I apologize if I misunderstood Razorsharp’s questions about the scenario, but so far as I can see, he (or she) asked about financial considerations and child support. Razorsharp did not ask whether we would consider it rape.
But since you ask, I would say the scenario described does not amount to rape. Razorsharp describes the woman only momentarily keeping the man from withdrawing. Moreover, she did it simply by holding on to him tightly. I guess that’s technically a use of force, but only technically. Certainly it does not involve the kind of violence – or threat of violence – that we usually associate with rape.
If the woman’s physical control of the man had continued, or if she had backed it up with a threat, I would say the line was crossed. But, as described, I think the woman used poor judgment but did not commit rape.
For what it’s worth, I think I would reach the same conclusion if the genders were reversed. But that’s only for this specific scenario in which there seems to be no real violence and no threats or intimidation.
Clark K, that analysis is completely wrong. He withdrew consent, she continued to have sexual contact with him after he withdrew consent, she commits criminal sexual assault. Force is not a required component of criminal sexual assault. All that is required is the absence of continued consent and a sexual touching or penetration. That’s it. No force, no violence.
I hope you never serve on a jury involving a sexual assault. It’s notions like yours that let rapists go free.
I am asking for some studies that say, “X percent of all rape victims are threatened with involuntary commitment if they refuse to recant their stories”. Preferably during the last forty years or so.
It’s a rather large accusation that victims are routinely threatened with commitment if they complain of being raped. This needs to be documented, especially if you are going to imply that it affects the statistics.
Earlier, I referred to a Kansas Supreme Court case. That case shines a revealing light on some of those who posture themselves as being so concerned with the plight of victims of rape, and the inherent disparity within legislation that accompanies an agenda.
A twelve year old Kansas boy, Shane Seyer, was sexually molested, repeatedly, over a period of several months, by his babysitter. As a result of the sexual activity, the sixteen year old babysitter became pregnant. The babysitter, Colleen H. (the name has been changed to protect the guilty), was initially charged with statutory rape (“indecent liberties with a child” in Kansas) but plea-bargained to a lesser charge – “contributing to a child’s misconduct.”
When Colleen H. and her baby applied for welfare benefits, the state went after the father for child support payment.
In 1993, the Kansas state supreme court ruled that just because Shane Seyer was molested and raped by his babysitter at age 12, he had no cause to be relieved of 18 years of child-support payments. The Kansas supreme court wrote,“We conclude that the issue of consent to sexual activity under the criminal statutes is irrelevant in a civil action to determine paternity and for support of the minor child of such activity.”
The court ruled that “in an action by the State against a minor father for reimbursement of funds paid for support of his child, the fault or wrongdoing of the mother at the time of conception, even if criminal, has no bearing on the father’s duty to support such child.”
Shane Seyer was ordered by the court to take an available job delivering newspapers so as to reimburse the state for child support services.
Can you imagine the cacophony of shrieks from the “sisterhood” had a court ordered a twelve year old girl to have the baby of her rapist? But there was nothing but silence. Evidently it’s okay to rape little boys, you can even get a judge to make the victim pay you for your crime.
annaplurabelle:
Are you a lawyer? Just curious because your most recent pair of posts smacks more of debating tactics to minimize a particular viewpoint than any real attempt to clear something up that didn’t seem to need clearing up.
Kanin’s study does show a very alarming trend. While it may not be possible to extrapolate those numbers more broadly I think it is safe to say the study shows enough of a problem to merit further study. Unless that midwestern town was somehow seriously warped or Kanin’s study seriously flawed I would think it is reasonable to expect to see alarming numbers pop-up elsewhere.
Regardless I will mention again that I did cite numbers gathered by the FBI showing a 25% false accusation rate. These numbers come from empirical data and as such aren’t really open to question.
Earlier in this thread many were poo-pooing the notion of false accusations. Either implying they outright didn’t exist or were so minor as to not be worthy of discussion. I admit when I finally went looking for stats I was shocked. I had expected to find little evidence of such and my guess was the number would be something like 1% (or even less) and I’d find some anecdotal evidence of a few egregious cases.
Instead I dug up some jaw dropping numbers and once I did the silence from the naysayers has been telling. I am very curious as regards the OP what you think (and many others who have been active in this thread). Personally I am still waiting for someone to show me that women will be protected to a significant extent by the new law where they were not protected previously. Juxtapose that with the false accusation issue that has now been shown to be very legitimate and how the new law might affect that. Understand that I myself do not have an agenda. I want to see the best laws possible on the books. I very much want to see women protected a much as possible from rapists but I also believe somewhere on the spectrum of protecting women some regard needs to be given to the accused and how to protect them from false accusations. There may not be a clearcut answer here but I’d like to see the debate so I can make a better decision for myself.
Whack-a-Mole, perhaps you are confusing me with someone else? Throughout this thread I have been agreeing with you about the problem of false accusations. Did you miss my post on page 2 in response to sleeper about the same thing?
The cite explains the systemic problem. Did you read it? What about these two posts of mine, replying to your assertions that 1) it should be hard to put some one in jail for rape, and 2)the vagueness of laws:
And you never replied to this one:
I never disputed the false rape figures - I agree with you there too - the reason I joked about redundancy is because I posted the same cites you’ve used here in the Bryant rape thread a couple of weeks ago. I pulled the Kanin quote cite out of my browser history files. One more time:
I AGREE WITH YOU - FALSE ACCUSATIONS & CONVICTIONS ARE APPALLING!!!
Okay? Read Love’s site and tell me if you don’t think a revision of this Ill. statute means squat relative to the overall problems in the justice system.
BTW, I’m not a lawyer, but I believe Bricker is(?). Here’s what he(?) had to say about the impact of this law (my emphasis):
Okay…sorry if I lumped you in with the naysayers. I should have gone back to check but didn’t. My bad.
As to Love’s article it was interesting and scary. I’ve actually been meaning to start a thread on whether ‘plea bargains’ are a ‘good’ thing. My only observation/questions about the article aren’t entirely related to this thread but I’m curious anyway.
Love says that people wiht a prior criminal record will get that information used against them if they go to trial hence encouraging them to plea bargain. He specifically mentions that information being presented to a jury. I thought prior acts were inadmissable but perhaps I’m wrong. I could understand their use in the sentencing phase but during the trial itself? Maybe Bricker will be along to clear that up.
Second, as I mentioned earlier in this thread laws must be crafted and they will likely have some ability to ensnare the innocent. Hopefully the laws and the rules of evidence to convict someone do a good job of of weeding out the innocent. Nevertheless some will get caught and lousy as that is we still need laws and court rules to operate our society. Too tight and the guilty roam free…too loose and the innocent get caught. 8-12% is a pretty steep price to pay IMO though.
As to Bricker’s quote I am bothered by the notion that I have to prove a woman didn’t withdraw consent. That isn’t a huge change? I think it’s huge! For the sake of argument assume a woman accuses me of rape in that she withdrew consent but I continued anyway and assume the accusation is completely false. It is now up to ME to show she didn’t? I’d say that I’m really screwed in this instance so my issue with the new law still stands. Hopefully Bricker will be by to show me why I needn’t worry so much (I really hope he does…the alternative is scary).
Sentence enhancements for prior convictions, for one thing. Which means if you opt for trial and lose, you lose big. Here’s an article with more detail on that:
There’s lots more to it. This is why I suggested a separate thread for this issue.
It equals out by the fact that the woman needs to show that she did withdraw consent - beyond a reasonable doubt.
But I asked Bricker that myself: How do you show consent (if you’re the defense), and how do you show withdrawn consent (w/o evidence).
I understand that but I thought that came in the sentencing phase. My question regards telling the jury during your trial about prior offenses. I thought this was prejudicial and generally not allowed but Love’s article seems to indicate that it is. I know this is off-topic but if you (or anyone) has a quick answer that’d be great.
I’m sorry if I wasn’t clear. I know force is not a required component of criminal sexual assault. That’s why I specifically mentioned the use of threats or intimidation.
I would gladly convict someone of rape who never lifted a hand against the victim but instead threatened violence or implied that resistance would be punished. I would gladly convict someone of rape who used a date rape drug so that the victim could not resist, or simply could not give consent.
I simply said that in the narrow circumstances described here, where one person held on to the other for a few extra seconds, without force or threats or intimidation, I don’t see rape. If I were on a jury, perhaps a prosecutor could walk me through the fine points of the law and demonstrate that I am wrong. I would keep my mind open and be ready to vote guilty if the law says these actions do in fact amount to rape.
The general proposition is that prior bad acts are inadmissible at trial to prove that the accused acted in conformity therewith.
In other words, you can’t simply tell the jury that the man on trial for rape has a prior conviction for rape, if the only inference is that he did it before, and so is likely to have done it again. That’s an impermissible inference. Indeed, you can’t tell the jury that he has a prior conviction for arson, for the same reason. We don;t want the jury returning a guilty verdict just because the accused is a bad guy. We want a guilty verdict only if the prosecution proved each element of the offense beyond a reaosnable doubt.
However, prior bad acts are admissible for other reasons.
If the accused chooses to testify in his own defense, the prosecution may impeach his credibility with the fact of prior felony convictions – a permissible inference for a jury to draw is that convicted felons are less trustworthy than others. This doesn’t mean that the jury must automatically disbelieve the accused, but they are entitled to know he’s a felon – and in some jurisdictions, they’re entitled to know what felony.
A prior bad act is also admissible to show absence of mistake, or to show a common plan, scheme, or motive. If the accused claims he believed he was acting out a rape fantasy at the behest of the accuser, it’s relevant that he previously made such a claim. If the accused dressed up like a clown and forced women to laugh as he assaulted them in prior crimes, and the instant case also involves a clown that demanded his victims laugh, then the prior convictions are relevant.
Clark K, the use of threats or intimidation are also not required elements of criminal sexual assault. It doesn’t matter if force is used; it doesn’t matter if threats are used; it doesn’t matter if intimidation is used. All that matters is whether a sexual touching took place and whether consent was given.
Again, I hope you never serve on a jury in a rape case, or that you at least let the judge correct you on your mistaken understanding of the law before reaching judgment.
KellyM: don’t be too sure. In Virginia, to take one example, “sexual battery” includes the element of “…by force, threat, intimidation or ruse, or through the use of the complaining witness’s mental incapacity or physical helplessness…” So does “rape.” There is no “criminal sexual assault” charge in Virginia.
Whack-a-Mole:
The ISSUE may be huge – the change isn’t.
The only change is that the gray area concerning the withdrawal of consent is now clearly resolved. The prosecution must still prove, beyond a reasonable doubt, that consent was withdrawn. Like any other element of a crime, the testimony of the complaining witness is sufficient, if believed by the finder of fact, to establish that consent was withdrawn. You ask if it’s up to you to show she didn’t withdraw consent – in fact, it’s up to the prosecution. Once they establish it, then you’re guilty. Now, if the complaining witness testifies she withdrew consent, and you testify that she did not, it’s up to the finder of fact - the jury, or in a bench trial the judge - to weigh each witness’ credibility and decide who they believe.
This isn’t new. If you were accused of rape after a consensual sex act before this law passed, the exact same thing would be true: you both would present your version, and the finder of fact would weigh the credibility of you both and decide.
I’m still waiting for a return phone call on that cite, Bricker. Which reminds me----isn’t it that true that if said prior bad acts on the part of a defendant show a great similiarity, they’re admissible in some states. This is a judgement call on the part of the judge.
I’m sorry, but I’m sort of disturbed that no one has commented on the size and duration of this study. 109, across ten years, in a city of 70, 000? That’s just not a real big study. And no one here has brought up situations like Florida’s, where they used to demand polygraphs from rape victims, or the situation in Baltimore or Philadelphia’s police department, where it was found that thousands or rape complaints were routinely tossed out without investigation. Yes, Bricker, I’m looking for a cite.
I find it mildly amusing that no one is demanding cites from people they agree with, myself included. I think we should rectify that.
I’m sorry, but I’m sort of disturbed that no one has commented on the size and duration of this study. 109, across ten years, in a city of 70, 000? That’s just not a real big study. And no one here has brought up situations like Florida’s, where they used to demand polygraphs from rape victims, or the situation in Baltimore or Philadelphia’s police department, where it was found that thousands or rape complaints were routinely tossed out without investigation. Yes, Bricker, I’m looking for a cite.
This is the other thing. The word ‘false’ tends to imply deception or venom. That is why people reject this argument. It’s the same argument one frequently makes against ‘unfounded’ , a term which doesn’t mean the case was maliciously brought—it means there wasn’t enough evidence to take the case to court. Nor does it take into account mistaken identification by whomever as an impetus to trial. Using the word ‘false’ implies nothing less than malice on the part of the victim. With these cases cited only by numbers, I cannot make any determination as to what actually happened. What I find disturbing is that there appears to no position in this discussion beyond, “She lied!” or “She did not!” It’s the fact that people instantly jump to truth or lie/ black or white that gets peoples’ backs up, my own included.
I find it mildly amusing that no one is demanding cites from people they agree with, myself included. I think we should rectify that.
