Forget it, Jake. Its Liverpool.
apologies for the Chinatown reference http://www.youtube.com/watch?v=9cWnubJ9CEw
If the UK is like the USA appeals are almost only about rules of law/procedure. As long as the judge didnt make any significant error or unless the defendant can provide new evidence to prove her innocence the case is over.
Has the UK just effectively criminalized trans people having sex without disclosing that they’re trans? The person in question here doesn’t appear to be trans, but the precedent is a little troubling.
Absolutely not. The defendant misrepresented herself. Sex involves consent. The victim had not consented to having sex with another woman.
Or all facts in the case are the same except that the victim was lesbian (wanted sex with another woman using a strapon) and the defendant was a trans but with a real penis who misrepresented as female. When she discovers he has a real penis would that not be rape?
I am not really familiar with the basics here, but if you made a woman believe that you are Brad Pitt and get her to have sex with you that way, that would be sexual assault?
Where is the line? At what point can someone be said to have misrepresented him- or herself so egregiously that the other person can’t consent? I mean, I would certainly put “gender, as defined by external genitalia” past that line, but:
- What if I convinced her I was someone famous or important?
- What if I told her I made $750k per year when I really make $30k?
- What if I told her I was Jewish knowing she wouldn’t have consented if she knew I wasn’t?
- What if she told me she was a virgin knowing I wouldn’t have consented if I knew she wasn’t?
I mean, on the one end of the spectrum (the situation in the OP, for instance) you have cases where someone lies, by commission or omission, about something really, really central to their identity. And on the other hand you have the kind of best-foot-forward that you’re likely to see on dating websites - 5’10" men round up to 6’, women use the cleavage-showing, double-chin-hiding LiveJournal angle in their photos, “What’s the last book you read?” becomes “What’s the last impressive book you read?”
I just wonder where the line is.
Of course. If I represented that I was selling you beachfront property but really sold you acreage in a swamp wouldnt that be fraud? In your scenario she was agreeing to have sex with Brad Pitt. You are not Brad Pitt and she did not give consent to have sex with you. You raped her.
I think the line is when you make a fraudulent representation to get sex. Of course its up to the victim whether to pursue charges but he/she should be able to. Sexual fraud is rape in my opinion.
Just have to add that in college one of my buddys liked to troll the bars with a madeup identity and job/financial history. Tricking intoxicated people into having sex with us is now in my opinion also rape.
Ooh, careful. As I understand it if someone is trans but with a real penis they are not “misrepresenting” if they say they are female. They’d only be “misrepresenting” if they were cis but claiming to be trans.
I have trouble internalizing this myself, but as the world around me changes I have to learn to change with it. Also I don’t like being yelled at, which tends to happen a lot lately if you take the wrong line on trans issues.
Let em yell because in this scenario it isnt about them or us. Its about the perception of the lesbian who wants sex with another XX woman and thinks she is getting sex with another XX woman. Its about misrepresentation.
I can get behind calling it fraud. I would not agree that fraud equals rape.
As I see it the false Brad Pitt had consent (hence no rape) but he obtained that consent under a false pretext (hence fraud).
This is a fine line. In economic fraud, besides the criminal process, we can sue civilly to recover damages and be made whole. In sexual fraud there is no being made whole. And how can we really consent when we are given false data?
This may be beside the point, but there actually is someting like that. In Germany there used to be an odd law that made you pay damages for taking the virginity of a woman under the promise of marriage and then breaking the engagement.
But back to the issue at hand. I agree that it is a fine line. But I believe we can give consent, even if we have incorrect information about our partner. At the end of the day what we do or do not consent to is to have sex. Every person with the capacity to consent knows what that involves. To me rape involves having sex with someone who does not consent to having it (or who does not have the capacity to consent). That is not to say that the fraud part does not make the whole affair unethical. But I would not call everyone, who does not tell their partner that they are married, a rapist.
Under the Criminal Appeal Act 1968 (as amended) the Court of Appeal can reverse a conviction if it finds that the conviction is unsafe.
What constitutes unsafe, depends on the circumstances of each case. Here the issue would be whether or not the record showed that the elements of the specific crime (as of law) were present.
By the way, I have noticed that many people seem to equate “appeal on point of law” meaning the facts cannot be reviewed on appeal. That is (speaking very generally incorrect). A finding of fact which is unsupported by the record is an error of law and isn reversible. (To take US Examples, here are Ohio rules and Alabamas)
What Appellate Courts don’t do is undertake a reappraisal of evidence, or substitute their own finding for that of the Trial Court, except in exceptional circumstances.
In other words a finding that “X” was at place Y, when there was no evidence on record to show that, is an error which a Appeals forum will reverse, while a finding that “X” was at place Y based upon a a deposition made by a witness,; they will not usually.
Yes, that seems to be the case. You wouldn’t generally, afaik, be guilty of rape if you made her believe that you owned a Ferrari, that you had a million dollar beach house, or that you had a doctorate in French Literature. What you would be guilty of is being a dick, and dicks generally get dumped.
I suspect the appeal would be based on interpretation of the law - was this in fact a violation?
Mostly, the “impersonation” or fraud aspect involves, say the identical twin impersonating the husband, or the man blindfolding her and having his buddy (buddies) go at it instead. I.e. she thought A was doing her, and it was someone else (B through J).
In this case, the person was not forthright who (s)he was, but this was the same person that she met, knew, and consented to do with.
I kind of feel this is a slippery slope. Can you sue if the person is using a penis pump? If they had hair transplants, tummy tuck or a boob job? (Re-virginization surgery?) The issue here is the acquaintance was not completely the type of person they represented themselves to be 9which would make 90% of 1 night stands sexual assault.) The only real grounds I see is that A consented to be penetrated by B’s penis, not by one or more mechanical appliances. But if she could not tell the difference until after…?
How does it work if a woman convinces a man to have sex through the use of, say, a padded bra, make-up, hair-extensions, high-heels, and cosmetic surgery? What if she says she’s on the pill, when she’s not?
What if a man wears platform shoes to make himself look taller than he is?
Are those also forms of fraud?
If a man convinces a woman to have sex by pretending to be rich, when he’s not, what are the damages? In other words, it’s true that she’s been tricked, but has she also been harmed?
A woman wearing high heels is not trying to deceive anyone. So I would not call that fraud. Some of your other examples I would.
Please understand that my calling the Brad Pitt example “fraud” was not meant to imply the situation was litigable. But I think that it is unethical to deceive your partner in order to get to have sex. The same would be true, if you pretend to be rich when you are not.
What if the woman is using a lift up bra, has plastic surgery, and lies about her age. The man is using shoe lifts, lies about his income, and has some kind of hair extension.
Neither party would have had sex with the other without these lies.
So did they both rape each other? Or can we save the “rape” word for violent, forceful attacks where the most intimate body parts were clearly involved.
I’m not saying forced kisses, groping, an unwanted slap on the bum isn’t unpleasant, or that in some cases the authorities should punish whoever did it. However, calling everything remotely sexual and unwanted rape cheapens the crime and also makes a vast number more people criminals.