Missed the edit…
Well ok…to be honest I have whined or begged a little on a few occasions. 
That’s the second time you mentioned this and I’ll comment on it because this meme – the idea that hordes of would-be rapists are roaming bars just itching to spike young innocents’ drinks with a roofie so they can have their evil evil way with them – is not self-evidently fact-based. In fact, I think the prevalence of this meme and mindset is more supportive of the broader “false rape claims are prevalent, hysteria-based, and founded on considerable female mendacity” trope that some espouse here – see, e.g., Drug rape myth exposed as study reveals binge drinking is to blame | Daily Mail Online,
wherein it was found that there was NO medical substantiation for any of the “OMG he slipped me a roofie, that’s why I ended up at his house” claims reported to the doctors surveyed.
This can’t be right. Not a lawyer in the US, but under English Common Law upon which the laws of all but one US States are based, all that is required is penetration knowing or suspecting that consent was not there. The fact that force was not used or that the alleged victim did not resist are issues of evidence to be used to convince the tribunral of fact one way or the other but are not legal bars as far as I know. Would someone more knowledgeable such as Bricker care to clear this up.
I’m pretty sure the OP was talking about date rape allegations, and not about Tawana/Crystal there-was-no-sex-and-couldn’t-have-been-rape situations. The debate has ranged back and forth over both. I don’t mind that, because the Tawana cases aren’t entirely un-germane to the date rape claims: they evidence the fact that, yes, women might well lie about rape (of whatever variety), and the (initial) sympathy generated for the “victims” reinforces the notion that a rape accusation is a potent trump card for a woman who is otherwise troubled, spiteful, regretful, whatever.
I think one or more posts directly or indirectly challenged Lamia on what I saw as a straw man: that “everyone” tells real rape victims that they brought it on themselves, so “everyone” should be okay with blaming guys falsely accused of rape. I thought we had a pretty clear consensus that in cases of real rape, it wasn’t okay to extensively question the victim or call her out on the vulnerable position she had put herself in (arguably). I certainly wouldn’t feel comfortable saying “why were you walking on that street” or “why were you wearing that miniskirt?”
The problem identified in the OP stems IMHO from two structural disparities or whatever you want to call them:
First, IRL, the risk of “being falsely accused of rape because someone might be murky about whether they did or should have or wish they had consented to sex” is borne for all meaningful purposes solely by men. Either party could have regret; only female regret has even a potential to lead to meaningful harm for the other party. So, there are inherently higher stakes for a man having sex with a woman (stranger or otherwise) under murky circumstances (of course, women bear other risks – most guys going home with a strange girl from a bar have less risk of winding up in a shallow grave down by the river than is true for women).
Second disparity (as long as we are talking about “murky consent”): the reality is that AFAICT, a good majority of the “she changed her mind” cases or alleged cases involve LOTS of alcohol. Disparity arises because while intoxication negates informed consent, voluntary intoxication is NOT a defense to criminal liability. So a drunk guy and a drunk girl both show respective poor judgment: she by going back to his place, or by not clearly saying no when he’s putting the moves on him, or by wholeheartedly, enthusiastically boning a guy she’d never bone while sober; he by reading her signals wrong, or by not reminding himself that when she’s blitzed (or, hey, let’s say it, by boning a fat chick he’d never bone if sober), it doesn’t even matter if she’s totally gung ho: she can’t, technically, give meaningful consent.
Two possible sets of drunken Bad Idea Jeans judgment. Only one bad-judgment-having party faces even the potential for jail time (again, there are other risks for the woman, but not criminal liability risks).
With the knowledge that in most jurisdictions, a legally intoxicated person is deemed unable to give informed consent, I would hesitate to take a poll as to how many posters here are technically guilty of some form of sexual assault as a statute would define it. Consider this my pre-emptive confession.
I am not sure how many people can honestly say they’ve never woken up next to someone after having sex that would not have occurred sober. There are many, many ways for this to occur without anything that most normal or fair-minded people would consider coercion. It doesn’t even have to involve “changing her mind.” It was that her mind had one form of judgment when she was drunk or exhausted or sad or lonely, and another form of judgment when she woke up and had to figure out what to do with an awkward situation. IME, luckily (and maybe I just have been lucky to encounter or select female acquaintances who are fair-minded, not crazy, responsible) most women don’t choose the false-rape-allegation route, but instead just work it out or gloss it over like any other socially awkward or I-can’t-believe-I/we-were-that-stupid situation.
Let’s try Commonwealth v Berkowitz, 641 A.2d 1161 (Pa. 1994). “As to the complainant’s testimony that she stated ‘no’ throughout the encounter with Appellee, we point out that, while such an allegation of fact would be relevant to the issue of consent, it is not relevant to the issue of force.” Id. at 1164.
In Pennsylvania, then, at least, the requirements of force and absence of consent are separate. And both are required.
Let’s try Maryland, shall we?
Rusk v. State, 406 A.2d 624 (Md. Ct. Spec. App. 1979). “Force is an element of the crime and to justify a conviction, the evidence must warrant a conclusion either that the victim resisted and her resistance was overcome by force or that she was prevented from resisting by threats to her safety.” Id. at 626 (quoting Hazel v. State, 157 A.2d 922, 925 (MD. 1960))
I am a lawyer in the United States. That is the law, in the majority of states. Twpo separate elements, force and absence of consent. You can chose not to believe me, but you are flat out wrong. Obviously there are situations where force is not required - the victim being unconscious, underage, etc. But generally, what I posted was the law.
Aha! Rusk v. Sate was the one I mentioned earlier on–the woman who went home with the man who confiscated her car keys in the parking lot.
Yes - I mentioned it earlier. The case I quote above is the appelate version, where his conviction was overturned. The Supreme Court later reimposed it, based on an interpretation of the choking as being sufficient force to meet that element of the crime.
Forgive me, was not my intention nor my place to doubt your abilities. But the dictims that you cite see to relate more to the amount of evidence required for the facts in issue to be proved, and in most places the position is the same. I was talking merely of the legal requirements of rape, the technical definations as it were.
Indeed Rusk seems to indicate that the dictim is for evidence rather than law.
They are separate elements. Hence the Berkowitz case. Girl in dorm room, roommate’s bf comes in, sits on bed with her, she says no repeatedly, he lies on top of her and has sex with her, all the time she is saying no. No rape, because no force. It’s not evidentiary. It is a required element for rape in the majority of jurisdictions in the United States.
I don’t know what you mean by ‘dictim.’ The Rusk cite could not be clearer. “Force is an element of the crime.” (emphasis added).
That boggles the mind. No means “no”. Period. I would think force is implicit in having sex with someone who does not want it. He lies on top thus pinning her. She could be afraid that actively fighting back would anger him and cause him to hurt her further.
As written that amazes me. Not doubting your veracity on it. I am just shocked the law is so…peculiar like this.
Hey, we’ve made progress. In the past rape could only be committed against virgin women. It was considered a crime against the girl’s father, because it reduced her value as a bride.
Rape law is scary. It’s a horrible mish-mash of attitudes, leading to attempts to compensate for past wrongs leading to the law of rape being pushed further and further away from other criminal law.
And, AK84, sorry for being snappy back there. Just having studied this, and written a published article on it, I got a little offended by:
Blink.
In light of villa’s helpful posts [1], I’d like to clarify my previous and somewhat ironic remarks.
It seems to me that a prudent guy might be vulnerable to a) women he’s never met or fooled around with and b) women who are both vindictive and excellent liars.
Otherwise, being wary of alcohol-fueled intercourse, attempting to elicit consent, and laying off on the BDSM on a first encounter seems like it would shift the odds in your favor. [2] Oh yeah, and where there’s ambiguity stress that you’re not going to force or pressure your partner to do anything, verbally or otherwise.
The preceding may leave some room for misunderstanding. I don’t like misunderstanding. (Oh, and what Whack-a-Mole said.) But I also don’t like the idea of being called into court if my partner is shy and I am unsuccessful in making myself clear.
[1] Jeez, I thought that no meant no. ::shakes head::
[2] BDSM should only be conducted after thorough communication and the setting up of safe-words, IMHO. Not that I know what I’m talking about.
BDSM is a whole 'nother kettle of fish…
A party in the US cannot consent to assault. People have been arrested and charged with serious crimes for spanking consenting partners.
My ignorance is stunning.
Thanks, villa.
PS: Er, were they convicted? Has anybody involved in consensual and negotiated BDSM (safe words, etc.) been sued in civil court? Have BDSM porn actors / actresses been brought to court?
I’ve heard of serious harassment, the cops busting in and wrecking people’s homes and essentially looting them while “searching” them and so on. And a BDSM internet porn provider was recently hauled across the country and tossed into Florida prison for violating their community standards.
They were convicted. I think you would have a lot harder time with anything civil, but prosecutors have often gotten hard-ons for alternative sexual practices.
Try Commonwealth v. Appleby, 402 N.E.2d 1051 (Mass. 1980).
Or if you have access to law journals, Monica Pa, Beyond the Pleasure Principle: The Criminalization of Consensual Sadomasochistic Sex, 11 Tex. J. Women & L 51 (2001). Ms. Pa cites to a case (in NY state I believe) where prosecutors defined a wooden spoon as a deadly weapon in order to justify higher charges.
Then again, and if your stomach is particularly strong, read up on the British/European Human Rights Spanner case.
Not to hijack the thread but I am curious after reading the Spanner link.
According to the UK courts (and I think someone said this is true in the US too): “A person does not have the legal ability to consent to receive an act which will cause serious bodily harm…”.
If that is so then why don’t police arrest everyone involved in a boxing match? Or pro wrestling? Or heck…even football? (I am serious)
The same principle is in US law. I think the difference is that while you cannot consent to be assaulted, you can consent to the risk of harm. I don’t fully understand the differential, to be honest.
Because BDSM is sexual, or has the reputation as such, and America is a Christian, sex hating nation. It’s really that simple.
That may well be the case: BDSM (Bondage, Discipline, Sado-Masochism) indeed has the reputation for being sexual.
But Operation Spanner occurred in Manchester, England.
ETA: BTW, thanks for the cites, villa.