In my country sex with a minor is a crime classified as “sex with a minor” but technically it’s not a rape (statutory rape) like it is in the USA. So I’m saying it’s acceptable that american law classify it as a rape, but personally I believe it’s better to think of it as a separate crime like it is in my country.
Not sure about patient/doctor (but it will get his licensed pulled, too) but the others fall in the same moral category as incest; the person in a position of authority has “undue influence” and power over the victim, so consent cannot be freely given. Like minor/adult, it’s a form of statutory rape. Note the distinction though - a teacher at the school the student goes to (even if over 18!). A doctor’s own patients.
I won’t address the law, as I am not a lawyer and am too lazy to do any research her, but I can think of very good reasons why sex between a prison inmate and one of his/her guards might be presumptively rape. The power imbalance in the situation is such that it’s far, far more likely that the guard is abusing his power than that that the prisoner is consenting in a meaningful way. Unless the guard is being forced raped by the prisoner (a possibility, I admit), the guard is at a bare minimum breaking regulations.
I’m not sure it’s illegal for a doctor to have sex with a patient, and I doubt it’s always wrong. If I visit a new specialist on a referral from my primary care physician, and we both think the other’s groovy and I ask her on a date, that isn’t necessarily exploitative. But sexual relationships between psychotherapist and patient are definitely out of order, and possibly any long-term doctor-patient sexual relationship, though I’m willing to be proven wrong on the latter.
I don’t think Sweden has jury trials for rape cases and in any event I don’t know what the standard is there for determining “implied consent”, but in England the issue would be whether or not Assange believed that consent was present and this would be determined in part by reference to whether or not he had reasonable grounds for that belief. In that respect, the issue isn’t the forcefulness of her insistence on condom use but simply his awareness of it.
There isn’t a retroactive component to granting it, either. Rape is deemed a continuing act and consent must be present at all stages. If it was rape at the start, subsequently allowing it to continue doesn’t make it *not *rape.
Again, these are the English law rules, not the Swedish. But the English courts themselves have confirmed that the allegations if true would constitute rape in their jurisdiction.
In some jurisdictions the prosecutors are required to press charges where the facts as alleged meet the legal definition of an offence. I don’t know if that’s true for Sweden though.
Yes that’s correct, in the common law. But obviously not in Israel, at least if you’re a Palestinian pretending to be a Jew.
If she did not say “I’ll only have sex if you wear a condom” ; then he could assume she would just say “pull out before you finish” in the morning; it would be the logical request. If she’s awake and did not say so, or object, then what’s the situation?
By the logic that being awake, alert, and not saying “stop” implies that the act is OK and tehrefore the earlier minute or more is also OK. She consented before, she consented immediately after, where does that logic take you? Where does that logic take you in terms of implied consent, or the assumption on the part of the male? I think we’re at the point of splitting hairs (so to speak…)
And… it’s still he-said-she-said.
Which gets us to the problem with most rape cases - they rarely come with clarifying evidence, and it’s one word against another. Unfortunately…
The idea is that people who have authority over other people creates either an implied coercion or at least an opportunity to manipulate/coerce the other person. So if a teacher is in charge of your grades and wants sex, then the student might read that as “If I have sex, then my grades will improve” or “If I refuse sex or report this as rape, my grades will suffer” whether that is explicitly stated by the teacher or not.
Rather than leave it to juries to decide whether consent was freely given or not, the laws simply make it a crime regardless of consent. There are certainly pros and cons to this approach, but that’s how we’ve implemented the law here.
I get that. But I would consider it as an abuse of power, not explicitly rape. In other words - yes, I understand criminality of it but I believe calling it a rape is an overstatement…
If I recall correctly, there was a big thread about this a while back, and there were some reports that most of the media reports were wrong and that it had actually been a violent rape, not a real “rape by deception” case. Does anybody remember if that was the case?
OK, let’s back up a minute here. In a rape prosecution (actually nearly any prosecution) there are two necessary elements to prove a person guilty of an offence - actus reus and mens rea, otherwise “guilty act” and “guilty mind”. The actus reus of rape is having sex with a person without their consent. If she was asleep when he had sex with her, then he committed the actus reus of rape, no question, because a sleeping person is incapable of giving consent.
The issue then is whether he had a guilty mind when he did it, in other words, did he either know she wasn’t consenting or was he reckless as to whether or not she was consenting. It is arguable that a reasonable person could not possibly believe that a sleeping person had given consent, but realistically most people would recognise that in some contexts there could be reasonable grounds for that assumption.
So getting back to Assange and AA, if she gave him no reason to believe she was objecting to condomless sex - which according to her, is not the case - then he has still committed the actus reus of rape but he might not have the mens rea to make him guilty of the offence. If she did object then it’s pretty clear he had the mens rea of at least recklessness. Of course, it’s still up to the decision-maker at trial to make that determination, but if they found him guilty of rape under these circumstances they would not be wrong in law.
If he’s denying that they had sex without a condom, or that she was asleep at the time, or that she gave him any reason to suspect she did not want to have sex without a condom, then it is he-said/she-said. If he accepts all these things but argues it wasn’t rape anyway, then it’s a question of law. English law on this point has been determined. Swedish law, I dunno.