much he loves her. He talks about wanting to live with her in Mexico. Her survival strategy was to pretend to go along with his plans. She wanted to gain his trust. When he had sex with her that night, she “went along with it” in order to survive.
After finally escaping, she went to the police. She expected that he would prosecuted for kidnapping, assault and threatening. She was, however, shocked when I brought a rape charge against him. She didn’t feel that she had been raped because she had “gone along” with the sex. When I questioned her, however, she said that she had “gone along” with it because she thought (quite reasonably under the circumstances) that he would blow her brains out otherwise. But, to my shock, in her mind, she herself felt that it was not a rape because she had not resisted in any way. (Under the law in my jurisdiction, sex that occurs during the course of a kidnapping is rape, and even if that were not so, I think the physical threat against her was sufficient to make this a rape.)
In a fantastic post, the Happy Feminist says (obviously enough to me) that yes, breaking into someone’s house, kidnapping them, beating them, threatening them with a weapon and then having sex with them because they fear you’ll kill them otherwise is probably rape.
But commenter Richard doesn’t agree (kind of scary considering that he’s an attorney).
First scenario: Not guilty. You yourself stated that she had sex with him because, “She wanted to gain his trust.” (only later do you backtrack and say she thought he’d blow her brains out if she didn’t. I usually find first reasons more truthful.) In this scenario you give not one fact that the man demanded sex with her and would not take no for an answer. Zero. And so we are asked to find a rape where there is no evidence the man demanded sex and the woman admits she did not outwardly object. What a great country. (I think your state’s sex-during-kidnap-equals-rape crime is faulty. It’s one of those strict liability facts-be-damned approaches to finding rape. It’s a charge that actually puts into the hands of the sharp-thinking “victim” the power to rack up another offense against the defendant. Don’t tell me is hasn’t or couldn’t happen.)
So because she didn’t outwardly object after she had been kidnapped, beaten, had a gun pulled on her, and was threatened with death, she wasn’t raped. And the statute that criminalizes sex during a kidnapping is bad, because some victims will have sex with their kidnapper just “to rack up another offense” against him. That’s exactly what I’d be thinking if I were kidnapped — “you know, I really wanna get this guy good. I know, I’ll entice him to have sex with me! That’ll get him at least 60 more days in prison!”
I’m constantly shocked at the lengths some people will go to defend rapists and demonize women.
Let’s change the scenario slightly: You get kidnapped and beaten, have a gun pulled on you, and are told that your kidnapper will shoot you if you try and escape. All aspects of the scenario described above are the same, except instead of demanding sex, he says, “Give me your wallet.” Or we can make it even less clear-cut — what if he says, “Can I have your wallet?” What do you do? If you give it to him, were you not robbed? You didn’t vocally object — I mean, you handed the guy your wallet. Sorry, but where I come from, that’s called a gift. Besides, how do we know that you aren’t claiming that you felt forced now, just so that you can rack up extra offenses against him? This seems cut-and-dry to me. The giving of the wallet was voluntary. There was no crime. And I’m just sick of these so-called “victims” reporting robberies that didn’t actually happen, and tarnishing the good name of kidnappers everywhere.
Then there’s this:
My conclusion is that if you “have run across MANY people, including the victims themselves, who didn’t seem to think these were rapes”, then I suggest that the law does not properly reflect community standards and should be amended … Instead of dismissing these “many” as ignorant bumpkins, maybe we should listen to them and then re-evaluate whether our rape laws are reflective of our prevailing social values.
Ah, I love this talk of “prevailing social values” and “community standards.” Kind of how “community standards” dictated that blacks had rights about equal to those of livestock; or how “community standards” clearly didn’t want black children going to white schools; or how “community standards” decided that Jews were sub-human and could be killed by the millions; or how “community standards” dictate that if a woman is raped, she’s an adulterer who deserves to be punished as such. Community standards are valuable, but they should not be the only consideration when making law. Justice counts, too. Attacking that view as “elitist” is just plain ignorant.
Read all of the Happy Feminist’s post. She’s far more good-natured than I am.
I agree with you, and further I would take issue with the victim for not trying to have it dealt with as a rape; by not doing so she is contributing to a bad legal precedent, is she not?
This is definitely rape in any jurisdiction in the country. A threat to kill is coerced consent. This guy Richard you speak of is an idiot if he is in fact an attorney. This is first year Crim.
Yes. Rape. How could consent conceivably be given when someone has not only threatened to physically harm you, but actually has? The woman’s canny survival tactic (pretend to go along with him rather than end up dead or beaten) should not be held against her, nor should it be used as an excuse to get the perpetrator off on the rape charge.
I cannot believe that this is not a no-brainer. Uh, YEAH it’s rape. Jeez.
And this is classic rape, not even one of the liberalization reforms of the last 20 years.
under the common law:
Rape is an act of sexual penetration accomplished with any person under any of the following circumstances:
Through the use of force, coercion, or threats of immediate and great bodily harm against the victim or other persons within the victim’s presence, accompanied by apparent power of execution.
Historically, “consent” as we think of it, was never an issue. What we might call “lack of consent” without force or the threat of force was just seduction.
Is This Rape?
Need more details at the time of the intercourse to make a determination. Press the charge, and let the grand jury sort it out.
Would he feel the same way if she were killed during the commission of a kidnapping or robbery? Because in just about any jurisdiction, that’s called felony murder, as distinct from murder. The fact that the crime occurred during the commission of a felony adds an additional dimension to the crime.
And seriously. This is first-year Crim, and if you weren’t paying attention then, appears on the bar exam.
When the prevailing “community standards” held such, the law reflected those beliefs. When the community standards changed, the law changed in accordance. In a voluntary society, the laws are the mechanism to promulgate and regulate social mores; otherwise they are merely arbitrary diktats without the legitimacy conferred by social assent and respect.
I’m trying to figure out when sex in the course of a kidnapping would not be rape. Even cases where the victim is consenting on the surface need to take Stockholm Syndrome into account.
Not that the opposite point of view is surprising, there’s a ton of people out there who think that, if she only knew the real you, she would love you for who you are. Well, surprise, when she actually gets to know the real you, she knows you as a creepy kidnapper and rapist.
How funny — I started reading this post and thought. “Gee, this sounds familiar.”
To answer Noel’s question (first comment), it’s not the victim’s job to worry about legal precedent or to try to have the case dealt with in any particular way. That’s the prosecutor’s job. The victim doesn’t call the shots– although she has a legal (statutory) right in most jurisdictions to be treated with respect, kept informed and consulted with regard to charging and sentencing decisions. Ultimately, however, she is considered a witness, not a client. It is the prosecutor’s job to make charging decisions in light of the interests of justice and the interests of the State as well as the interests of the victim.
As a right-wing patriotic suppressor of a women’s right to choose and a concerned conservative Christian outdoorsmen I am a bit shocked at why this woman would spend the night with a man she is not married to? This is the first part of her problem. I must also say it is my experience that a woman never really consents to having sex because it is not in their nature to consent to something that they do not have interest in. This is why the Lord asks that women submit to their husbands out of duty and because of the Dominion he has given men over women, children and the animals.
I happen to be researching on women as a project I’m spearheading for the future of male security.
Maybe some of you could be interested in this.
http://philbertsuggs.blogspot.com/2006/01/click-herenra-sets-2006-as-year-of.html
God Bless.
Sports-manly yours,
Philbert Suggs
Sounds good to me. And why the quotation marks around victim? Does Richard think your example volunteered to be kidnapped and beat up, too?
Actually, this just sounds like a threat to drag us into “There are thousands of men whose lives have been destroyed by false accusations!” That’s the real problem here! Rape “victims”, bah! It’s those scheming bitches trying to find new ways to destroy men.
*sigh*
It was probably within the power of that executive in New Jersey a few years ago to prevent his murder at the hands of his kidnappers, but nobody brought that up as a defense to the murder charges.
Why should rape be different?
Is Richard trying to drive traffic to his site?
He’s not a very careful attorney, as he apparently didn’t read the line “in my jurisdiction, sex that occurs during the course of a kidnapping is rape”.
This is so awesome–”Sure, he beat and kidnapped her and threatened to kill her! But the sneaky, manipulative bitch tricked him into sex! He’s the victim here!”
Rape. No question. No ‘if’s’ ‘ands’ ‘buts’
And as #9 Happy Feminist says, the finding is independent of what the victim wants. This is similar to how domestic violence cases are handled. I cannot tell you how many times victims show up, after the bones heal and the bruises fade, to first beg, then demand that charges against the abuser be dropped.
We can, and do, proceed to prosecute regardless of their opposition.
(I’m not an atty but have worked in a DA office for over 7 years)
He’s kidnapped her, thus putting her into an intrinsically coercive situation. Richard is an idiot; she basically cannot consent to anything while he’s got a freaking gun to her head (metaphorically or literally).
I don’t have much insight here. I’m inclined to think the approach that Cananda evidently has to sexual assault is a step in the right direction. Have others looked at this?
I can’t believe that someone wouldn’t call it rape. The only defense the guy has is insanity and if he is suffering from an organic brain dysfunction, he should be locked up and medicated.
There’s a reason why they call it “practising” law: a few people never quite get the hang of what it is all about.
Sadly, the PA bar website does not appear to allow the public to check its attorney records.
How much control does the victim have over what charges get pressed?
Um, let’s go over the context of the situation here. Kidnapping, violence, “he will shoot her if she tries to escape.”
Speaking as someone who owns firearms, has been falsely accused of harassment, and who takes everything with a pinch of salt… assuming the facts are as presented here, I hope this dangerous, emotionally adolescent, cultural throwback gets all the help he needs while he’s serving a mid-to-high-double-digits sentence for rape, kidnapping, assault & battery, and (if his state has this, I certainly hope so) use of a firearm in the commission of a felony.
Did I miss anything?
Um.. Is Richard a defense attorney?
Like everyone else here I cannot see how this could be classed as anything other than assault, kidnapping and rape. I have reservations about some descriptions of “date rape” that I have seen (which has nothing to do with this case so just ignore it) but this is an open and shut, throw away the key, kind of case.
In the real case involving the kidnap victim, the defendant was the child of a prominent local citizen. Predictably, a ton of letters in his support were submitted at sentencing. My favorite was a letter from an elderly man who said “I feel sorry for young men today,” what with young women trying to “pull them into their webs.”
In Richard’s defense (ohmigosh I’m defending a defense attorney), I think he generally tends to take the role of contrarian for the sake of discussion. I let him know this post is up so he may come on and speak for himself, but I suspect that he generally just raises issues just to raise them.
Finally, I think Jill is right that a tougher response is in order on the “community standards” issue. Community standards may totally suck. For example, in some parts of the world it is the community standards that men should kill female relatives who have sex outside marriage. It wasn’t so long ago that it was acceptable under community standards to kill an “uppity” black person in certain parts of the U.S. So I don’t think “top down” influence by legislatures is inappropriate. I would also dispute the notion that legislating definitions of rape that may be different from “community standards” is somehow elitist. Rape and domestic violence legislation is the result of grassroots lobbying of local state legislators, that included public debate and public education. So I don’t think my local legislator, who is accountable to the people of my state, passing a bill to protect wome cannot be said to be “elitist.”
Why is this even a question? Seriously.
Jill:
David Thompson:
You need to think harder about this. “In a voluntary society,” everyone affected by the law has a voice in making it. Jews under the Nuremberg Laws and during the Holocaust, Blacks under slavery and Jim Crow, and women in contemporary Pakistan didn’t have any meaningful voice in making the laws inflicted upon them — this was an essential part of the political structure that the Nazi regime, white supremacy in the United States, and male supremacy in Pakistan created — so describing the imposition of them as anything less than “arbitrary diktats” is tendentious to say the very least.
“The legitimacy conferred by social assent and respect,” if “social assent and respect” means nothing more than the assent and respect of the numerical majority of people, or a numerical minority that happens to have enough guns to dominate the discussion by force of arms, is precisely zero.
I don’t know why this is even a question, but trust me, it IS a question that prosecutors have to address in rape prosecutions. (I learned my lesson the hard way that you can get burned if you don’t spell out to the jury the reasons various types of non-consensual sex are illegal.)
Let me rephrase. It should be a “well duh!” statement that this is rape. I think what I’m really asking is why are we having to explain this? How freakin brain damaged do you have to be to think for even half a second that in some way it might not be.
Happy Feminist, you’re being WAAAY too charitable to Richard.
Here’s his comment in full:
As the readers can plainly see, he’s not only questioning how expansive rape laws should be, he also engages in victim-blaming, calling one victim “ditzy.”
Richard is not anonymous. He puts his full name on his blog. His Martindale Hubbell entry is as follows:
So, that’s where you ought to send the angry letters.
For David Thompson:
As a historian, I feel compelled to point out that when Jim Crow laws were changed, it wasn’t because the “community standards” in the South had changed (or do you forget the rage on the faces of the whites as they watched those brave black kids integrate the high school in Little Rock, and the way civil rights activists were regularly murdered and their killers acquitted, etc., etc.?) It was because the movement for justice succeeded in demonstrating to the Supreme Court that those laws, despite representing “community standards,” were terribly unjust and unconstitutional. 50 years after Brown v. Board, community standards in much of the South have changed, and drastically. But the standards changed because laws changed (and were enforced), not the other way around.
Unless someone is a “troll” (whom I define as someone completely unwilling to engage the actual ideas of a post), I do tend to be charitable to my readers. Even as a lifelong self-identified feminist, I myself have certainly held views in the past about women and rape that I now realize were somewhat ignorant appalling, so I tend to be optimistic that reasonable people can revise or reconsider their opinions. (Give me a round of “cumbayah” now!)
scary.
David Thompson said:
I think this is an interesting point–but it’s important to remember that, if we decide to use community standards to influence the law, that doesn’t keep us from being able to (needing to!) question community standards. The force of Jill’s point (I think) is that just because something is a community standard doesn’t guarantee it’s a good standard. And, therefore, justifying a law by only appealing to community standards isn’t enough.
Which leads to lots more problems, of course, sense it seems like this is the only justification for some law.
You have to especially like his argument about how sex during a kidnapping being presumed rape is ‘strict liability’–again, he’s either doing some sloppy legal thinking (or perhaps he’s just trying to mislead y’all who aren’t lawyers).
“strict liability” is not a concept that applies to added penalties for one already engaged in misconduct. The law that Happy Feminist describes is more like felony-murder: If you’re involved in an armed robbery, and the clerk get’s shot, even if you’re not the shooter, you can be charged with murder. It exists to give robbers a strong disincentive to let anyone in their group bring or use a firearm. Likewise, saying that sexual contact during a kidnapping is per se coercive gives kidnappers an incentive not to engage in sexual contact with kidnap victims. Apparently, Mr. Ames finds it unfair that kidnappers be so strongly dissuaded from having sex with kidnap victims. Either he believes that movies where kidnap victims fall in love with their assailants reflect reality; or he’s really in favor of coercive sex.
Jesus. Rape isn’t a toaster with bad wiring, fer Pete’s sake.
Yes, it is rape. If she felt her life was in danger if she didn’t have sex with him, it’s rape. No matter how she felt she “led him on”, no matter if she felt that if she didn’t fight back, it wasn’t rape. No matter how many trolls might say otherwise. Ahem.
I hope this isn’t straying from topic too much, but I wanted to respond to Bill’s post about Canadian’s classfication of rape as “sexual assault”, and how there is no longer a “rape” charge in Canada. I think it’s relevant because we’re discussing the classficiation of rape as a charge and how community standards affect our understanding of – and reaction to – the crime. And our use of language is an intrinsic part of our understanding.
I am sick and tired of crimes against women being soft-pedaled in criminal court. You see it in the terms “domestic violence” as well as “sexual assault”. Guess what? Battery is battery, no matter who’s getting a broken nose. Rape is rape. When we start coming up with special, different terms for crimes against (primarily) women, the way we start thinking about those crimes changes. And perpetrators start getting what’s called “creative sentencing”. What’s that? Oh, it means they come up with some special deal for the perpetrator, like, “Okay, Mister Wife Beater. Be good for the next six months, and we’ll just forget all about this pesky little assault charge, and dismiss it.”
The result? No accountability for crimes against women.
Is it any wonder the recidivism rate is so freaking high?
What THF said. It’s no victim’s fault that pressing charges is so horrible, or that the definition of rape in this country is so weak that a freaking attorney can argue with a straight face that pulling a gun on someone doesn’t amount to coercion. In a more general sense, it’s the job of society as a whole to make sure that women know what counts as a violation and that women who have been raped feel safe in confronting their attackers.
With their break-ins and their guns and their kidnapping schemes and…Oh. Wait.
Also, Oh my God, what is wrong with people? Of course it’s fucking rape. She was fucking assaulted and then fucking kidnapped at fucking gunpoint and fucking held against her will overnight. A “survival strategy” is a free choice? She was trying to “gain his trust” because she didn’t want to get shot.
freaking attorney can argue with a straight face
I wouldn’t assume that he’s arguing with straight face. Or from a good grounding in criminal law.
Txfeminist, you have it backwards. Changing the name to ‘sexual assault’ (or ‘criminal sexual conduct’) is not mean to soften attitudes towards rape. It’s meant to get people away from the notion that if it’s not penis-vagina intercourse forced on a virginal (or good married) woman by a stranger, it somehow isn’t really rape. “Sexual assault” is both accurate and leads away from those cultural stereotypes.
Statutory rape is a ‘strict liability’ crime in the sense that it doesn’t matter if you were 100% reasonable in thinking the other person was an adult; motive is irrelevant; you had sex with a minor, blam. Where Richard is (intentionally?) gliding by is that it is not analogous to statutory rape. Sex itself can be consensual. Kidnapping, by definition, is not,, and the law presumes that if you commit the crime of kidnapping and then have sex with the victim, it can’t be consensual sex.
Duh.
But piny, don’t you know that she should have chosen death if she was really, really serious about not being raped?
Well, yeah, and it’s not like being shot is always fatal.
*headdesk*
I don’t know the state of jurisdiction of your example, but in Massachusetts the charge would be a seperate one of “Aggravated Rape,” and as a seperate charge carries a possible life sentence. Aggravated Rape is “simple” rape with the “aggravated” circumstances of being committed while the perpetrator is engaged in certain other crimes, such as kidnapping, armed robbery, rape of a child under the age of 12 or if the rape is conducted in corcert with one or other parties.
Txfeminist makes the point in comment #40 that the use of the term “sexual assault” instead of “rape” in the Canadian legal system has the effect of soft-pedaling the nature of the crime.
My jurisdiciton (which I haven’t wanted to reveal because I’m an anonymous blogger) also uses the term “sexual assault” instead of “rape.” I think the shift away from the term “rape” was actually pushed by feminists and rape activists, probably around 20 or 25 years ago. The term “rape” was too bound up in people’s minds with the scenario of a stranger jumping out of the bushes and all the other stereotypes. Prosecutors were having trouble getting convictions because jurors had trouble identifying a date rape, for example, as “rape.” So pro-prosecution groups wanted to change the terminology in order to get away from preconceived notions about rape.
Of course, the downside of that is exactly what you said — the softpedaling of the crime.
It’s not really about community standards. The bible does not allow for someone to use that as an excuse for UnGodly behavior. One can only be forgivin by Jesus if they accept him as their savior and the standard of a community does not matter. Many communities have different standards. For instance in my community men are seen as the authority and are seen not as they are but as they wish to be viewed. I know that there are even some men who when wearing certain uniforms are givin more power due to the symbolic manly potency of their look. Military camo and leather motor cycle uniforms always dominate the lesser folks in the community.
No one answered my question from my comment # 11 on this post.
Sports-manly yours,
Philbert
I suppose you missed the part where he broke into her apartment, grabbed her and held her at gunpoint.
Lauren and Jill, you really need a better class of troll.
Philbert-
I assumed it was snark, giggled, and went on with the post.
If it was not snark, then I ignore it because you are a troll.
Okay, so let’s go with her “first reason.” Richard the Attorney apparently sees a distinction between these two scenarios – whether she had sex with him in order to gain his trust or because she thought he’d blow her brains out. Um, Richard (wherever you are), just why do you think she would want to gain her kidnapper’s trust? Could it be because she thought he’d blow her brains out (or beat her up or keep her there longer or whatever…any of those reasons will suffice)? What the hell is the difference? Either way it’s coerced sex.
Antigone,
Is that Greece?
Well you were wrong it was not Snark. Snark does not even have a computer and I believe his power was turned off as well. Unless he used the computer down at his rehab center. Plus Snark would never visit a feminist site even to promote our women and hunting program…
http://philbertsuggs.blogspot.com/2006/01/click-herenra-sets-2006-as-year-of.html
Plus…How do you know my cousin Snark? he barely gets out anymore? You gals get around…or did you research me from those FBI files?
I was a Troll for the NRA’s masqerade ball..back in 93..
You gals get around…
God Bless,
Philbert
Philbert, it’s been done. After JC, the spot for spoof-right-winger is full. Do something original.
Second’s Thomas.
Well from the way you described it in the story it sounded more like she actively encouraged the sex because it helped her survive in a dangerous situation. I have trouble considering that rape personally although it certainly may be legally.
It depends a great deal, as I see it, on what precisely happened. Did he try to force himself on her and she decided to play along because she was endangered? Did she actually promote sexual activity between them to put her in a better situation?
It may sound like blaming the victim but I am not meaning to. In a scenario where a person has been attacked and kidnapped by someone who seems mentally unstable I think they are fully justified using whatever is available to protect themselves. But at the same time if sex is one of the things used then the kidnapper shouldn’t be seen as a rapist.
The devil is in the details and I don’t think we have anywhere near enough to judge in this case.
To turn around an example used above:
You’ve been kidnapped and you think you are in danger. You pull out your wallet and offer all the money in it to the kidnapper because you think it may make them less likely to kill you. Have you been robbed? Of course not. If the kidnapper had taken your wallet then yes you have. There is a stark difference there.
He assaulted and kidnapped her because she wouldn’t go out with him. He spent the abduction alternately threatening her and talking about how much he loved her. As it happens–and as the story makes clear–he initiated sex with her. Even if he hadn’t, his behavior gave her damned good reason to believe that having sex with him might mollify him and keep him from killing her.
His choice to abduct her compromised her consent for the duration of the abduction–just as it would have compromised her consent if she’d given him her wallet believing that money would make him go away. If you have sex with someone without their consent, it’s rape.
Of course you’ve been robbed. Your kidnapper has abducted you in order to control you; anything you do from that point on is done under duress. You are not acting of your own free will.
Say someone pulls a gun on you as you’re walking down a lonely street. Without being asked, you pull out your wallet and hand it over. Would any reasonable person argue that you would have given up your wallet without being threatened? Would any reasonable person dispute that the guy with the gun probably wants your money?
Seriously. And learn from the General that the fun of a spoof is to be accepted by and pass as one of the people you’re spoofing.
“As it happens–and as the story makes clear–he initiated sex with her.”
I’m not convinced it was clear. Like I said I think we’d need a lot more detail to be sure what happened.
“Even if he hadn’t, his behavior gave her damned good reason to believe that having sex with him might mollify him and keep him from killing her.”
Agreed, as I said I don’t in anyway begrudge a person in that position using anything they can to survive the encounter.
“Of course you’ve been robbed. Your kidnapper has abducted you in order to control you; anything you do from that point on is done under duress. You are not acting of your own free will.”
I disagree. If the kidnapper didn’t try to take your money and you offered it you were not robbed. You chose to give them the cash. Clearly we see this scenario differently.
“Say someone pulls a gun on you as you’re walking down a lonely street. Without being asked, you pull out your wallet and hand it over. Would any reasonable person argue that you would have given up your wallet without being threatened? Would any reasonable person dispute that the guy with the gun probably wants your money?”
Lets take that scenario. Let’s say the guy pulled a gun on me not to rob me but because he was mad at me about a personal issue. Say I ran over his dog. He sees me, pulls a gun. I give him my wallet hoping to mollify him. Was I robbed? Of course not. I was threatened and was probably about to be assaulted and I chose to give him money to try and prevent that. He didn’t pull the gun to get the money though. He didn’t threaten me with violence to get the cash. He is not a robber. He may very well be a criminal but for him to be prosecuted for robbery seems rather unjust.
Without more details I can’t see that the case is so open and shut as you maintain. By all means prosecute him for kidnapping and assault, but without a lot more knowledge of what happened between them I would refrain from calling “rape.”
I find the topic interesting because I wrote a piece on rape not long ago on my own blog in response to some threads by a chauvenist (Vox Day) and a feminist (Amanda from Pandagon) who both I think distort the issue. You can read it here if you like:
http://tlaloc.gnn.tv/blogs/10915/Rape
Rape From The Perspective Of Its Victims
Feministe directs me to a very interesting (and very disturbing) post regarding rape victims who don’t seem to regard what happened to them as rape. Here is one of three examples given (the women writing here was a prosecutor in the jurisdiction this…
No, I’m pretty sure if someone pulled a gun on you for any reason, and you handed over your wallet, and he took the wallet, you’ve just been robbed. Anything you do in that situation is under duress, and the guy with the gun is responsible for putting you under that duress, so he/she’s responsible for anything you do while he/she continues to put you under duress, including: “consenting” to sex, handing over your wallet, jumping off a cliff, stripping and running down the street naked shouting “Ollie ollie all free!”, etc. etc.
Not clear that he initiated sex?
Try this:
I don’t know how much more clear you want it.
I also don’t see how you can possibly think that anything anyone does at the barrel of a gun could in any way be considered voluntary and freely chosen. If you would not be handing over your wallet but for the gun pointed in your face, you’ve been robbed. ESPECIALLY since the person pointing the gun in your face KEPT THE WALLET.
Similarly, if you have sex with someone who is pointing a gun at you and has already prevented you from leaving, roughed you up AND threatened to kill you, you have been raped EVEN IF you decided that maybe having sex would mollify the person threatening you because you would not be having sex with that person otherwise AND the person pointing the gun at you accepts the sex.
Unless it is an IRS agent.^^
I think you are mistaken because you’ve removed all intent from the situation.
Here let me explain:
I walk down the street.
You step out in front of me, look at me and start to draw a gun.
I pull out my wallet and throw it at you.
According to your definition you are guilty of robbery regardless of why you drew the gun. You could be about to shoot the blood covered machete wielding guy right behind me but by your definition you are still guilty of robbing me.
This is why intent matter. Make sense now?
Uh a LOT more clear. The sentence even assuming it is correct since it is third hand doesn even say he initiated. It says they had sex. It is written in the form of the male acting upon the female which might imply he initiated but is also a very common formulation in english. Guys screw. Girls get screwed. To be clear- I’m not saying I agree with it but you have to take it into account when reading this kind of thing.
Before I call a guy a rapist I want more than an ambiguous third party description.
see the above post of mine. Intention is critical. If the guy keeps the wallet because he thinks I’m thanking him for shooting the maniac behind me he did not rob me.
Again if the kidnapper didn’t try to force the issue (and I have no way of knowing in this case if he did) then I can’t construe it as rape.
Time for another example:
Lets say I’m out on a date and I notice the date has a gun in her car. During the evening I get the feeling that I might be in danger if I don’t have sex with her so I do. Have I been raped? No. My date didn’t force me, didn’t say she’d shoot me if I didn’t sleep with her. I just felt like that was the case and I acted in my best interest. I can’t stress this enough: intentions matter.
The kidnapper may have intended to force sex on her, given what was said it is certainly possible. But he may not. If not and she slept with him anyway (again for very good reasons) then I can’t see how you can call that rape.
Yes, intentions matter.
Once someone has kidnapped you at gunpoint, you KNOW THEIR INTENTION. And it isn’t to buy you a lottery ticket and a puppy.
“John Marshall has made his decision, now let him enforce it.”
Brown v. Board came down in 1954, but public schools in the South weren’t consistently integrated until the early 1970s, so the Court’s opinion was evidently insufficient of itself to alter those community standards. Enforcement of the Court’s opinion was an effect of change in the standards of the community, brought about by a lengthy period of public suasion by peers of the community.
“Lets say I’m out on a date and I notice the date has a gun in her car. During the evening I get the feeling that I might be in danger if I don’t have sex with her so I do.”
I’m not sure how you would get that impression without overt threats…but hey, maybe you are just that parnoid about gun owners. It’s a bad example anyways. There were no threats of violence, no intial criminal behavior. Now, if you’re on a date and she beats you, pulls that gun on you, threatens you, and then talks about how she really really really likes you…well, okay.
As for the whole idea of intent – I hate to break it to you, but it doesn’t really matter that much. What his intentions for that night are do not really matter. What matters instead is her reasonable belief about his intentions. The story makes it pretty damn clear that she believed his intentions were romantic (and more that slightly insane).
As an example of this: say a theif breaks into my house and has a handgun. He has no intention of actually hurting me, but I think he does. We struggle and the gun goes off and kills me. Is he still guilty of murder, or just manslaughter? Do the intentions of the theif before he entered my house really matter? If I instead kill him, can I claim self defense even though he had no intention of actually hurting me physically?
This girl obviously was just trying to avoid worse treatment. I feel horrible that she had to go through this shit. Throw the damn book at him (or a couple for that matter).
You also have to take into account that he had a gun which he had threatened her with after breaking into her apartment, abducting her and roughing her up.
Did she break into your apartment and abduct you at gunpoint? Did she threaten to kill you and rough you up and tell you that she loved you and wanted to take you to Mexico? Did the gun, in fact, ever leave the car?
No? Then you’re not in the same situation at all.
Tlaloc, it’s the same reason that it’s rape when the assailant slips the woman a rufee and she “consents.” Even if she initiates under that situation, it’s rape if the assaliant takes part; his actions at the outset put her under duress and eliminate her meaningful consent.
Similarly, pointing a gun at someone and making it clear that you’re putting their life in danger unless they do what you want means your putting them under duress, and responsible for the things they do subsequently, including things you didn’t specifically ask them to do but accepted anyway.
In such a situation, if you toss them your wallet and they keep it, it’s robbery. If they have sex with you, even if you didn’t ask, it’s rape. It’s quite simple. And, indeed, in the case of your date, if you came to the reasonable conclusion that her gun and her attitude clearly indicated that you would be shot if you didn’t have sex, you were raped.
In this case, once he put her under the threat of death, it doesn’t matter if she changed into some lingerie, lit some candles, and poured them both a glass of wine – if he took part in a sex act, it was rape. Just as if it had been GHB.
I’d like to say something about the jaw-dropping charge that the terms “domestic violence” and/or “sexual assault” is about soft-pedalling crime against women.
Made ME blink a few times to read that. Domestic violence is considered such a serious matter that most counties in CA have some form of DV units which have a dedicated team which handles ONLY DV cases (some counties have moved to Family violence units, which incorporate DV, child and elder abuse units, which can have a dedicated and cross trained team).
And lets be very clear that DV, like sexual assault, is not exclusively male-perp, female-vic. DV cannot, and is not, treated like simple assault or battery, because a relationship exists or used to exist. Such a relationship presents certain problems in prosecution and followup. The DV/Family Violence unit works closely with the Victim/Witness advocates. At time of sentencing of the perp, the DV/FV unit immediately files protective orders. Probation is usually longer than for simple assault (3 or 5 years vs 2 or 3)
And perps will be assigned to the DV/FV unit if there has been any kind of dating/living together/marriage relationship between the parties — straight or gay.
What everyone else said. The variable in this scenario–and in the one where the possible mugger starts to draw a gun in your general vicinity–is the extent to which a reasonable person would feel threatened by the gun. If your date had threatened to kill you with the gun, then you would have been justified in feeling frightened. And if you felt, perfectly reasonably, that not making this person happy might get you killed, then you are not freely consenting to anything that happens between you.
The rapist understood this. He assaulted her in order to frighten her, kidnapped her in order to better control her, and threatened her with the gun so that she’d do what he wanted. He knew that if he didn’t threaten her life she’d reject him. He threatened her with the gun precisely because he didn’t like the choices she made when she was free to make them.
Alternate example: thief breaks into your house with an unloaded gun (because he has no intention of killing anyone). You struggle for the gun slip and break your neck. Is he a murderer? No. It was an accident. He is a thief, but not a murderer.
Which is an excellent case for prosecuting him for kidnapping, assault and so on. But none of that makes a rape case. Again if it turns out with further detail that
Same, no, but both would be rape by the definition of several here. I just find that untenable personally. Sometimes it helps to take a precept to an extreme to show its faults. This isn’t a very extreme example but I think shows how the idea breaks down.
I think that depends. If the guy had in fact leveraged his position of power to force sex on her then yes it was rape. But if he wasn’t trying to and she initiated then no it’s not the same. The ruffied woman has no choice in the matter. Her facilities have been impaired without her consent. Now this situation may well have been the same but we just don’t have enough detail to know.
Couldn’t disagree more. You are saying that a person may be guilty of rape for nothing more than having sex with someon who got the wrong impression (the date example I gave and you say constitutes rape). My feeling of what her intentions are doesn’t mean thats what her intentions really were.
Pliny said
Couldn’t have put it better!
Actually, Tlaloc, in most states if someone is killed (even accidentally) while you are committing a crime, then you are up on homicide charges.
My understanding of rape has developed in the context of the definition that applies in France (where I’ve lived for 10 years now). Over here, this scenario certainly sounds like rape. (The law defines it as “any sexual penetration [...] committed under [one of the following circumstances:] violence, coercion, threat or surprise. My translation.)
No, I belive it would still be felony murder, because the death occured during the commission of the crime.
Happy Feminist told me there was a brouhaha going on over her with name attached to it, so I thought I’d visit. A lot of real charmers in here, I see.
Folks, read the scenario again along with my response to Happy Feminist. For my comment I relied almost exclusively on the given fact in the scenario that, “She wanted to gain his trust”. I even went so far as to specifically identify this fact as the one I relied upon, in effect rejecting later facts. I wrote, “only later do you [Happy Feminist] backtrack and say she thought he’d blow her brains out if she didn’t. I usually find first reasons more truthful.” So the thrust of my comment leaned upon the hostage’s goal of “gaining trust”.
With me? Good.
Now, nowhere in the stated facts does it say that the hostage was beaten, threatened, or held at gunpoint by her captor for not wanting to have sex with him. To the contrary, they had sex without incident because she “wanted to gain his trust”. That is, she wanted the sex, not for the sex itself, but as an opportunity to gain his trust. (In fact, as she wanted to gain his trust it is every bit possible that it was she who initiated the sex, not him, as a means of gaining that trust.) So we are left with this general question: If a hostage is enthusiastic about having sex with her captor not because she wants the sex, but because she sees it as an opportunity to gain his trust, has she been raped? What if it were proven beyond doubt that she actually initiated the sex as a trust “tool”. Is this also rape?
Calling me names or trying to intimidate me by posting my address doesn’t really answer either question. (James, if you need any other info on me give me ring, or if you’re close enough, I’ll buy you lunch.)
Hope everyone has a great day!
Alternate example: thief breaks into your house with an unloaded gun (because he has no intention of killing anyone). You struggle for the gun slip and break your neck. Is he a murderer? No. It was an accident. He is a thief, but not a murderer.
He’s a murderer if a death occurs because of his commission of a felony (as others have just pointed out.) Since there would have been no struggle had the thief not broken in, he’s responsible for the death and therefore up on felony murder.
Look, Tlaloc, it’s the way the law works. It’s how responsibility works. Coercion is when you put people in a situation where they do things they wouldn’t have ever done short of your actions; it makes you responsible for those actions. It doesn’t matter if the woman initiated sex or not, because the man initiated a kidnapping, during the entire time of which, the woman was placed in a situation of coercion. She would not have chosen to have sex with him outside of the situation of coercion, so the sex was coercive and therefore rape. If he didn’t want to be a rapist, he shouldn’t have had sex with her. Where do you place his responsibility, Tlaloc? Or is a man with an erection supposed to be presumed to be incapable of responsibility for his own actions? Not guilty by reason of arousal? That’s never worked as an affirmative defense.
Her facilities have been impaired without her consent. Now this situation may well have been the same but we just don’t have enough detail to know.
What details do you need to know? What makes you think there’s any possibility that she consented to be kidnapped and held against her will?
The situation of kidnapping impairs her consent. It’s a very simple legal idea.
I’m beginning to get the sense Tlaloc wants more detail because he’s got a box of Kleenex and some hand lotion he’s just dying to put to use.
Tlaloc, are you sure that’s not felony-murder? I don’t have my NY Penal Law handy, but I think that’ felony-murder.
As a matter of public policy, if a guy is in the process of kidnapping a woman, are you saying it’s a bad idea that any sex between them be per-se rape? Do we need some societal protection for consensual encounters between kidnappers and their victims?
Tlaloc
Let’s turn the example around, let’s say this perp, breaks in, beats her up, waves around a gun, and she says to him…”hey! There’s $500 cash in my purse. Take it and leave.”
Ya think if he does he WON’T be charged with armed robbery just because she bribed him to leave??
I understand clearly the reasons terms like “sexual assault” and “domestic violence” were implemented. Yes, we need to have inclusive terms which allow for a variety of circumstances and limit stereotyped thinking. I totally agree. We need to have DV task forces, etc etc. I’m definitely not saying that. But what I am saying, is that oftentimes, crimes against women are soft-pedaled, because they are seen as something different than other crimes. That’s a double standard, and that’s a problem.
Yes, the dynamics surrounding the crime are often different, particularly when you are dealing with individuals who have a prior or current relationship, but the crime itself? Not different. IMHO.
Perhaps general terms such as “sexual assault” could encompass a variety of crimes, but when CHARGING someone for a specific crime, please, call it like it is. For example:
“charged with Rape under statute 17 of Sexual Assault crimes”
“charged with Felony Battery under statute 12 of Domestic Violence crimes”.
Or whatever.
It’s a toughie. Obviously the problem of double standard goes further than nomenclature. But I don’t think the nomenclature is helping, either. I find it bizarre that Canada wants to do away with the word “rape” entirely. Why? Does it just sound too nasty? It IS nasty, and I’m sorry if the visual it brings to mind is just too ukky for them. Lets not use that word, and maybe the ukky thing will go away by itself.
In all honesty, particularly in DV cases (and yes- I too use the term) it’s really not a bad idea to have a separate court to deal just with DV, because the dynamics of the crime are very different than battery that occurs in a bar fight (or what have you) and particular understanding of those dynamics can be helpful in the courtroom.
But, again, all too often what happens when DV and rape are treated as “different” is, that, they are unfortunately, soft-pedaled, and treated as “lesser” crimes.
That’s all I”m trying to say.
Darleen says:
“And lets be very clear that DV, like sexual assault, is not exclusively male-perp, female-vic.”
Darleen, I’m not even going to go there. (I always wonder what someone’s motivation is when this is their primary response to the problem I’m addressing….)
But, for the record:
“…These findings, combined with those presented in the previous bullet, provide further evidence that intimate partner violence is perpetrated primarily by men, whether against male or female intimates. Thus, strategies for preventing intimate partner violence should focus on risks posed by men.”
From the National Institute of Justice and Centers for Disease Control, 2000. http://www.ncjrs.gov/txtfiles1/nij/181867.txt
And:
“The DV/Family Violence unit works closely with the Victim/Witness advocates. At time of sentencing of the perp, the DV/FV unit immediately files protective orders. Probation is usually longer than for simple assault (3 or 5 years vs 2 or 3)”
Are you saying that ALL cases in ALL jurisdictions result this way? That this is the process everywhere? That would be great, but it’s simply not the case. Perhaps you live in a really progressive jurisdiction, but I have seen perps get a Not Guilty where victim had photo and medical and witness evidence that she’d had her eye blacked by her ex on her own front porch. Judge simply sided with the perp. In a “DV” criminal court. So, it doesn’t always go down the way you’re describing, at least not in the red states.
But I am totally and completely off topic now, so I’m going to be quiet.
Zuzu, I would like to personally thank you for that disgusting visual. Pardon me while I strangle you through my computer.
In a totally consensual and legal way, of course.
Oh, I don’t think it’s bizarre. I think the reasoning — and any Canucks can correct me if I’m wrong — is that the term “rape” has so much baggage attached to it, such as the idea that if you don’t fight to the death, you haven’t been raped, or that rape is only committed by strangers in the bushes, that jurors have a hard time looking past all that baggage to the actual facts. Whereas, if presented with a more neutral term, they’re not bringing all their presuppositions into the analysis.
Heeeee.
In any event, since he hasn’t been back since I made that comment, I’m going to consider it troll repellant. And repellent, surely.
Now watch, I’ll have cross-posted with him by the time I get this posted.
Sorry I was unclear. I don’t mean to say that in such a case you couldn’t get a murder conviction. I believe you when you say that they could. We all know that the law is at best a crude approximation of justice after all. What I meant is that the person is not what we would conventionally consider a murderer. That personally we would not conisder such a conviction to be just. That it would in other words be a failure on the part of the law.
zuzu says: “if presented with a more neutral term,”
Yeah, but is “more neutral” a good goal to have when trying to prosecute a horrible crime?
Would it not be better to educate the public that a) rape is bad, no matter who rapes who in a wide variety of non consensual scenarios, and that b) other sexual crimes are also bad, instead of whitewashing the whole thing in order to be “neutral”?
Will a jury feel as seriously about “sexual assault” as they do about “rape” (stereotypes aside)? Can we bring the strength of the horror behind the term “rape” to the term “sexual assault”? I just don’t know.
I worry about this. I think it’s the wrong thing to do , but for the right reasons.
Eliminating stereotypes=good idea.
“Neutral” language when talking about really horrible crimes=maybe not such a good idea, for all the reasons I have addressed in previous posts.
Thoughts?
Quite possibly. As above I’m not saying that you can’t get a conviction. I’m sure a good lawyer with a sympathetic jury can. A good lawyer with a sympathetic jury can get a conviction on just about anything really. The point is whether the law matches up with what we consider to be true, or more precisely, just.
Coercion isn’t a universal state. She wasn’t being coerced to breathe. She was being coerced to stay with him in a place. That is kidnapping, and it is illegal. She may have been coerced into sex but we simply don’t know. If she was than yes that is rape, if she wasn’t then no it isn’t. You are treating it as if everything that happens in this scenario is his fault regardless of whether he actually caused it.
If he kidnapped her and then they were hit by a drunk driver was it his fault? No, it’s the drunk driver’s.
Well there is a certain truth there and of course we could eliminate rape simply by preventing anyone from ever having sex again. But consensual sex isn’t a crime so we don’t.
His responsibility is for his actions. According to the story he did beat and kidnap her. He should be tried for those crimes. He may have coerced her for sex in which case he should be tried for rape as well. All I’m trying to point out is that from the information we have we cannot definitively say she was raped. Again though the law on the matter may be course enough not to make the distinction and so a rape charge may very well be possible even in the case that he didn’t coerce her for sex.
Of course she didn’t consent to be kidnapped (or it wouldn’t be kidnapping). The question is about their sexual relations. From the way it is described there is at least a reasonable chance that she accepted and encouraged it as a survival strategy. That is not rape as I see it. If on the other hand he did force it on her and she simply didn’t resist because of fear than yes that is rape. We simply don’t know what happened. Before assuming someone is guilty of something as serious as rape I’d like to know the facts. YMMV.
Yes I think that is a bad idea to automatically classify it as rape. Rape should be construed as cases of genuine non-consensual sex. It is certainly possible to envision cases of consensual sex between a kidneapper and the kidnappee. Indeed from a Helsinki syndrom perspective it might even be likely in the case of long term kidnapping.
I don’t think that is a fair question. The question should be: do we need to punish legal sexual relationships that occur during an unrelated crime?
I don’t think he should be charged with armed robbery since he had no intention to rob. He should of course be charged with B&E and assault.
Gee thanks. I’ve been perfectly polite in this discussion. You make a vulgar comment about me and then call me a troll. Nice.
Look I know this is a very delicate issue for people. It hits on all of our biggest emotional levers. And I know there are people who are trolls and try to rile people up for the fun of it. If I was one of them I’d be doing a really bad job. So, please, lets keep this civil before it degenerates into a total flame fest, kay?
Tlaloc,
I think you have muddled ideas about intent. If he accepted the money and took it, then at the point at which he accepted it, he had intent. It doesn’t matter what he thought about when he sat down at home and planned the whole thing. Intent can happen in the very second preceding a crime.
Likewise, a kidnapper who ‘accepts’ sex with his victim also has intent to have sex with someone whom he knows is in a position of less power towards him.
Tx
I always wonder what someone’s motivation
How about my motivation being the attention to FACTS? Or are gay/lesbian vics of DV not on your radar (let alone straight couples where the vic is male)?
Are you saying that ALL cases in ALL jurisdictions result this way?
Did you miss where I said this was in California? And I’m in a “red” county with a Republican District Attorney (though, some might call him a “race traitor” considering he’s an “ethnic” minority..ahem) Our elected DA is very committed to being aggressive on Family violence and getting justice for victims.
I have seen perps get a Not Guilty where victim had photo and medical and witness evidence that she’d had her eye blacked by her ex on her own front porch. Judge simply sided with the perp. In a “DV” criminal court.
At what point is a felony charge dispo’d by a JUDGE and not a jury? Huh? Otherwise, you’re problem is with the jury who felt for some reason to find “not guilty”. Juries can be unpredictable and not just in DV cases.
Tlaloc
I don’t think he should be charged with armed robbery since he had no intention to rob.
:::sigh:::
But that doesn’t detract from that fact the $500 was NOT his and NOT given freely.
Here’s a real case: person checks his bank balance and finds an additional $5,000 has been credited to his account. He runs down to the bank and withdraws the cash and spends it.
And is convicted of grand theft.
it wasn’t his money and he was not entitled to it
If someone is being victimized and tries to divert or ameloriate the victimization by offering something of value, then the perp can/should be charged if they take that value, since it was not offered freely.
If you mean in the legal sense of the term (as your later statements I think indicate) then you are probably right. I’m not a lawyer nor do I play on on the internet. I’m actually a physicist. Which is why my arguments have not revolved around the specific rules of the legal system but rather our general views (although I’ve not made that distinction clear enough previously I admit).
Having sex with someone with less power isn’t rape, though. Forcing sex on someone (presumably with less power) is rape. If a professor has sex with a student he may certainly have violated the schoolsethical rules but he has not committed rape (assuming it is consensual). I don’t know if you have ever been married but I can assure you there are always power imbalances in the relationship and yet sex (when not coerced on the grounds of those imbalances) is not rape.
Tlaloc, it would be easier if you understood the legal concepts you are arguing. You made it clear above that you had no idea that felony-murder (a very old legal concept) existed. (To be fair, Richard doesn’t get or pretends not to get this either)
It is certainly possible to envision cases of consensual sex between a kidneapper and the kidnappee.
That would require us to assume that although the kidnapper is holding the victim against his or her will, when it comes to the sex part, all of a sudden everything’s consensual.
Again, this is a pretty basic legal concept here, and I’m not sure why you’re having so much trouble with it. I’m also not sure why you think this is ‘unjust’.
what I am saying, is that oftentimes, crimes against women are soft-pedaled, because they are seen as something different than other crimes
Sure. But you were saying that using ‘sexual assault’ is an attempt to soft-pedal. It’s exactly the opposite.
I disagree, if he didn’t use his gun to extort the money then the money was freely given. By definition. If there is no threat saying in effect “give me x or I’ll do Y” and the person hands over x anyway then that is giving freely. They didn’t have to, they were under no coercion to but chose to do so because of something they thought they would get in exchange.
The misunderstanding here is that I am not arguing legal terms. I’m sorry I didn’t make that clear from the beginning since it’s caused substantial misunderstanding of my position.
Indeed it does. Are you denying that a person could kidnap for financial reasons with absolutely no intention to take sexual advantage of their victim? Of course that can happen. And if it did it’s quite possible that in a protracted state of kidnapping a Helsinki Syndrome mindset can take place with the victim feeling genuine sympathy and affection for their kidnapper. Under such circumstances sexual action between them would be consensual. The kidnapper does have the threat of violence but is not using it to coerce sex.
Does that example help explain?
That’s all very well and good, but you’re not going to have much success convicting rapists if the image that jurors have of a “rapist” is a black guy in the bushes and the case involves a nice white college boy who knew the victim.
And maybe if the nice white college boy who knew the victim gets convicted because the jurors don’t have some image of some avatistic rapist in their heads because the charge is for sexual assault — substantively the same as the rape charge, but with a different label — maybe the public will start becoming aware that what the nice white college boy who knew the victim did is a crime and will be punished.
I don’t see a downside, really.
Tlaloc, you have very obstinately demanded more and more details of the sex and refused to listen to a rather large collection of lawyers telling you why it’s rape when done at gunpoint.
If it walks like a duck and quacks like a duck, it’s probably a duck.
Tlaloc
The law is specific that during the commission of a crime that all behavior during that commission is tainted.
If you come into my business and start busting up the furniture with a baseball bat and I give you money to leave, it doesn’t matter that you never said “gimme the money.” Your criminal behavior would not have stopped without my offering up something of value in exchange. That translates as coercion.
Tlaloc, you seem to be arguing from your very own set of perceptions and values. They are not consistent with the law, and they’re not consistent with my values, and I would guess, for the values of the majority of our country (to a greater or lesser extent depending on the specific issue).
So, fine, you’re entitled to your own values, to not consider someone who kills someone in the course of *trying* to injure them a murderer, to not consider someone who has sex with someone in the course of *trying* to coerce her a rapist, and to not consider someone who acquires money from someone in the course of *trying* to scare them a burglar. But please don’t pretend you’re arguing from general ‘values.’
Then what, exactly, are you arguing? The cited post and the original question Jill posed had to do with legal terms. Legal terms are entirely relevant, given that the cited post had to do with criminal charges brought against the defendant and the victim being shocked.
I suppose you’re making the point that the public at large is clueless about things like this.
And it’s Stockholm Syndrome, not Helsinki.
The misunderstanding here is that I am not arguing legal terms
Then, honestly, I’m not sure what it is you are trying to do.
You seem to be trying to construct a scenario where we agree that a victim cannot even leave the room without her kidnapper’s consent, but we should consider the remote possibility that if there was sexual intercourse, there was absolutely no coercion involved.
You are also spending an awful lot of time considering the motives of the kidnapper. Why do you believe this is relevant?
I haven’t demanded anything, zuzu. What I’ve said is that I think it is wrong to claim this is definitvely rape based on the very small scraps of information available. I’ve further tried to demonstrate why I think it is reasonable to believe that consensual sexual activites can occur in a kidnapping situation. Whether this case falls into that category I have consistently said i can’t tell.
Look I’m happy to discuss this rationally, but if you only want it to become a insult fest I think I’ll quit and do something more productive.
True, and I believe (possibly incorrectly) that these values are shared amongst the majority of people who were raised in the same country I was.
Well obviously I disagree with you. So now the question is can we learn anything from each other’s values. I believe that rape is strictly a matter of non-consensual sex. You seem to agree except that you take a much much broader view of what threatens consent than I do. My feeling is that your views lead to criminalizing activities that if we know all the details we would be hard pressed to call rape.
I doubt either of us can really present any hard figures as to which of our views is more mainstream, so we may as well let that argument lie.
I’m arguing about the larger consensus view from which the law is supposed to spring. Just as we might argue whether 75 is really speeding. Yes legally it is, but is the law right?
Certainly, I didn’t mean to imply otherwise. The lagality is one issue, it is simply not an issue I am addressing, in part because I don’t have the background and in part because I think it is the lesser issue.
Certainly not intentionally. I suspect this was simply another dig at me personally but I’ll give you the benefit of the doubt.
Doh. You are correct, my apologies. Apparently it’s a common mistake though:
http://en.wikipedia.org/wiki/Helsinki_syndrome
In that case yes. I take it you find such a situation impossible? That it absolutely cannot possibly happen in the real world? See I find it as merely unlikely but still well within the realm of the possible.
Because he is the one accused of a crime. Frankly this question has me stumped, why wouldn’t you consider the motivation of the kidnapper? Rape is a crime but sex is not. Motivation and action both play a role in distinguishing the two. People may engage in BDSM with actions that seem like rape but no motivation to actually rape and it is perfectly legal. You cannot judge solely on what happened but on why it happened.
Perhaps, zuzu.
I do agree, completely and totally, that people’s perceptions need to change. I just don’t think switching out the wording is going to do it.
You said:
Of course any conviction is better than no conviction, but in the end game, crimes ought to have an appropriate sentence. My concern is that, while we may be gaining some more convictions by removing the term “rape” and substituting “sexual assault”, my suspicion is that the weight of those charges will be significantly less than the weight of a conviction called Felony Rape.
And if one is unfortunate enough to get a jury whose heads are buried so far up their behinds that this is STILL the image they conjure up when they hear the word Rape, then the facts you have outlined will do very little to persuade them to level ANY sort of charges against the “nice college boy”. (see Happy Feminist’s post on a related issue).
My whole point is again that crimes against women don’t get the sentences they should. I think we agree that this is a bad outcome.
You may get a conviction on your scenario. I just don’t think that it’s going to be an equivalent sentence to the one if he’d been charged and convicted of felony rape, all other aspects of the situation being the same. Jurors may take “points off” for him for ALL of the issues you’ve outlined, under either charge. It’s a disgrace, but true. As a result, he’s likely to get a lesser sentence.
And that’s the problem.
Anyway, that’s all I have to say about it for now. Meantime, this discussion has made me curious enough to want to go look and see if there is any way to stat this. I would be fascinated to see a breakdown. Right now, I’m simply relying on anecdotal data. :-)
I don’t know how it works in Canada, but in the US, jurors find guilt and the judge imposes the sentence. So if the jurors find that the facts fit all the elements of the charge, whether you call that charge sexual assault in the first degree or felony rape, the judge is going to impose a sentence based on the guidelines for that particular charge.
Tx
crimes against women don’t get the sentences they should
Study link?
CA PC261.6 re: consent
Emphasis mine.
It might be hopeless, Darleen.
Yes, Tlaloc, I do believe that we are saying that someone having truly consensual sex with his/her kidnapper is so highly improbable that it is effectively impossible. Clearly you have a much stronger imagination than the rest of us.
Was her post meant for me? I’ve stated repeatedly no that I am not debating the legal aspects of the situation. Hence simply quoting legal statutes is rather, well, counterproductive.
Okay, I understand your contention then. I do not however agree with it. To deny that two people may be sexually attracted under bizarre circumstances is to fly in the face of the history of human sexuality. What precisely is it that makes the scenario I gave literally impossible? (I know I’ve given a number of scenarios- in this case I mean a kidnapping for profit, the onset of Stockholm syndrome and a resulting mutually consented sexual relationship)
And we have repeatedly asked you just what you *are* debating. Because everyone else is talking about — and explaining to you quite clearly — the legal aspects — kind of critical when you’re talking about a crime.
That’s it. I’m calling in St. Jude on this one.
I thought I said it clearly above. I’ll quote here again: “I’m arguing about the larger consensus view from which the law is supposed to spring. Just as we might argue whether 75 is really speeding. Yes legally it is, but is the law right?”
If that explanation wasn’t clear I can certainly try an elucidate but please don’t pretend I haven’t at least attempted to answer your (reasonable) question.
Let me put it this way: there are two questions you can ask here off the top of my head
1) was it legally rape.
2)
it be legally rape
Several of the posters here have given their answers as to the first question and I have no reason to doubt them. But the second question is a lot more important because it speaks to the issue rather than the specific instance. I really don’t know how else to put this to help you understand what I am driving at…
No idea what that means.
Tlaloc
Legal statute usually parallels and/or is mindful of societal values. My emphasized selections go towards the idea that consent is not possible within a coercive situation.
To deny that two people may be sexually attracted under bizarre circumstances is to fly in the face of the history of human sexuality.
I thought we were discussing human sexuality in general, not the realm of p0rn (beit the visual realm dominated by male consumers or the realm of bodice-ripper novels dominated by female consumers).
Tlaloc, forget all these outlandish, B-movie plots that you keep dreaming up: the case that prompted this thread involved a woman being beaten, forced to drive at gunpoint to her attacker’s home, detained over for a considerable period of time and threatened with death. If you truly can’t see why she can’t offer meaningful consent in such a situation, then Zuzu’s right; there’s no hope for you.
Thank you for the clarification. I agree that as a general rule the law mirrors societal values however we both know it does so very imperfectly. And it is only by asking the questions I am that we test how good a job it is doing at reflecting our values.
We are discussing human sexuality. Are you denying that people have some bizarre sexual impulses?
Umm, is everyone here aware that by LAW, both abortion and (acts of) homosexuality are illegal throughout most of the world? Law and justice aren’t necessarily the same things. Surely a lot of you must think undue abortion restrictions passed as LAW by a Republican Congress aren’t consistent with notions of liberty and justice?
I have to commend Tlaloc for bringing up very good points among a more-than-slightly hostile audience.
Regarding IMPLIED threat automatically equated with commission of CRIME…
Let’s talk about Pompey (the guy from Ancient Rome?) Now, Pompey was engaged in a civil war with Julius Caesar; a war that he was clearly losing at some point. And so he fled to Egypt and Caesar pursued him there. The ruling Egyptians knew Caesar was coming (with his army and all) and was perfectly aware of the THREAT he posed. So it was finally decided that they were to arrange for the assassination of Pompey cause they wanted to win Caesar’s favor (similar to the woman trying to win the trust of her kidnapper) and knew they would be finished (the gun to the head situation) if Caesar sided with Cleopatra (the Egyptians were embroiled in a civil war at that point).
And so, long story short, when Caesar arrived, he was offered Pompey’s head in a basket. But Caesar wasn’t pleased with this at all since he didn’t intend for Pompey’s death (Pompey was once his ally and also son-in-law, after all). So feeling really pissed off, Caesar deposed the ruling Egyptians, executed the Egyptian regent, and installed Cleopatra as queen.
Was Caesar responsible for Pompey’s murder? No. At the very LEAST, even if you believed he was, this really isn’t a clear-cut case at all. No responsible or eminent historian will tell you that Caesar MURDERED Pompey.
And so, this really much goes to show that yes, intentions DO matter a hell lot.
I really don’t find this scenario outlandish. Can you point out the place where it is impossible? I agree unlikely, but I can’t see how such a scenario can’t happen.
I’m sorry you feel the need to write off my views.
“Bizarre circumstances” include things like floods, locust attacks, foreign travel, and alien invasions. Kidnapping is not a cirumstance, not some situation in which the hapless dude has found himself. It’s a crime perpetrated upon one person by the other person for the express purpose of rendering the first person incapable of making free decisions.
Stockholm Syndrome, incidentally, is a psychological defense mechanism. People exhibit Stockholm Syndrome in situations where their free will is forcibly taken away by threatening, violent captors. They identify with their captors so that they don’t have to think about how much danger they’re in now that their lives are in the hands of armed criminals. They identify with their captors because they don’t want to think about how little control they have. Like battered wife syndrome, it’s an indicator that they’re not freely consenting, not an example of victims who do consent.
Txfeminist, should rape be a crime separate from battery, as opposed to being a type of battery? That would be fairly easy to implement — simply move the rape statute wholesale to the “battery” section of the penal code. Why shouldn’t we do this, if indeed we shouldn’t?
I’m serious about that one; I’m not just trying to start shit. What distinguishes rape from hitting (other than degree)?
Oh, yeah, and posting Richard’s address? Not kosher, even if it is publicly available (if he posted it on his blog, that’s a different issue). Frankly, for Jill and Lauren to let that comment go through unredacted slightly tarnishes Feministe, again, unless it’s Richard himself who made it public initially.
You are putting words in my mouth. I never claimed the man wasn’t responible for the kidnapping by using the term “circumstances.” The word merely means the state of things. The situation. And the overall point is that people are not infrequently sexually attracted despite bizarre situations.
Yes I know.
Ah, so a person who has been kidnapped not only loses any ability to consent in the moment but for some extended period afterward? Stockholm Syndrome afterall can last for years. Precisely when is that this woman will be considered a human being again after her ordeal? Do you see how dehumanizing this way of looking at her is? You’ve rendered her a victim unable to have her own mind about things.
I know you mean well but I think your view point has some nasty unintended consequences for the very people you hope to defend.
No idea what that means.
St. Jude is the patron saint of lost causes.
I don’t know why you can’t see that for centuries, society has agreed that anyone who commits a felony is responsible for all crimes that occur during the commission of that felony. Because by committing the felony, the criminal is setting in motion events that would not have happened but for his actions. So someone robbing a bank is responsible for property damage or deaths resulting from the crime, even if the damage or death was not intentional.
And here’s how it’s impossible: rape is sex without consent. Kidnapping someone, or threatening her, or holding her at gunpoint, removes her ability to consent because she is no longer acting freely. She wouldn’t be held to a contract she signed while at gunpoint, even if she offered to do it to get the gunman to go away; why should she be held to consent to sex with a gun pointed at her head?
What exactly are you saying here? That you think the kidnapping only lasts for the moment she’s snatched, and then she gets her will back?
She was kidnapped and held captive by this man. The rape occurred while he held her captive — IOW, while he was preventing her from escaping him. What part of that don’t you get?
Tlaloc: St. Jude is the patron saint of lost causes.
Here’s the problem: legally, this is rape. The statute in HF’s jurisdiction is completely clear on this point. Rape may have other meanings and usages, but it’s a legal term of art. Which means he’s guilty.
You can be unhappy about this construction of rape, but that doesn’t change the fact that a kidnapping is necessarily a coercive set of circumstances. The relationship between the kidnapper and the victim is completely controlled by his criminal conduct. Her trying to survive doesn’t excuse his conduct in anyway.
Tlaloc
There is a phrase … sacrificing the good to the perfect that you seem to be working from..or at least one of its corollaries… that because in an exceedingly rare moment (and one you haven’t offered any substansive proof of) that there might be sexual attraction … then a kidnapper should not even be charged with rape unless there is proof of his clear intent to rape.
It works the other way — unless the kidnapper can offer clear evidence and proof that the sexual contact was freely and voluntarily given after any coercion had ceased (ie he had released her from his control), then rape should not only be charged, but a conviction should be sustained.
Gotcha, I’m not up on the saints except Christopher and from what I undestand he isn’t considered a saint anymore.
I haven’t disputed that. What I’ve disputed is whether that is how it should be.
Okay fair enough. Let’s return to the example of the thief with the unloaded gun. The owner of the house slips and breaks his neck because he was wrestling with the thief. You say then that the thief should be charged with murder. What about the wife? She waxed the floor only that morning and if she hadn’t her husband wouldn’t have slipped either. Shouldn’t she also be charged with murder? In fact without the company that manufactured the wax and the gun and the house the guy would still be alive. Our murder list is getting awfully long. Without the thief’s parents the thief wouldn’t exist so they are on the hook to.
Do you see how patently absurd it gets to hold a person responsible for a crime they had no intention of committing? The thief did not intend for the guy to break his neck. The wife didn’t intend it either. Both played a role in making it happen. So did thousands of others. But you’ll blame just the thief.
Agreed so far.
You say that even though in this hypothetical the kidnapper is in no way compelling her to actually have sex? In other words she loses her ability to consent simply by proximity to a threat even though that threat is not aimed at her in that instance?
Coud I say for instance that a contract I signed was invalid because the person I signed it with was wearing a sidearm even though they never brandished it at me? This is I think the fault in your reasoning: you are claiming that the kidnapping completely stripped the victim of all facilities. Just as I would be claiming that the mere proximity of a firearm forced me to act against my will.
If that is the case why not just charge all kidnappers with rape? You’ve made the actual intent to rape a triviality. Why bother with the actual sex act then? For that matter we can charge all thieves with murder. We can charge all jay walkers with drunken driving.
There is a reason we have different crimes: because they are different things. Kidnapping is not automatically rape. Consensual sex with a kidnap victim is not rape either. It may be a longshot situation but it is not impossible because kidnapping involves loss of freedom of movement not loss of sexual determination.
Here’s an interesting question: why don’t we turn it around. What if she was charged with rape in this scenario? Seems ridiculous right? I mean the guy was clearly in a position of physical power over her. But at the same time from what little we know it sounds like the guy was severely mentally disturbed. We then have the potential that she was in a position of mental power over him. By your scenario any sex that occurs when the other person can’t consent is rape. If this guy is mentally ill can he consent? Would he bound to contracts he signed during a psychotic episode? No.
SO we get left with the absurd notion that they raped each other.
(Note- I am not saying that this is what really happened. Most likely what really happened is that the guy forced sex on her, but we don’t know for sure. However I think this kind of absurd conclusion is a consequence of saying that intent doesn’t matter, you get a potential situation in which mutual consenting adults rape each other)
Yes, but kidnapping–like slavery, or prison, or any other enormous power disparity–is a situation in which the victim cannot freely refuse the captor. The victim cannot consider her own–or his own–desires as more important than the captor’s. The victim therefore cannot freely consent. So, legally and morally, if you have sex with someone in that situation, or take their money, or extract promises, you are taking advantage of their lack of freedom. And if you are entirely responsible for their lack of freedom, you have forced them.
It’s true that people find themselves sexually attracted in strange situations. It’s not true that the choices a woman makes at gunpoint can be evaluated without the context of the fucking gun.
You’re the one saying the woman who was beaten and abducted at gunpoint because she dared to turn down a guy who wanted to sleep with her didn’t necessarily have sex against her will. I’m sure that won’y have any nasty consequences for rape victims at all.
Of course that’s not what I’m saying. Although it is absolutely true that having your freedom taken away can cause lasting trauma for the victim, there’s a difference between an actual and an imprinted threat. Someone suffering from PTSD isn’t exactly freely acting, if they make their decisions in the context of a consciousness radically altered by violence, but they’re in a different situation from someone staring down the barrel of an actual gun.
The point I was making is this: a woman who decides to mollify her captor is making a rational, sane choice that she believes will help her survive her encounter with a violent kidnapper. In a larger context of profound powerlessness, she is making a forced choice to protect herself. He’s responsible for that terrible choice, since he’s the one with the gun.
A woman who comes to identify with her captor is not acting rationally. Her mindset, however, is entirely valid. It’s deeply frightening to think of oneself as powerless, entirely at the mercy of people who might kill you. People with Stockholm syndrome react to that powerlessness by insisting that they have power and freedom: they are not captives, but allied with their criminals. They are on equal footing with their abductors. Stockholm syndrom only manifests in situations where the victims are in fact entirely without freedom. Therefore, it’s not a situation where people are capable of consent.
Tlaloc
We prosecute a lot of DV cases without the victim’s cooperation. We know that for whatever reason, the victim will try and recant their testimony in order for the perp not to be punished. We realize that people don’t consent to having their eyes blackened, bones broken, no matter what the vic and perp maintain.
Why should we treat rape differently?
Should it be that way? Afterall “innocent until proven guilty” is one of our legal cornerstones. We can prove him guilty of kidnapping, why should that automatically prove him guilty of rape?
I understand that rape is a very difficult charge to make and have stick and I absolutely think that is a problem we should try to find a solution for. But at the same time accusing someone of rape who did not force sex on their partner is also a very serious thing. We may not have much sympathy for the guy since he battered this woman but that doesn’t mean we get to lynch him for things he didn’t do or that we can’t prove he did.
As for sacrificing the good for the perfect… well in my experience “good enough” is always “bad.” You get it right or you don’t do it at all. As they say “constant vigilance is the cost…”
Coud I say for instance that a contract I signed was invalid because the person I signed it with was wearing a sidearm even though they never brandished it at me?
Hmmmm. You don’t know much about the MO of Mobsters and Gangbangers offering “protection” to small businesses, do you?
Let’s return to the example of the thief with the unloaded gun. The owner of the house slips and breaks his neck because he was wrestling with the thief. You say then that the thief should be charged with murder. What about the wife? She waxed the floor only that morning and if she hadn’t her husband wouldn’t have slipped either. Shouldn’t she also be charged with murder? In fact without the company that manufactured the wax and the gun and the house the guy would still be alive. Our murder list is getting awfully long. Without the thief’s parents the thief wouldn’t exist so they are on the hook to.
Well, let’s see. Waxing the floor; producing floor wax; having a child; breaking & entering and burglary. Which of those is not like the others? That’s right: B&E and burglary. Why, you ask? Because it’s a crime, and a felony at that. Waxing the floor: not a crime. Producing floor wax: not a crime. Having children: not a crime. B&E and burglary: felony. The burglary directly created the circumstances under which our hypothetical friend died. Ergo, the burglar is responsible for his death. Ergo, at the least it’s voluntary manslaughter; at the most (and most likely), it’s felony murder. If the widow thinks the floor wax company made their wax too slick, and had known that they were making their wax too slick to the detriment of their customers’ health, and therefore also was responsible for the death of her husband, she can sue its ass.
Txfeminist:
Don’t think of it as “more neutral,” then, think of it as “less misleading.” The point is that when the victim says something other than “this big black guy jumped out of the bushes …” the jury is still likely to see the accused as a criminal, and not, e.g., an ordinary man who just got a little aggressive, or a nice boy who’s being victimized by a manipulative wench.
That’s a bit disingenuous; anyone can avoid committing rape by not having sex, of course, but I think it’s especially true of kidnappers vis-a-vis their victims. I don’t think there’s anything wrong with discouraging people who kidnap from having sex with the people they grab. You’re framing it as a kidnapper “accepting” the sex, so it’s clear to me that you’re aware he can reject the sex if he chooses to. If the victim (called “her” for ease of pronouns) forces herself on the kidnapper … well, he can testify about that when he takes the stand in his own defense. Even there, I think he’s responsible, since the kidnapping is what brought them together in the first place.
It seems to me that you’re madly compartmentalizing, saying that somehow the coercion inherent in the scenario applies to everything except the sex; that even though coercion is a basic component of the situation, the sex part can somehow be considered out of that all-pervading context.
randomliberal/Robert:
I guess it would be possible if I just happened to kidnap someone who’d been lusting after me, and finally has a chance to go for it. But really, I think she’d try approaching me and saying something rather than sitting around waiting to be abducted.
That depends on whether the captor exercises their power over the victim. A slave may freely choose not to eat dinner if their master isn’t going to force the issue. Is the master then guilty of starving them? No. They had no role in the matter. Of course the slave may declare they ar on a hunger strike and are specifically eating because they are enslaved which is a different matter. You cannot simply say though that because a person is in such a position that they cannot make any decision freely. They can make freely any decision the person with power over them doesn’t interfere with.
what consequences does it have? I’m am emphatically not saying that she couldn’t have been raped. Certainly she might have been, and likely was. If that is the case by all means charge him with it. What I am saying (and the victim apparently as well) is that the sex may have been uncoerced.
I agree, but the whole point is whether she was looking down the barrel of a gun when the sex was initiated. Was she? We have no way of knowing. By your own admission there is a difference between the immediate threat and the “imprinted.” So which was it when she made her choice?
The point is whether the law matches up with what we consider to be true, or more precisely, just.
It does. It’s justice, in this situation, for the man to be convicted of rape, because he raped the woman.
What’s going on here is just, which is what we’re trying to explain to you.
You are treating it as if everything that happens in this scenario is his fault regardless of whether he actually caused it.
But it is his fault, because he did cause it. Putting the woman under duress, threatening her life, made him responsible for what she did, whether or not she asked him to do it. It’s justice that he be convicted of rape, because he raped her.
All I’m trying to point out is that from the information we have we cannot definitively say she was raped.
Absolutely we can say she was raped, because she was raped. That’s why people are telling you, in no uncertain terms, that she was raped. There’s more than enough information to conclude that she was raped from what we know. We know that sex occured; we know that she feared for her life; we know that she had sex with him – even if it was her idea – because she feared she would die if she did not.
That’s rape. There’s nothing else we need to know.
From the way it is described there is at least a reasonable chance that she accepted and encouraged it as a survival strategy. That is not rape as I see it.
How is that not “rape as you see it?” If somebody puts a gun to your head and says “give me sex, or die”, and you have sex with them because you don’t want to die, didn’t you just have sex as a “survival strategy”?
Of course having sex as a survival strategy is rape. If you have sex for any reason besides wanting to have sex, particularly because you believe it’s going to be crucial to you living to see another sunrise, then you’ve been raped.
It doesn’t matter if she slipped into something sexy and lit some candles. The degree to which it was her idea, or that she actively participated, or anything of that nature, is irrelevant in regards to determining consent. If he was armed and threatening, and she had sex because she thought he wouldn’t kill her that way, it’s rape.
Case closed, my friend. There’s no way to argue with it. It’s pretty clear that you don’t understand what “consent” is.
My boss once told me never to let a scientist or engineer onto a jury because they tend to want everything to be in a very neat x = y type formula. I realize this isn’t a very fair assumption to make about a diverse category of people, but I see a little bit of this kind of thinking in Tlaloc’s analysis of the kidnapping situation.
Tlaloc mentioned the fact that sex may occur as a result of other power imbalances that crop up in life. But this was an unlawful and extreme power imbalance created by the perp.
Tlaloc mentioned the Stockholm Syndrome, a psychological survival state suffered (according to Wikipedia) by 92% of all hostage victims (both male and female) in which they bond with their captors in order to survive. I think the existence of the Stockholm Syndrome merely demonstrates how there can be no true consent in this situation. If someone has total control over you (i.e. they can kill you if you displease them), then you are almost certainly going to do whatever you have to do to please them in order to survive: it’s human nature. You’ve evolved that way. For a kidnapper to take advantage of that state, which he created by taking unlawful control over your person by threat of death, is nothing short of evil. There is no doubt that we are talking about forced sex. And forced sex = rape.
I’m sorry Darleen, I know you are addressing me but I don’t see the connection to the discussion. I think we may have very different thought patterns because I keep having trouble understanding where you are coming from, but at least in the first instance once you explained it I could see the connection.
I understand about uncooperative witnesses which is part of the reason I haven’t made a big deal about the woman in this case saying that she didn’t think it was rape. I don’t know how that relates to the topic at hand though.
By the way I wanted to say I think this is a very interesting discussion. I know some of you have expressed frustration but I do honestly believe what I am saying and I am arguing honestly because I think there are worthwhile issues to look at here. I hope some of you are finiding it as rewarding as I am.
All of them are actions that are unrelated to the actual accident, or more precisely not causative.
Tell you what let’s change it. When the producers of floor wax made their product they put illegal chemicals in it. The housewife stole the floor wax from a neighbor. The child was born to an underage girl. Now all of them are crimes. Now do you want to prosecute all of them for murder?
“The burglary directly created the circumstances under which our hypothetical friend died. Ergo, the burglar is responsible for his death.”
All of those people created the circumstances. Ergo all of them are murderers. Again see how absurd it is to charge a person with a crime they had no intention of committing? If you are cleaning a gun and it goes off and accidentally kills a neighbor are you a murderer? No. Negligent possibly and you may get tried and even convicted for a crime but ask yourself if you would deep down be a murderer? Of course not, you had no intention of killing another human being. It happened.
Rape is of course slightly more complicated since unlike murder the underlying act (sex) is legal and it is only the circumstances that makes it a crime.
So consensual sex with a dirt-poor prostitute (who wouldn’t live to see the next sunrise without the money to buy food, etc) would/should automatically be considered rape?
I think you’re way stretching the definition of “rape” here.
Tlaloc
but I don’t see the connection to the discussion
Sorry, I believe it is because it speaks to the issue of “consent” and that exists independantly of the intentions of the parties involved due specifically to context.
A 12 y/o is physically capable of sex, but incapable of consent, so sex between a 12 y/o and the 12 y/o’s sixth grade teacher is a criminal act regardless of any one’s intentions.
A kidnap victim, in the context of the ongoing kidnapping, is incapable of giving consent to sex. Period.
Do you see how patently absurd it gets to hold a person responsible for a crime they had no intention of committing?
You’re still not making any sense. Let’s say that I load a pistol and fire it into my neighbors house. Since I can’t see the occupants, I can’t possibly have the intent to murder any one of them specifically, or indeed, anyone at all – yet, my bullets kill my neighbor and his child.
Should I walk on two counts of murder because it wasn’t my specific intent to murder my neighbor or his child? Or rather, because the death happened during the commission of an act I knew was wrong, aren’t I as responsible for killing my neighbor as if I had specifically aimed and targeted him?
Specific intent has never been the requirement to be convicted of a crime. You can indeed be convicted of crimes you didn’t set out to commit, if a reasonable person could be proved to have a reasonable belief that his actions would put others at risk.
It doesn’t matter if the man thought the sex was consensual while he was raping her. Because he was an armed, dangerous man, there’s no reasonable belief that the woman would be meaningfully consenting to sex.
So consensual sex with a dirt-poor prostitute (who wouldn’t live to see the next sunrise without the money to buy food, etc) would/should automatically be considered rape?
Yes, it would. I don’t see how consent could be meaningful. Holding the money she neds to live out in front of her and demanding sex seems about as callous and coercive as holding a gun to her head and demanding sex. Doesn’t it to you?
I think you’re way stretching the definition of “rape” here.
Why? Are you so hard-up for sex that the only way you get it is to threaten to withold money from near-starving prostitutes? What on Earth would make you think that such a situation would not be rape?
No I have no problem with discouraging kidnappers from sleeping with their victims but criminalizing is a different matter.
Yes I strongly suspect that in this instance the kidnapper was essentially in control and could have chosen not to sleep with her. Of course I don’t know how extreme his mental issues were.
No I’m sayng the coercion applies PNLY to those elements that the person with power chooses to be coercive about. If he made no attempt to stop her from or force her to use the bathroom then we can’t say that her going potty was coerced. He had the power but he didn’t use it.
Look you and I live under the thumb of our local police departments every day. They have the power to easily cart us off, rape us, beat us, imprison us, starve us, kill us. But in so much as they don’t exercise that power we cannot accuse them of abuse. Having the power and using it are two entirely different things. I have the physical strength to beat my wife but I do not. When we have sex it is not coercive even though in many regards I am more powerful than her. It doesn’t matter. What matters is if I actually tried to leverage any of that power to force her into sex.
Read the rest of my frakking post, then comment on it.
As for the new scenario:
Cleaning a gun: not a crime. Cleaning a loaded gun while the safety is off, causing the gun to fire and kill someone: criminally negligent homicide, a crime punishable by some jail time or a fine or both.
Tlaloc, because I must be a masochist, I will respond to this: there is such a thing in law called proximate cause. Meaning, at some point the chain of causation is broken.
Now, the floor wax may have been defective, and the wife may have known quite well the floor was slippery and intended to kill her husband by making him fall, but the presence of the kidnapper who fought with the husband breaks the chain of causation vis a vis the wife and the manufacturer. Because the kidnapper is the immediate cause of the death and the most responsible.
But why am I bothering? You’re going to just come back with some variation on “But don’t you see the absurd result?” and question centuries of jurisprudence.
The difference is in the part about “give me sex, or die.” If the guy did anything of the sort then yes it was rape. Absolutely. But nothing in the article says that happened.
Couldn’t disagree more. It appears each of us feels the other doesn’t understand consent. How do you possibly define consent if you’ve already ruled out “the degree to which it was her idea, or that she actively participated, or anything of that nature?” That is the entirety of consent.
Alrighty.
But a 12yo is a minor and hence not entitled to the full rights of an adult. That is a different situation. Surely you aren’t going to equate a kidnap victim with being a minor?
You had the intention of doing something very dangerous. You intended to send high velocity lead through another person’s domicile. That intent is certainly criminal. But if you were (as I said before) just cleaning the gun when it went off you are not a murderer. You may be negligent and maybe you should be charged with a crime but it should not be murder.
Note the magic words: homicide, not murder.
And done. I would love to continue this bullshit, but I have to eat at some point, or my leg will fall off. If the argument continues when I get back…yikes.
But before I leave: Please, for the love of Geppetto, use your head and common sense. It will help you in the long run.
Zuzu,
Yes, of course… but they have to be charged with it, first. Sorry. I was unclear. ( and in spite of the charge, the judge can still sentence the perp how ever s/he wants (give or take a bit) which is another potential problem.)
Not all criminal trials have a jury, though. Bench trials do occur quite frequently, at least in the courts here.
Darleen:
Obviously no one’s refuting that crimes of this nature can and do happen to anyone, race, sex, orientation, age. Please note the link on my other post regarding intimate partner violence. If you haven’t already. Yes, I did note that you are in California. And I also pointed out that my evidence for my statements is anecdotal at this point. So I really don’t have anything else to contribute as my last post noted.
Hershele,
No. don’t think that would work.
Cleaning a gun: not a crime. Cleaning a loaded gun while the safety is off, causing the gun to fire and kill someone: criminally negligent homicide, a crime punishable by some jail time or a fine or both.
Note the magic words: homicide, not murder.
I’ll say what I should have said the first time: The situations are not analogous. Now I eat.
Tlaloc
This is exhausting, but like zuzu I’ll keep on trying (and thanks, zuzu, I was trying to frame a reply using proximate cause and you put it very succinctly!)
Ok..not a 12 y/o but a 24 y/o with a 12 y/o mentality? What about a physically incapacitated 80 y/o?
Can the alleged sexual abuser claim “consent” in either of those cases as defense?
And I’m referring to actual cases from my office.
If you don’t enjoy the conversation by all means stop. I’m honestly not here to piss people off. I’m not going to start yelling “ha ha zuzu ran away!” I’d like to have a pleasant discussion of our differences so we might all learn something but if the process is bothering you please go do something else that will be more rewarding.
Sure. But that line is entirely arbitrary. And I get the feeling it gets drawn to include the thief no matter what. Lets say the thief breaks in upstairs, the guy rushes downstairs to get to the phone to call the police and slips on the floor that his wife is waxing at the time. There is no way to say the burglar is more proximate than the wife yet I suspect you still will say the thief is guilty of murder and the wife isn’t.
You say that like questioning something is a bad thing. I’ve always found that questioning is how we improve or at least retard the process of decay. Again though if you get nothing out of this exchange then don’t feel compelled to continue. I value your inputs even though I disagree with them but the conversation isn’t worth ruining your day.
I’m not at all condoning such an act. By all means, it is tragic and reprehensible. I just wouldn’t see any justification to legally prosecute such an act as “rape”. It just seems that your expansive definition of rape is ominous as to potentially allow the prosecution of all acts done under disparaties of power. And like Tlaloc has earlier pointed out, disparaties of power are inherent in every relationship and every situation. At least it is possible to rationally infer a disparity of power in every situation.
JUST BECAUSE there is a marked disparity of power doesn’t mean all acts committed under it is automatically a result of coercion and lack of consent. Parents hold enormous financial (and even physical) power over their children. It doesn’t mean acts of love by their children are necessarily insincere due to implicit coercion of some sort.
And please, the situation very well could’ve been far less dramatic than you put it. The prostitute could have, by her very own free will (in the traditional sense), approached your would-be “rapist”. And he could have been very well unaware of her urgent prostitute-to-live situation (as the kidnapper in this example COULD have thought that the sex was consensual).
As with zuzu, I certainly am interested in your input but don’t feel like you have to stay if you aren’t enjoying the discussion. If you really feel that I’m a brick wall that is just ignoring all counterarguments then I’m sure you can find better ways to spend your time. I can tell you that I’m not but I’m not sure what good that will do.
But before I leave: Please, for the love of Geppetto, use your head and common sense. It will help you in the long run.
I imagine the 24yo with the reduced mental facilities would be declared incompetent by a court. Whether they should or not is an interesting question but we have enough on our plate as it were. The physically incapacitated 80 year old? Why couldn’t such a person consent to sex? Are they mentally incapacitated as well? I’m not saying they are likely to but they have the right, don’t they?
As an aside: what about mentally retarded adults? Are they capable of consenting sexual relations or is any sex automatically rape? If it is we get back to a case of two mentally retarded adults consensually raping each other.
Yes, and Tlaloc was engaging in what’s called a “slippery slope fallacy.” The law distinguishes between different kinds of power disparities both by degree and by class of victim–employer/employee vs. abductor/victim, for an example of the former. In the case of john/prostitute, it doesn’t count because the law doesn’t care about sex workers. That doesn’t mean that this power disparity is remotely ambiguous, or that the coercive cause and effect is remotely ambiguous, or that considering it coercive will lead to ambiguity under the law.
Accidentally killing somebody is something I’ve certainly heard of and certainly there should be penalties for it. Manslaughter, etc.
But accidentally raping somebody? Doesn’t anyone find that term a just little over the top? This is why when it comes to rape, INTENT is so much more paramount.
Depends on the person. Developmental disabilities are not as simple as incapacity/capacity, or as simple as x mental/y physical age. It’s ambiguous. Abduction at gunpoint definitely is not. In the situation you describe, accepting its oversimplification for the sake of argument, you have two people who arguably cannot consent unwittingly injuring each other. They aren’t culpable for the same reason they aren’t capable of consent. They could be considered victims of circumstance. In the situation we’re talking about, an abductor who knows exactly what he’s doing has removed the abductee’s right to consent on purpose, so that he can control her. He’s responsible for the context in which she cannot freely choose, and therefore responsible for whatever he takes from her.
Tlaloc
When two mentally challenged adults are in a mutually consensual relationship the law recognizes that indeed the relationship is consensual since there is no exploitative relationship… they are peers.
Yes, an 80 y/o is capable of consent, but the absense of positive consent to sex is not de facto consent. The rapist who says “well, she didn’t tell me NOT to” is not a defense of rape when the victim is incapacitated and unable TO consent.
I was thinking something similar.
For the legal types is there a “manslaughter” version of rape?
agreed.
What happens afterward certainly may be.
Why do you claim he knows exactly what he is doing when the guy sounds to quite probably been mentally ill?
No, as has been stated over and over, intent is not the deciding factor, consent is. And because certain things can affect capacity to consent — mental capacity, coercion, imprisonment, age, drunkenness — the law recognizes that in certain circumstances, consent can not be freely given, so it is deemed to be absent.
THUS, for the hundredth time, someone who is being held hostage is deemed incapable of consent and THEREFORE, if any act occurs which requires consent (whether having sex, giving money, signing contracts, making agreements) consent is considered NOT TO HAVE BEEN GIVEN.
Okay, I need to stop feeding the trolls now.
What if they aren’t peers though? Say one has the mentality of a 12yo and the other of a 10yo? Or just more generally that one has more diminished mental capacity than the other?
Agreed, but since in the original case the woman was not physically incapacitated I’m not seeing the connection. If the woman in question had said that her kidnapper forced sex on her then I’m inclined to believe her and (after a fair trial) I hope he goes to jail on the charge. But that isn’t this case. We have no evidence at all of rape except an automatic assumption of rape in case of sexual activities between a kidnapper and their victim. So far as the article mentions there is not one shred of proof that the sex was in any way coerced outside of the fact that it took place during a general time when the guy was being physically abusive.
So lets ask the question another way. You have a married couple. One of the spouses is physically abusive toward the other in distinctly non-sexual ways. The couple sleeps together, is the abusive spouse guilty of rape? They are certainly guilty of assault but I don’t see how you can construe rape.
As I see it that situation is exactly analagous to a kidnapping. We might ask how a spouse can want to have sex with their abusive partner but it happens. I’ve seen it happen to people I’ve known. In such a case my sense of what is just says that the spouse should be charged with assault. They should not be charged with rape. Even if it might make me feel good to see the person get a rape charge it is simply not the case that they coerced sex from their partner.
(Sigh. Any law-talkin’ guys–or gals–feel free to smack me down since I’m sure I’m getting this wrong.)
Manslaughter is what happens when you cause a death that you didn’t mean to cause. Murder, generally speaking, requires specific intent to harm the victim. However, and these are big howevers, there are exceptions. If you do something that any reasonable person would think likely to kill someone, you’re guilty of murder. You cannot drive a minivan into a crowd and say you didn’t mean to kill anyone. If you accidentally kill someone during the commission of a crime, it’s felony murder. You intended to commit the crime, and are therefore responsible for the deaths that occur during its commission.
This is a similar situation. None of this was accidental; it’s not comparable to manslaughter at all. His intent is pretty obvious, dontcha think? She refused to date him. In other words, she expressly withdrew consent to any romantic interaction. He didn’t like the choice she made, so he decided to force her. He broke into her home and assaulted her, showing her that he could violate her space and injure her if he wanted. Then he threatened her with a gun, showing her that he could kill her if he wanted, and that making him mad might result in her death. Then he abducted her at gunpoint, removing her from any possible help and making it even more difficult for her to resist him. Why? He knew that if she were free to choose, she would choose to get the hell away from him.
That is the context in which her “choice” must be evaluated.
He is no different from the man who drives a minivan into a crowded marketplace. It would be ludicrous to believe that steering a car into a crush of people would not result in injury and death. It would be insane not to take that possibility into account when deciding whether or not to drive a minivan into a crowded marketplace. It is likewise ludicrous to believe that assaulting, abducting, and threatening a woman with a gun will not compromise her consent and thereby render any interaction between you nonconsensual. No reasonable person see those factors as irrelevant. Even the rapist didn’t. So even if he didn’t actually intend to cause her to have sex with him against her express wishes–which is clearly not the case–his actions made rape inevitable.
Stating something does not make it true. You believe that consent is all important. I believe that consent is certainly important but that intent is also.
You are retreating again to simply declaring the way the law works when the issue at hand is if the law should work that way.
That is uncalled for. Have I been in anyway rude toward you or any of the posters here? No. You’ve taken a number of cheap shots at me and I haven’t responded in kind. Just because we disagree does not make me a troll.
The intent to kidnap and abuse her seems clear. The intent to rape does not. Yes she had spurned him romantically. People respnded differently to that kind of thing. He may have intended to rape her. He may have simply intended to hurt her. We can’t really say given the scant details we have.
Except we don’t know if he was actually behind the wheel or a passenger.
Oy.
Why do I bother? You’ve never seen a comma before, so how could you possibly understand an analogy?
The sexual act isn’t the minivan. The home invasion, assault, and abduction at gunpoint are. Those things are as unlikely to leave room for consent as a minivan is likely to leave people unharmed.
Tlaloc
when the issue at hand is if the law should work that way.
Not to belabor the point, but that is your issue, not the one at hand. However, I believe the law (which can be an ass) is quite just in holding criminals responsible for acts that occure within that instance of criminality. It doesn’t preclude the criminal defense attorney from attempting to argue “consent” but it rightly keeps such proof on the defendant.
If John and George plan an armed bank robbery and in the midst of it the police arrive and George is killed by police fire, it is JOHN that will be charged with the murder of George, even if John’s intent was never to have Georged killed. George’s death is a direct result of John and George’s initial criminal instance.
Context matters.
That is all.
Here’s a short test:
Would the victim have done what they did if the other person had not represented a perceived threat?
Would she have had sex with him if he hadn’t threatened her?
Would that man on the street have given his wallet to a stranger if he didn’t feel threatened?
Would that homeowner have killed a total stranger if that person had not entered her home?
If the answer to any of those questions is “No,” then the act committed by the victim was not an act of choice. It was an act taken in circumstances in which they did something they would not have done voluntarily.
So if it wasn’t their choice to act in such ways, well, then, who is responsible?
That seems to be the heart of Tlaloc’s position.
Tlaloc seems to be arguing that no one is responsible, or that the victim is responsible.
The problem with that position is this: those circumstances would not have existed without the deliberate action of the aggressor.
That is the intent of such action: to make the victim do things in accordance with the aggressor’s will, rather than her own.
Thus you can be certain that he knows they are coerced, done under a circumstance of threat — because she would not have done those things otherwise.
By accepting her overtures, he reaps the benefit of her coerced action, even if that had not been the initial reason for his coercion.
In other words:
She acted in ways she would not without the threat he created.
He was not under threat when making his choice to respond to her actions.
He took advantage of her being a victim, a situation that he himself was instrumental in creating.
He knew at the time that she was under his control, that she was threatened by him, and that any choices she made could not be ones of her own free will.
Consent means you agree to something freely, willingly, because you want to. In these circumstances, it is unreasonable to assume that consent was possible.
Knowing that consent was unlikely, and that it was likely that she was acting under coercion, he chose to have sex with her.
The burden of proof is on _him_ in this situation to demonstrate that the sex was consensual, because all other factors make it more reasonable to assume that it was not than that it was.
Moreover, he did not merely benefit from the circumstances in which true consent was unlikely; he played an active, deliberate role in creating those circumstances.
So: he sets up a situation in which she can’t give free, willing consent to his actions.
So: he _chooses_ to take advantage of her inability to consent.
So: he chooses to have sex with a woman who did not, could not consent to sex.
THAT is the definition of rape.
It does not even matter if she genuinely, at that very moment, wants to have sex with him, unlikely as that is.
There is no way for him to know that; the only way for him to be positive that the sex is consensual is if her offer still stands when the circumstances of threat and coercion are removed.
Since he _chose_ to act as if those circumstances were not affecting her ability to consent, he chose to accept the consequences of engaging in nonconsensual sex. That is, he did not confirm that the sex was consensual; indeed he acted in ways that would discourage, rather than encourage, consent. That is, it did not matter to him whether she consented, or was able to consent freely.
That is: he _chose_ to have sex that might be nonconsensual, under circumstances that made it _likely_ that it was nonconsensual, circumstances that he himself created.
Again. THAT is rape.
(A parallel case is statutory rape: it does not matter if the underage partner was the instigator, it does not matter if the older partner believed that the younger was of age, it does not matter if both of them entered into the arrangement freely and willingly. The law says that such relationships are illegal and that they constitute rape; it is therefore incumbent on both partners to make it clear that sexual activity between them is legal, _especially_ if circumstances (like the youthful appearance of one partner) would suggest otherwise).
If there is doubt about the legality of an activity, and the person involved goes ahead in the face of that doubt, it’s damn hard to argue that they lacked intent or were unwilling to commit the crime.)
Is that really called for? I’ve been civil to you despite our disagreement.
Then I find the analogy to be incomplete since nobody disputes that he should be tried for the home invasion, the assault, or the kidnapping.
It’s one of the issues at hand, and the one that we have a disagreement about. I don’t think anyone has challenged that the guy may legally have committed rape (although I have not read every post in the thread so I may be incorrect).
We certainly can spend time rehashing the points of agreement but I suspect we’ll learn a lot more by exploring our disagreements.
While I suspect you are correct I find such an occurance to be hideously unjust. To charge a person with murder when they not only didn’t commit the act but didn’t even want to commit it is revolting. YMMV.
And how is he to convey this to his victim, may I ask? If I point a gun at you and say “I’d recommend you give me your wallet, but you don’t have to,” and you do, have I robbed you?
Interesting. So if a maniac with a machete breaks into my house and says someone has to die and I say “wait, don’t kill me and I’ll go kill my neighbor,” I am not guilty of anything according to your logic. I had not responsibility at all. Even though I might have taken a number of different courses and chose to myself kill another human being it’s not my fault.
Doesn’t that strike you as a little false?
I am saying that if the sex was not coerced then it is consensual (and hence their mutual responsibility). I do not know whether it was coerced. Probably was. But probably is not definitely.
I simply cannot understand this mentality. Again you are treating coercion as if it were some universal state where a person coerced in one way is coerced in all ways. As if, were I to pin your arms, you could no longer think or speak for yourself. Coercion is a pressure to do something. No pressure- no coercion. A guy with your gun to your head has a great deal of leverage. But if he simply puts the gun away and lets you go you have not be coerced because he didn’t use that power to make you do anything.
Similarly a kidnapper who has coerced you to remain in a room has not therefore coerced you into sex if you should happen to decide it’s in your best interest. It was your decision made freely because while they had the power they did not employ it in that fashion.
Again though a minor is a special case. They are distinctly different than adults as far as how we treat them.
If you really mean it? Then no you haven’t robbed me because when I don’t give you my wallet you don’t shoot me. If however you do mean to hurt me if I don’t give you the wallet then yes you did regardless of what you say.
It’s not easy to establish intent, which is why I am so loath to do it on so little information. We have absolutely nothing that says the circumstances under which they had sex. No idea if he was threatening at the time. If he had calmed down and seemed lucid. If he was holding a knife at her throat. Anything. All we know is that they had sex. The assumption that it was rape may be statistically sound but that’s not good enough for justice. At least I hope so.
Tlaloc:
I don’t think it is. I feel so strongly about this that I have difficulty believing you sincerely think it is. You really feel it’s ok to violate someone as long as you didn’t mean to? I’m glad I never went out with you in college.
Is it actually violating someone if you didn’t intend to? We distinguish between murder and manslaughter based on the intent. Did you mean to kill someone or was it an accident?
Lets say a couple go on a date. They get a bit tipsy and they have sex. One of them feels violated later because they believe they would not have engaged in sex had they not gotten drunk but they did not object at the time. The other would not have forced the issue had their partner not seemed to consent at the time.
Has there been a rape? As I see it, no. There has been a very unfortunate situation and hopefully it can be resolved without causing any lasting harm to either party. But rape? No.
compare that with a couple going out on a date and one slips the other a ruffie before having sex with them. Rape? Hell yes. There is a clear intent there to force sex despite a lack of consent.
The first a tragedy of miscommunication and poor judgement. It should certainly be discouraged.
The second is a crime and should be punished.
Does that still seem totally unreasonable to you?
Tlaloc
Two people getting mutually tipsy is not at all an analogy for an armed kidnapper and his victim.
You’re reaching.
Let me also add that the law is based on the “reasonable person” standard. A reasonable person can look at the circumstances of an armed intruder who kidnaps a victim and conclude that the victim was in no position to give consent.
You are arguing from the Johnny Cochran Columbian Necktie position.
I wasn’t using it as an analogy for the kidnapper. It was in response to HO’s assertion that intention wasn’t a consideration. She said she couldn’t imagine that I was serious in saying I thought it was and so I gave her a real world scenario in which hopefully it seemed like intent was retty important. (see messages 183 and 184).
And you contend they can do that without learning any other facts of the case? That once it is established that an armed kidnapping took place that there is then no scenario that a reasonable person could find in which consensual sex took place? Seems like quite a bold position.
Parents hold enormous financial (and even physical) power over their children. It doesn’t mean acts of love by their children are necessarily insincere due to implicit coercion of some sort.
No, but it does mean that sex acts between a parent and a child are, by definition, coercive beyond a reasonable doubt.
Any time there’s a marked disparity of power – which I dispute is nearly as common as you suggest – there’s a reasonable argument that consent is being coerced. The certainty of coercion increases as the disparity in power increases.
And please, the situation very well could’ve been far less dramatic than you put it. The prostitute could have, by her very own free will (in the traditional sense), approached your would-be “rapist”. And he could have been very well unaware of her urgent prostitute-to-live situation (as the kidnapper in this example COULD have thought that the sex was consensual).
I’d still prosecute rape. I imagine his defense would rest on his ignorance of her desperation, but you’re telling me you couldn’t tell the difference between a well-fed or even malnourished human being and one literally on the brink of death by starvation? (How is this near-death prostitute even out of bed? Your analogy is just a little impossible, I suspect.)
I don’t understand why people like you feel the need to make sure that men can have sex freely in these near-coercive situations. If a guy goes to jail as a rapist because he took just a little bit of advantage of a woman who’s consent was compromised, if not totally meaningless, what’s the problem? Why should men be allowed to have sex in that situation? Where in the Constitution do you find a right for a horny man to take advantage of women?
Tlaloc
Well, is there no scenario that a reasonable person could conclude that Nicole Simpson was really murdered in a Columbian Drug Hit? Or by extraterristerial aliens wreaking vengence for Area 54?
If the defense attorney wants to pursue the “but she freely boinked my client” tact, he’s going to have to offer more than just that theory.
We prosecuted a young gangbanger girl who was the shooter in a driveby shooting. Committing a crime as a gangbanger counts as a strike. In that portion of the trial where the prosecution presented evidence of this girl’s gang associations was pictures of her with other gangbangers flashing gang signs. The defense offered the theory that she was really doing American Sign. Yet, with the testimony of a expert in American sign and an expert in Gangs brought by the prosecution the defense had no substansive proof to refute the gang charge.
A theory “it coulda happened that way” is not enough. The jury was reasonable in concluding that the defense was trying to blow smoke up its ass.
I would say that it’s up to the person who was violated to determine that. Is it actually killing someone if you didn’t intend to?
Either way, the person is still dead.
We also don’t make exceptions for things that a reasonable person should have foreseen. If you kidnap someone at gunpoint, physically abuse them and threaten to kill them, a reasonable person would assume that the kidnapper has the upper hand, and that the kidnapped person isn’t really able to consent to much. If he had said, “We’re going to Mexico” and she had agreed because she didn’t want to be killed, and they crossed the border together illegally, should she be held accountable?
When it comes to things like felony-murder, which you seem to have a big problem with, a lot of the justification comes down to the fact that it is reasonably foreseeable that someone will be killed or injured during the commission of a felony. If you decide to rob a bank, it’s reasonably foreseeable that the police will come and that someone may be shot.
But hasn’t one of them still been violated, even if there wasn’t intent to violate?
I think all that Tlaloc has established is that he is *not* a reasonable person.
A theory “it coulda happened that way” is not enough. The jury was reasonable in concluding that the defense was trying to blow smoke up its ass.
:D
*gets serious*
I was trying to keep my comment a while back civil, and chickened out on mentioning Stockholm Syndrome as one of the classic (and most extreme, as most “classic” examples are) of why someone under duress can not be expected to give consent.
If you can’t give consent, then how is it rape? The entire concept of statuatory rape is based on the idea that minors aren’t able to give consent. Exactly how is this different?
Erph.
How ISN’T it rape, that is. More coffee. Oog.
Ok, Real-Life Adventure time.
When I wore a much younger fella’s pair of wingtips, I was called to sit on a jury in a criminal case.
The case charges against the defendent were grand theft of an automobile, armed robbery, assault, assault and battery, kidnapping, rape, aggravated rape, failure to stop for a police officer and resisting arrest. (also sundry minor traffic violations)
Our lively defendant and a confederate
– had stolen a car,
– robbed a passerby at knifepoint,
– picked up a prostitute,
– took her for a road trip on the interstate highway,
– when she objected to the travel she was threatened with the knife,
– robbed her,
– threatened her with being tossed out of the car while it was being driven in excess of 60MPH,
– one of them told her that he was on work-release for battery and robbery,
– told her that she had to give both of them blowjobs,
– and roughed her up before they drove back to their own eighborhood and shoved her out of the car at a stop light.
Once these two gems of testosterone poisoning took her on the road trip against her will the sexual situation ceased to be soliciting sexual acts for a fee and changed to rape.
Because she had no longer the ability to provide meaningful consent it was rape.
Adding in *any* of the extras of the assault with a deadly weapon, the armed robbery, the kidnapping and the accomplice made for a seperate charge of aggravated rape.
While we were deliberating, one of the jurors, a woman, didn’t think that the charge of rape (and by extension, the charge of aggravated rape) should have been brought at all.
Yes, she agreed, the sexual acts had been non-consensual, but, and this as as close to a quote I can give after 30 years, “that’s just a risk she took because of what she was doing.”
If I had had false teeth in those days I woulda dropped ‘em.
The analogy that finally brought her ’round (reluctantly) was that of a taxi driver beiong robbed — yes, it’s a risk that driver takes when they operate a taxi, but that doesn’t mean that a robber should not be apprehended and charged because robbery is a “KNOWN RISK” of driving a cab. We also had extra (requested) instruction on the law regarding rape and aggravated rape.
We had just decided on a guilty verdict on all counts, and walked back into the courtroom to deliver the verdict when the defense attorney, who was talking to the prosecuter started saying “No! No! Not yet!”
It seems he was in the middle of a plea bargin, and our coming in screwed up his timetable. The judge told them both to take their places and took the verdict paper from the jury foreman.
I guess the prosecuter wasn’t sure about the verdict, and was wondering if he should have allowed for a lower sentence/lesser charge in the bargin (better to get *some* serious time than chump time?), and the defense was probably wondering if he should have agreed to convince his client to take a bigger fall.
I don’t know what sentence he got — that was handled in a seperate hearing.
No, that would be incest, but not necessarily rape.
I’m sorry but I find that sort of reasoning ludicrous. No relationship in the world is completely egalitarian, and there will always be present a material/economic, physical, or psychological disparity. Your concept of coercion through power disparity disqualifies a whole lot of meaningful and consentful relationships, including, for example, relationships between members of royal families with commoners (oh geez, Prince Charles is “raping” Camille-Bowles Parker), or high-ranking CEOs with secretaries, or cops (yes, they carry guns) with non-cops. You’re insisting the very rich/powerful never EVER have sex with the very poor/powerless for without exception, it is rape. You’re insisting the very rich and very powerful have nothing to do with the very poor and very powerless because it certainly is the result of coercion. Where’s the humanity in that? Don’t you think that’s disturbingly fascist by largely demarcating who and with whom one may form a relationship?
The hyper-egalitarianism that you demand of relationships just isn’t possible or pragmatic in this world. To say that a relationship is invalid because there might exist a large disparity in power is a callous insult to the well-meaning, capable-of-free-choice participants in that relationship. In a sense, you are relegating them to constitutional non-personhood.
And please refrain from making implications that I am defending rapists or even “horny men”. That’s completely despicable. I am not. The U.S. Constitution guarantees due process of law and a fair trial. To oversimplify rape as ANY sexual act committed under ANY (even reasonably large) disparity of power is a disservice to both constitutional concepts.
Firstly, I don’t have to tell you how problematic that statement is, if applied widely. Different people have different concepts what offends and violates them. The potential for abuse of that principle (quoted) is enormous. You will have people planting themselves in situations where consent is legally invalid (eg. intoxication) just to set up an entrapment.
Remember that, as stated somewhere above, many crimes are prosecuted even when the victims themselves are against such prosecution, think they aren’t victims at all, and/or wish to retract/clarify their statements. And almost everyone here was pretty fine with that.
Secondly, the woman in this example DID believe she wasn’t violated (until she was TOLD otherwise by the prosecutors). She herself believed it wasn’t rape. But the law says no, you couldn’t possibly give out consent in such a threatening situation, and thereby, arbitrarily deciding that her opinions (the victim’s own opinions) on this matter are inadmissible in court and silencing her, in a sense.
And also, the law silences the defendant on this matter, saying that his intent is irrelevant in lieu of the threatening “impression” that he gave.
So you have two people engaged in a sexual act (or one raped the other), but the statements of both on this matter are considered legally irrelevant in the court’s deliberation in the name of “legitimate government interest”. Don’t you feel that this is just a little odd? In a sense, even though both are inextricable from the said events, both are relegated to legal non-personhood in proceedings regarding the those events. In fact, I dare say, there are at least some doubts on the constitutional tenability of this.
Anyways, some clarifications again. I am not contending that the example wouldn’t be rape under law in that particular jurisdiction. I am interested in the philosophical and even constitutional grounding of that law, and how intent and consent fits in or SHOULD fit in with cases like these. No law is perfect, and if it poses an UNDUE burden on the plaintiff or defendant, then it should be revised.
I guess what I have been really getting at all along is just this:
that this case HAS room for ambiguity and isn’t as clear-cut as most of you would think.
It would be a huge disservice to the eminent mantra of “guilty till proven innocent” if one would say, it’s clear-cut, haha, case closed, the end.
Read my Caesar-Pompey analogy in comment 123. Caesar might’ve been responsible for Pompey’s death by furnishing a threatening context to the Egyptians. But also you would see how, quite understandably, difficult it would be to pin the blame on Caesar. The link just isn’t that strong. And hence, there’s certainly room for debate and there’s certainly room for ambiguity.
I think it is a disservice to defendants everywhere to rule out a thorough and thoughtful examination of their charges for a principle that falls on a narrow interpretation of context. If you want to look at context, then why is the intent of the accused and the consent of the victim (consent in the traditional sense of not refusing upon initiation and perhaps even initiating the thing) conveniently overlooked? Perhaps you have a different definition of context than I do. Your context only seems to include situational context, but not the no less important contexts of intent and consent.
I am truly NOT saying the defendant is certainly innocent of rape charges. I am far less defending the man in the example than I am defending certain rights granted to ALL. What I am saying is if you are contemplating such charges, you have to take ALL these things into account – intent, consent, and situational context. Any serious charge demands such a comprehensive measure. We owe it to “due process”. We owe it to “fair trial”.
Personally, if I were a member of the jury, I would vote for guilty only if any two of the three things (intent, consent, situational context) point towards sexual coercion. I think it’s a fair standard but since I am no legal expert, I can only give my humble opinion. The situational context is certainly coercive, but as for intent and consent, that’s debatable and deserves the court’s full deliberation just the same. You’re saying don’t even think about it.
That’s it and that’s all. I’m NOT asking you to acquit this guy, but only to keep an open mind and allow for the consideration of certain facts relevant to the case.
And yeah, I’m gonna call it a day.
Well, hey, who should determine if it’s a violation or not? Obviously, if you let victims do it they’ll ‘entrap’ people. When a woman doesn’t think she was violated—at gunpoint, no less—-she should be listened to. Of course, in real life, women often don’t get believed when they ARE raped. So I guess we should listen to women only when it gets guys off, in every sense of the phrase.
No rape culture there at all.
Tlaloc:
Well then, it’s not rape, unless you use “a bit tipsy” to refer to the state more objectively described as “incapacitated.” But the reason it’s not rape is that both people consented. It has nothing to do with the intent of either of them.
The thing is, I imagine no one here would claim that it’s rape. This is a blatant strawman argument because you’re using a definition of “rape” that is completely new to this discussion, unless you really do think rape accusations typically result from bad sex and have been operating from that assumption all along. It isn’t not-rape because intent wasn’t present, it’s not rape because uncoerced consent was.
Darleen:
It seems to me that one thing being omitted from all the handwringing (etc.) about the plight of the poor kidnapper is that there’s going to be a trial before anyone goes to prison. If the defense attorney wishes to assert the sex was consensual, he or she is welcome to put the kidnapper on the stand to explain this.
Tlaloc, I agree with you that the question of what the law should be is more interesting, and important, than the question of what the law in fact is. But I do not think that this is nearly as essential to the argument as you seem to take it to be. Here are some quotes from you that I think are indicative of what is essential to the argument:
Tlaloc: This is why intent matter. Make sense now?
Tlaloc: Intention is critical. If the guy keeps the wallet because he thinks I’m thanking him for shooting the maniac behind me he did not rob me.
Tlaloc: I don’t think he should be charged with armed robbery since he had no intention to rob. He should of course be charged with B&E and assault.
Tlaloc: Because he is the one accused of a crime. Frankly this question has me stumped, why wouldn’t you consider the motivation of the kidnapper? Rape is a crime but sex is not. Motivation and action both play a role in distinguishing the two.
Tlaloc: Stating something does not make it true. You believe that consent is all important. I believe that consent is certainly important but that intent is also.
These comments clearly indicate that you are arguing at cross-purposes with the other commenters in this thread. Further that you are arguing at cross-purposes because you have the wrong idea, or a confused collection of ideas, of what “rape” and “consent” mean.
Rape is defined as non-consensual sex. I am going to simply stipulate this without argument, because it is obvious. If you don’t believe me, look it up in a dictionary. It is important to note that “non-consensual sex” does not mean “sex intended to be non-consensual;” it means sex that is, in fact, non-consensual.
Thus, what matters here — and also, incidentally, in other cases of assault and battery, robbery, and other similar crimes — is whether what happened was coerced or consensual.
And, here is the important part: when we say that something is coerced, that’s because of what happened to the victim. Not because of what’s going on with the perpetrator. If sex is coerced under duress (here, through the use of repeated physical violence, threats, and terror), then, under any sane moral standard, that sex is non-consensual, no matter what the coercer had in mind when he did the coercing. It’s non-consensual because the victim didn’t consent; not because the coercer intended for her not to consent. And if the sex is non-consensual, then it is rape.
If you want to argue about whether rapists should be treated differently by the criminal justice system, or in moral discourse, depending on the intent that they had when they committed the rape, then you’re free to do so. What you’re not free to do is make up your own definition for the word “rape” so as to make it dependent on the rapist’s, rather than the victim’s, condition.
I think I can see what people find objectionable about removing intent from the equation: they don’t like the notion that they’ll never no they committed a crime until the police show up at their door. I get that. I’ve had sex within the past five years, so I suppose it’s possible that I’ll be arrested for rape. I’ve been in a store within the past seven years (even the past five; I forget what the statute of limitations is in NY), so I suppose it’s possible I’ll be arrested for shopifting.
So why aren’t I worried about these things? Surely it’s as much out of my hands as it is out of Tlaloc’s. Isn’t it terribly unfair that I could be punished for a rape or theft I had no intention of committing?
I don’t think it is. If I want to be sure to be absolved of committing rape, what I can do is not just not have that be my intention, but act on not having that intention. Rape is non-consensual sex? Well, then it’s simple to make sure I have consent. I can make sure it’s clear that I’m intending to have sex with someone, and make sure I have her leave before proceding. It’s really no different from demonstrating my intent not to shoplift by paying for items before removing them from the store. People think it’s different because sex is involved, and obviously the mechanics are different, but the basic principle holds.
There is another difference, I suppose, which is that if you try to buy something at a store (aside from illegal or age-restricted materials), you probably won’t be turned down, while I’m probably not the only one here who’s been turned down for sex. Not that that would be an excuse to just take, although it’s the same reason teenagers steal cigarettes.
So, yes, my intention isn’t directly relevant, but there are steps I can take, if I don’t intend to commit a crime, to avoid doing so. I don’t imagine Tlaloc would pocket something in a store and justify it by saying “I intended to pay for that, which is more important than whether I actually did so”; it seems odd to me that he appears to be open to that justification when it comes to sex crimes.