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Jill has been blogging for Feministe since 2005.
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290 Responses

  1. Emolee
    Emolee March 27, 2013 at 1:46 pm |

    Great article.

    Women (as well as all other people) should not be assumed to be in a constant state of “yes” regarding any and all sex with whomever unless and until they say otherwise; that is nonsensical. “No” should be the default, and “yes” should be required.

    This won’t fix all the problems with prosecuting rape (for example, we will still have debates over whether the victim said yes or not), but it will help the culture to understand rape tremendously. For example, I heard more than one person (teenagers) ask questions that I beleive were genuine along the lines of, “but if she was drunk, how could she have said no, so how could it be rape?” As if the “no” itself is required, or else her body is fair game by default. Ick. And scary.

    1. Clytemnestra's Sister
      Clytemnestra's Sister March 28, 2013 at 8:07 am |

      This: It also opens the door to ridiculous conclusions: If only “no” means “no”, then is anything other than a “no” a “yes”?

      and this: Women (as well as all other people) should not be assumed to be in a constant state of “yes” regarding any and all sex with whomever unless and until they say otherwise; that is nonsensical.

      are two sides of the same coin, and in any other situation, a judge would laugh a defendant out of court and straight into jail if the defendant tried to claim that lack of no meant yes.

      “Your Honour, I asked my flatmate if I could borrow his car, and he didn’t say no.”

      “In what state of mind was he?”

      “Well, Your Honour, actually he was passed out on the couch. He didn’t even know I was in the room. But hey, he didn’t say no, so I took the keys and went on a four-day road trip.”

      “He was passed out on the couch?”

      “Well, yeah. I mean, that’s usually what happens when you spike somebody’s drink, isn’t it? Anyway, I asked him, and he didn’t say no, so it was okay, right?”

      ….and, scene.

      There’s no question that what happened there would have been theft. There is no question that an unconscious person could not have said yes, borrow my car, especially a person who was drugged to be unconscious. It’s ludicrous on its face and horrifying in its implications.

  2. TomSims
    TomSims March 27, 2013 at 1:53 pm |

    Jill, I’m no lawyer and you are, but in criminal cases isn’t the state charged with the burden of proof? When you say “In practical terms, that will probably mean that if a defendant uses consent as a defence to a sexual assault charge, he would shoulder the burden of demonstrating that the defendant affirmatively and meaningfully consented – not that she just didn’t say no, or that she was competent enough to say no if she wanted to.” you seem to be shifting the burden of proof to the defendant. Would not such a change in the law bring about a constitutional challenge?

    1. EG
      EG March 27, 2013 at 2:10 pm |

      That doesn’t seem like such a change. If I remember my Law & Order aright, it just means that consent would become an affirmative defense, like an insanity defense.

      1. Drahill
        Drahill March 27, 2013 at 2:16 pm |

        EG, that would be an issue. Affirmative defenses are “predicated on facts not introduced by a prosecutor and go off the proposition that even if all facts offered by the prosecutor are true, no crime would exist.” Arguing for consent would not be an affirmative defense because it would still be relating to the fundamental elements of the crime and not facts not addressed by the prosecution. Thus, it would not fall within the affirmative defense category.

        http://en.wikipedia.org/wiki/Affirmative_defense

        (And Law & Order has it’s own major flaws. Once I went to law school, I realized how screwy that show really was.)

        1. EG
          EG March 27, 2013 at 2:24 pm |

          Yes, that was a facetious joke. I realize that one cannot learn actual facts from television dramas, no matter how long-running they are.

          And I also realize that would be a change. I just don’t think it would be a ground-shaking change, particularly if, as Jill, who is a real lawyer, not just a TV one, says below, it’s already the case in some places.

      2. ShelbyC
        ShelbyC March 27, 2013 at 2:19 pm |

        An affirmative defense to what? What would the state have to show, before the defendant has to assert their defense?

    2. Emolee
      Emolee March 27, 2013 at 2:45 pm |

      This would not shift the burden of proof; it would just change *what* the prosecution has to prove (that the victim did not say yes instead of that s/he said no or was unable to say no).

      1. Drahill
        Drahill March 27, 2013 at 2:56 pm |

        Eh, I’m not sure of what you’re arguing. Jill is essentially proposing that affirmative consent write into the law the idea that all people are presumed to be in a state of non-consent at all times until evidence is offered that they did consent. Okay, I can get that far. However, what is rape? It’s non-consentual sexual contact: full stop. That’s what it is (at least right now). Thus, the state of non-consent is absolutely essential to the crime. Thus, if non-consent is PRESUMED from the absolute get-go, the prosecution has no realistic need to address it. It’s just presumed. You’re arguing that the prosecution would still have to make an argument, even when the law starts out in their favor (on this one thing). From a lawyer’s view, why would I mount an argument in favor of a presumption I already HAVE and potentially expose myself to attack from the defense? Wouldn’t it be more prudent to simply let the presumption lie on my side and leave it to the defense to refute?

        1. Emolee
          Emolee March 27, 2013 at 3:23 pm |

          I think you are confusing the idea of a legal rebuttable presumption with a presumption/defualt/baseline in societal understanding.

          If the rape laws were rewritten to require a lack of yes instead of a no, I think the prosecution would still have to prove beyond a reasonable doubt that the victim did not consent. It is just that “did not consent” would be a lower bar to prove than it is now. (Perhaps what Jill was arguing went further than this, and I would be willing to consider that, too).

          Honestly, I think this change in the law would do a lot more for changing cultural beliefs about women, sex, and entitlement than it would for rape prosecutions themselves.

        2. Drahill
          Drahill March 27, 2013 at 3:48 pm |

          Emolee, I would like very much to see societal change in attitudes towards rape. However, I feel iffy about doing it in a way that might give an already not-too-great criminal justice system more leeway. And here’s the thing: you’re saying that the prosecution would still have to argue that a victim did not say yes. However, this is my question – why would they? They’re already going into court with that presumption ON THEIR SIDE. Now, certainly, the defense would attack that. However, if the defense bears the burden, wouldn’t the defense now have to prove consent beyond a reasonable doubt? The prosecution would need only offer rebuttal evidence to the defense (and rebuttal evidence never need be as strong as the initial case; it need only poke holes in the initial offering). I’m not seeing what you’re seeing, I suppose. I know that as a prosecutor, I certainly would not make a case before I have to make it (and expose my hand to the defense). I’d wait for them and then just rebut them.

        3. Thomas MacAulay Millar
          Thomas MacAulay Millar March 27, 2013 at 4:28 pm |

          It no more shifts the burden to say that silence is not consent than it does to say unconsciousness is not consent.

          Right now, in Ohio, “substantially impaired” means incapable of legal consent. In New York, “physically helpless” means incapable of legal consent. In every state, younger than some specified age means incapable of consent. The State proves the absence of consent by proving these conditions. I won’t speak for Jill, but amending the substantive law to say simply “consent may not be presumed because the victim failed to verbally articulate refusal” would mean that the State would still have the burden of proving nonconsent, and would have to put on competent evidence to show that the victim (1) didn’t, or (2) was not legally capable of consenting. That’s either her (assuming, though not all rape victims are women) testimony that she didn’t consent, or her testimony establishing substantial impairment or helplessness or her birth certificate to prove her age.

        4. Emolee
          Emolee March 27, 2013 at 6:49 pm |

          And here’s the thing: you’re saying that the prosecution would still have to argue that a victim did not say yes. However, this is my question – why would they? They’re already going into court with that presumption ON THEIR SIDE.

          If you are talking about a legal presumption, no they are not. If non-consent is still an element of the crime, then the prosecution still has to prove it. What I believe Jill was talking about, and what I was talking about in the comment you responded to (as opposed to down thread), was *redefining non-consent* as the absence of a yes instead of the presence of a no. So, there is no legal presumption of anything. The prosecution would have to prove the absence of the yes. Thomas explained this well above.

          Perhaps you are talking about a shift in societal perception that would cause jurors to assume there was not a yes given unless otherwise proven, in which case the prosecutor would not *bother* to prove the absence of a yes…. well, that is where we are today with many other crimes. And I am ok with people believing rape victims unless they are proven to be lying, even in a court of law, assuming the defense gets its turn to argue/present evidence.

        5. Angie unduplicated
          Angie unduplicated March 28, 2013 at 9:04 am |

          In many states, intoxication at the time of marriage stands alone as grounds for annulment or divorce. This, logically, should constitute sufficient reason for allowing intoxication as proof of nonconsent. Now, where is the analytical attorney who can successfully apply this across state lines?

        6. matlun
          matlun March 28, 2013 at 9:54 am |

          @Angie unduplicated:
          Intoxicated sex always being rape is not exactly a new idea, but it is pretty absurd. Any level of intoxication?
          If both parties have been drinking (which is the most common situation) should they be convicted of mutual rape?

          Current laws use some form of “too drunk to consent” which seems to be the only reasonable idea to me.

  3. Drahill
    Drahill March 27, 2013 at 1:57 pm |

    I like the thought process, but my question would be how this could meaningfully implemented when the presumption of innocence comes into play. If I understand the affirmative consent model, it argues that the baseline state is “no” until clear affirmative “yes” happens. In essence, since one of the elements of a rape charge is non-consent, would the affirmative consent model start out by presuming non-consent and thus, an element of the crime that would be presumed? And would that then mean that the defense would essentially have to present evidence to rebute an assumption? I like the idea of affirmative consent very much in interactions between people and teaching it as the standard for students – but I’m less optimistic about how this could actually play out in a court of law, given constitutional and legal restraints. Do you have any specific ideas about how it would work? I’m not challenging the article in any way, I’m genuinely curious about this.

    1. EG
      EG March 27, 2013 at 2:12 pm |

      But isn’t non-consent an element in any charge? If I take somebody’s car, and they charge me with theft, implicit there is the idea that I took it without their consent–they didn’t lend it to me or give it to me or sell it to me. If my defense was “they lent it to me for the weekend,” wouldn’t I have to demonstrate that was the case? It wouldn’t just be assumed that I was telling the truth because of the presumption of innocence.

      1. Drahill
        Drahill March 27, 2013 at 2:26 pm |

        EG: not all crimes. (Now, criminal law is not my forte, so bear with me). The elements of the crime are strictly interpreted to as the statute is written. It might surprise you to learn that many state theft statutes say nothing about consent. For example, here is Pennsylvania’s:

        § 3921. Theft by unlawful taking or disposition.
        (a) Movable property.–A person is guilty of theft if he
        unlawfully takes, or exercises unlawful control over, movable
        property of another with intent to deprive him thereof.
        (b) Immovable property.–A person is guilty of theft if he
        unlawfully transfers, or exercises unlawful control over,
        immovable property of another or any interest therein with
        intent to benefit himself or another not entitled thereto.

        read it. There is no mention of non-consent of the one from whom the property is stolen. Since consent is not mentioned anywhere in the statute, guess what happens? The prosecutor has no duty to talk about consent. If the defense is going to raise consent as a defense, it can – but because they are going to talk about something the prosecutor had no duty to address, THAT is the definition of affirmative defense. It all goes back to how the statute that creates the crime is actually written – that is what determines what the prosecutor must actually argue, and thus, what an affirmative defense actually is.

        1. EG
          EG March 27, 2013 at 2:39 pm |

          Bah. This is why I can’t stand the law. It uses language irresponsibly. I do see that it doesn’t mention consent per se, but what does it mean by defining “theft by unlawful taking or dispossession” as “unlawfully tak[ing], or exercis[ing] unlawful control over, movable
          property of another with intent to deprive him thereof”?

          You can’t define something by saying it means itself! Unlawful theft means taking something unlawfully? Of course it does! All that statute has done is define “theft”! What about “unlawful”? What does “unlawful” mean there, if not “without consent”?

          This is why I only briefly considered going into law. One of many reasons, rather.

        2. tigtog
          tigtog March 27, 2013 at 3:02 pm | *

          EG, I suspect the legalese regarding ‘unlawful taking’ is to distinguish acts of theft from acts of repossession by private debtorscreditors or acts of confiscation by officers of the state, which is considered ‘lawful taking’ – the owner of the property may very well not consent to the taking/dispossession, but they have no legal standing to prevent the taking/disposession.

        3. tigtog
          tigtog March 27, 2013 at 3:04 pm | *

          P.S. also taxation, which I’m sure you can see the need for if you’ve run across any of the more extreme “taxation is theft” crowd.

        4. tigtog
          tigtog March 27, 2013 at 3:26 pm | *

          P.P.S. there’s also something in the ‘unlawful taking’ legalese which distinguishes theft from taking by fraud, where the owner may well have consented to the taking of the property but only because the taker deceived them as to some facts.

        5. Donna L
          Donna L March 27, 2013 at 2:45 pm |

          I know nothing about Pennsylvania law, Drahill, but I don’t read that statute the same way you do. Both statutory definitions do contain the word “unlawful,” so it’s still the prosecution’s burden to prove that the taking was “unlawful.” What makes a taking of property unlawful? Without researching Pennsylania cases on the subject, I would have to assume that what makes a taking “unlawful,” and brings it within the definition of theft, is that the taking was without consent. If I’m right, then non-consent is, in fact, part of the definition of the crime, even if not expressly so.

        6. Donna L
          Donna L March 27, 2013 at 2:46 pm |

          EG, I didn’t see your comment before I posted mine, so all I will say is that great minds obviously think alike! (Alternatively, fools seldom differ, but I don’t think that’s the case here.)

        7. Drahill
          Drahill March 27, 2013 at 2:47 pm |

          Donna: The law is cyclical. Non-cosent doesn’t by definition make something unlawful. “Unlawful” means “against the law.” Simple as that. The statute that criminalizes theft is what makes it unlawful. That’s how it was taught to me. If there’s a law on the book against it, it’s unlawful. Basically.

        8. Donna L
          Donna L March 27, 2013 at 2:49 pm |

          As I’ve told you more than once, EG, I think you would have been a fantastic lawyer, but for the sake of all your students and readers — as well as your own emotional well-being — I’m glad you didn’t.

        9. Emolee
          Emolee March 27, 2013 at 2:51 pm |

          What Donna said.

        10. Donna L
          Donna L March 27, 2013 at 2:53 pm |

          Well, then, I strongly disagree with your teacher, Drahill. One of the primary principles of statutory construction — and I have been doing that kind of thing for the last 70 years since I graduated from law school, after all — is that the Legislature is presumed not to have acted in a way that would require an absurd interpretation, and a circular definition of a statute is necessarily absurd. Also, under your interpretation, the word “unlawful” would be entirely superfluous, and another primary principle of statutory construction is that every term in a statute is presumed not to be superfluous, and to have its own separate meaning.

        11. Donna L
          Donna L March 27, 2013 at 2:58 pm |

          Caveat: of course, just because these are the usual presumptions doesn’t mean they’re always true! As I said, I am hardly an expert on Pennsylvania law, criminal or civil.

        12. Drahill
          Drahill March 27, 2013 at 3:00 pm |

          Donna, I think the problem with what you’re arguing is that another principle of statutory construction is that the best meaning is the plain meaning of the words. If “unlawful” truly means “non-consensual,” then shouldn’t that raise the question about why the legislature simply did not simply use the appropriate word in the first place? The dictionary meaning of “unlawful” is “not lawful; contrary to the law; illegal.” Statutory construction teaches, if I recall correctly, that the plain meaning of the word should be deferred to unless it is incompatible with the stated intention of the law. And that begs the question of where the incompatibility is here.

        13. Alara Rogers
          Alara Rogers March 27, 2013 at 3:13 pm |

          But why would it be unlawful if there was no lack of consent?

          You’re right that the prosecutor never needs to bring up consent in theft. That’s because the idea that “if A brings a theft charge against B, A is claiming that B took A’s property without A’s consent” is so deeply embedded in the concept of a theft charge, no one ever *tries* to argue “but B really thought A would want to give him that stuff!” Arguments about whether B is guilty of theft from A center around “can we prove that B took the property”, not “can we prove B took the property without A’s consent”, because if A said B could have it, A would not have brought charges.

          So think if rape worked like that. If A charges that B raped her, embedded in that charge would be the concept that it was without consent. There would be no need for the prosecutor to prove non-consent, because the charge itself has it embedded. The defense could bring in “but B thought A consented!” as a defense, but this would be the same kind of defense as “but B thought A said B could have his stuff!” You can *make* that defense, and I’m sure somewhere, someone has made a defense against theft charges by saying “Yes, I took his credit card and bought something with it, but he gave me his credit card to buy stuff with all the time, so I didn’t think there would be anything wrong with it this time.” But that’s something B has to prove as defense against the charges; it’s not something the prosecutor has to prove as part of the charges. If the prosecutor can prove B took A’s credit card and bought stuff with it, then game over for B unless B can present as a defense the reasonable assumption that B’s use of the card was lawful because A would allow it.

          You almost never see that defense, and for good reason. It is not presumed a normal, reasonable action for a person to prosecute a friend for theft after giving that friend access to their credit card. If the use of A’s stuff was lawful because it was with A’s permission, *A would not have charged B with theft.* Because A could possibly be male (and frequently is), therefore A is assumed to be a reasonable person who behaves like any normal person would, not a strange vindictive creature who might bring charges against a friend for no good reason.

          But because rape victims are almost always female, it’s assumed that in a rape case, A is not a reasonable person. A is a woman, which makes her inherently unreasonable. So the fact that she has charged B with raping her doesn’t all by itself carry an implication that A did not consent to sex, the way it would if she charged A with taking her credit card or driving off with her car. It is assumed quite possible and even likely that A has charged B with rape when in fact A consented, which means that there are two elements the prosecutor must prove — both that sex happened, which is a physical act that leaves evidence, and that B was aware that A did not consent, which gets into “he said she said” and leaves B plenty of room to make the defense that A didn’t say no or that A is probably the sort of person who would always say yes to sex.

          The thing is this isn’t reasonable. The likelihood of a cadre of villainous women going around unfairly accusing innocent men of rape just to get their jollies should be every bit as ridiculous as the notion of a cadre of villainous men going around unfairly accusing their buddies of stealing their car or their credit card just for lulz. If a woman has accused a man of rape, the facts of the case should be: did sex happen? If sex happened, and she charged rape, then it was rape unless he can present as a defense good evidence that she said yes, just like if B is found in possession of A’s car, the theft charge is cut and dried unless B can produce evidence that he had A’s permission.

          People borrow each other’s cars all the time. People often lend out their credit card. People give gifts. People loan money to friends without any paperwork. But we do not presume that if a person charges another person with theft that it is reasonable to assume they gave the person the item in question and then maliciously lied about it, in court no less. We assume that if a person charges another person with theft, either the accused took the property, in which case they’re guilty, or they didn’t, in which case they’re not, and in neither case is it presumed that the prosecutor has to prove that the accused actually knew the victim didn’t want to give them the property. The facts of the case aren’t considered to be “did B take the property, and if so, did A consent for him to do it?” They’re just “did B take the property?” Even though, for it to actually be unlawful, B *would* have had to do it without consent. It is not illegal to drive a friend’s car if the friend says you can.

          So shifting the burden of proving consent onto the defense only brings rape in line with every other crime that involves an action against another person which would be lawful if performed with consent. (Theft is the best example because under many circumstances assault is unlawful even *with* consent, and murder even with consent is unlawful basically everywhere.) Rape is the only such crime where the very fact that a charge has been brought isn’t considered all by itself evidence that the action was non-consensual. It’s true that people have sex with each other more often than they loan each other things, but it’s also true that people loan each other things a lot more than they give permission to other people to have sex with them while they are unconscious. And it’s true that despite the frequency with which people loan each other things, the defense “I didn’t steal it, he loaned it to me” is rarely used, because if he loaned it to you, why did he charge you with stealing it?

          The defense needs to prove why a person would do something unreasonable like charge someone with a crime for taking a thing they had permission to take, or, if they can’t demonstrate motive, they will absolutely have to demonstrate proof of the permission. You can’t raise a reasonable doubt in the head of a juror that well *maybe* B really did think A would be okay with him racking up $10,000 on A’s credit card, how can we know, we weren’t there, it’s one guy’s word against the other and well, A is known to be generous with his friends… you just can’t. A charged B with theft. If B has the property, then either B is guilty or B can produce really, really good evidence that A gave permission. Simply suggesting that we can’t really know that A didn’t won’t fly.

          It’s very hard to prove consent or lack of consent because people don’t sign forms before engaging in sex. But people don’t sign forms before borrowing a car from their buddy, either, and yet people generally do not fear that their buddy will call the cops and have them charged with theft, because that is a totally unreasonable thing to do. If women were assumed to be reasonable, the legal system would assume that if the woman says she didn’t consent, the only question is whether the alleged sex between accused and accuser happened at all. If, in fact, the woman really is totally unreasonable and really did consent to sex and then charge rape, the defense would have to present motive — why would she do such an unreasonable thing? — rather than it just being assumed that of course she might do that, she’s a woman, it’s what women do.

          So what would it do to the world if we made a change like this?

          Well, if a man wants to present “but she consented!” as a defense, when “it’s not reasonable for her to charge rape if she consented” is an assumption, he doesn’t get anywhere by proving that she’s the sort of person who has lots of sex. He has to prove she’s the sort of person who might deliberately lie to harm others, or the sort of person who could legitimately not remember that she consented, or the sort of person who is under tremendous social pressure not to engage in consensual sex. He can’t claim that she was pretending to be asleep on video because she wanted to be a porn star; that would be assumed to be completely unreasonable behavior given that later she pressed charges.

          Men might have some fear of sex with drunk women because what if they don’t remember in the morning that they said yes? Good. Men should be afraid of having sex with people who won’t remember it in the morning. Some men will press charges against women because they, personally, were so drunk they don’t remember saying yes. Good. Women should *also* not be having sex with people who won’t remember it in the morning. Some men will try to manufacture evidence of consent. Good, because this is fraud, a prosecutable crime in and of itself, and if a man fakes a woman’s email to “prove” she consented and she says that the email is fake and it’s assumed that only an unreasonable person would be lying about that, the email will be investigated, and generally found to be a fake because if you actually bother to look at them they are not hard to spot as fake. Wealthy men might claim to be scared of sex with strange women because what if she claims rape in order to get a settlement out of him? Good. Wealthy men should have that fear. All men should be afraid that if they can’t trust their sex partner to be a reasonable human being and not a malicious predator, they could be in great danger from having sex with that person… because that is already the world women live in. And there are a lot fewer malicious predators who are lying bitches bringing charges for lulz than there are malicious predators who get sexual satisfaction out of their evil acts. Just compare the amount of rape porn to the amount of fiction aimed at and written by women dealing with the vengeful joy of dishonestly charging your ex with rape. (In fact if you find any fiction written by women, aimed at women, about the vengeful joy of dishonestly charging your ex with rape, I’d appreciate a link.)

        14. Donna L
          Donna L March 27, 2013 at 3:17 pm |

          At least this one case seems to equate “unlawful” with lack of consent:

          Com. v. George, 705 A. 2d 916 (Pa. Super. 1998)

          a theft involves the unlawful taking or exercise of unlawful control over property. 18 Pa.C.S.A. § 3921(a). See also Black’s Law Dictionary 1477 (6th ed.1990) (defining theft as the taking of personal property belonging to another, without his consent, with the intent to deprive him of the value of the same and to appropriate it to the use or benefit of the taker). A taking occurs when one acquires possession, dominion or control over an object. Black’s Law Dictionary 1454 (6th ed.1990). Stealing likewise connotes a theft or taking of personal property of another, without leave or consent, and with the intent to keep or make use thereof. Id. at 1413.

        15. Drahill
          Drahill March 27, 2013 at 3:31 pm |

          Donna, I just feel like I should point out – the case you cite is one in which the defendent committed ROBBERY, not theft. The robbery statute in PA provides for non-consent in the text of the statute. EG and I were looking at the Theft by unlawful taking statute.

        16. Emolee
          Emolee March 27, 2013 at 3:38 pm |

          Alara, good points, and you are probably right that it should go like this:

          If a woman has accused a man of rape, the facts of the case should be: did sex happen? If sex happened, and she charged rape, then it was rape unless he can present as a defense good evidence that she said yes, just like if B is found in possession of A’s car, the theft charge is cut and dried unless B can produce evidence that he had A’s permission.

          This would in fact shift the burden of proof of *consent* to the defendant (which goes further and is different from the analysis I did upthread), but not the burden of proof as to the crime itself. I am starting to think that is ok, as it does put simply put rape in line with other crimes. As you said, if the person whose stuff is stolen presses charges, non-consent is assumed. But with rape, it’s oh, she could be lying. The law should not treat rape as though it is assumed that the presser-of-charges is lying, when it *treats no other crime that way*.

        17. Drahill
          Drahill March 27, 2013 at 3:39 pm |

          Ah Donna, let me clarify. The court was citing Black’s to point out the non-consent of the victim. However, in the text of the case, the defendant actually raised the possibility of consent as an affirmative defense (going back and Shepardizing the original case). I think the court was responding to his contention that the evidence was insufficient to overcome his defense. So I’m not sure as to whether they are arguing that the statute implies consent or rather just responding to his initial defense.

        18. Drahill
          Drahill March 27, 2013 at 3:42 pm |

          Alara, there’s a lot in your post, so I’ll only address the perinent parts:

          First, consent isn’t not addressed in other crimes because it’s “ingrained.” It’s not addressed because the statutes that people are prosecuted under for those crimes do not REQUIRE it because consent isn’t mentioned in the statute. In rape statutes, it is. So that means that non-consent is an essential part of a rape case and not in the others. If you disagree with that, your only viable option is to take it up with the legislature to get the law re-written.

        19. Emolee
          Emolee March 27, 2013 at 3:50 pm |

          So that means that non-consent is an essential part of a rape case and not in the others. If you disagree with that, your only viable option is to take it up with the legislature to get the law re-written.

          Right. But, isn’t that what we are talking about here? Re-writing rape laws? I think Alara’s changes go further than Jill’s, but that is the whole point here, that the rape laws need revising.

        20. Emolee
          Emolee March 27, 2013 at 3:54 pm |

          Donna, I think you are exaggerating, as I don’t think you are 95 years old, but have you really been practicing law for 70 years? I have been doing it for four, and I am already, shall we say… tired.

          And Drahill. Did you shepardize a case for the purposes of this thread? If so, props to you, and I have some actual legal research I should be doing right now if you are interested. ;)

        21. Alara Rogers
          Alara Rogers March 27, 2013 at 4:13 pm |

          So, Drahill, if in the state of PA Bob lends Joe his car, and Joe goes to the store with it, and then Bob calls the cops and claims Joe stole his car, Joe cannot present “but Bob loaned it to me” as a defense, even if he had a signed paper from Bob saying, “Joe, take my car for your trip, you can put some gas in it when you’re done?”

          I think that if that were the case, then the first time it actually gets challenged there would be pressure to rewrite the law to explicitly contain consent… because, in fact, if it is illegal to borrow your friend’s car even with their consent there are a lot of car thieving felons out there right now, including both me and the friend I have borrowed from/loaned to.

          But I suspect that in fact if Joe presented evidence that Bob loaned him the car, this would be an affirmative defense (as you defined it above, facts outside the scope of the charge which essentially negate the crime). It’s just that this basically never happens because no one ever loans their friend a car and then calls the cops claiming they stole the car.

          The legal assumption is you can’t have my car unless I say so. If the legal assumption is you can’t have sex with me unless I say so, then to demonstrate that I didn’t consent, all I have to do is say so, because that is the assumption. I don’t have to prove that I didn’t say yes if it is assumed that I didn’t say yes unless I say I did, or it can be demonstrated that I did.

          How does that play out in court? Well, basically, we assume that a woman would likely not have brought a rape charge if she had consensual sex, so first, we prove that sex happened and that the accused is the other party in that sex. Then he needs to demonstrate affirmative consent to a degree that is more compelling than the assumption that a reasonable person wouldn’t press charges if there was consent. If there really was affirmative consent this would hardly be impossible, and in fact in many actual rape cases he could probably “prove” consent to a jury.

        22. Drahill
          Drahill March 27, 2013 at 4:30 pm |

          Emolee: I think in this case, it’s hard to say “the burden for the crime is on the prosecution but the burden for consent is on the defense,” precisely because in cases of rape, consent largely is the locus of the crime. It’s an event that, if not for the lack of consent, would be perfectly legal. So in cases of rape, non-consent plays such a huge role, I am not sure the two could be divorced. I’m also concerned about the actual dynamics of how it would play out in court.

          Alara, in your example,

          Also, let me address you and Alara together. I know Jill is arguing for changing the statutes. My concern is that even if they are changed, the overarching framwork of the Constitution would spring into action to smack it down under the banner of preventing any violation of the “presumption of innocence.” Alara, you keep arguing that the theft and rape crimes are comparable, but in reality, the statutes make them very different.

          Alara, in your example, Jow would be free to intorduce that defense. HOWEVER, he’s have to wait for the prosecution to make their entire case and then introduce it. It would be an affirmative defense (if you read my initial comment, I pointed out to EG that an affirmative defense is merely one that goes off facts not presented by the prosecution). In the case of theft, consent is an affirmative defense because the prosecutor has no duty to bring it up. In cases of rape, consent would NOT be an affirmative defense because consent must be addressed by the prosecutor (at least now). That’s the difference I was making above that you missed.

        23. Emolee
          Emolee March 27, 2013 at 4:44 pm |

          I think in this case, it’s hard to say “the burden for the crime is on the prosecution but the burden for consent is on the defense,” precisely because in cases of rape, consent largely is the locus of the crime.

          Drahill, the way the laws are written now, yes. That is why Alara and I are arguing that we should perhaps change the rape statutes so that consent is *not* the locus of the crime. As she said, by and large people who lend you their stuff do not press charges for theft, and by and large people who have consensual sex with you do not charge you with rape. The difference is that the way that our laws are written reflect/acknowledge the first reality and *completely* subvert the second. This makes no sense to me.

          Alara, you keep arguing that the theft and rape crimes are comparable, but in reality, the statutes make them very different.

          I think her point is that the statutes *shouldn’t* make them different. Why should lack of consent be an element of the crime of rape but not the crime of theft? I understand that is the wording of the current law. I am asking for a justification of that wording.

        24. AsakaD2
          AsakaD2 March 27, 2013 at 4:56 pm |

          So shifting the burden of proving consent onto the defense only brings rape in line with every other crime that involves an action against another person which would be lawful if performed with consent.

          Alara & Emolee, I think you’re confusing legal burden shifting with the practical need to convince a jury. In theft crimes, just like in sexual assault crimes, the burden of proving a lack of consent rests with the prosecution. The difference is that in practice, juries in a theft trial are more likely to find the uncorroborated testimony of the victim that they didn’t consent to be sufficient evidence to satisfy the “beyond a reasonable doubt” standard, whereas in sexual assault trials, the juries tend to doubt the word of the victim.

        25. Donna L
          Donna L March 27, 2013 at 5:07 pm |

          Donna, I think you are exaggerating, as I don’t think you are 95 years old, but have you really been practicing law for 70 years? I have been doing it for four, and I am already, shall we say… tired.

          No, it’s actually more like 30. It just feels like 70.

        26. Emolee
          Emolee March 27, 2013 at 5:30 pm |

          No, it’s actually more like 30. It just feels like 70.

          I can imagine. And 30 years is still a very long time. Congratulations.

        27. hotpot
          hotpot March 27, 2013 at 7:07 pm |

          The difference between rape and theft as far is burden of proof goes, is that if your stuff is suddenly in my hands, that’s instinctively unsettling. Prior to all legal questions or even questions of consent, we instinctively understand that inherent in the act itself, I’m better off and you’re worse off. Even if you gave it to me as a gift, I’d be obligated to say ‘thank you.’ It’s understood to be an uneven transaction. (The same with other things that are or should be considered affirmative defenses, such as self-defense).

          Not so with sex. If two people have sexual intimacy, that isn’t seen as inherently unsettling.

        28. Emolee
          Emolee March 27, 2013 at 9:52 pm |

          Hotpot, that is a good point.

        29. Henry
          Henry March 28, 2013 at 1:42 am |

          the law is written just fine. it states “unlawfully takes”. One of the ways to unlawfully take stuff is to take it without permission by force. Another way is to take it without permission by deception.

        30. Tyris
          Tyris March 28, 2013 at 6:35 pm |

          All men should be afraid that if they can’t trust their sex partner to be a reasonable human being and not a malicious predator, they could be in great danger from having sex with that person… because that is already the world women live in.

          This is your stepping stone to a world without fear for everyone, not your end goal, right?
          …right?

      2. matlun
        matlun March 27, 2013 at 2:52 pm |

        @EG: Consent is not always a part of it. Theft does implicitly include it, yes, but for example not violent crimes.

        In most jurisdictions you can not consent to severe violence (eg private prize fights or duels are illegal). You can consent to minor levels of violence, but there is a cut-off with varying definitions depending on jurisdiction.

        And there are of course many crimes which are not crimes against a specific victim so that consent does not really come into it.

        1. EG
          EG March 27, 2013 at 4:34 pm |

          Well, OK, but that just proves the point of affirmative consent. Rape is a violent crime.

        2. matlun
          matlun March 27, 2013 at 4:54 pm |

          No, the idea that consent is not a defense when there is serious bodily harm means that whether there was consent or not does not matter. It is still a crime even if the victim consented.

          For rape, the question of consent must be different. If lack of consent was not a part of the definition, then we would criminalize all sex. If you actually have consent, rape is not rape. It is just sex.

          As it is, this principle has already caused problems in some cases. For example see the Spanner case where a group of men were convicted for consensual sex. Extreme BDSM sex, but still.

  4. qmeme
    qmeme March 27, 2013 at 2:32 pm |

    /”It also opens the door to ridiculous conclusions: If only “no” means “no”, then is anything other than a “no” a “yes”?”/

    Isn’t it somewhat less empowering for women that they would have to have some sort of “disclaimer” period prior to having sex? I mean, are you suggesting that women are not able to autonomously decide what they want to do, or not do, such that they must “opt-in” to behavior? Because that seems problematic.

    The default model for this type of thing is situations in which you “waive” certain rights. Otherwise, parties are presumed to know how to look out for their best interests. If you are suggesting that women must be affirmatively asked to “waive” their ability to say no to sex, it would seem to objectify and belittle women further. It is only somewhat defensible in the context of minors having sex…maybe.

    As to sex with unconscious people, I don’t think many people defend sex with unconscious people as consenting.

    1. EG
      EG March 27, 2013 at 2:46 pm |

      As to sex with unconscious people, I don’t think many people defend sex with unconscious people as consenting.

      Have you been following the news lately at all?

      Your analogy doesn’t work. A woman who consents–and a woman can consent to sex in any number of ways, saying yes, saying “I want your cock inside me,” straddling a man and penetrating herself with his penis–isn’t waiving any rights at all. You can’t waive the right to say no to sex.

      I am not always presumed to want cookies. I like cookies a lot. I eat them often. But unless I consent to eat a cookie–by saying “Gosh, I want a cookie,” or by putting a cookie in my mouth, or whatever–you can’t just walk up to me and shove a cookie in my mouth and assume I will be OK with it. That’s not because I can’t be trusted to know when I want a cookie or when I don’t. And it’s not that when I eat a cookie, I’m waiving my right to refuse a cookie later.

      1. qmeme
        qmeme March 27, 2013 at 2:52 pm |

        Your analogy doesn’t work. A woman who consents–and a woman can consent to sex in any number of ways, saying yes, saying “I want your cock inside me,” straddling a man and penetrating herself with his penis–isn’t waiving any rights at all. You can’t waive the right to say no to sex.

        I agree with all of this, but I don’t think that is what the article is proposing. I guess it comes to a question of what implied consent looks like.

        I am not always presumed to want cookies. I like cookies a lot. I eat them often. But unless I consent to eat a cookie–by saying “Gosh, I want a cookie,” or by putting a cookie in my mouth, or whatever–you can’t just walk up to me and shove a cookie in my mouth and assume I will be OK with it. That’s not because I can’t be trusted to know when I want a cookie or when I don’t. And it’s not that when I eat a cookie, I’m waiving my right to refuse a cookie later.

        I don’t have a problem with this analogy either.

        1. Emolee
          Emolee March 27, 2013 at 3:02 pm |

          I don’t think that is what the article is proposing.

          I thought that was exactly what the article was proposing. That the woman needs to actively consent, verbally or otherwise, instead of just not saying no, fighting back, whatever.

          To use the cookie example, the affirmative consent method would look like the woman saying “yes, I want a cookie,” or placing a cookie in her mouth, etc. instead of someone out of the blue shoving a cookie in her mouth, then saying, well, she never told me she didn’t want a cookie. Why can so many people understand that the default of cookie-eating, or handing over your purse, whatever, is no, but can’t understand the default of sex is no?

        2. amblingalong
          amblingalong March 27, 2013 at 11:08 pm |

          I thought that was exactly what the article was proposing. That the woman needs to actively consent, verbally or otherwise, instead of just not saying no, fighting back, whatever.

          Using ‘the woman’ as a stand-in for ‘the victim of sexual assault/rape’ is not fucking acceptable.

        3. Emolee
          Emolee March 28, 2013 at 10:28 am |

          Using ‘the woman’ as a stand-in for ‘the victim of sexual assault/rape’ is not fucking acceptable.

          You are right. But I was not using “the woman” as a stand in for “rape victim.” My comment was specifically a rebuttal to someone who seemed opposed to an affirmative consent model on the grounds that it disempowered women, and who asked the question:

          Isn’t it somewhat less empowering for women that they would have to have some sort of “disclaimer” period prior to having sex?

          In any case, I’m sorry that my comment implied that women are the only rape victims. This is not what I believe at all.

      2. Emolee
        Emolee March 27, 2013 at 2:55 pm |

        Exactly, EG, well said.

      3. klaym0re
        klaym0re March 27, 2013 at 3:13 pm |

        straddling a man and penetrating herself with his penis–isn’t waiving any rights at all.

        uhhh, except his right?

        Actually how would that work exactly? If the new law says that if accused you have to provide evidence of consent, does that mean the law also has to define what consent IS in a legal context? Like, if your partner points at you with a “come hither” finger but then says nothing would that evidence still count?

        1. Aaliyah
          Aaliyah March 27, 2013 at 3:48 pm |

          It’s quite clear that she’s particularly talking about the woman consenting, but yeah, that’s a very strange way to say it.

        2. Emolee
          Emolee March 27, 2013 at 3:58 pm |

          I’m pretty sure EG was talking about a situation in which a guy says something like “wanna fuck?” and then she straddles him in place of a verbal yes. I find it highly unlikely that she was suggesting a woman just go up to a random guy and straddle him out of the blue.

        3. EG
          EG March 27, 2013 at 4:24 pm |

          Given that most people don’t just fuck out of the blue, I was envisioning the situation in which a woman is in bed with a a man, and they’re fooling around, and with many an exchanged knowing look and stimulating caress, she straddles him. For the rest of it, you can read some erotica.

          Like, if your partner points at you with a “come hither” finger but then says nothing would that evidence still count?

          Well, is your partner having you brought up on charges of rape?

        4. amblingalong
          amblingalong March 27, 2013 at 5:20 pm |

          iven that most people don’t just fuck out of the blue, I was envisioning the situation in which a woman is in bed with a a man, and they’re fooling around, and with many an exchanged knowing look and stimulating caress, she straddles him.

          So if fooling around, knowing looks, and caresses constitute consent, then how in the world is this new law supposed to work? And assuming the man in your scenario presses rape charges later, under this proposed legislation, how do you see the trial going such that the woman doesn’t end up in jail?

        5. Emolee
          Emolee March 27, 2013 at 5:28 pm |

          assuming the man in your scenario presses rape charges later

          Why all of the assuming that people will file false rape charges? This rarely happens. And in the rare cases, that is absolutely an injustice for the innocent accused. But innocent people are accused just as often in other crimes, so why oh why is this always the central conversation when figuring out how to word/enforce rape laws? And not other laws?

        6. Colin
          Colin March 27, 2013 at 7:13 pm |

          Given that most people don’t just fuck out of the blue, I was envisioning the situation in which a woman is in bed with a a man, and they’re fooling around, and with many an exchanged knowing look and stimulating caress, she straddles him.

          He may not want that to happen, though. Consent to ‘fooling around’ and ‘stimulating caress’ doesn’t imply consent to penetration.

        7. amblingalong
          amblingalong March 27, 2013 at 10:01 pm |

          Why all of the assuming that people will file false rape charges? This rarely happens. And in the rare cases, that is absolutely an injustice for the innocent accused. But innocent people are accused just as often in other crimes, so why oh why is this always the central conversation when figuring out how to word/enforce rape laws? And not other laws?

          When figuring out how to write laws, avoiding imprisoning innocent people is always a major concern.

          You’re confusing the misogynist dialogue surrounding rape in general (i.e. a heavy focus on false accusations) with the necessary process behind drafting a law in the first place. I agree that there are a lot of contexts where bringing up false accusations is a non-sequitor at best and rape apologism at worst, but not in a discussion about standards of evidence and the burden of proof.

        8. klaym0re
          klaym0re March 28, 2013 at 3:49 am |

          Well, is your partner having you brought up on charges of rape?

          If they were, what would be the legal interpretation of consent in that case? Would the defendant be able to argue that the body language used by the alleged victim was responsibly interpreted as consent by the defendant or would that be considered “not evidence of consent” because it wasn’t verbal? where would the line be?

        9. EG
          EG April 3, 2013 at 11:07 am |

          Given that I have made this situation up based on my own experiences, I feel comfortable in saying that in the situation I am describing, nobody pressed charges or was even vaguely uncomfortable.

          Present me with a real case in which this happened and I will give you an opinion. Otherwise you’re asking me to make up the facts that would determine my opinion, and that is nonsensical wankery.

    2. Esti
      Esti March 27, 2013 at 2:55 pm |

      Isn’t it somewhat less empowering for women that they would have to have some sort of “disclaimer” period prior to having sex? I mean, are you suggesting that women are not able to autonomously decide what they want to do, or not do, such that they must “opt-in” to behavior? Because that seems problematic.

      No. Just no. It makes absolutely zero sense to say that requiring women to “opt-in” to behavior suggests that women are not able to autonomously decide what they want to do. The fact that women ARE able to autonomously decide what they want to do or not do is EXACTLY THE REASON we should have an opt-in standard for sexual behavior. If you autonomously decide to engage in sexual acts, then you just go ahead and say yes/enthusiastically participate. Problem solved! If you don’t autonomously decide to do so — because you’re too drunk, or semi-conscious, or scared, or not sure — then no one gets to say that the fact you didn’t say no means that it was okay.

      The idea that affirmative consent requires some kind of “disclaimer period” is disingenuous in the extreme. You can verbally check if your partner is consenting in about two seconds. And an affirmative consent system would not require verbal confirmation of consent in every situation — it would just mean that when there was a question regarding whether someone consented, we would be asking “was there a reason to believe he/she was consenting” instead of “was there anything that suggested he/she didn’t want you to do that.”

      1. Emolee
        Emolee March 27, 2013 at 3:08 pm |

        The fact that women ARE able to autonomously decide what they want to do or not do is EXACTLY THE REASON we should have an opt-in standard for sexual behavior.

        Right. And we basically have the understanding of an opt-in for all other types of intrusive, intimate, personal behavior. People do not just walk into your home and say, well, you never said not to come over at 4 in the morning unanounced, etc.

        The idea that affirmative consent requires some kind of “disclaimer period” is disingenuous in the extreme. You can verbally check if your partner is consenting in about two seconds.

        Yes. All of the cries of “but this will kill the mood” are ridiculous. If your partner is consenting, you will know. And if for some reason you are not sure? Asking will be a lot less of a mood kill than raping someone. Unless lack of consent/dubious consent is what you are going for in the first place.

        1. matlun
          matlun March 27, 2013 at 3:26 pm |

          All of the cries of “but this will kill the mood” are ridiculous.

          It is often a straw man argument as I do not think most proponents of enthusiastic consent necessarily requires verbal consent. If simple enthusiastic participation by all parties is considered enough then there is no point to the argument.

          I have heard some people argue for a requirement of continuous explicit verbal confirmation, though. Which sounds very strange and stilted to me.

        2. TomSims
          TomSims March 27, 2013 at 3:59 pm |

          @matlun

          I forget where I got this from or would provided a link. But as I recall it was from a site that provided rape stats and definitions. And it does require verbal consent at every level of sex

          “Consent is defined as the act of willingly and verbally agreeing to engage in specific sexual conduct. The following are clarifying points: Consent is required each and every time there is sexual activity. All parties must have a clear and accurate understanding of the sexual activity. The person(s) who initiate(s) the sexual activity is responsible for asking for consent. The person(s) who are asked are responsible for verbally responding. Each new level of sexual activity requires consent. Use of agreed upon forms of communication such as gestures or safe words is acceptable, but must be discussed and verbally agreed to by all parties before sexual activity occurs. Consent is required regardless of the parties’ relationship, prior sexual history, or current activity (e.g. grinding on the dance floor is not consent for further sexual activity). At any and all times when consent is withdrawn or not verbally agreed to, the sexual activity must stop immediately. Silence is not consent. Body movements and non-verbal responses such as moans are not consent. A person cannot give consent while sleeping. All parties must have unimpaired judgment (examples that may cause impairment include but are not limited to alcohol, drugs, mental health conditions, physical health conditions). All parties must use safer sex practices. All parties must disclose personal risk factors and any known STIs. Individuals are responsible for maintaining awareness of their sexual health. These requirements for consent do not restrict with whom the sexual activity may occur, the type of sexual activity that occurs, the props/toys/tools that are used, the number of persons involved, the gender(s) or gender expressions of persons involved.”

    3. Miriam
      Miriam March 27, 2013 at 4:36 pm |

      I mean, are you suggesting that women are not able to autonomously decide what they want to do, or not do, such that they must “opt-in” to behavior?

      What exactly do you think should be going on OTHER than both parties opting into sexual actions. Sex should ALWAYS require opting in. If all parties involved opt in, sexual activity can happen. If all parties do not, sexual activity does not happen. There’s also nothing gender specific about this either… men need to opt in, women need to opt in, genderqueer people need to opt in. There’s no participation default.

      The common objection I see is what about mixed signals. To which I say, what about mixed signals? Most of the time if your partner is freely consenting, the signals will be clear and obvious. Sometimes they won’t for a variety of reasons. If you’re receiving mixed signals, then all you have to do is ASK your partner(s) until you are no longer receiving mixed signals. What’s so hard about that? We all should care about whether our partner is freely participating in the sexual activity.

      (although I will editorialize that I’m not fond of the enthusiastic adjective for enthusiastic consent. I prefer free consent or positive consent or demonstrated consent because there are times where a person may not be personally enthusiastic about the sexual activity, but still freely consenting.)

      1. wanttobeanon
        wanttobeanon March 29, 2013 at 1:37 pm |

        Demonstrated consent. Love it.

        1. LC
          LC March 29, 2013 at 4:08 pm |

          Yeah, I have issues with “enthusiastic” as the adjective for similar reasons as Miriam.

          I’ve preferred “active”, but I like “positive” and “demonstrated”as well.

      2. TomSims
        TomSims April 1, 2013 at 1:41 pm |

        “There’s also nothing gender specific about this either… men need to opt in, ”

        Maybe in the written laws it would read like that, but in the real world, women are and have always been the gatekeepers of sex.They approve all sexual activity. If she has a headache, it will have to wait for another time.

        1. tigtog
          tigtog April 3, 2013 at 7:33 am | *

          Men can have headaches and not be in the mood for sex sometimes too. I think it’s fine for anybody of any gender who has a headache or a neckache or a bellyache or who is just experiencing a lack of desire right then to opt out of sex, and in my experience friends of all genders have discussed being randy when their partner is not and vice versa.

          The only ethical model for sex is that everybody involved has positively opted in, surely.

        2. amblingalong
          amblingalong April 3, 2013 at 7:43 am |

          Maybe in the written laws it would read like that, but in the real world, women are and have always been the gatekeepers of sex.They approve all sexual activity. If she has a headache, it will have to wait for another time.

          I don’t have any idea what you mean by this. Yes, if women don’t want to have sex, sex doesn’t happen (in healthy relationships). Same goes for dudes.

          What exactly are you trying to say?

        3. Radiant Sophia
          Radiant Sophia April 3, 2013 at 8:00 am |

          women are and have always been the gatekeepers of sex.They approve all sexual activity

          a.k.a. men are always ready for sex.
          a.k.a. a woman can’t rape a man.
          a.k.a. misogynistic rape culture.

        4. amblingalong
          amblingalong April 3, 2013 at 8:23 am |

          That’s what I got out of it, as well, but with an added dash of “isn’t it obnoxious of women to refuse to have sex for stupid reasons, like a headache?”

        5. macavitykitsune
          macavitykitsune April 3, 2013 at 10:53 am |

          Do you actually have a problem with one person being able to call off sex? Because, I mean, if someone had to FAKE ILLNESS to get out of, say, giving someone a car ride without any negative consequences, I’m sure you would call that person subject to coercion. But when it’s sex it’s…bad and wrong and they’re “gatekeepers”?

          Fuck you, my body is not a “gate”.

        6. TomSims
          TomSims April 10, 2013 at 1:03 pm |

          Ok, I’m sorry if I offended anyone by using the term “gatekeeper”, it was never my intention to do so. So let me state this another way. In my own experience and the experience of men I’ve known and worked with, women are in charge when it comes to sex. I have no problem with this and am only stating facts relative to my own experience and the experiences of others I’ve known.

          My own brother told me of a time years ago with his then girlfriend and his failure to rise to the occasion due to excessive drinking, calling him gay. I’m not saying this happens in all cases or even in most cases. But it does and has happened to many men I’ve known over the years. Men are required to perform during sex and it is a scientific fact that women are much more complicated than men. Men achieve orgasm very easily. With women is much more of a challenge. It’s biology, not culture. If my own marriage was based on sex, I’d have been divorced long ago. Before I was married, the few women I had sex with voiced their displeasure with my lack of performance.

          Maybe things are different in the upper class professional world. I don’t know. I come from the bottom class and I only know that life. I am not qualified to talk about any other lifestyle than the one I’ve lived myself. And when I post here or any other place, I am doing so from the perspective of one who grew up in the 50’s and 60’s and lived in the bottom class of folks. And oh yeah, being an old privileged white male, it’s amazing I’m not a billionaire by now. I guess I must be a slacker.

  5. Keris
    Keris March 27, 2013 at 3:04 pm |

    I was starting to type a big long post talking about mens rea and all that, but maybe it’s better to just ask a question. Do you think it would be sufficient to incorporate concepts of affirmative consent such as “silence does not indicate consent” explicitly into the question of whether the defendant purposefully acted sexually to the victim without their consent? Is purposefully even the right standard (now that I’m writing this out, “reckless” seems like it might be better, where someone’s liable if they act with substantial disregard to the potential for nonconsent)? Should there be a lesser offense for negligently acting sexually where the defendant should have known there was potential for the act to be nonconsensual?

    I think the answers depend on whether you think laws guide norms or the other way around. If laws do create norms, then criminalizing negligent sex would maybe be a good way to drive home the idea that a reasonable person should take a lot of care to make sure that the person they have sex with is consenting to it. MADD was successful at using criminal laws to change norms so that now drunk driving is largely viewed as a dangerous and morally apprehensible thing to do, so maybe that’s a point in favor.

    On the other hand, we do know that laws are sometimes exploited by the socially advantaged to hurt the people they are intended to protect; is there a concern that this kind of change could be used that way, or is that kind of concern just an aspect of harmful and wrong tropes about sexual assault law generally?

    This ended up being way more rambling than I would have hoped, but you definitely have given me some things to think about.

    1. thefish
      thefish March 29, 2013 at 2:42 am |

      On the other hand, we do know that laws are sometimes exploited by the socially advantaged to hurt the people they are intended to protect; is there a concern that this kind of change could be used that way, or is that kind of concern just an aspect of harmful and wrong tropes about sexual assault law generally?

      Yeah, when you remove protections for the so-called “bad guys” you really just remove protections for innocents. If the accused is required to prove they had consent well…
      If you are blackout drunk and a rapist accuses their victim of rape (yes it is possible to rape someone when blackout drunk so we can’t dismiss the accusation out of hand) how exactly is the victim going to present evidence of the rapists consent? The victim doesn’t recall anything.

      The people in power generally don’t need fancy limits on jailing people to protect themselves. They have power. Its the powerless who benefit.

      P.S. I’m exactly clear on what is being proposed. It seems there are a couple ideas. One is to move burden of proof to the defense. The other is that the law should use “yes means yes”. I.E. that sex without consent is rape. The second one is very good, but I think the prosecutor still needs to prove a lack of consent.

      1. thefish
        thefish March 29, 2013 at 2:43 am |

        Correction: I’m NOT exactly clear…

        I forgot a word. :(

  6. TomSims
    TomSims March 27, 2013 at 3:14 pm |


    “As to sex with unconscious people, I don’t think many people defend sex with unconscious people as consenting.”

    Yes I agree but still the very popular woman’s magazine Cosmopolitan advises their readers to do just that

    http://www.cosmopolitan.co.uk/community/forums/thread/1493079

    1. matlun
      matlun March 27, 2013 at 3:37 pm |

      That article is about waking someone up with a blowjob in a situation where they have previously expressed consent to this.

      I do not see a moral problem with this even if in a strictly literal reading it is indeed sex with an unconscious person.

    2. Miriam
      Miriam March 27, 2013 at 5:13 pm |

      Your link is to a forum, not an article. Cosmopolitan isn’t advising anything. Also, the original poster is in a situation where her partner is explicitly requesting that she do this, and her only dilemma is because even with his explicit consent and permission, she still feels uncomfortable engaging in sexual activity with a sleeping person. It’s a beautiful example of a person being concerned about issues of consent and a couple negotiating through them to try and reach mutually fulfilling sexual activity.

      In other words, it’s a very bizarre forum thread to link to in order to imply Cosmopolitan is advising women not to care about consent with unconscious sexual partners.

      1. Hrovitnir
        Hrovitnir March 28, 2013 at 3:04 am |

        Glad to hear that was what the link was actually like, but to be fair, Cosmo is not a big fan of affirmative consent. Like, REALLY not.

        Cliff Pervocracy (NSFW blog but I’ve linked only to the Cosmocking section) writes a thing picking apart the awfulness that is Cosmo if you want examples: http://pervocracy.blogspot.co.nz/search/label/cosmocking

        It is depressing/hilarious.

        1. amblingalong
          amblingalong March 28, 2013 at 3:21 am |

          Yeah, Cosmo is awful for everyone. I remember seeing a blog post a while back describing Cosmo’s list of ways to get back at a cheating significant other, about half of which involved some form of sexual assault or other felonious behavior (post your sex tape online! pretend you want to have sex, then punch him in the balls! sell everything he owns on Ebay!).

        2. Emolee
          Emolee March 28, 2013 at 10:33 am |

          Yeah, Cosmo is pretty much all around toxic and damaging.

  7. Donna L
    Donna L March 27, 2013 at 3:30 pm |

    I agree with what everyone else is saying.

    To digress only briefly, I would certainly hope that in the course of changing the definition of consent as Jill phrases it:

    the question isn’t whether a woman voiced her lack of consent, but whether the sex was mutually consensual.

    that the definition of consent is changed in the same way for all victims of rape or sexual assault, male and female, cis and trans. (Keep in mind that under New York law, although a man can be sexually assaulted, a man cannot be raped. Nor can a trans woman who doesn’t have a vagina. And it’s an open question as to whether a trans woman who does have one can be raped under New York law, since a surgically-created one may not qualify as such.)

    1. Emolee
      Emolee March 27, 2013 at 3:42 pm |

      Yes. The definition of rape should not require that the victim have a vagina or that the victim be female and/or cis.

      1. yes
        yes March 27, 2013 at 6:51 pm |

        Or that the victim be the one penetrated.

    2. TomSims
      TomSims April 12, 2013 at 5:57 pm |

      @Donna L

      “(Keep in mind that under New York law, although a man can be sexually assaulted, a man cannot be raped. ”

      [a man cannot be raped]

      Thank you for the clarification.

  8. Anon21
    Anon21 March 27, 2013 at 4:00 pm |

    I’m not sure I understand the content of your proposal, Jill. An example of a “modern” rape statute that doesn’t require proof of forcible compulsion is Alaska’s, which provides in relevant part: “An offender commits the crime of sexual assault in the first degree if the offender engages in sexual penetration with another person without consent of that person.”

    So would you change the operative language to be: 1) “the offender engages in sexual penetration with another person without that person’s affirmative consent,” or 2) “the offender engages in sexual penetration with another person, but it is an affirmative defense under this section that that person affirmatively consented to the sexual act,” or 3) “the offender engages in sexual penetration without that person’s explicit verbal consent, or 4) something else?

    I think 1) would be a salutary change with little effect on actual rape prosecutions, but that might help to erode rape culture by making it clearer to people that the focus should be on whether there was consent in fact, rather than whether the rapist can come up with some colorable theory as to how he might not have been 100% clear about the victim’s intentions. I think 2) would be a terrible idea, and I’d be happy to discuss that further if someone disagrees or would like to hear more. I think 3) is at the very least an interesting proposal that ought to be on the table. I’m a bit leery about imposing a one-size-fits-all conception of what consent looks like, but you can certainly see how a bright-line rule like this would strip away plausible deniability for predators and have a real impact on prosecution and conviction rates.

    But in any event, I’d like to better understand exactly what changes Jill’s proposing here.

    1. Aaliyah
      Aaliyah March 27, 2013 at 4:05 pm |

      3) “the offender engages in sexual penetration without that person’s explicit verbal consent,

      What about “the offender engages in sexual penetration without that person’s explicit verbal or non-verbal consent?” I’m in favor of that, personally, as enthusiastic consent doesn’t only include verbal consent.

      1. Anon21
        Anon21 March 27, 2013 at 4:23 pm |

        I think that explicit would be at war with non-verbal there, given the way that the law usually understands explicit. E.g., an explicit term of the contract is something written into the instrument; an implicit term is something that you can infer from the parties’ behavior that they believed to be part of the bargain.

        But I could certainly be mistaken, and perhaps someone can point to examples whether explicit could mean non-verbal. (And to be clear, a nod or something like that is so close to verbal communication that I don’t think it really changes the scope; I assume what you’re talking about, Aaliyah, is behavior, including enthusiastic participation, that leaves no reasonable doubt that a person is consenting, but that wouldn’t normally be considered a response to a yes/no question.) Or maybe the problem is with the term explicit, when what’s really needed is something like unequivocal.

        1. Aaliyah
          Aaliyah March 27, 2013 at 4:40 pm |

          Unequivocal works better. “Explicit” was just the first word that came to mind.

        2. Anon21
          Anon21 March 27, 2013 at 5:05 pm |

          Unequivocal works better. “Explicit” was just the first word that came to mind.

          Well, my fault; I used explicit in framing that option in my first comment. With the substitution of “unequivocal verbal or non-verbal consent” (or maybe just “unequivocal consent”), I agree that it would be a serious improvement on the current language.

    2. AsakaD2
      AsakaD2 March 27, 2013 at 4:30 pm |

      The prosecutor has the initial burden of proof, yes. And even with an affirmative consent model, it would still fall on the prosecution to provide evidence that the victim did not say “yes”….. In cases where an affirmative defense is raised, the defense has to provide evidence supporting their contention. This would essentially extend meaningful consent as an affirmative defense, which the defendant would have the burden of providing, instead of just making the argument that “she didn’t say no.”

      From this comment of Jill’s upthread, it sounds like she’s proposing a combination of 2 and 3. Something like “the offender engages in sexual penetration with another person without that person’s explicit verbal consent, but it is an affirmative defense under this section that such person provided another form of meaningful affirmative consent.”

    3. snorkellingfish
      snorkellingfish March 27, 2013 at 6:30 pm |

      What about adding a subsection to the law that defines what’s meant by consent? Like, for example, where I live, our law takes the time to define exactly what consent means. It also explicitly covers cases like where a person is asleep, making sure that the law is clear that a sleeping person can’t consent.

      I mean, it doesn’t fix everything – and there are still a lot of problems with prosecuting sexual assault cases over here – but at least there’s a lot less scope to argue that a person consented when there’s less room to argue about what consent means.

      (Our law also takes the time to define “sexual intercourse” in a way that’s gender neutral, includes non-PIV forms of sex and is inclusive of trans people. Sometimes just spelling things out rather than leaving it to courts to argue about can make a difference.)

    4. thefish
      thefish March 29, 2013 at 11:50 am |

      “the offender engages in sexual penetration without that person’s explicit verbal consent

      This is actually a really bad idea as can be evidenced by an example:

      Person A: Do you want to have sex with me?
      Person B: Yes.
      They have sex.

      A certainly didn’t give explicit verbal consent. A merely asked a question and didn’t make a statement of any kind. Sure it might have been implied by the question, but it was never explicitly stated. Are you seriously arguing we should legally consider B a rapist.

      Oh its also rather ableist. If I can only speak in sign language I can’t consent under this law.

      1. Anon21
        Anon21 March 29, 2013 at 1:22 pm |

        I essentially agree, which is why we talked about changing to “unequivocal” rather than “explicit” upthread, and also discussed dumping the “verbal” language altogether. I hadn’t thought of the ableist angle, but it’s a fair point, and another reason why the “unequivocal consent” formulation is better.

      2. TomSims
        TomSims April 2, 2013 at 7:19 am |

        “Oh its also rather ableist. If I can only speak in sign language I can’t consent under this law.”

        Since hearing impaired can not speak verbally, isn’t sign language the legal equivalent?

  9. Thomas MacAulay Millar
    Thomas MacAulay Millar March 27, 2013 at 4:15 pm |

    For two relatively detailed treatments of the substantive law of rape:
    Radicalizing Consent
    Affirmative Consent as Legal Standard

    1. hotpot
      hotpot March 27, 2013 at 6:19 pm |

      Great articles.

    2. AMM
      AMM March 27, 2013 at 9:44 pm |

      I read the article “Affirmative Consent as Legal Standard”. I agree that it’s good. However, I was struck by the point made at the end of that article:

      The familiar jury myth of “justified rape” is very much still with us. When the victim met the defendant at a pick-up bar, or asked the defendant into her room, or accepts a ride home from him, jurors remain willing to believe that she asked for what she got. Such opinions, moreover, seem about as common among women as among men.

      (for the record, Thomas was quoting someone else.)

      The conclusion of many of the people he quotes is that it doesn’t matter how you rewrite the laws as long as most people regard most rapes as “not real rape.”

      The Steubenville rape case was about as open-and-shut as you can imagine, yet a large proportion of the people in the USA who are aware of the case believe that what the defendents did was not rape. If they’d had a jury trial in Steubenville, I’m fairly confident they would have been acquitted. And likely even if it had been held elsewhere.

      After all, if you go pretty much anywhere and select 12 people at random, you’re likely to have at least one or two who won’t see rape as rape unless it fits their very narrow concept of “real rape.” And that’s all it takes.

  10. amblingalong
    amblingalong March 27, 2013 at 5:40 pm |

    If all we’re talking about is switching the prosecution’s burden of proof from “she said no” to “she didn’t give consent,” sure. I’m confused why some commenters seem to think this would make it much easier to get a conviction, though. Above, EG described:

    [a] situation in which a woman is in bed with a man, and they’re fooling around, and with many an exchanged knowing look and stimulating caress, she straddles him

    as an example of legitimate, non-verbal consent on the part of both parties (presumably, a case where after the knowing looks and caresses, the man penetrates the woman would be legally equivalent). I’m not sure proving that there weren’t looks and caresses before sex is easier than proving there was a ‘no.’ Even if we abandon non-verbal consent altogether, is proving the absence of a yes really easier than the presence of a no?

    On the other hand, if we’re talking about simply instituting a model in which the very act of prosecuting a rape is considered evidence that rape occurred, barring an affirmative defense (as a couple posters seem to advocate), I’m not even going to bother arguing, since such a clear violation of the 5th, 6th and 14th Amendments is simply not going to happen (though they did get something similar going in Salem for a while, so you never know!).

    1. EG
      EG March 27, 2013 at 6:04 pm |

      though they did get something similar going in Salem for a while, so you never know!

      Well, mostly directed at women, though.

      1. matlun
        matlun March 27, 2013 at 6:21 pm |

        Well, mostly directed at women, though.

        Slightly more women, yes. Of the 20 executed there were 13 women, which makes them 65%.

        Amblingalongs main point seems pretty solid, though. Just assuming guilt without requiring proof is not a good way to go.

        1. Angie unduplicated
          Angie unduplicated March 28, 2013 at 9:35 am |

          This also was over 100 years before the ratification of the the Constitution, exclusive of amendments. The origination of the Trials began with young women who were deprived of the right to choose and consent in marriage, including its sexual component.

    2. hotpot
      hotpot March 27, 2013 at 6:17 pm |

      I’m not sure proving that there weren’t looks and caresses before sex is easier than proving there was a ‘no.’ Even if we abandon non-verbal consent altogether, is proving the absence of a yes really easier than the presence of a no?.

      I think it is, if proof is construed as something that has a probabilistic element. Let’s say you flipped a coin a thousand times in the privacy of your own room, with no one watching. Can I prove beyond a reasonable doubt that you didn’t get heads more than 500 times? I have no chance. But I have a pretty good chance of convincing a jury that you got tails at least once, even without any direct evidence. That’s because the probability is much higher. Similarly, the probability that affirmative consent wasn’t given is much higher than the probability that affirmative protestations were made, since the latter implies the former (if we accept that kink situations where there was a prior explicit agreement redefines genuine protestations to safe words). So it’s not a matter of absolute proofs or unproofs, but if we accept that probabilistic thinking can potentially factor into a jury’s thinking, then it does make a difference.

    3. Emolee
      Emolee March 27, 2013 at 6:33 pm |

      if we’re talking about simply instituting a model in which the very act of prosecuting a rape is considered evidence that rape occurred, barring an affirmative defense (as a couple posters seem to advocate),

      This is a gross mischaracterization of what I advocated. Of course the fact that a prosecution for rape is taking place should not be proof that rape occured. Defendants should be presumed innocent until proven otherwise in a court of law.

      What I was advocating was that the prosecution of rape not turn so singularly on the concept of non-consent having to be proven by the prosecution (yes, laws would have to be rephrased). I think it should be more like prosecutions for theft in which the defense has to introduce evidence that consent was present, if that is the defense they are going for. The prosecution would still have to introduce evidence of a sex act, such as sexual intercourse, and would still have to rebut the defense’s arguments re consent.

      I am open to the idea that I am taking things too far. But I really would like an answer to the question of why the prosecution has to prove a rape victim did not consent to sex, but does not have to prove that a victim of theft did not voluntarily hand over the stuff/car, whatever. And please don’t give me a circular answer like “because of the different elements of the crimes.” I am asking *why* non-consent is an element of one and not the other. Seriously, why should we treat rape differently?

      1. matlun
        matlun March 27, 2013 at 7:15 pm |

        If you do not agree that the prosecution should have to prove the lack of consent, then I would not say that amblingalong was misrepresenting you by a lot.. It is what the idea to require proof of consent would mean. (As long as sex can be proven, at least).

        This is really not different from theft or any other crime. If for example I allege that you have stolen my car keys and then my car while a guest in my home, while you say that no, I let you borrow that car. Should you have to prove that I really did let you borrow that car? How? Or should we keep today’s system where the prosecution would have to prove the theft?

        It is all about the plausibility of consent. If you do not know me, and if you break into my car and drive it away that defense would normally not fly because it would be too implausible. But you do not have to prove consent as long you can claim it is a reasonable alternative explanation.

        The problem with rape is that the scenario where there is consent is often not that implausible to an outsider such as a jury member. That is just the nature of the crime.

      2. AsakaD2
        AsakaD2 March 27, 2013 at 7:18 pm |

        Emolee, as I mentioned upthread, I think you’re mistaken on who has the burden re consent in theft trials. The burden to show non-consent there is also on the prosecution. The difference between theft trials and rape trials is not in who has the burden, but rather in how much evidence of non-consent the prosecution usually has to present in order to convince a jury beyond a reasonable doubt. In a theft trial, the prosecutor can often just put the victim on the stand, and the jury will take their word for it that there was no consent. Not so in a rape trial, because juries tend to be much more skeptical of rape charges.

        1. Emolee
          Emolee March 27, 2013 at 10:05 pm |

          You could be right that non-consent is an element of a theft charge. Other lawyers upthread said it was not. In either case, I think you are correct that the main problem lies with society’s view of rape and rape victims versus victims of other crimes. It just makes me angry that in a rape case the whole thing centers around the possibility that the victim is lying while in other cases it does not.

        2. amblingalong
          amblingalong March 27, 2013 at 10:59 pm |

          It just makes me angry that in a rape case the whole thing centers around the possibility that the victim is lying while in other cases it does not.

          Again, this isn’t true. If I accuse someone at my gym of beating me up, and they claim I have a black eye because of our regularly scheduled sparring match, my testimony is subject to the same presumptions as in the case of an accusation of rape.

          I agree with you about societal problems, and rape culture, and misogyny, and the way that can infect juries and influence trials. But in terms of the way the law itself is framed, this just isn’t true.

        3. Emolee
          Emolee March 28, 2013 at 10:43 am |

          I agree with you about societal problems, and rape culture, and misogyny, and the way that can infect juries and influence trials. But in terms of the way the law itself is framed, this just isn’t true.

          In the comment that you quoted, I was not just talking about the way the law was phrased. (In fact, that part of my comment comes right after me saying maybe I was wrong about the phrasing of the law.) I was talking about the *actual way that rape trials play out in real life.*

          If I accuse someone at my gym of beating me up, and they claim I have a black eye because of our regularly scheduled sparring match, my testimony is subject to the same presumptions as in the case of an accusation of rape.

          No. While I am unsure on the wording of theft laws, on this I am positive: The prosecution would just have to prove that he hit you, causing the injury, and then it would be on the defendant to prove that he had a legal reason for doing so, such as a consensual sparring match. In rape cases, it is on the prosecution to prove not only that the sexual contact happened, but also that it was non-consensual.

        4. Anon21
          Anon21 March 28, 2013 at 11:10 am |

          No. While I am unsure on the wording of theft laws, on this I am positive: The prosecution would just have to prove that he hit you, causing the injury, and then it would be on the defendant to prove that he had a legal reason for doing so, such as a consensual sparring match. In rape cases, it is on the prosecution to prove not only that the sexual contact happened, but also that it was non-consensual.

          Assuming that’s so as to battery statutes, that makes good sense to me, and would make little sense as applied to rape. It gets back to the point amblingalong has been hammering: very few people agree to be hit in the face, so it makes sense to have a presumption of nonconsent when it comes to battery. Very many people agree to have sex, so it does not make sense to have a presumption of nonconsent when it comes to sex.

          The disconnect here between pheeno’s position (and maybe yours?) and ambling’s really comes down to the appropriateness of different presumptions. When pheeno says that “A rapist should have to prove I consented,” she seems to be talking about a legal presumption of nonconsent in rape cases. The problem is, mandatory presumptions are unconstitutional in criminal cases. A judge cannot say to a jury, “If you find that the defendant sexually* penetrated the complaintant, you should presume that the act occurred without the complaintant’s consent, but that presumption can be rebutted.”

          What you would instead have to do is change the elements of the crime, such that the crime of rape is any sexual act. To me, it’s not acceptable to have a serious crime on the books that ends up criminalizing mostly blameless conduct, as well as some wrongful conduct. (And I also doubt it would be constitutional, given Lawrence v. Texas.)

          *Sorry, pheeno, I know you don’t like this wording and I agree in theory, but I don’t know of another way to convey what’s different about rape while not saying that stabbing someone in the stomach is rape. Ideas for different terminology?

        5. Emolee
          Emolee March 28, 2013 at 11:30 am |

          very few people agree to be hit in the face, so it makes sense to have a presumption of nonconsent when it comes to battery.

          Meh. People consent to activities where they could be hit or otherwise hurt by someone else all the time, like sports.

          Although I do not agree 100% with what pheeno is saying, I do agree that the disconnect between playing sports and being beaten up is no greater than the disconnect between sex and rape.

          I agree with much of the rest of your comment re criminal trials. I am not sure what the answer is here. I just know that the way rape trials play out is really not ok, and that rape victims are disbelieved in a way that victims of other crimes are not. And I think it is worth looking into ways to remedy that (even more- this was done already somewhat via rape shield laws, etc.) either through law, culture, or both.

      3. amblingalong
        amblingalong March 27, 2013 at 8:28 pm |

        I don’t believe I used your name, Emolee. Arguments like:

        If instead her lack of consent is assumed by the *fact that she brought rape charges*, and therefore when she testifies that she did not consent he can’t just say “Yes, she did”, he actually has to *prove* it… Under a model of “yes means yes” he has to prove she didn’t say yes, and his word for it isn’t good enough because her word disputes his.

        are what I’m referring to. Alara is advocating that the very act of accusing someone of rape be treated as evidence that rape occurred, absent an affirmative defense relying on something other than a denial. Basically, if I accuse you of rape and you don’t have a videotape of me consenting, you go to jail.

        She’s welcome to feel that way, and like I said, I’m not really going to engage; I think it’s clear how I feel about such an argument, but since there’s almost no possibility of her position ever mattering or turning into legislation, I don’t see any need to convince her. Anyways, advocating such a thing requires an understanding of the meaning of ‘justice’ so diametrically opposed to mine I doubt our conversation would be productive, anyways.

        1. Emolee
          Emolee March 27, 2013 at 9:59 pm |

          Sorry, amblingalong, that I assumed you meant me when you didn’t.

        2. amblingalong
          amblingalong March 27, 2013 at 10:07 pm |

          No worries!

          I’m sorry for both beginning and ending my last sentence in the above post with the word ‘anyways.’ What I wouldn’t do for an edit button…

        3. Miriam
          Miriam March 27, 2013 at 10:36 pm |

          Basically, if I accuse you of rape and you don’t have a videotape of me consenting, you go to jail.

          I don’t think that’s a fair summary of her point. She’s saying that the presumption should be that a person isn’t lying absent evidence of a lie. So in the case of the Duke lacrosse case (to take a well known instance of false accusation), nothing different would really have happened. There was enough evidence that the accuser’s story couldn’t have happened as she told it. However, in the case where a rapist was set free because the Connecticut State Supreme court ruled that the victim–a non-verbal woman with cerbral palsy and the mental age of 3–was capable of physically biting or scratching the rapist and thus was not physically incapable per state law… well, flipping the standard from proving the survivor said no to the survivor indicated yes could have made a big difference.

          If an accuser is lying, there should be signs of the lie. Is the accuser unreliable because s/he has a disorder causing a break from reality? Does physical evidence contradict the accuser’s claims? Does the accused have an alibi? The accuser’s testimony–which is a firsthand account of surviving a crime after all–should not be discounted out of hand. It should be treated as we treat every other survivor of a crime’s testimony.

        4. amblingalong
          amblingalong March 27, 2013 at 10:55 pm |

          I don’t think that’s a fair summary of her point. She’s saying that the presumption should be that a person isn’t lying absent evidence of a lie.

          And if that person is accusing someone of a crime, what you just said is exactly what I wrote.

          It should be treated as we treat every other survivor of a crime’s testimony.

          I agree, but I don’t think you do, because what you described is not how the judicial system treats accusations of other crimes, either.

          Look, I meant it when I said I wasn’t getting into the trenches on this one; fundamentally it’s just not worth arguing about something that will never happen.

      4. amblingalong
        amblingalong March 27, 2013 at 8:36 pm |

        But I really would like an answer to the question of why the prosecution has to prove a rape victim did not consent to sex, but does not have to prove that a victim of theft did not voluntarily hand over the stuff/car, whatever.

        You’re wrong about this assertion. Several people have pointed it out. The prosecution absolutely needs to prove that something was taken without the permission of the owner in the case of a theft trial; the trial is somewhat simpler, though, because it’s extraordinarily rare to suddenly give a stranger your car, but extraordinarily common to have consensual sex with someone.

    4. hotpot
      hotpot March 27, 2013 at 6:52 pm |

      On the other extreme, let’s say the entire thing was videotaped. But the accuser was giving “mixed messages” (e.g., flirting, agreeing affirmatively to some touching but not sex, making gestures and movements that might be interpreted as consent but equally might be interpreted as meaningless, behavior after the fact that did not outwardly display sufficient emotional pain in a way that could be witnessed by others). In this case, I think you can make a clear case that there was no affirmative consent but it would be hard to convince a jury there was no consent. The latter involves a guess about the accuser/victim’s mindset whereas the former simply involves whether the accused/rapist should have reasonably known that he/she didn’t have affirmative consent based on the facts.

  11. a lawyer
    a lawyer March 27, 2013 at 10:04 pm |

    It’s a shift towards convicting more people. Not just more rapists, but more people in general.

    Many feminists are generally very liberal in an overall constitutional-rights, pro-defendant, anti-harsh-government-action kind of way. See, e.g., drug laws, or juvenile sentencing laws, etc. I always find it depressing how rapidly people seem to ignore all of those general rules when it comes to rape.

    What is it about rape that makes people willing to (apparently) write laws that assume people don’t lie? That many defendants aren’t innocent? That gives amazing power to the prosecution? That assumes that accusations and guilt are even roughly equivalent?

    Here’s a good test for folks, if you’re considering a legal standard or method of analysis or limitation on defense: would you want it applied to a poor POC accused of drug trafficking; an illegal alien accused of an immigration violation; or a single mother accused of neglect for leaving her kids at home; or whatever your preferred social cause is? If not, perhaps you should think really, really, hard before you suggest that things should be different specifically for people accused of rape (some, but by no means all, of whom are actually rapists.)

    And, on that subject: Are you all imagining steubenville-type rich white privileged boys who are defendants? Perhaps with Greek letters, on the lacrosse team? Yeah, that’s nice… and not reality. Write a law which lets you toss most of the rich white boys in prison, and you’ll toss ALL of the poor black men in prison.)

    If you want to improve rape convictions WITHOUT increasing the # of people who are wronged by the system, there are ways to do so. Rape kits and DNA testing, for example, improve overall error: they convict guilty folks but also avoid convicting innocent folks. Improved investigation services, likewise. Better judge training, likewise. Victim services, likewise.

    And of course, you may reasonably feel that it’s worth the tradeoff. You may feel that it’s such a broad social issue that you’ll happily change the rules to selectively reduce the rights of a specific class of criminal defendants, based NOT on their characteristics or criminal history,a but on the particular crime that they are accused of. But I’d hope that folks would have a very, very, good reason for doing so.

    1. Miriam
      Miriam March 27, 2013 at 10:52 pm |

      It’s not to assume that people don’t lie. It’s to assume that witness testimony of surviving a crime be treated as reliable evidence unless there is evidence that it is not. That’s not making rape special. That’s making rape equal to other crimes. Generally, when someone testifies that s/he has survived a crime, we believe the person absent a reason not to.

      1. amblingalong
        amblingalong March 27, 2013 at 11:03 pm |

        It’s to assume that witness testimony of surviving a crime be treated as reliable evidence unless there is evidence that it is not. That’s not making rape special. That’s making rape equal to other crimes.

        Well, this is factually inaccurate, as a couple dozen people have pointed out.

        Generally, when someone testifies that s/he has survived a crime, we believe the person absent a reason not to.

        Can you point me to the legislation/rules of evidence/rulings you’re relying on to make that assertion?

        1. Anon21
          Anon21 March 27, 2013 at 11:06 pm |

          Can you point me to the legislation/rules of evidence/rulings you’re relying on to make that assertion?

          I think Miriam is (accurately) describing the actual practice of juries, not anything codified. We can’t repeal juries’ rape-culture-shaped sensibilities, but it’s hardly out of the question that by changing substantive rape and sexual assault law, we can refocus jurors’ deliberations on factual questions less likely to trigger some of the most toxic rape-culture tropes and patterns of thought.

        2. amblingalong
          amblingalong March 27, 2013 at 11:19 pm |

          I think Miriam is (accurately) describing the actual practice of juries, not anything codified. We can’t repeal juries’ rape-culture-shaped sensibilities, but it’s hardly out of the question that by changing substantive rape and sexual assault law, we can refocus jurors’ deliberations on factual questions less likely to trigger some of the most toxic rape-culture tropes and patterns of thought.

          Trying to compensate for jury bias towards the defense by tilting the law towards the prosecution is a losing proposition. Like I said above, if you simply mean the standard should be the lack of a ‘yes,’ rather than the presence of a ‘no,’ then you have my complete support. I just don’t think it will change conviction rates much.

          What I’d fight to the death is the Kafka-esque abomination Alara is proposing, where we give massive evidentiary weight to the very existence of a prosecution. She keeps denying that the burden of proof is shifting from the prosecution to the defense, but that’s exactly what her plan does.

          The good news is that said proposal is unconstitutional on so many different fronts and theories that the chance of it happening is roughly on par with the abolition of the First Amendment.

        3. Anon21
          Anon21 March 27, 2013 at 11:25 pm |

          What I’d fight to the death is the Kafka-esque abomination Alara is proposing, where we give massive evidentiary weight to the very existence of a prosecution.

          You probably won’t need to fight all that hard, given that it’s just something someone is talking about in the comment section of a feminist blog, and not a proposed bill or anything.

          A tougher version of an “absence of a no” element focusing on unequivocal manifestations of consent would be a good first step in terms of refocusing juror attention. That is, it would change the central factual question jurors have to answer from subjective and inevitably rape-culture-inflected speculation about what the defendant thought to what the objective situation was. The fundamental problem is still that many jurors are more inclined to believe rapists than victims. Evidentiary rules prohibiting introduction of victims’ sexual history have probably helped somewhat with that, and there may be even more we can do on the evidentiary front while protecting defendants’ right to a complete defense.

        4. amblingalong
          amblingalong March 27, 2013 at 11:31 pm |

          You probably won’t need to fight all that hard, given that it’s just something someone is talking about in the comment section of a feminist blog, and not a proposed bill or anything.

          Without melodrama, where’s the fun? Anyways, I basically agree with the rest of your post.

    2. Anon21
      Anon21 March 27, 2013 at 10:55 pm |

      It’s a shift towards convicting more people. Not just more rapists, but more people in general.

      Many feminists are generally very liberal in an overall constitutional-rights, pro-defendant, anti-harsh-government-action kind of way. See, e.g., drug laws, or juvenile sentencing laws, etc. I always find it depressing how rapidly people seem to ignore all of those general rules when it comes to rape.

      What is it about rape that makes people willing to (apparently) write laws that assume people don’t lie? That many defendants aren’t innocent? That gives amazing power to the prosecution? That assumes that accusations and guilt are even roughly equivalent?

      You’ve identified a real tension, but I don’t think the answer is as simple as “there’s nothing we can do to make prosecuting rape easier.” The challenge is to craft rape statutes and special rules of evidence that push back against rape culture, while still maintaining all the procedural safeguards that are rightly considered indispensable. It is not at all easy—the presumption of innocence is really difficult to square with the feminist principle that victims of sexual abuse should be believed. But I see very little evidence that rape defendants are currently suffering from routine deprivation of procedural rights, and a lot of evidence that actual rapists are getting away with it because of a justice system awash in rape culture and victim-blaming. Under the circumstances, ruling proposals like Jill’s preemptively out of bounds doesn’t strike me as a balanced approach.

      1. amblingalong
        amblingalong March 27, 2013 at 11:28 pm |

        the presumption of innocence is really difficult to square with the feminist principle that victims of sexual abuse should be believed.

        Sure it is. The former refers to criminal trials and government conduct. The latter refers to private behavior.

        But I see very little evidence that rape defendants are currently suffering from routine deprivation of procedural rights,

        Only to the same degree other defendants suffer from the above. It’s not like racist criminal justice systems suddenly decide that since the poor black man they picked up is accused of rape instead of theft that he’s suddenly going to get treated really well.

        and a lot of evidence that actual rapists are getting away with it because of a justice system awash in rape culture and victim-blaming.

        And the solution is to attack rape culture and victim blaming, not toss due process and presumption of innocence out the window.

        Fundamentally, any crime which is in essence a legal activity, but with the additional element of lack of consent, is going to be incredibly difficult to prosecute without documentation of whether consent existed. This should be self-evident. Rape culture makes things much, much harder, but the very nature of rape itself has something to do with it. I firmly believe that this isn’t a good reason to give up, but to keep getting rid of due process protections until it’s as easy to prosecute rape as theft is unrealistic and unworkable.

      2. a lawyer
        a lawyer March 28, 2013 at 8:15 am |

        The challenge is to craft rape statutes and special rules of evidence that push back against rape culture,

        I don’t agree. I agree that we should fight rape culture; it’s just that the criminal system is a poor lever for that.

        1. Anon21
          Anon21 March 28, 2013 at 9:50 am |

          I don’t agree. I agree that we should fight rape culture; it’s just that the criminal system is a poor lever for that.

          Since rape is, you know, a crime, and everyone seems to agree that it should be a crime, I find this attitude very puzzling. Do you oppose FRE 412–415 (and state analogues), which are one very concrete way that legislators have tried to push back against rape culture in the courtroom? Or do you just think we are at the limit of what we can do on that front?

        2. a lawyer
          a lawyer March 29, 2013 at 9:08 am |

          The criminal system works in multiple ways. Establishment of morality through laws doesn’t really do much in my view.

          If the laws just reflect society’s view of morals then they don’t change anything. If they are more restrictive than societal belief then they have little effect because people will simply make their own moral choices irrespective of the laws. Speeding and jaywalking kill many people per year, yet it’s not considered immoral to speed or jaywalk–or if it IS, it has nothing to do with the illegality or legality of it.

          Morality restriction through laws really only works if it’s the majority repressing the minority(not that that’s a good thing,) i.e. enforcement of sodomy laws against gay couples.

          Morality EXPANSION (i.e. gay marriage) works through laws or the opposite reason, because it PREVENTS the majority from using the laws to oppress the minority.

          But changing rape laws isn’t going to engender a change in underlying societal attitudes, at least not in my opinion.

    3. TomSims
      TomSims April 2, 2013 at 11:42 am |

      @ a lawyer

      Spot on!

  12. pheenobarbidoll
    pheenobarbidoll March 27, 2013 at 11:52 pm |

    I exist in a state of non consent. Full stop. A rapist should have to prove I consented, just like he would have to prove I consented to be murdered. Rape is a violent crime, not car theft. It’s also more than a black eye. No one assumes someone asked for a curb stomping beat down. No one assumes someone consented to being stabbed in the neck. No one assumes someone consents to being beaten in the face with a 2X4. No one assumes someone consented to being kicked off a 20 story building. Stop comparing rape to bullshit like car theft. It’s violent sexual assault even without physical bruising. Presumption of innocence is still intact because the prosecution has to show YOU were my rapist, not that I was raped. Just like they would have to prove you were my killer, not that I was killed.

    1. amblingalong
      amblingalong March 28, 2013 at 12:13 am |

      A rapist should have to prove I consented, just like he would have to prove I consented to be murdered.

      The impossibility of the latter is one of the primary reasons that in almost every jurisdiction on Earth, it’s illegal to kill someone even with their consent, and when exceptions exist, they’re incredibly tightly regulated. Unless you propose banning sex, I think you just disproved your own point.

      1. pheenobarbidoll
        pheenobarbidoll March 28, 2013 at 12:45 am |

        Oh bullshit. Proving that the accused is the rapist still leaves them with presumption of innocence while avoiding re- victimizing the rape victim. He just doesn’t get to use buyers remorse as his proof. Life is not the fight club around every corner and most people don’t assume a victim consented to being assaulted.She wanted me to bite her tongue off, it’s just rough kissing! Nope. No one would assume consent was had for that. But a penis is involved so we have to bring sex into it. I forget who said it but rape is to sex as hitting someone with a 2×4 is to carpentry. Take sex out of the conversation because it belongs there as much as carpentry does when discussing the 2×4 wrapped around someone’s face.

        1. amblingalong
          amblingalong March 28, 2013 at 1:33 am |

          Not all rape is accompanied by other forms of physical violence; threats, intimidation, blackmail, and diminished capacity all can create rape. So while it’s really easy to distinguish someone being hit with a 2×4 and someone building a house, in many cases the only way for an outside observer like a jury to distinguish whether what happened was rape or sex is the presence of consent.

        2. amblingalong
          amblingalong March 28, 2013 at 1:41 am |

          Every point you’ve made is based on the premise that everyone instantly knows whether what happened was rape or sex. If this was the case we wouldn’t need a judicial system, except perhaps to administer sentencing.

    2. a lawyer
      a lawyer March 28, 2013 at 8:24 am |

      I exist in a state of non consent. Full stop.

      yes.

      A rapist should have to prove I consented, just like he would have to prove I consented to be murdered.

      No. Or more accurately: it’s either meaningless or dictatorial.

      If you want “defendant proof of consent,” then all that someone has to do is to accuse you first, or bring a counterclaim. At that point you become on equal footing and it’s meaningless.

      If you want

      Rape is a violent crime, not car theft. It’s also more than a black eye. No one assumes someone asked for a curb stomping beat down. No one assumes someone consented to being stabbed in the neck. No one assumes someone consents to being beaten in the face with a 2X4. No one assumes someone consented to being kicked off a 20 story building.

      OK, you see the problem, then?

      If I tell a cop “go arrest Doug; I saw him beat Amy with a 2×4″ then he’ll do it. If I say “go arrest Doug and Amy; I saw them have sex and it’s possible that at least one of them failed to actively consent” then it’s a different situation.

      Stop comparing rape to bullshit like car theft. It’s violent sexual assault even without physical bruising.

      If you could identify rapes WITHOUT a trial then sure, it’s violent physical assault. but in the criminal context, we know that it’s a usually-consensual act where one party is claiming lack of consent. Obviously it’s very different from things like car theft, which is not ever a consensual act.

      1. PrettyAmiable
        PrettyAmiable March 28, 2013 at 10:32 pm |

        Can you stop comparing rape to consensual sex?

        Thanks, asshole.

        1. amblingalong
          amblingalong March 29, 2013 at 1:00 am |

          Can you stop comparing rape to consensual sex? Thanks, asshole.

          Where did this happen?

        2. a lawyer
          a lawyer March 29, 2013 at 9:14 am |

          Um, no. Are you serious?

          -Consent is the most common defense to a rape charge.

          -Proving lack of consent is the most difficult part of a rape trial in most cases.

          -The existence of consent is an absolute bar to a rape conviction in most cases.

          We are talking about rape law. How the hell are you supposed to discuss rape law (and possible changes) without acknowledging the realities underlying the charge?

          Every juror and judge who hears a consent defense is REQUIRED to compare rape to consensual sex because THAT IS THEIR JOB. Are the legalities are what we’re discussing. if it makes you uncomfortable I’m sorry, but I’m not going to stop.

        3. PrettyAmiable
          PrettyAmiable March 31, 2013 at 9:18 pm |

          Listen, douchebag, if someone FAILS TO CONSENT, it is NOT SEX. IT IS RAPE. Phrasing shit like:

          “go arrest Doug and Amy; I saw them have sex and it’s possible that at least one of them failed to actively consent”

          is part of the problem. If one of them failed to actively consent, IT IS RAPE. If you don’t know, you don’t say they had sex. It’s simple. “Doug and Amy engaged in penetrative activity; I don’t know whether either consented.” When you start calling it sex (which is consensual), you keep pushing the fucking envelope in favor of the perpetrator and furthering rape culture in the courtroom.

          We are talking about rape law. How the hell are you supposed to discuss rape law (and possible changes) without acknowledging the realities underlying the charge?

          The underlying realities include conflating sex with rape? You’re a real fucking winner.

        4. PrettyAmiable
          PrettyAmiable March 31, 2013 at 9:20 pm |

          if it makes you uncomfortable I’m sorry, but I’m not going to stop.

          You shouldn’t stop because it makes me uncomfortable; you should stop because you’re a reprehensible shitbag who’s perfectly comfortable perpetuating rape culture because thinking through the idea that “words have meanings” is apparently too much for you to comprehend.

        5. a lawyer
          a lawyer April 2, 2013 at 1:23 pm |

          [shrug] I think I understand the laws and the process quite a bit more than you do. I’m willing to bet that I’ve spent a lot more time working on real-world solutions than you have. And I’m certainly not interested in perpetuating rape–you’re an asshole for saying so. (That sort of bullying, in which you label your opponents as supporting rape culture because you don’t agree? It’s ineffective and foolish, though there’s a bit of me which is amused at the irony of a “douchebag” insult on the Feministe board.)

          You seem to suffering from the same a priori problem as Pheeno: we don’t know whether something is sex or rape or anything else until we have a trial or the accused pleads out. Do you get that? We’re not discussing laws that affect rapists. We’re discussing laws that affect people .

          The laws affect people BEFORE we have finished a trial that is designed to decide whether or not those people are, in fact, rapists. Therefore, the laws are designed to take account of the fact that some of those people are not rapists.

          Look at this RAINN graph, for example, and let’s accept it as true for a moment:
          http://www.rainn.org/get-information/statistics/reporting-rates

          Of the rapes that go to trial, 5 out of 9 result in a felony conviction. First of all, I bet that’s a better result than many folks believe. Juries and judges ARE biased and they DO discriminate…. but even with a tough-to-prove issue like rape they still convict when they go to trial.

          I’ll say that again: If you go to trial, the conviction rate exceeds 50%.

          Frankly, feminist literature on this topic has created a bit of self-fulfilling catch-22. One reason that women fail to report rape, and probably one reason that women fail to push for a full-blown criminal trial, is because they’re told “only 3% of rapists are convicted.”

          But that’s not true. At trial, the rates are good.

          But of course, the other side is that even after a trial, 4 out of 9 people are NOT held to have been rapists. It doesn’t mean that they’re good people; it doesn’t mean that they’re not slimeballs or misogynists or anything else. It doesn’t even mean that they’re not rapists! But it’s not correct or morally appropriate to entirely ignore those issues.

      2. EG
        EG March 28, 2013 at 11:10 pm |

        If I say “go arrest Doug and Amy; I saw them have sex and it’s possible that at least one of them failed to actively consent” then it’s a different situation.

        Because this is how rapists get arrested–a third party with no knowledge of the situation goes to the cops.

        Here’s a thought: ask Amy.

        1. amblingalong
          amblingalong March 29, 2013 at 12:58 am |

          Here’s a thought: ask Amy.

          ’cause there sure isn’t any way Doug didn’t want it, amirite?

        2. amblingalong
          amblingalong March 29, 2013 at 1:18 am |

          We’ve interacted enough before that I’m fairly sure you don’t believe this, but you’ve now written multiple posts which all suggest that the consent necessary for sex to be OK is female consent. I don’t know if this is weird phrasing, poor reading comprehension on my part, or my sensitivity to the issue in general, but it’s jumping out at me.

        3. macavitykitsune
          macavitykitsune March 29, 2013 at 1:57 am |

          Nope, amblingalong, not just you. And I’m not on your side in this issue, though I’m keeping out of the shitstorm because I’m burned the fuck out right now. EG, I’m sure it’s a slip, but the phrasing was… weird.

        4. EG
          EG March 29, 2013 at 3:28 am |

          you’ve now written multiple posts which all suggest that the consent necessary for sex to be OK is female consent.

          A number? No. In this one, I did default to the model that is the overwhelming majority of rape cases. I really don’t like the idea that inclusiveness means writing as though rape is a gender-neutral phenomenon.

        5. amblingalong
          amblingalong March 29, 2013 at 4:30 am |

          I was referring to your example of a woman straddling a man after he kissed/caressed her as being sufficient for consent as well.

          I absolutely am not accusing you of something, it’s just that the two posts together seemed odd. And like I said, it’s an issue I’m somewhat sensitive to myself, and so I’m probably more likely to see something there than I should.

        6. amblingalong
          amblingalong March 29, 2013 at 4:37 am |

          Oh, and I absolutely agree that there’s no ethical obligation to frame rape as gender-neutral; just the opposite, in fact. I just think there’s a line between acknowledging that rape is gendered and assuming that rape requires a female victim. As with all things linguistic, there’s probably a lot of grey area between those two, and maybe we just draw that line in different places.

          I’m genuinely sorry if I came across as accusative, I just wanted to ask.

        7. EG
          EG March 29, 2013 at 7:11 am |

          In that post, if you go back and read the original comment, I was specifically listing ways that a woman could actively consent. I was not trying to list interactions that would be sufficient for both parties, and I do think that the eagerness with which more than commenter wanted to assume I was says something about the desire to elide the realities of rape and gender. That said, I do think that we need to understand and articulate ways that consent can be non-verbal, because non-verbal communication is a really important part of the way people interact, particularly during sex, and not everybody is into sex talk. In my experience, which may not be representative, verbal and non-verbal communication are combined in a variety of ways.

        8. EG
          EG March 29, 2013 at 7:12 am |

          Also, apropos of the fact that I just woke up, I had a weird and unpleasant dream about this thread, so I may not check it for a little while.

        9. EG
          EG March 29, 2013 at 7:24 am |

          And I agree that non-verbal communication is not ideal for a one-night stand or the first few times you’re with somebody, just so we’re clear. But in the context of an on-going relationship, it’s a real thing.

      3. thefish
        thefish March 30, 2013 at 2:22 am |

        If you want “defendant proof of consent,” then all that someone has to do is to accuse you first, or bring a counterclaim. At that point you become on equal footing and it’s meaningless.

        Yeah, people always seem to see those fancy rights and need for proof beyond a reasonable doubt protecting people they are sure are guilty. O.J., Casey Antony. Maybe even one of them was guilty. The need for proof DOES keep bad people out of jail.

        But it also keeps YOU out of jail. It keeps the good guys out of jail. What happens when the rape victim can’t prove the rapist consented?

  13. pheenobarbidoll
    pheenobarbidoll March 28, 2013 at 1:15 am |

    Also- to use another example of something legal that becomes something else entirely-

    Sparring matches for boxers is totally legal. But it’s not boxing or sparring when your sparring partner knows before he even steps into the building that his goal is to fracture your skull and he will not stop hitting you no matter what, even when the bell rings. He intends to fracture your skull, has planned on it and this is now his opportunity to do so.

    No one would continue to call that sparring or boxing, because it never was to begin with. It was premeditated assault. Not a boxing mishap. Or a sparring gone too far.

    A rapist plans on raping me, no matter what. Rape is the goal. It was never sex, never would BE considered sex if people stopped treating it like sex gone wrong. Or sex without consent. ITS NOT SEX. Rape is NOT sex. And if it was thought about and framed like the boxing example, people wouldn’t continue to use the word sex at all. The second a rapist decides to rape, the action becomes NOTHING AT ALL like sex. They are 2 different things. A handshake is not the same as crushing someones hand. It’s not non consensual hand shaking.

    1. pheenobarbidoll
      pheenobarbidoll March 28, 2013 at 1:26 am |

      And frankly, this is the problem I have with the term sexual assault. It’s only “sexual” because genitalia are involved in some manner. But it’s not sex. It’s not sexual. It’s rape. It’s like comparing apples to a space walrus. Rape and sex are THAT different.

      The rapist knows this. The rapists goal is to rape, not have sex.

      But the rapist knows everyone else and their dog will use the word sex, think in terms of sex and that this will work to his/her advantage.

      The second the word sex is introduced, or any variation like sexual, the entire conversation changes. It’s like continuing to use the word boxing in the above scenario. No one with a brain in their head would call that non consensual boxing. Or sparring without consent. Other than the violent assaulting asshole, that is. Who would try very hard to frame it like that, but would rightly be viewed as full of fucking shit for trying.

    2. amblingalong
      amblingalong March 28, 2013 at 1:40 am |

      Ok, and I agree with everything you’re saying a matter of feminist theory and social justice, but that doesn’t mean it translates well to legislation.

      All your examples are starting off from the point that we know what happened was assault or rape. Sure, if we know the boxer intended to seriously injure the sparring partner, we can call it premeditated assault. But in the real world, the law doesn’t know if that’s the case at all, because we can’t back in time and see what happened. This circular logic really isn’t helpful.

      No one with a brain in their head would call that non consensual boxing. Or sparring without consent. Other than the violent assaulting asshole, that is. Who would try very hard to frame it like that, but would rightly be viewed as full of fucking shit for trying.

      Well, duh? The question the court must address is not whether trying to kill your sparring partner is OK, but whether that was what actually happened. In many, many cases of rape, there is not identifiable physical trauma; anyone who spends any time with feminist dialogue around rape recognizes that rape doesn’t have to involve physical force.

      So again, sure, I agree with everything you’re saying, but it’s really not relevant to actually prosecuting crimes.

    3. a lawyer
      a lawyer March 28, 2013 at 11:59 am |

      pheenobarbidoll March 28, 2013 at 1:15 am | Permalink | Reply
      Sparring matches for boxers is totally legal. But it’s not boxing or sparring when your sparring partner knows before he even steps into the building that his goal is to fracture your skull

      Unless you believe in an omnipotent deity, or unless you’re the defendant, how do you know this to be true?

      As a non-omnipotent juror, you must distinguish between the murderous sparring partner that’s lying to save his skin, and the innocent sparring partner who punched a bit too hard and accidentally killed an acquaintance. BOTH of them will, presumably, claim that they didn’t intend to murder anyone.

      One of them is lying.

      How do you propose to know which one?

      More to the point, how do you propose to know which one is lying BEFORE the trial starts, so that you can sit on the high horse and limit the defense of the lying (guilty) party without accidentally convicting the wrong guy?

      Similarly: As a non-omnipotent juror, you must distinguish between the people who had sex happily, and on down the scale to violent sexual assault. In EVERY rape case, there is an accusation of rape. In EVERY rape case that goes to trial, there is a claim that rape didn’t happen. In almost EVERY rape case there is an allegation of consent as an aspect of the defense.

      And outside violent stranger rape it is often not so obvious as to what happened. “Sex in a bar bathroom” can be rape or not. “Going home with someone you just met and having sex in the cat” can be rape, or not. “Having sex while both/one of you are completely stoned/drunk” can be rape, or not. “Realizing that you had sex, but not really remembering what happened” can be rape, or not.

      You need to distinguish between the situations which are and aren’t rape. You don’t know which people are innocent and which people aren’t innocent. And you don’t get to assume that one side is guilty, just because they happen to be the defendant.

  14. pheenobarbidoll
    pheenobarbidoll March 28, 2013 at 2:05 am |

    Is in in regards to changing the framework around the language used and the framework of rape cases. Start changing the rape culture in the court rooms. That’s enforceable. Instead of disallowing the word rape, disallow the word sex. I’d even go so far as to prevent the jury from knowing the sex or race of either party.

    1. amblingalong
      amblingalong March 28, 2013 at 2:42 am |

      Ok, I’m sorry, maybe we were posting as cross purposes; I thought the discussion was centered on legislation, not cultural advocacy. In that case, I think we’re on the same page.

      I’d even go so far as to prevent the jury from knowing the sex or race of either party.

      So then neither party can testify?

      1. pheenobarbidoll
        pheenobarbidoll March 28, 2013 at 12:37 pm |

        So then neither party can testify?

        Both parties can testify, but the jury won’t see them, hear their real voices, no gendered pronouns and the details could be carefully structured in order to avoid obvious words like penis, vagina etc. It could even be written testimony read by a 3rd party assigned by the court, so the accused and accuser wouldn’t have to worry about slipping up.

        Honestly, I think simply not knowing the races of the 2 parties involved would lend better results. Both men and women are victims of racism in rape cases. WOC accusers are just as discriminated against as accused MOC.

        1. Emolee
          Emolee March 28, 2013 at 12:48 pm |

          I understand why you want this, and I agree with those reasons. But I still think it would be impossible in many cases, although not all, to present evidence of the rape act taking place without using words like penis and vagina. Rape is a violation of the body (among other things), so body parts will come up in testimony.

        2. matlun
          matlun March 28, 2013 at 1:23 pm |

          Is this a serious suggestion?

          It would seem to be totally unworkable to hide sex at least. The exact details of what happened and who did what to whom when etc are often critical and under dispute. This information will have to be discussed and testified about.

          And what of the idea with cross examinations or the possibility for the jury to judge the truthfulness of the witnesses from for example tone of voice? In general, we also often need to put the witnesses under pressure on the stand. If you are lying you should have to seriously worry about slipping up.

        3. a lawyer
          a lawyer March 28, 2013 at 1:50 pm |

          That’s an important part of witness testimony, though: vocal tone and facial expression and word choice and behavior are the best feedback we have regarding whether or not someone is telling the truth.

          And “slipping up?” man, that’s HUGE. Slipping up is often what happens when something isn’t true, i.e. someone is lying. It’s a crucial part of investigation and trial work. Someone may be able to tell a story once but they will often fail to hold up to the lie under questioning.

          But in any case your proposal would produce the OPPOSITE results from the ones you seem to want:

          Taking away personal testimony makes it harder to distinguish truth from lies. If more accusers are telling the truth and more defendants are lying, then your idea would selectively make it harder for accusers and easier for defendants. Judging from your other posts, that isn’t what you seems to want.

        4. pheenobarbidoll
          pheenobarbidoll March 28, 2013 at 1:58 pm |

          By slipping up I meant- using the word she instead of a non gendered word.

          You’ll just have to forgive me if I don’t think the sincerity of a female rape victim is ever really believed considering they’re still looked at as lying bs artists who can cry at the drop of a hat (women manipulate men unfairly by crying, after all *eye roll*) even when they’re clearly upset during testimony and have video shown of them being unconscious during their rape, urinated on and violated with objects.

          If you automatically assume women are liars, then nothing she does changes that. No facial expression changes that, because it’s just an obvious act.

          And if she’s not showing the “typical” facial expressions, then that’s proof she’s lying as well.

          The only way to prevent this is to prevent the jurors from knowing the accused is a woman. Short of giving them all an anti-misogyny pill that magically removes misogyny.

        5. a lawyer
          a lawyer March 28, 2013 at 2:25 pm |

          You’ll just have to forgive me if I don’t think the sincerity of a female rape victim is ever really believed

          Female accusers get cops to arrest defendants; they get judges to award restraining orders; they obtain victim advocates; they provide sufficient evidence for the prosecutors to secure a guilty plea; they go to trial and send people to jail. AS THEY SHOULD. The concept that women are “never really believed” is, frankly, a load of crap.

          Are they discriminated against? Yes. For sure. Women, and uneducated people, and POC, and other groups, obviously suffer from routine discrimination in the legal system (and elsewhere.) But discussing solutions to that requires a grounding in reality, and your statements simply don’t match reality.

        6. Nifty
          Nifty March 28, 2013 at 2:36 pm |

          How can a defendant confront his accuser under such circumstances?

          How can a jury find facts if such basic things are concealed?

          How can anyone assess the credibility of a witness who is hidden behind a screen and a voice modulator?

          How can a victim identify her attacker in court if both of them are behind screens? If the defendant wants to claim a mistaken identity or that he never had sex with the woman, how can he do that if he doesn’t even know who she is?

          Mafia, terrorism and drug-conspiracy witnesses who have to abandon their lives and take up new identities in witness protection in order to avoid violent reprisals must still testify in full view of the defendants. Do you really think rape cases are so special that witnesses ought be hidden from defendants?

          Don’t you think, in a rape case, the jurors will assume the accuser is a woman and the defendant is a man anyway?

          If you’re going to do this, why not just hide all defendants behind screens to protect them from prejudice based on race or factors related to appearance?

        7. pheenobarbidoll
          pheenobarbidoll March 28, 2013 at 3:20 pm |

          The concept that women are “never really believed” is, frankly, a load of crap.

          Yep. That’s why so many rapists get away with it. Because their victims see other rape victims treated as honest victims so very often. And not asking for it. Or ruining poor poor football players lives.

          And maybe white women or wealthy women get a reliable response from the cops, but WOC (especially NA women) don’t. In fact, we’re at risk of being raped by the police after we’ve called them. I don’t know what reality you’re in, but it’s not the reality of WOC.

        8. a lawyer
          a lawyer March 28, 2013 at 5:09 pm |

          So is this just an exaggeration problem? I ask because while I am intimately familiar with many problems of the criminal justice system (and noted them in my post) you seem to be taking a stance that the system is SO broken that women can’t get a fair trial at ALL. You know–things like “never” and “always” and all that jazz.

          The reality I live in is the one where, LIKE I SAID, ” Women, and uneducated people, and POC, and other groups, suffer from routine discrimination in the legal system.”

          But this isn’t true:

          That’s why so many rapists get away with it.

          The reason that so many rapists get away with it is because
          1) we have a reasonable doubt standard;
          2) sex is often a consensual act.
          3) When you combine 1 and #2 it is very very hard to prove rape.

          Are you looking for a level of belief where we just put people in jail without a trial based on the accusations of someone else? That would be a frightening place to live.

        9. Emolee
          Emolee March 28, 2013 at 5:22 pm |

          The reason that so many rapists get away with it is because
          1) we have a reasonable doubt standard;
          2) sex is often a consensual act.
          3) When you combine 1 and #2 it is very very hard to prove rape.

          Whoa, are you actually arguing that misogyny has nothing to do with why most rapists get away with it?

        10. t
          t March 29, 2013 at 12:06 am |

          Why am I not surprised that “a lawyer” is trying to argue that the system is fair and balanced and any claims of severe bias and prejudice are merely histrionics? There’s a reason your profession is looked at with so much distrust. A lot of you are so disconnected from reality that you really believe everything happens by the books.

        11. amblingalong
          amblingalong March 29, 2013 at 1:08 am |

          Whoa, are you actually arguing that misogyny has nothing to do with why most rapists get away with it?

          Why am I not surprised that “a lawyer” is trying to argue that the system is fair and balanced and any claims of severe bias and prejudice are merely histrionics?

          Are you two just totally giving up on posting in good faith? A’ Lawyer’ acknowledged that women (and other minorities) were routinely discriminated against by courts literally four posts away from your response.

          FFS.

        12. Aaliyah
          Aaliyah March 29, 2013 at 1:35 am |

          The concept that women are “never really believed” is, frankly, a load of crap.

          The reason that so many rapists get away with it is because
          1) we have a reasonable doubt standard;
          2) sex is often a consensual act.
          3) When you combine 1 and #2 it is very very hard to prove rape.

          It’s quite common for rapists to get away with their crimes because their victims aren’t believed. That’s pretty much one of the defining aspects of rape culture. The picture you paint (i.e. the idea that there are only 3 reasons why rapists get away with their crimes)is extremely misleading, even though it’s partially true.

        13. a lawyer
          a lawyer March 29, 2013 at 8:38 am |

          Whoa, are you actually arguing that misogyny has nothing to do with why most rapists get away with it?

          No, no, not at all.

          The effect of the patriarchy is absolutely present in the court system. I’ve said as much multiple times. But the actual mechanics of rape trials are a huge part of this particular issue.

          Or, to put it differently: If you eliminated the effect of patriarchy, you’d convict many more rapists but you would by no means convict them all, or even a majority of them, because it’s generally too hard to do.

        14. a lawyer
          a lawyer March 29, 2013 at 8:57 am |

          I’ve said numerous times that I agree with the underlying statements regarding society’s treatment of rape victims. I think I just have a different analysis of how the balance comes down: I think that more of it is an issue of proof, while you seem to think that more of it is an issue of society.

          This is an interesting disagreement but not a truly fundamental one; it’s not as if I am claiming that women are A-OK in the court system, and you obviously aren’t claiming that the system is A-OK but for society.

          It’s quite common for rapists to get away with their crimes because their victims aren’t believed.

          But that’s true of almost every crime where it’s difficult for an outside observer to paint a line between consent and non-consent. If you give your husband money all the time and allow him to take money out of your account when he asks, you’re going to have a hell of a time prosecuting him for theft if he takes money out of your account WITHOUT your permission; people won’t believe you. And so on.

          There are no situations which are perfectly analogous to rape. Theft is an oft-used and very bad example. But there are plenty of situations which have aspects of the case that are analogous to the equivalent aspects of rape. If you look into those it becomes more obvious that there is a very major (and in my view, controlling) issue that affects the cases IN ADDITION TO societal effects.

        15. pheenobarbidoll
          pheenobarbidoll March 29, 2013 at 12:29 pm |

          . you seem to be taking a stance that the system is SO broken that women can’t get a fair trial at ALL.

          The system is inherently sexist and racist. That women and POC sometimes get a fair trial is a bug not a feature.

          All oppression/violation against the sex class is difficult to prove. All oppression/violation against POC is difficult to prove.

          That’s not accidental. The idea that a system thought up by, created by and enforced by an institution that’s still actively engaged in genocide is laughable. That system doesn’t even let an entire race of women in the front door. NA women aren’t allowed past filing a report, and that’s even when they can get a non Native cop to show up. That’s either a fundamentally broken system or one working exactly as it should. Neither option inspires me to support it.

      2. hotpot
        hotpot March 28, 2013 at 2:05 pm |

        I thought the discussion was centered on legislation, not cultural advocacy.

        Well, the two go hand in hand. The law (whether interpreted as the text of the law or how it works in practice) reflects the culture, and vice versa. Either one is bound to affect the other, so you can’t separate them out. I do think that if the law were changed to require affirmative consent, over time the cultural perception of what sex is would shift as well towards the enthusiastic consent model.

        1. pheenobarbidoll
          pheenobarbidoll March 28, 2013 at 3:25 pm |

          And, you can enforce what goes on in a court room. There’s more room for control surrounding how cases are presented. Zero tolerance for sexism and victim blaming would be a nice policy. I won’t hold my breath of course, because any time anyone suggests how to even the playing field for an oppressed group all we hear is how hard it would be, or how it wouldn’t happen right anyway so why even try something different etc etc..

        2. amblingalong
          amblingalong March 29, 2013 at 1:12 am |

          Well, the two go hand in hand. The law (whether interpreted as the text of the law or how it works in practice) reflects the culture, and vice versa. Either one is bound to affect the other, so you can’t separate them out.

          Well, sure, but my point was that pheeno’s framework might lead to good anti-rape education, but godawful laws. As a bunch of posters have highlighted, her entire framework relies on omniscient jury members knowing the facts of the case a priori.

    2. Willard
      Willard March 28, 2013 at 2:57 am |

      I’d even go so far as to prevent the jury from knowing the sex or race of either party.

      Seconded. I’d include the judge as well since cross-gender/racial bias is pretty significant in the sentences handed down. Black-boxing testimony, depositions, etc. would be impossible, but we can dream.

      Only semi-flippant here, a confirmed consent app would clear this all up. Or genital interlocks. I have zero legal experience, but the technologist in me is all aflutter.

      1. klaym0re
        klaym0re March 28, 2013 at 12:17 pm |

        Or genital interlocks.

        As in everybody has to wear chastity belts cus rapists gon rape?

      2. TomSims
        TomSims March 28, 2013 at 12:28 pm |

        You mean like this?

        1. Henry
          Henry March 28, 2013 at 5:54 pm |

          I hate to say it but our university actually gave these forms out to us as freshmen, mostly to prevent themselves from being sued. It was a rather sureal experience. No lawyers were provided.

          On a serious note these forms create the illusion that once given consent cannot be withdrawn. I know they have a clause that states otherwise, but I can see people saying, but you signed this… We don’t need any of this shit, if they need this, they are not prepared for sex with others and should find something else to do.

        2. matlun
          matlun March 28, 2013 at 6:17 pm |

          @Henry: Did your University really give them out with serious intent? (As opposed to as a joke)

          That sounds weird. The form may be fun as a kind of comedic illustration or perhaps a starting point for discussion, but I have never heard anyone anywhere arguing for that kind of form actually being used.

  15. Henry
    Henry March 28, 2013 at 2:28 am |

    http://www.slc.edu/offices-services/security/assault/Penal_Law.html

    Given that I cannot make heads or tails out of large parts of this ^, despite 3 years of law school and 10 years of practice, in answer to the OP yes.

  16. Nifty
    Nifty March 28, 2013 at 3:01 pm |

    I agree with phenobarbidoll that the circumstances of rape rarely resemble the circumstances of consensual sex.

    I think people who are unwilling to have sex generally make it clear that they are unwilling to have sex when people try to have sex with them against their will.

    “Enthusiastic consent” and “affirmative consent” are the same thing. They ask us to assume, in the absence of evidence to the contrary, that sex is not consensual.

    This really doesn’t seem necessary. A lot of consensual sex can be rote and mechanical rather than enthusiastic, I am skeptical that there are many women whose response to an unwanted sexual advance is immediate compliance and total passivity.

    1. Emolee
      Emolee March 28, 2013 at 4:05 pm |

      I am skeptical that there are many women whose response to an unwanted sexual advance is immediate compliance and total passivity.

      You are underestimating the power of fear. I can think of several situations that happened to people I know (I don’t even have to dip into hypotheticals) where the response was compliance. One involved an assault at gunpoint. Another involved advances from a supervising officer in the military in a combat zone. Another involved an abusive spouse. When people who want to rape you have control over you in ways that exceed the one incident, compliance is common.

    2. EG
      EG March 28, 2013 at 8:42 pm |

      I am skeptical that there are many women whose response to an unwanted sexual advance is immediate compliance and total passivity.

      How nice that your experience of life has led you to this.

      Mine has not. Women with a history of sexual trauma, for instance, often do not feel that they have the right or the power to say no. Teenage girls who don’t want to be thought of as prudes or uptight. Women on blind dates far from home in an area they don’t know with a man twice their size may not feel comfortable saying no.

      1. macavitykitsune
        macavitykitsune March 28, 2013 at 10:50 pm |

        Women with a history of sexual trauma, for instance, often do not feel that they have the right or the power to say no.

        Fuck knows I didn’t even get raped and I still have trouble saying no. Stress me out enough and I will literally agree to anything. (And then when I destress I will turn into an ever-flowing fount of rage, probably, because I’m rational and proportionate like that.) But that was basically a childhood pattern: “Shut up, take it, lash out when and where you can. But in the moment? ALWAYS shut up and take it. It’s never worth it to fight.”

    3. Aaliyah
      Aaliyah March 29, 2013 at 1:53 am |

      I am skeptical that there are many women whose response to an unwanted sexual advance is immediate compliance and total passivity.

      I am skeptical that you actually care about empathizing with survivors and not perpetuating rape culture.

    4. Miriam
      Miriam March 29, 2013 at 2:20 am |

      You do not mean to be, but you are illustrating one of the reasons why jurors acquit so frequently in cases of rape that do not fit the violent abduction by a stranger model. You have a belief about how women should react that is based on your perception of common sense. It is not based on research.

      What research tells us is that people react in all sorts of ways that are not what we’d necessarily effect. It is not, in fact, uncommon for women to freeze, comply, and go passive. Acquaintance rape requires people (generally, but not exclusively women) to recategorize someone they know as a dangerous threat. This causes mental dissonance, which can result in freezing and disassociation. I have not been raped, but I have been groped by a known person in a situation where this was an extreme violation of trust. I did indeed freeze and go passive because my brain could not conceptualize the reality of what was happening quickly enough to respond appropriately. Freezing is a fairly common reaction to threat.

      In addition, the person being raped has no way of knowing what degree of violence an explicit rejection will be met with. Passivity and compliance can be a survival strategy. Remember that even when a rapist does not have an obvious weapon, in heterosexual rape, the rapist will generally be bigger and stronger and many women do not have experience or comfort with fights.

      If you are interested on research-based explanations supplemented with case studies, I am pretty sure Yes Means Yes has an entry that explores why people freeze.

      1. a lawyer
        a lawyer March 29, 2013 at 9:22 am |

        Miriam March 29, 2013 at 2:20 am | Permalink | Reply

        You do not mean to be, but you are illustrating one of the reasons why jurors acquit so frequently in cases of rape that do not fit the violent abduction by a stranger model. You have a belief about how women should react that is based on your perception of common sense. It is not based on research.

        Precisely right.

        Short version: Many things that jurors think they know (eyewitness memories are accurate; people don’t make mistakes in testimony unless they are making up a story; cops don’t lie; women would never be raped without a fight; nobody would confess unless they were guilty; etc.) have been demonstrated to be wrong. I know at least two of my family members and multiple female friends have been raped and none of them did what laypeople would “expect” though all of them did what research would predict.

        That is something which is theoretically fixable but practically very difficult to do. Convincing people not to “believe their own minds” is a very tough task.

        1. TomSims
          TomSims March 29, 2013 at 5:45 pm |

          “Short version: Many things that jurors think they know (eyewitness memories are accurate; people don’t make mistakes in testimony unless they are making up a story; cops don’t lie; women would never be raped without a fight; nobody would confess unless they were guilty; etc.) have been demonstrated to be wrong. I know at least two of my family members and multiple female friends have been raped and none of them did what laypeople would “expect” though all of them did what research would predict.

          That is something which is theoretically fixable but practically very difficult to do. Convincing people not to “believe their own minds” is a very tough task.”

          Going back to what EG said about “Law and Order” on TV, many people get an idea of how things are supposed to be. But TV shows and movies are not reality. Yeah they do a much more realistic job than the shows of long ago. But TV and movies are just an updated and much more realistic version of “Ozzie and Harriet” And oh yeah “Perry Mason” too.

          I’m sure the practicing attorneys on this blog know the actual court room is far different than that portrayed on TV or in the movies. The entertainment business uses “dramatic license” to alter a story based on a real life story by spicing things up to add more appeal to their TV show or movie.

          So people’s perception may not line up completely with reality. When I was growing up, myself and the guys I went to school and played football and baseball with firmly believed that if a girl pointed her finger at you and cried rape, you would die in the electric chair. That was not the reality, but it was what we all believed. And in my little corner of the world, in those days, there was no rape and no rape culture. This was also before the pill. I don’t know when and how this changed between then and now, but things are much different now.

  17. dp
    dp March 28, 2013 at 7:06 pm |

    Two words: Antioch College.

  18. Faradn
    Faradn March 29, 2013 at 4:34 am |

    1) we have a reasonable doubt standard;
    2) sex is often a consensual act.
    3) When you combine 1 and #2 it is very very hard to prove rape.

    That may be true, but that is not the end of it. In case after case you can see the most despicable victim-blaming. We may not be able to change the tendencies you outlined, but we can change the culture so that rape accusers get the fairest hearings possible given the difficulty of obtaining solid evidence of rape.

    Also, where physical evidence exists that plainly indicates forced intrusion, it seems like the legal system should side with the plaintiff in the vast majority of cases. I don’t know if this is the standard already or not. I’m guessing not.

  19. Faradn
    Faradn March 29, 2013 at 4:44 am |

    We may not be able to change the tendencies you outlined, but we can change the culture so that rape accusers get the fairest hearings possible given the difficulty of obtaining solid evidence of rape.

    That was kind of incoherent. I’ll try to phrase that better: We may not be able to substantially increase the likelihood of obtaining solid evidence in rape cases, but we can change the culture so that rape accusers get the fairest hearings possible.

    1. amblingalong
      amblingalong March 29, 2013 at 5:12 am |

      Well said.

  20. steven
    steven March 29, 2013 at 7:52 pm |

    jill is once again sound and full of reason and i agree fully. time to change the rape laws to reflect a new progressive society.

  21. Alexandra
    Alexandra March 29, 2013 at 11:52 pm |

    What’s frustrating to me is that no matter how the statutes are written or how the juries are instructed on those statutes, past history would suggest that the effective jury nullification of rape law will continue. If in recent memory young men who have been caught on video tape sodomizing unconscious women with pool cues can be acquitted, I cannot help but wonder whether changing statutes will have any practical or immediate effect.

    That doesn’t mean that changing the statutes would not be worthwhile, however — it may take some time, but changes in the law do appear to (gradually) influence the broader culture about rape and sex.

    If I had to choose any single method for decreasing rape in America, I would probably go with mandatory consent education as part of sex ed in public schools, but I certainly would not oppose changing the law.

    1. steven
      steven March 30, 2013 at 6:38 pm |

      i agree. we need to tackle the rape culture problem in more ways than one if we want to be successful. change the laws but also give mandatory education to men about consensual relationships. no reason why there should be only a single method.

  22. mcmike
    mcmike March 30, 2013 at 2:23 am |

    That wont solve the core problem. Its still going to be her word against his in a situation where there are usually no witnesses and then its in dubio pro reo. Only thing that will change is that instead of the accused saying she did not say no, he is gonna say she said yes.

  23. Sara Lin Starred It: 2013-04-02 (Beautiful Belly Edition) | saralinwilde

    [...] critical look at how cultural assumptions about sex and gender influence North American rape law, which – it turns out – is largely based on the idea of sex as a commodity women [...]

  24. matt
    matt April 2, 2013 at 8:54 pm |

    I agree with almost everything that is being said in this discussion. I’ve had family members deal with rape and have spent a night in jail for threatening a rapist of one of my family members.

    However, I am hesitant to be supportive of a change in the law “if” it puts reasonable doubt onto the accussed. I don’t think this because i believe all rape victims are lying or they might be lying. I believe that very very few women would lie about that. Here’s the big but, I have experienced false rape charges myself. This, after my attempted butt kicking against an actual rapist.

    My girlfriend, who was with me at the formentioned attempted assault, had been with me for 11 months. The last two weren’t great as she accused me of cheating on her. Ironically, she was cheating on me. I broke up with her. About 2 weeks later, I’m pulled over for speeding, I was, and next thing I know I have 2 cops holding guns at my head. I’m arrested, taken to jail, and find out she accused me of rape. I was saved by her own mother and sister who told the police that she admitted to them she was mad i didn’t forgive her infidelity and had lied to punish me.

    Now, I don’t believe this should excuse the actual bastards who commit this crime, but at the same time, I’m a strong believer that it’s better that 9 bad guys go free than 1 innocent be condemned. All it would have taken is a tearful performance on the stand and i’m branded a rapist and spend a lot of time in jail. Specifically, because I’d have been guilty until proven innocent because of the nature of the crime and I had zero actual evidence to support my claim other than “she’s lying.”

    1. matt
      matt April 2, 2013 at 9:05 pm |

      I want to explain a bit more. She accused me of ‘repeatedly’ raping her over the course of our relationship. She even told the cops that a visit to the hospital that was the result of a bike accident, which I wasn’t even in the same state when it occurred, was actually evidence of my actions.

      Again, her mother and sister told them what actually happened. It makes me shiver to think if she didn’t come clean to them what would have happened. They might have gone along with the hospital visit if they believed her.

      And I had no tangible evidence to dispute these claims, the only evidence of being out of the state was a male friend of mine, and where exactly would that have gotten me compared to two of her family members? Again, I know this isn’t common, but it can happen.

      1. tigtog
        tigtog April 2, 2013 at 11:38 pm | *

        matt, I’m curious as to how exactly this particular proposed change in the law would have made any difference to your particular case? You were able to provide an alibi for the time of the alleged offence and also able to have two other witnesses provide evidence that she was lying about the offence entirely. None of your rebuttal evidence relied upon the difference between the consent standard of “didn’t say no” versus “didn’t say yes”.

        1. matt
          matt April 3, 2013 at 12:49 am |

          [snip overly-lengthy comment which didn't actually answer the question ~ Moderator Team]

        2. matt
          matt April 3, 2013 at 12:56 am |

          Oh, but as far as actual evidence, there was only the hospital visit. Everything else was circumstantial. But if the law was changed, she’d just need to testify and watch me be incapable of disproving her claims. I go to jail under that law.

        3. tigtog
          tigtog April 3, 2013 at 2:11 am | *

          if the law was changed, she’d just need to testify and watch me be incapable of disproving her claims. I go to jail under that law.

          No, you don’t. Your defence was not that on the alleged occasion that you had had consensual sex, your defence was that you weren’t there at all. The changes to the law make no difference at all to your defence in this case.

          Now, more generally:

          * Under the current law, if she claims she said no, and you say she didn’t say no, neither of you can disprove each other’s claim, it comes down to individual credibility before the jury.

          * Under the proposed new law, if you claim she said yes, and she says she didn’t say yes, neither of you can disprove each other’s claim, it still comes down to individual credibility before the jury.

          The only thing that does change is that consent will no longer be assumed as the default state (i.e. that consent is present unless an affirmative NO has been communicated) in the arguments before the court. What the proposed new standard does change is that consent is now only assumed to be present if an affirmative YES has been communicated.

          In the end, in many cases, the jury’s verdict will still hinge not so much on evidence but on the weighing of complainant-said/defendant-said testimony. The proposed changes only mean that those “but how was I to know xe didn’t want it?” bullshit arguments are no longer given undue weight.

        4. EG
          EG April 3, 2013 at 1:37 am |

          …except for the two witnesses saying that she had planned to lie.

        5. matt
          matt April 3, 2013 at 3:11 am |

          Ok, after reading your response tigtog, i have a lot of them her., I get the change. When i read earlier posts they gave me the impression that the proposed change would effect the yes/no parts as well. some earlier posts i read seemed to confirm this or at least bring it up. complete misunderstanding on my part. Yeah my case isn’t the same.

    2. EG
      EG April 2, 2013 at 9:07 pm |

      I’m a strong believer that it’s better that 9 bad guys go free than 1 innocent be condemned.

      In reality, letting rapists go free means that they’ll continue to rape. So how many women being raped how many times equals condemning one innocent man? Or is condemning one innocent man worse that any number of women being raped any number of times? I’m curious.

      1. EG
        EG April 2, 2013 at 9:20 pm |

        Basically, when someone says that, what I hear is “Better that you and/or your best friend and/or your mother and/or your sister and/or your cousin get raped than some innocent dude gets imprisoned.” And you know what? I’m not so sure I agree.

        1. steven
          steven April 2, 2013 at 9:41 pm |

          well said. i’m not so sure i agree either.

        2. Radiant Sophia
          Radiant Sophia April 2, 2013 at 9:56 pm |

          Is it better that “some innocent dude gets imprisoned” than someone you know gets raped? How many innocents would you imprison to prevent one rape? No matter how good a justice system is some rapists will go free, and some innocent men will be imprisoned for rape. We could execute every man ever accused of rape as a matter of course, and some rapes would still not be addressed.

        3. EG
          EG April 2, 2013 at 10:13 pm |

          How many innocents would you imprison to prevent one rape?

          I don’t know. That’s why I don’t invoke insipid cliches in order to address complex issues of rape culture.

        4. Radiant Sophia
          Radiant Sophia April 2, 2013 at 10:34 pm |

          EG, I don’t think I made my point clear. I would like to believe that we both agree that imprisoning an innocent person, and letting a rapist go free are undesired results. As long as this is framed as a problem with laws and courts, these things will continue to happen.

        5. EG
          EG April 2, 2013 at 10:43 pm |

          Of course, I agree. But I think the balance is way off currently.

        6. TomSims
          TomSims April 3, 2013 at 5:12 am |

          Over the years The Innocence Project has gotten 200 men exonerated for crimes they did not commit including rape.

          http://www.innocenceproject.org/200/ip_200.pdf

        7. tigtog
          tigtog April 3, 2013 at 6:47 am | *

          And not a single one of the men who was exonerated for rape by the Innocence Project used the defence of consensual sex during those trials*, so the relevance to this proposed law is exactly nil.

          *It is only possible to exonerate somebody using DNA evidence when they claim that they were not there at all, and the only DNA present belongs to somebody else.

        8. amblingalong
          amblingalong April 3, 2013 at 7:19 am |

          And not a single one of the men who was exonerated for rape by the Innocence Project used the defence of consensual sex during those trials*, so the relevance to this proposed law is exactly nil.

          Jill’s proposal isn’t the only think that’s come up here. I would characterize the OP as common sense, and honestly I don’t think I’ve seen a single person here disagree. The pushback has been against the ideas said proposal went on to generate among the commentariat, such as flipping the burden of proof around completely.

          I’m not sure if the basis is a misinterpretation of Jill’s idea (changing the standard from lack of a no to presence of a yes is not the same thing as putting the burden of proof re: consent on the the defendant) or a general gleeful disregard for due process.

      2. amblingalong
        amblingalong April 2, 2013 at 9:43 pm |

        Doesn’t the agent matter, though? I think it’s an ethically sound argument to say that the government should prioritize avoiding inflicting harms on innocents itself over preventing other people from inflicting harms. I’m not sure the government or anyone, really, is in a good position to make sweeping decisions about the relative harm of being raped vs. being falsely imprisoned for extended periods of time (which itself brings with it the threat of rape); as such, the best it can do is avoid directly, wantonly hurting people with it’s coercive authority.

        Similarly, there’s a pretty strong argument that imprisoning an innocent person undermines the entire criminal justice system; if a ton of people in jail for rape start being exonerated, I think you’ll eventually see even fewer convictions than you have now.

        None of this is to say that you don’t have a point, but I do think your framing of the issue is simplistic.

        1. EG
          EG April 2, 2013 at 10:12 pm |

          I’m not sure the government or anyone, really, is in a good position to make sweeping decisions about the relative harm of being raped vs. being falsely imprisoned for extended periods of time

          The government cannot help but make these decisions. That’s what the legal system does.

          I’m not convinced by your agent distinction: our legal system is part of an overarching rape culture that enables and justifies rapists in their actions and allows them to hide themselves among non-raping men. Further, allowing rapists to walk requires that the legal system and its agents take concrete actions that result in re-victimizing and re-traumatizing the survivor of the rape. It is not simply a passive refusal to act.

          Similarly, there’s a pretty strong argument that imprisoning an innocent person undermines the entire criminal justice system;

          AS does putting women who have been raped in the position of proving they did not consent and letting rapists walk. Does imprisoning one innocent man undermine the legal system more than letting nine rapists go does?

          In any case, this system has no problem with imprisoning innocent people when they’re too poor to afford a decent lawyer. But when it comes to rapists, well, then it’s a major philosophical issue.

          I do think your framing of the issue is simplistic.

          It is no more simplistic than the cliche to which I am responding.

        2. amblingalong
          amblingalong April 2, 2013 at 11:30 pm |

          AS does putting women who have been raped in the position of proving they did not consent and letting rapists walk.

          Really? Making people provide evidence for their allegations undermines the criminal justice system?

          Further, allowing rapists to walk requires that the legal system and its agents take concrete actions that result in re-victimizing and re-traumatizing the survivor of the rape. It is not simply a passive refusal to act.

          What actions, specifically?

        3. EG
          EG April 3, 2013 at 12:00 am |

          The assumption that our default state is consent is not about making anybody provide evidence for allegations. Please refer to Jill’s post.

          As to what the legal system does to traumatize rape survivors, consider the fact that this system allows or even encourages defense lawyers to do things like force survivors to watch videos of themselves being violated, to be the target of bullshit defenses about bruising one’s own cervix in the shower, to make our use of alcohol an issue.

        4. amblingalong
          amblingalong April 3, 2013 at 12:18 am |

          You’re changing the grounds of the argument. This:

          As to what the legal system does to traumatize rape survivors

          is not the same thing as this

          Further, allowing rapists to walk requires that the legal system and its agents take concrete actions that result in re-victimizing and re-traumatizing the survivor of the rape

          unless you’re actually arguing that the only way anyone accused of rape could possibly avoid conviction is to employ said strategies.

          The assumption that our default state is consent is not about making anybody provide evidence for allegations. Please refer to Jill’s post.

          Yeah, and now we’re talking about something new entirely. I never argued that anyone’s ‘default state’ is consent; I believe we were discussing your assertion that people who bring charges of rape shouldn’t have to prove lack of consent (that is, the axis around which the entire crime revolves).

        5. matt
          matt April 3, 2013 at 1:33 am |

          amblingalong: the last comment is what i’ve trying to say in, admittedly, longer and more rambling posts. It’s the prosecutions, the states, job on behalf of the accuser to prove the defendants guilt.

        6. EG
          EG April 3, 2013 at 1:36 am |

          you’re actually arguing that the only way anyone accused of rape could possibly avoid conviction is to employ said strategies.

          I’m arguing is that this is the bullshit that goes on; it is commonly used; in many cases it is successful. When I point out that defense lawyers did not have to employ such disgusting strategies and could take moral stands, I am routinely told that they do because of having to present the best possible defense. If that is the case, then indeed, our legal system actively traumatizes rape survivors.

          I never argued that anyone’s ‘default state’ is consent; I believe we were discussing your assertion that people who bring charges of rape shouldn’t have to prove lack of consent (that is, the axis around which the entire crime revolves).

          Those are two different ways of saying the same thing. In the absence of evidence indicating that she is lying, the only way we would default to an assumption that a woman is making a false accusation is if we default to an assumption of consent on her part.

        7. amblingalong
          amblingalong April 3, 2013 at 2:17 am |

          In the absence of evidence indicating that she is lying, the only way we would default to an assumption that a woman is making a false accusation is if we default to an assumption of consent on her part.

          That’s not how the legal system works; if you accuse someone of a crime and there’s no conviction, you don’t automatically go to jail for filing a false report. You seem deeply confused about what a ‘not guilty’ verdict represents. The court is not asserting that the defendant wasn’t guilty, or that the accuser lied; the court is saying there wasn’t enough evidence to prove the defendant was guilty.

          In the absence of evidence proving that the accuser is lying or telling the truth, we don’t assume the accuser is lying, we simply recognize we don’t have enough evidence to know.

        8. EG
          EG April 3, 2013 at 6:47 am |

          You seem deeply confused about what a ‘not guilty’ verdict represents.

          No, I’m not confused. I just recognize that when it comes to whether or not a rapist goes free, it doesn’t matter.

          we simply recognize we don’t have enough evidence to know.

          I believe the standard is “beyond a reasonable doubt.” The question is whether you consider the remote possibility of a false accusation to be “reasonable.” This change to the law would change the default answer to that question.

        9. amblingalong
          amblingalong April 3, 2013 at 7:08 am |

          No, I’m not confused. I just recognize that when it comes to whether or not a rapist goes free, it doesn’t matter.

          Again with the circular logic. If we could magically know what the correct verdict was before the trial even started we wouldn’t have trials.

        10. EG
          EG April 3, 2013 at 10:58 am |

          Again with the circular logic.

          There’s nothing circular about it. A legal verdict doesn’t determine whether or not the defendant actually committed the crime. Splitting hairs about what a verdict of “not guilty” means doesn’t change whether or not the accused actually committed rape.

  25. matt
    matt April 2, 2013 at 11:46 pm |

    I made that statement to get a reaction. Not nice of me, but i’ve worked and work with women’s rights groups and when i tell my story, guess what? I get the exact same reaction most of you gave. And what do I take from that? That I should be happy to be falsely imprisoned, lose a great many years of my life, possibley get raped myself for doing absolutely nothing wrong. That I should be proud to martyr myself for women’s rights.

    How many women should be raped? None. But does putting an innocent man in prison help that? No. Does changing the law so that simply claiming rape is proof enough for a conviction actually stop rape? No. So, how many innocent men would you gladly send to prison to stop one rape?

    EG, thanks so much for taking, yes a cliche, so literally. Do I actually think 9 rapists walking free is ok if 1 innocent goes free? No. I think all real rapists should go to jail and nobody whose innocent should be imprisoned. I was using a cliche to put a period on my point, that any change in the law that leads to more innocent people going to jail is wrong. Innocent people going to jail does absolutely nothing to fix any problem, in fact it creates a problem itself. But thanks for you willingness to destroy my life because another man might commit the crime I’m accused of against you or one of your family.

    I find it interesting that so many people want to get convicted murderers falsely imprisoned out of jail but seem so willing to toss others, regardless of innocence, into the jail system simply on accusation. Does our system work when it comes to rape? No. But our system works on evidence, otherwise it wouldn’t be justice, but a kangaroo court.

    1. EG
      EG April 3, 2013 at 12:12 am |

      I get the exact same reaction most of you gave. And what do I take from that? That I should be happy to be falsely imprisoned, lose a great many years of my life, possibley get raped myself for doing absolutely nothing wrong.

      Here’s what I get from your statement: I should be happy to be raped, secure in the knowledge that my sacrifice is so that you can feel more secure about staying out of jail. Oh, excuse me, that I should be happy to be raped so that one-ninth of you can feel more secure about staying out of jail.

      Does changing the law so that simply claiming rape is proof enough for a conviction actually stop rape?

      Good thing that nobody’s suggesting that, isn’t it?

      So, how many innocent men would you gladly send to prison to stop one rape?

      Oh, .01 sounds about right. Guess what? NONE. That’s why I don’t say such idiotic things.

      EG, thanks so much for taking, yes a cliche, so literally. Do I actually think 9 rapists walking free is ok if 1 innocent goes free? No.

      You said it, and now you’re blaming me for assuming that you meant it? If you don’t mean something, here’s a thought: don’t say it. I’m not a goddamned mind-reader. You said you were “a strong believer” in this cliche. And somehow you expect me to know that you don’t actually think it? Don’t be stupid. At least try not to be.

      But thanks for you willingness to destroy my life because another man might commit the crime I’m accused of against you or one of your family.

      Right back atcha, big shot. Thanks for your willingness to fuck up my life because you’re scared that some other woman might make one of the accusations that make up the 2% of false ones every year.

      Here’s a thought: you know that anxiety you have about this false accusation bullshit? In order to assuage that, you’re willing to let women continue to suffer the far more realistic anxiety and fear of rape. Why is it that you think I should prioritize your anxiety ahead of mine and accede to the current state of things? Because women are supposed to take care of men? I’m not on that train, thanks.

      Why don’t you address tigtog’s question? Your situation had nothing to do with this law.

    2. Radiant Sophia
      Radiant Sophia April 3, 2013 at 12:27 am |

      That I should be happy to be falsely imprisoned, lose a great many years of my life, possibley get raped myself for doing absolutely nothing wrong.

      Did you not think of the possibility of this when you decided to have sex in the first place?

      1. EG
        EG April 3, 2013 at 12:32 am |

        Heh. I like the fact that I should have somehow known that he didn’t really think something he said he was a “strong believer” in.

        1. matt
          matt April 3, 2013 at 1:16 am |

          I’m a strong believer in the concept that the law should be just as diligent in not allowing innocent people to be wrongfully convicted as it is with getting the guilty into jail. I used a cliche, which you mentioned. Do you think that if someone says they strongly believe ‘what’s good for the gander is good for the goose’ only pertains to water fowl?

        2. EG
          EG April 3, 2013 at 1:28 am |

          I’m a strong believer in the concept that the law should be just as diligent in not allowing innocent people to be wrongfully convicted as it is with getting the guilty into jail. I used a cliche, which you mentioned.

          That’s not what the cliche means. What the cliche means is that not allowing innocent people to be wrongfully convicted is 9 times as important as sending the guilty to jail. If you didn’t mean that, don’t say it. And if you don’t understand what a cliche means, don’t use it.

        3. matt
          matt April 3, 2013 at 1:42 am |

          No, that’s a literal interpretation. a cliche is a vivid depiction of an abstraction that relies upon analogy or exaggeration for effect. a trite(an overly used) phrase or expression; also: the idea expressed by it. That is what a cliche is. It is not a literal understanding of the saying, which is how you’re understanding it. I was using it as an analogy, with some exaggeration, to make my point that the law should work to keep the innocent from being convicted.

        4. EG
          EG April 3, 2013 at 6:43 am |

          There is nothing inherent in how cliches work that makes exaggeration a given. You are mistaking cliches for similes, which often rely on exaggeration. Cliches are often similes, but the one you used is not. “You can’t [legally] shout ‘fire’ in a crowded theater” is another cliche regarding our legal system. It’s also perfectly true.

          One could argue that what you used was a thought-terminating cliche, a guiding principle that allows you to short-circuit actual consideration of what’s at stake.

          But do go on considering yourself unjustly persecuted. It’s not like we live in a society in which women are routinely told that what’s best for men is more important than their desire not to be raped, or the punishment of their rapists. Why would anybody take your cliche literally?

      2. amblingalong
        amblingalong April 3, 2013 at 12:43 am |

        Did you not think of the possibility of this when you decided to have sex in the first place?

        This is snark, right?

        ’cause I get the urge to troll the troll, but really, I’m not sure that makes such a comment OK.

        1. Radiant Sophia
          Radiant Sophia April 3, 2013 at 12:59 am |

          It’s a question. I ask questions about things I don’t understand (which includes most things about sex).

        2. macavitykitsune
          macavitykitsune April 3, 2013 at 1:00 am |

          I certainly read it as snark.

          That said, though, seriously, women can’t joke about being regarded in a state of permanent “ready for rape” after having sex just once? Marginalised humour, it worketh thusly.

        3. amblingalong
          amblingalong April 3, 2013 at 1:18 am |

          It’s a question. I ask questions about things I don’t understand (which includes most things about sex).

          Then frankly, this is victim blaming, which I’m horrified to hear from you. Asking someone why they didn’t think about the possibility of being falsely accused of a major felony before they had consensual sex… I don’t even have the right words.

        4. Radiant Sophia
          Radiant Sophia April 3, 2013 at 2:13 am |

          amblingalong,
          I am very sorry if I offended you. I certainly did not intend to blame anyone for anything that had been done to them. I think my views are being misinterpreted as snark or victim-blaming. I should know better than to ask questions, as it is not the responsibility of others to educate me. I didn’t intend to upset anyone, and I’ll stop.

        5. amblingalong
          amblingalong April 3, 2013 at 2:26 am |

          RadiantSophia,

          You’ve built up a lot of credibility with me as a result of your posting here, which is why I was so shocked to read what you posted, and why I’m assuming I’m still not understanding it correctly. If you want, I’d prefer to keep talking about this, because I want to understand where you’re coming from and where I’m at right now just doesn’t make sense to me.

          I know you’d have no problem identifying why other formulations of “didn’t you consider the possibility of crime X being committed against you before you did normal activity Y” are victim-blaming: “didn’t you think about the possibility of being assaulted before you walked alone?” It isn’t the responsibility of people doing legal, ethical, everyday things when other people commit vicious crimes against them, and so that type of comment strikes me as seriously problematic.

          Am I totally missing your point? I have to suspect I am.

        6. Radiant Sophia
          Radiant Sophia April 3, 2013 at 8:24 am |

          amblingalong,

          No, you are right, and the question was tactless. I wasn’t trying to blame the victim, but I didn’t think about how asking that could be traumatic.
          It isn’t my responsibility not to be attacked when walking home at night, but I am always aware of that possibility. And you are right, If you bring it up after I am attacked, you are victim-blaming, but that isn’t to say I am not asking myself the same thing.

      3. matt
        matt April 3, 2013 at 1:04 am |

        Really? I should have planned on possibly being falsely being accused of rape before I had sex? And that by not doing so just means i have to accept it? Do you say that to the rape victims? Sorry, hey, you knew if you started having sex you could be raped, so sorry. wow, nice piece of logic. I’m sure you’d tell someone who went to a major city and was shot, “to bad, you knew it was possible. Just accept it.”

        1. Radiant Sophia
          Radiant Sophia April 3, 2013 at 8:07 am |

          I’m sorry you took asking a question as me telling you to accept being falsely accused of rape. I realize (now) how this could be triggering, as the experience was traumatic to you. That was not my intent, and what you are responding to was certainly not my intent. You are not (obviously) compelled to answer my question, but to assume I asked it as some kind of statement is ascribing a malice to my action that I did not, in any way, intend.

      4. TomSims
        TomSims April 3, 2013 at 5:28 am |

        “Did you not think of the possibility of this when you decided to have sex in the first place?”

        Great question. If I were a teacher of young men in a sex ed class, which I’m not, never have been and never would be, I would use this same question.

        In our litigious country (USA), not having knowledge that what you did is a crime, is not a defense in court. Before you do anything you are not 100% certain is legal, consult a lawyer you know. That goes for all crimes, not just sexual assault and rape. I’ve seen men blind sided over the years the same way Matt was. Cover your ass at all times. The US Prison Industrial Complex is a hungry and growing beast needing new inmates all the time.

  26. matt
    matt April 3, 2013 at 12:01 am |

    Another thing, i mentioned that my case is not the norm. But the answer to this problem is not to ‘balance’ it so that more innocent people go to jail, it’s to fix our society and culture to reduce rape and to encourage and support victims to come out earlier.

    And yes, removing the need for evidence does undermine the justice system.

    1. EG
      EG April 3, 2013 at 12:17 am |

      it’s to fix our society and culture to reduce rape and to encourage and support victims to come out earlier.

      And this post is a concrete suggestion regarding how to do that.

      removing the need for evidence does undermine the justice system.

      Ask me how much confidence I have in our legal system when it comes to rape and sexual assault. Why does your confidence in the system matter so much more than mine?

      1. amblingalong
        amblingalong April 3, 2013 at 12:21 am |

        Ask me how much confidence I have in our legal system when it comes to rape and sexual assault. Why does your confidence in the system matter so much more than mine?

        It doesn’t, since how much confidence one has in the legal system isn’t really relevant to the question of whether people deserve a fair trial.

        1. EG
          EG April 3, 2013 at 1:32 am |

          Then why bring it up?

        2. amblingalong
          amblingalong April 3, 2013 at 2:12 am |

          Are you asking me to explain your motivations for posting? I’m confused.

        3. EG
          EG April 3, 2013 at 6:27 am |

          Amblingalong, I wasn’t the one who brought up undermining the legal system. You were.

        4. TomSims
          TomSims April 3, 2013 at 8:14 am |

          “It doesn’t, since how much confidence one has in the legal system isn’t really relevant to the question of whether people deserve a fair trial.”

          Spot on!

      2. matt
        matt April 3, 2013 at 1:11 am |

        No, it’s not concrete, it’s a swamp. Sure you’ll get rapists easier, but you’ll catch a lot more innocent people in the muck. Sorry that I think it’s wrong to convict innocent people.

        I never said my views of the justice system is better. I’ve agreed the courts have problems with rape. The difference is I believe changing the law will cause more harm than good and it’s better to change the culture.

        1. EG
          EG April 3, 2013 at 1:30 am |

          a lot more innocent people in the muck.

          “A lot” more? I doubt it. False accusations make up 2-3% of rape accusations. How many of those go to trial?

        2. matt
          matt April 3, 2013 at 1:59 am |

          The 2-3% number is a guess at best. Even so, say it’s 5%, you still want to change a law that means 5 innocent people out of 100 will have to prove they didn’t do something beyond a reasonable doubt, which isn’t easy. And then you’ve ruined 5 lives, their families lives and others connected to them in order to make it easier to convict people without a reasonable amount of evidence. If you can live with that, so be it, I can’t.

        3. steven
          steven April 3, 2013 at 4:59 am |

          what’s reasonable evidence in a rape case? often times the only evidence is the testimony from the victim. when my sister was raped the guy tried to say it was consensual, so either you believed her or you believed him. luckily the jury believed her.

        4. EG
          EG April 3, 2013 at 6:25 am |

          Even so, say it’s 5%,

          Let’s say it’s 2-3%, which is accurate.

          And then you’ve ruined 5 lives, their families lives and others connected to them in order to make it easier to convict people without a reasonable amount of evidence.

          And again, when you let rapists walk, you are deciding that the damage they will do to the lives of their victims, the lives of their victims’ families, and all connected to them is acceptable collateral damage. Why is that OK but the other isn’t?

        5. amblingalong
          amblingalong April 3, 2013 at 7:06 am |

          Let’s say it’s 2-3%, which is accurate.

          This isn’t snark, it’s a genuine question- given your degree of certainty, which study are you relying on? I’ve seen very well done studies that produce statistics ranging from 2% to 8%, with outliers on both edges.

        6. matlun
          matlun April 3, 2013 at 8:28 am |

          Let’s say it’s 2-3%, which is accurate.

          2-3% is the proportion of known false reports. Which is a lower bound for the real proportion that is unknown.

          Even if you only look at good studies, different studies have come up with different results, and getting a good estimate is very difficult. The main problem is how you estimate how many of all the “unknown” cases (which are neither known to be false or known to be true) are actually false.

  27. matt
    matt April 3, 2013 at 1:20 am |

    I like how my post about why changing consent laws to force the defense to prove their innocence turned into an argument about a cliche and why it’s ok to throw innocent people in jail.

    1. EG
      EG April 3, 2013 at 1:31 am |

      You used a cliche indicating that men’s safety from false accusations, which are very rare, is 9X more important than my safety from rapists, who are all too common. You objected to a woman saying that her priorities were different.

      What did you expect to happen?

      1. matt
        matt April 3, 2013 at 2:06 am |

        No, i object to taking an exaggeration for effect as a real statement while completely ignoring every other thing i said in the post which contradicts what you’re accusing me of. Time to stop feeding the troll.

        Yes macavitykitsune, i’m pointlessely JAQing off about being convicted of a crime without proof. Totally pointless in our ‘free’ society. But thanks for reminding me my humanity is only what you tell me it is.

        1. tigtog
          tigtog April 3, 2013 at 2:36 am | *

          Time to stop feeding the troll.

          Sez the newbie commentor whose email address is a Godwinning. Welcome to permanent pre-moderation.

        2. matlun
          matlun April 3, 2013 at 3:01 am |

          No, i object to taking an exaggeration for effect…

          Was it an exaggeration?

          What number of innocently convicted do we want? If we are saying that it is not better for 9 guilty to go free than 1 innocent to be convicted, what would this mean? Let us assume a figure of 1 innocent convicted per 9 guilty walking and think about it.

          Let’s assume we manage to set it up so that it the chance of a guilty person being convicted would be 40% (HUGE improvement vs today according to eg RAINN, and unrealistically high),

          Now assume we have a false accusation rate of 10%. We would then have 54% of all accused being guilty walking free and to reach our proportion we should have 6% of all accused being innocently convicted. That would be 60% of all innocently accused.

          In other words it you would be more likely to be convicted if you were innocent.

          These are just ballpark figures, but it still shows that this proportion would actually mean absurd results with a ridiculous high risk of being convicted if you were falsely accused.

        3. matt
          matt April 3, 2013 at 3:25 am |

          Please moderators, post this response to EG’s latest.

          EG, I’m not saying I actually believe the 9 to 1 ratio is just. I was using it as an analogy, like many lawmakers do when they talk about not convicting the innocent. Ben Franklin, Abraham Lincoln and it’s even in a number of law texts to make the point that the law is obligated to protect the innocent. I understand you took it as me being literal, i wasn’t. I would love for every criminal to go to jail and nobody innocent to be convicted, but as you mentioned are system isn’t perfect, and i was just trying make the point that we have to be careful when passing new laws so they catch more badguys rather than good guys. thats all.

      2. McMike
        McMike April 5, 2013 at 1:42 pm |

        I am sorry but peoples safety from the very powerful state is infinitely more important than a rape victim getting revenge. Throughout history an leadership unchecked rivaled the greatest diseases or famines known.

        A black falsely accused of rape already has it hard enough without having to proof a negative.

        1. TomSims
          TomSims April 8, 2013 at 10:58 pm |

          “”When governments fear the people, there is liberty. When the people fear the government, there is tyranny”

          – Thomas Jefferson

    2. macavitykitsune
      macavitykitsune April 3, 2013 at 1:33 am |

      I like how your pointless JAQing off is being treated as pointless JAQing off.

  28. TomSims
    TomSims April 3, 2013 at 12:52 pm |

    I think everyone would like to see all those guilty of any crime convicted and sent to prison or executed. I also think everyone would like to see all those falsely accused of any crime exonerated. A fair trial and jury of their peers and so on. But realistically, I don’t think that’s possible.

    And although I am certainly no lawyer, I can see that rape prosecutions and the matter of consent can be problematic. I can see this debate raging for years to come. But at least we don’t live under Sharia Law, or at least not yet.

  29. David
    David April 3, 2013 at 5:19 pm |

    I agree, with you about affirmative consent.

    We should also make the laws gender neutral, so that both parties have to give affirmative consent.

    Rape of men is less common, but it does still happen, and our laws should reflect this.

  30. Why Would Anyone Think That | Red Pill Theory

    [...] this oppression by creating a climate of terror through widespread sexual violence. When feminists suggest or pass legislation that is outrageous to the broad spectrum of American democratic sensibility, [...]

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