[QUOTE=villa]
The point being that rape needs a mens rea.
[/QUOTE]
No, that’s sodomy.
[QUOTE=villa]
I tend to be thinking about baseball and sumo wrestlers and Margaret Thatcher speeches by then…
[/QUOTE]
Margaret Thatcher naked on a cold day!
Margaret Thatcher naked on a cold day!
</Austin Powers>
…her skirt really is that short.
[QUOTE=villa]
Interesting. There is an English case whereby people were acquitted of rape in the following situation: man goes to pub, drinks with a bunch of guys; tells strangers his wife gets off on having a bunch of guys come in and have “rough sex” with her; man tells guys that part of her schtick is to fight back and say no, etc; guys go back with men; wife of course knows nothing about this and is asleep; guys have sex with wife; wife fights back; guys charged with rape; guys acquitted of rape, (on appeal I seem to remember). Now you can certainly argue the reasonableness of their belief she was consenting here, but that’s the fact pattern…
[/QUOTE]
On those facts, the husband oought to have been charged with raping his own wife, because he knew that she was not consenting.
[QUOTE=Giles]
On those facts, the husband oought to have been charged with raping his own wife, because he knew that she was not consenting.
[/QUOTE]
I honestly don’t remember what happened to the husband. I am pretty certain he did not take part in the sex itself, and it may even have been before marital rape was illegal in the UK. However, that wouldn’t stop him being charged in connection to their actions.
[QUOTE=Giles]
On those facts, the husband oought to have been charged with raping his own wife, because he knew that she was not consenting.
[/QUOTE]
Does England allow a man to be prosecuted for raping his own wife?
[QUOTE=alphaboi867]
Does England allow a man to be prosecuted for raping his own wife?
[/QUOTE]
It does now. In 1991 or 1992, the House of Lords decided R v R, eliminating the marital rape exemption. This was then recognized in legislation in 1994.
[QUOTE=CandidGamera]
No, that’s sodomy.
[/QUOTE]
I laughed way too loudly for work when I read this. Bravo.
[QUOTE=alphaboi867]
Does England allow a man to be prosecuted for raping his own wife?
[/QUOTE]
I think that, even when you could not rape your wife personally, inducing a third party to have non-consensual sex might count as rape. When she married, she consented to have sex with her husband, not with the men that her husband met at the pub.
[QUOTE=OneCentStamp]
I laughed way too loudly for work when I read this. Bravo.
[/QUOTE]
Thank you, good sir. 
Getting back to this particular case specifically. The circumstances seem so convoluted as to defy any firm precedents. From the Washington Post article:
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Did she consent to sex with the first boy? Not stated but it seems unlikely since he pleaded guilty later on. It would seem that if the first boy was guilty of rape, the second would have to be as well.
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The line: “I don’t want to rape you,” certainly is vaguely threatening but taken at its word seems to give a temporary all-clear. If the guy said: “I don’t want to rape you,” the girl consents, can his line serve as a legal disclaimer?
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Does “not refusing” equate to consent?
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The girl told the boy to stop, he did -but not immediately. Is a “five or so second” cushion reasonable?
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Granted there is obviously a lot more to the story then can be gleaned from the article, if I were the member of the presiding jury, I can’t for the life of me imagine how I would determine culpability or innocence.
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Didn’t even mention the ages of the boys but it would seem to have some possible relevance as well.
[QUOTE=minlokwat]
- Did she consent to sex with the first boy? Not stated but it seems unlikely since he pleaded guilty later on. It would seem that if the first boy was guilty of rape, the second would have to be as well.
[/QUOTE]
Not necessarily true, but I would agree likely. It certainly creates a situation where any ‘consent’ given later is highly suspect on coercion grounds. Holding a gun to someone’s head and asking for consent is not a free pass from a rape charge.
[QUOTE=minlokwat]
2. The line: “I don’t want to rape you,” certainly is vaguely threatening but taken at its word seems to give a temporary all-clear. If the guy said: “I don’t want to rape you,” the girl consents, can his line serve as a legal disclaimer?
[/QUOTE]
Possible, but again you have a major question of coercion here. Assuming the person asking had just witnessed the girl be raped, and the original rapist was still present, and Mr. Baby made some remark about it being “his turn,” the question exists as to what the girl thought would happen if she said no at that point, and what a reasonable person at that point would fear would happen if they refused.
[QUOTE=minlokwat]
3. Does “not refusing” equate to consent?
[/QUOTE]
It can do, and often does under the law. Most states require both force and non-consent. Non-consent requires an affirmative step by the victim in many situations.
[QUOTE=minlokwat]
4. The girl told the boy to stop, he did -but not immediately. Is a “five or so second” cushion reasonable?
[/QUOTE]
I don’t know how a court would view this. Again, I am not sure the initial period of sex between the victim and Mr. Ball would be considered consensual anyway.
[QUOTE=minlokwat]
5. Granted there is obviously a lot more to the story then can be gleaned from the article, if I were the member of the presiding jury, I can’t for the life of me imagine how I would determine culpability or innocence.
[/QUOTE]
Look at the overall position. Mr. Ball just watched his friend rape the girl. Do you think his acceptance of her “consent” was reasonable?
As far as the ‘few seconds where I cant stop myself’ argument goes, I guess the obvious situation that comes to mind is the angry husband coming home. Men seem to have no problem stopping immediately and heading for the window in that kind of situation.
So Im not really convinced such a phenomenon really exists.
Otara
Having read the opinion and the excerpt of the victim’s testimony that is offered, I’d have to say that I do think the court made an error, but not in the “withdrawal of consent” area.
From reading the girl’s testimony, it seems to me fairly clear (or reasonably clear) that her consent should not be considered valid. The boy assaulted her or tried to assault her several times and then said “Are you going to let me hit it? I don’t want to rape you.” She then consented, but when asked said that she really didn’t feel like she had a choice.
So, no consent there = rape. That’s what I would have ruled.
Now, if the facts had been different and this was a “clean” consent case in which there had not been all these troubling facts. Say, your pristine case of mutual consent, and then “stop!” Well, look here, the girl testifies that the guy didn’t stop until “five seconds or so” later.
Five seconds? Now, come on. That shouldn’t be considered rape.
[QUOTE=acsenray]
Having read the opinion and the excerpt of the victim’s testimony that is offered, I’d have to say that I do think the court made an error, but not in the “withdrawal of consent” area.
From reading the girl’s testimony, it seems to me fairly clear (or reasonably clear) that her consent should not be considered valid. The boy assaulted her or tried to assault her several times and then said “Are you going to let me hit it? I don’t want to rape you.” She then consented, but when asked said that she really didn’t feel like she had a choice.
So, no consent there = rape. That’s what I would have ruled.
Now, if the facts had been different and this was a “clean” consent case in which there had not been all these troubling facts. Say, your pristine case of mutual consent, and then “stop!” Well, look here, the girl testifies that the guy didn’t stop until “five seconds or so” later.
Five seconds? Now, come on. That shouldn’t be considered rape.
[/QUOTE]
Whatever the trial court may have been willing to rule on the issue isn’t relevant. The matter is on appeal in the decision we have read; the appellate court is limited to dealing with the issues raised on appeal. And the defendant certainly isn’t going to raise as an issue the potential abnegation of a defense of “consent” by arguing that the “consent” was actually invalid. :eek:
[QUOTE=DSYoungEsq]
Whatever the trial court may have been willing to rule on the issue isn’t relevant. The matter is on appeal in the decision we have read; the appellate court is limited to dealing with the issues raised on appeal. And the defendant certainly isn’t going to raise as an issue the potential abnegation of a defense of “consent” by arguing that the “consent” was actually invalid. :eek:
[/QUOTE]
It is clear, isn’t it, that I’m giving my de novo reading of the evidence?
[QUOTE=Otara]
As far as the ‘few seconds where I cant stop myself’ argument goes, I guess the obvious situation that comes to mind is the angry husband coming home. Men seem to have no problem stopping immediately and heading for the window in that kind of situation.
So Im not really convinced such a phenomenon really exists.
Otara
[/QUOTE]
Eggsactly. In a similar vein, it’s a well-known factoid that no fat person came out of Belsen. This proves that, since people can discipline themselves not to overeat when they’re at the wrong end of a gun, they can discipline themselves not to overeat at any time. Hence, fatties only have themselves to blame.
There’s got to be a useful principle we’re establishing here.
[QUOTE=Malacandra]
Eggsactly. In a similar vein, it’s a well-known factoid that no fat person came out of Belsen. This proves that, since people can discipline themselves not to overeat when they’re at the wrong end of a gun, they can discipline themselves not to overeat at any time. Hence, fatties only have themselves to blame.
There’s got to be a useful principle we’re establishing here.
[/QUOTE]
Well, I don’t know if I could stop if an angry husband came home, but I don’t think I will ever be able to find out.
Maybe eating is not a good analogy, since it lacks immediacy. More like having a sneeze come on - I can’t really stop that, either.
Regards,
Shodan