I don’t think consent is a defense in cases of domestic violence. If police are called and see evidence of domestic violence, somebody is going to jail even if the victim gives their consent.
I think I read about that a few days ago but wasn’t specifically thinking of that one when I posted. That will be interesting to see. Though in this case, the woman is saying she thinks it’s rape. I’m curious about whether it would still be a crime if the woman said, “No, it wasn’t rape–I’m okay with what happened.” And if that would change if she made it clear before the unconsciousness. And if she was told she was raped by someone when unconscious and she’d never said someone could do that, but she still said she didn’t view it as rape. Do we still view such a person as a rape victim, legally? Philosophically?
My personal opinion is that a woman can validly give prior consent to unconscious sex but consent after the fact shouldn’t be a defense. Because at the time the sex is being committed, the man having sex has no way of knowing that the woman will later retroactively consent - so he’s essentially committing a non-consensual act. If the woman later does consent, I’d see it as the equivalent of shooting somebody five times in the chest but having the ER staff save their life. Your intent was to commit what was a crime at the time you committed it but unforeseeable circumstances after the fact changed the outcome.
I think you’re confusing the procedure for laying a charge with a defence to a charge.
In most cases, if the police find evidence of domestic violence, their policy is to lay a charge even if the victim of the abuse doesn’t want the charge laid.
However, if such a charge goes to court and the alleged victim of the abuse testifies that she consented to the alleged abuser touching her, it may be hard to get a conviction.
What if you pay somebody to beat the living shit out of you?
In another thread recently I was talking about the first Dirty Harry movie, and in it the bad guy paid a thug to beat the crap out of him so could he bring police brutality charges against DH and the police.
This thug really, really beat the crap out of him. Badly. So I’m thinking that, due to the extreme violence involved, he could be charged with assault even though he was paid by his victim to do so.
Anybody know?
This is because of the view that systematic domestic abuse is capable of rendering a victim out of sound mind–see Stockholm Syndrome.
There was also that case a few years back (1992 in Texas) where the woman was going to be raped so she asked her attacker to at least use a condom. He then used that as a defense that she consented. He was not convicted, as I recall.
Legally it’s still a crime if she didn’t consent before the act happened.
Crimes are committed once somebody performs actions, with motivation, consistent with the crime. What anybody else thinks doesn’t really enter into it, even if that person is the victim. Even if the acts of the crime are defined so as to require an absence of consent, the crime is committed if the actions take place without consent. The fact that a person acquiesces *after *the actions have taken place doesn’t mean that the crime never occurred in the first place. The victims of crime don’t get to choose which crimes they have been subject to. That is defined by society via the law.
To help illustrate this. Imagine what would happen if the police came upon a man having sex with a comatose woman in a hospital bed. They can and will charge him with rape even though the victim can’t testify either way. They can do that because they can prove that consent could not have existed.
Now imagine that the woman wakes up after the man has served 5 years of a 15 years sentence for the crime. She now says that she doesn’t think that it was rape. The man doesn’t get let out of jail because of that. He will still serve his full term, because the facts of the case that led to his conviction haven’t changed at all. He still had sex with the woman without her consent, and the jury found that to be true. he committed rape.
The laws work this way because, in large part, we want to discourage people who commit crimes. We don’t want people who do things without consent wandering around our streets. The fact that the rapist in this case got lucky and found a victim who wasn’t unduly affected by his crime changes nothing. He is still just as big of a threat to society as he would be if the victim did believe she was raped. Women will still be just as scared of what might happen to them when they are unconscious as they would have been if the victim believed she had been raped.
And that last paragraph addresses my philosophical view on it as well. It’s still rape, still a serious crime, because the effect on society is isn’t reduced at all because of alack of effect on that particular victim.
In practice prosecutors are unlikely to continue if the victim says there was no harm, but they certainly can, and they have done so in the past. Most notably in domestic violence cases, people have been charged even if the victim tells them no harm was done.
You can always be *charged *with a crime. The police can *charge *you even if you can prove you weren’t in the country when the crime was committed. That’s not the issue.
The issue is whether consent given is a defence to the alleged crime.
For example, if I beat the shit out of somebody, I can’t claim that the Bible told me to do it. That simply isn’t a valid defence before the law. It doesn’t matter whether it is true or not, it simply is not a defence. In simple terms that means the jury can’t take it into account when deciding whether I am guilty. Whether the jury believes that it is true or not, they can’t allow that fact to alter their verdict.
In contrast I can validly claim that that the *victim *told me to do it. That is a valid defence, and the jury is obligated to take it into account when deciding whether I am guilty. That doesn’t mean they have to believe that the victim told me to do it. Butt they have to give consideration to it and decide for themselves whether consent was given.
In the example you give, the perpetrator of the act could certainly be charged. And he could most certainly use consent as a defence. Whether the jury believes that the victim consented to that degree of violence will depend on the arguments both sides put forward. But there’s no doubt that the perpetrator could use that defence.
Of course in the movie the victim also called the perpetrator a stupid nigger, so the perpetrator could also use a provocation defence.
Thanks for the answer, and perhaps I chose my words poorly, but I was assuming no question of guilt and no question that the perpetrator was paid to perform the assault. I’m simply wondering if a guy beats someone up like that and everyone involved freely admits it was a job for hire, would the police be likely to try to bring the assailant to trial for assault?
It’s not likely, simply because there is no chance whatsoever of getting a conviction. Because consent is a valid defence, and nobody disputes that consent was given, the accused has an unassailable defence.
Prosecutors don’t normally waste time and money pursuing cases that they are 100% sure that they can’t win. What would be the point? The best of them want to get the best effect for the public’s money. The worst of them want to increase their win:loss ratio and to take high profile cases. Perusing this case would be a failure for either kind.
Thanks again for the information. I do know that there are certain instances in some states where the police will charge someone with assault even if the victim doesn’t want them to, such as in the case of spousal battery. So what I’m wondering is if the kind of assault I described would be one that would be illegal without regard to mutual assent. I’m not interested so much as to whether the guy could be charged or what might come up at trial as I am to know whether his actions under the circumstances as described qualify as an illegal act. In other words, can a person be hired to beat the crap out someone and it be perfectly fine with the law so long as neither party involved has an objection?
That is going to vary a lot with jurisdiction. For example, if you look at pravnik’s reference, the act would still be a crime because consent can only be given to assault for medical purposes, as part of employment or for scientific research. This assault was neither. In other places it will be different.
Out of interest, I wonder how the laws pravnik linked to handle sports, especially MA classes, including boxing. These are neither professiional, nor scientific or medical. Yet people regularly beat the shit out of each other and sustain serious injuries.
On a side note, here is a funny story. 
So here’s another case where consent can be given to assault when it isn’t medical, scientific or professional.
Where do you keep getting these? :eek: This is not how I remember The Family Circus at all!
To nitpick, the way I read pravnik’s reference was that consent to serious bodily injury can only be given for medical, work or scientific purposes. There can be assault without serious bodily injury, and consent is a defense in that case (even without medical,work or scientific reasons).
Just on a note: This case was appealed to the notoriously liberal European Court of Human Rights, and they thought it was grand.
From memory:
R vWilson - the couple were married and she insisted on the branding - it was a third party who reported the incident. The courts focused on the fact that they were married and gave wider leeway AFAIR.
R v Slingsby - I forget the judgement, but that was because neither party thought that the fisting could lead to death, just because he was wearing a sovereign ring. She consented to an act which he performed - neither thought death could follow.
Your local newspaper must not have run the good Family Circus strips. You should complain to the editor.
Nothing substantive to add, but this reminds me of my time in law school.
In Torts, the prof said something along the lines of “consent is never a defense against assault or battery.” (I don’t recall the specific quote, and it was 25 years ago.) Being a smartass, I asked, “What about consensual activities that are likely if not expected to result in injury to either or both parties?” The prof asked, “What did you have in mind, Mr. Dinsdale?” In response to that marvelous straightline I responded, “A little S&M or B&D.”
She was not pleased and, as I recall, did not answer.
Consent is not the be all, an end all. Regulations, as previously stated, can permit consentual assaults, but outside of the regulatory environment, consent is meaningless. As an example, participants in a non-sanctioned boxing match can be charged with assault, even when conducted in the same manner as a sanctioned event. It would be impractical to prosecute every case of consentual assault, but it is done routinely when serious injury or death occurs. Even in sanctioned events, an assault can be prosecuted if the rules of the event are violated. This has happened in a couple of cases in the NHL, although I don’t recall if the prosecutions were successful.
The problem with this legally is proving consent in court. The loser of the fight has a tendency to deny that consent was given. So make sure to get the consent in writing before engaging in that next drunken brawl.
I believe there are entire websites devoted to perverting the comic because it is considered so innocuous. The comic doesn’t have balloon text in its dailies, so it was always really easy to do . However, I always assumed that Markxxx was making these himself.