If I get into a taxi and by threats or other (not mutually consented) means oblige the driver to take me to my destination, is that merely theft?
You seem to be saying that rape and theft of services for sex would be two mutually incompatible crimes. Either a price was agreed upon (meaning that the act was consentual) and subsequently not paid for, making it theft, or else their was no agreement on price (meaning sex was not agreed to) making it rape. The two cannot come together. Is this so?
Not at all, and I’m not sure where you get that impression. As the OP states, “Any attempt to take a woman by force is rape, even if she’s the star of the Mustang Ranch.” We’re talking about the possibility of an additional charge for theft of services, not a charge instead of rape.
No. The failure to agree on a price would not make it rape. Rape is defined independently of any monetary considerations. If it was against her will, it was rape. If she consented, it was not rape.
It will be considered theft when the rape victim joins the attempt by rape victims control and ominate men. So when she does, you can all talk all you want about theft of money, when you are in handshackles for not stopping her.
I knew I should have taken that class in Dadaist Law.
Bwa?
What they could have been is immaterial. That she actually was a prostitute, involved in trading her body as a service is what matters. The parallel you have drawn with theft of an object only bolsters this argument. When you’re talking about theft of an object belonging to you, it doesn’t matter that you could have sold it at some point in time, but that you do own it now. Similarly, it doesn’t matter that assorted victims could have prostituted themselves, but that they are not prostituting themselves now. (Have I even put that clearly?)
minty green brings up the interesting point of intent. Is this concept uniform across the U.S.?
If someone can be sued for non payment of services than presumably it is a ‘commodoity’ in one sense (prostitution is legal in Australia).
However the important thing here is that the service being sold is ‘_consentual sex’ - once the sex is non consentual it is no longer the service in question and instead an act of violence.
This is where forcing a plumber at gunpoint to fix their houses becomes different because the service in question isnt changed by the fact that its not consensual, its still ‘plumbing’ - the violence is the gun, not the act itself.
But Id have thought any case for compensation would get a lot more for the pain and suffering involved than the actual service stolen as such either way.
Otara
IANAL, but it seems to me that theft would be a lesser included offense, and the rapist could no more be charged with theft than he could be charged with lewd conduct.
Broadly speaking, a “lesser included offense” is one where the elements of the crime are identical, except the state of mind of the defendant is less culpable. If the elements are different, the defendant can be charged with and convicted of both crimes.
Quite obviously, the elements are different for theft of services and rape.
**
Close. The novel to which I referred in the OP was written and set in an earlier era, when rape victims were treated even more brutally in court than they are now. At least, I thought times had changed, but looking at some of the comments and cites in the Kobe Bryant threads, I’m beginning to wonder. The KB defense is doing all it can to discredit his accuser: so far, they’re only calling her an unstable attention whore, not a literal whore. But it still called this (fictional) case to mind, and got me thinking about ways to undermine such a defense.
I’d like to think that “You can’t rape a prostitute” wouldn’t fly in court nowadays. The alleged rapist might not have known ahead of time, or cared, whether his victim was a prostitute or a Sunday-school teacher, in which case he can’t be absolved. Or, had she really been a prostitute (the victim in the novel was never proven to be a whore; the defense was merely able to convince the jury that she was not, as she claimed, seeking a job as a schoolteacher), then his choice to have sex with her would make him a ‘john’, which is also illegal. That’s where I got the “theft” aspect: if a man has sex with a prostitute, knowing that she is one, then he’s breaking the same law she is. No defense there.
**
See, it would be interesting to see if charges of theft of services, or commodity, or whatever you want to call it, could be brought in a jurisdiction where prostitution is legal. I once read a lengthy account of the way business is conducted at the Mustang Ranch, and it was made very clear that the “guests” get what they pay for: no less, but certainly no more. If the guest wants a (mildly) violent encounter, that, and the extra fee, has to be agreed upon in advance. And if he doesn’t like the way the encounter plays out, he is promptly escorted off the premises.
This strikes me as relating more to rough sex than to rape. Or if it’s a rape fantasy - a though I REALLY don’t want to entertain - that’s still different from the genuine article as acting is involved. Also, I’m pretty sure the Mustang Ranch closed up shop some years ago.
I did mean rough sex. That, plus stuff like hetero transvestisism, BDSM, and other anomalies, are some of the reasons prostitution persists. (And I know that there are people who do those things with partners, but some people compartmentalize, and only do X with the wife while doing Y with someone they pay and don’t have a relationship with.) And yes, rape fantasies are not rape. But a prostitute still needs to know in advance if she’s going to get slapped or worse as part of the transaction.
**
Right; I should have said “was conducted”.
OK, another analogy (as if we needed another analogy).
A professional escort provides a service of accompaniment; for a fee, the escort will go places with you.
If you forcibly compel the escort to go somewhere with you, it isn’t just theft of an escort service; the lack of contract and violation of consent makes it abduction.
NO! You can’t say that because a woman has sold her body in the past she is any more willing to do so now than anyone else!
OK, it might possibly be less traumatic for her. It might have lead the “rapist” to genuinely believe she had consented under some circumstances. But these are additional things that have to be proved, not assumptions. Else it’s dangerously close to “you can’t rape a prostitute”, which I know you don’t mean.
So assault with a deadly weapon would not be a lesser included offense of murder?
No. The requirement of a deadly weapon is present in AWDW, but not in murder. Plain old assault, which does not have that additional element, probably would be a lesser included offense of murder, depending upon how each is defined in the relevant jurisdiction.
Er… I’m going to have to vote “maybe,” and not ‘no’.
Under the circumstances of a particular case, it’s possible for the ADW charge to be a lesser-included charge in fact of the murder charge. In other words, if the prosecution’s case for a particular murder required proof that the victim was assaulted with a deadly weapon by the accused, it’s possible that ADW would be a lesser-included offense in fact, even though as a general matter of law, it is not; a subsequent prosecution for ADW based on the same facts as the murder charge might be barred if the murder charge resulted in acquittal.
I actually sent you an e-mail, minty with some comments on the Blockberger test earlier, but having no self-control, I felt I had to jump in at this juncture. 
- Rick
'salright. I only check my SDMB account every couple days anyway.
Is nitpicking a lesser included offense of hijacking?