The Truth About Rape

[Siege]

Please excuse my double post.

[Bricker]

And meaning no disrespect to the elderly, but it’s not unheard of for seventy-year-olds to be the victims of rape - surely not the result of conventional sexual desire expressed.

If I were sloganizing, I’d say: “Rape is generally more about power and control than it is about sex.”

This undoubtedly is the reason I’m not a marketeer.

Is this really an inference that the jury is likely to make? Maybe it’s just me, but I think the most likely inference from that information alone is that the child experienced it at the hands of someone, just like if I saw photos of a bloody and bruised assault victim, I would infer that that person indeed been beaten but not that the accused did it. It would take more to convince me that it was the accused who did it . If there was enough to convince me that the accused was the guilty party, whether the victim gained her knowledge at his hands or acquired it previously wouldn’t matter.

In an assault case, the defense is free to argue that another person inflicted the wounds. In a rape case, for a victim of tender years, the defense is not always free to argue that another person committed the acts that gave rise to the knowledge in question. In the assault case, he is free to ask questions that would establish the factual predicate necessary to make the argument; in the rape case, he cannot. The victim’s past sexual history, even of non-consensual sexual contacts, is, by law, inadmissible.

It’s certainly a danger, and made worse if the prosecution actually argues, “How else would this poor girl even know such things?” Which they are perfectly happy to do.

huerta88:

the accused’s past sexual behavior, including issues of whether he ever engaged in nonconsensual sexual behavior, is explicitly admissible. I.e., it’s permissible and relevant to show that the defendant may have engaged in nonconsensual sex with strangers, thus repudiating his claim that the sex with this victim was consensual; but he cannot point to the fact that the victim previously engaged in consensual sex with strangers to bolster his defense that she did so on this occasion.

Er… sometimes. So-called 404(b) evidence, past wrongful acts, are generally not admissible to show that the accused acted in conformity with those past acts. They are admissible to show a common plan, scheme, or absence of mistake. Of course, a prior felony conviction may also be admissible for the purpose of impeaching credibility.

• Rick

[Huerta88]

*Originally posted by Bricker *
**
huerta88:

Er… sometimes. So-called 404(b) evidence, past wrongful acts, are generally not admissible to show that the accused acted in conformity with those past acts. They are admissible to show a common plan, scheme, or absence of mistake. Of course, a prior felony conviction may also be admissible for the purpose of impeaching credibility.

• Rick **

Rick (and doreen) – thanks; because that is my point exactly. Fed. Rule Evid. 404 generally discredits use of past-acts/character of the defendant to prove he acted in conformity with these past acts on the occasion in question (with the exceptions Rick cites).

But . . . Rule 413 provides a sweeping exception to this general exclusion of evidence about the accused’s past acts – and does so for only one category of defendants:

“In a criminal case, in which the defendant is accused of an offense of sexual assault, evidence of the defendant’s commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant.”
The Judicial Conference strongly opposed the addition of this rule allowing evidence of defendant’s past bad behavior in sex cases only, noting that it was “not supported by empirical evidence” and posed “the danger of convincting a criminal defendant for past, as opposed to charged, behavior or for being a bad person” – but Congress overrode these recommendations. It is clear from the Judicial Conference’s comments that “any matter to which [past sexual crime evidence] is relevant remember, “relevant” means having any tendency to shed light on a material fact in issue]”, Rule 413 directly overrides or conflicts with (in the case of defendants in sex cases, only) the general rule of Rule 404 that past crimes can’t be used to infer present guilt – and does so as to one and only one class of defendants.

Similarly, Rule 412 (the federal rape shield rule) singles out alleged rape victims as the only accusers for whom defendants are (with very limited exceptions not relevant here) denied the opportunity to inquire into or offer proof in their consent defense of: 1. “pertinent trait of character of the alleged victim of the crime” (allowed by Rule 404(a)(2) in all other cases, but not allowed if defendant here sought to prove accuser had, say, a pattern of engaging in consensual sex with strangers and then repudiating/denying her consent); 2. “evidence of the habit of a person . . . to prove that the conduct of the person . . . on a particular occasion was in conformity with the habit . . .” (allowed by Rule 406 in other cases, but not available to defendant alleging consent); and 3. "evidence of character or a trait of character . . . by testimony as to reputation [of the person] (allowed by Rule 405(a) in all cases when evidence of character/traits are admissible – i.e., potentially in all cases, except never in sex crimes).

This sort of doubly-stacked deck (which again, exists only as to one class of alleged victims, and one class of accused) is exactly what you’d expect to see if legislators had been legislating based on slogans and emotion and special pleading.

It may be that this particular combination of rules strikes the proper balance from a moral/evidentiary/political standpoint (confrontation clause notwithstanding); who knows? But you may see why I’m suspicious that it was not necessarily the outcome of any exhaustive reasoned debate as opposed to naked emotion and quasi factual characterizations of rape, and of when evidence relating thereto is or isn’t relevant – apparently, a lot depended on whose ox was being gored, and the people with the best slogan got the better of whatever debate there was.

[Bricker]

Although I’ve tried to keep up on these things, the Federal rules mentioned above were enacted after I left the criminal defense world, and I was not much in the way of federal work anyway.

Huerta’s point is well-taken. I’m going to take some time tonight and explore the case law subsequent to the enactment of those rules; I think there’s got to be a Confrontation Law challenge in there somewhere…

[Lamia]

*Originally posted by Huerta88 *
**
I can’t think of any crime that has given rise to any substantial organized sloganeering (whether 17 Google hits, or 400, or whatever) along the “Rape Is Not About Sex” lines
**

Once again, I must question these allegations of organized sloganeering since this “slogan” seems to be attributed to feminists far more often than it is actually used by feminists. Even were this not the case, sloganeering has been associated with rhetoric relating to other crimes. Drug use would be the most obvious case. Has any feminist slogan ever achieved the familiarity of “just say no”? I’ve heard enough cringe-worthy rhymes at Take Back the Night rallies that I think I can safely say that the feminist movement has no particular gift for formulating catchy slogans.

I don’t deny that feminist slogans exist; all political and social movements have slogans. (See also integration, abortion, the draft, union organization, the gay rights movement…) I do question whether “rape is not about sex” counts as a genuine feminist slogan, and its effect on policy even if it does. But if you want to reduce things to

**
the people with the best slogan got the better of whatever debate there was

**

then I’ll certainly take “rape is not about sex” over “she was askin’ for it”.

Originally posted by cjhoworth
**
On the other hand, surely even if rape is being used because sexual abuse is seen as punishment/humiliation, it must by definition have some sexual context, however warped and twisted?

**

That is an interesting point. In many instances of, say, prison rape the rapist may have chosen to commit rape rather than simply beating his victim because he believes that sexual abuse will be more emotionally painful for the victim than non-sexual physical abuse. So there may be a sexual context of some sort, but I do not think it would be accurate to say that a crime is “about” sex if the perpetrator is not in any way motivated by sexual desire and achieves no sexual gratification from the crime.

I agree with you that even a rape that is “about” sex is no less repulsive than one that is not. A rapist motivated by sexual desire is usually far more dangerous than one who is not. After all, people experience sexual desire all the time. Anyone for whom that is sufficient reason to rape is a constant threat.

I think the old-fashioned spin on things only made sexually motivated rape seem less repulsive by associating it with healthy, normal sexual activity – he’s a red-blooded young man, she was an attractive young woman in a short skirt, it was only natural! – but this sort of reasoning belongs in the same fantasy world where the woman really liked being raped anyway. In the real world the victim doesn’t like it and must either be subdued by the rapist or raped while already in an unresponsive state. While this might be sexually satisfying in the twisted minds of some rapists it certainly is not healthy sexual activity and there is nothing motivating it that any decent person should sympathize with.

[doreen]

This sort of doubly-stacked deck (which again, exists only as to one class of alleged victims, and one class of accused) is exactly what you’d expect to see if legislators had been legislating based on slogans and emotion and special pleading.

First of all, I find it utterly ridiculous that Rule 413 makes that sweeping exception for uncharged conduct. (and I’m one of the ones who feels the motives for rape nearly always include power on some level)

I’d agree that to some extent the rape shield rule is based on special pleading, and I don’t agree with all of it (certainly, it’s relevant if the victim has a history of false accusations). But that special pleading came about at, least in part, because of extremism in the other direction, which in general didn’t happen with other crimes. Think about it. Although consent might be a defense against a charge of stealing a car, would anyone really argue that because the victim lent his car to other people in the past, it tends to show that he lent it this time and is lying about it being stolen? Nor is there an attitude that if someone commonly rents his car out, any allegation he makes about the car being stolen is really a payment dispute. Or the feeling that if I lent you my car last year or last night, if you have my car today I must have consented to that as well.

But it’s not at all clear to me that either one of those rules (based as they may be on emotion and special pleadings) is based on " Rape is about power (or violence)" specifically and not based on the desire to shield rape victims from the often inaccurate perceptions of society as a whole. I still hear people asking how a rape victim was dressed, or what she was doing there, as if a woman’s choice of clothing or location either absolves a rapist of all responsibility, or implies consent. Or saying that the accused is too good-looking to “need” to rape,as if all rapists are drooling monsters who couldn’t possibly get sex any other way.Or asking how it’s possible for a prostitute to be raped. Those attitudes used to be much more prevalent than they are today. And to be honest, I think that was the point of the sloganeering- to change those attitudes in people who wouldn’t read a book, or listen to a speech, but might notice a sign at a rally.

Now another question for Huerta88 and Bricker
How important are Federal rules of evidence in rape cases? Judging by Bricker’s comment about not doing much federal work, I’m guessing that the states don’t always have the same rules as the Feds. I’m also guessing that the percentage of rape cases that land in Federal courts is very small.

[Huerta88]

*Originally posted by doreen *
Although consent might be a defense against a charge of stealing a car, would anyone really argue that because the victim lent his car to other people in the past, it tends to show that he lent it this time and is lying about it being stolen? Nor is there an attitude that if someone commonly rents his car out, any allegation he makes about the car being stolen is really a payment dispute. Or the feeling that if I lent you my car last year or last night, if you have my car today I must have consented to that as well.
Okay, let’s be careful here. Because rape (like theft) is not a strict liability crime, it requires a particular level of intent on the part of the accused. Therefore, we need to understand what we mean by intent (or consent) in rape, and in your examples.

Rape is not defined as “sex that the accuser does not wish to have” – if it were that simplistic, rape liability could arise if a woman clearly and without coercion said yes, but was really playing a practical joke: she meant no, then sprung this surprise on her counterpart afterward; or in the case of a married woman who’s had a bad day at work and wants nothing more than to go to sleep, but says “okay” when her husband nudges her and says “How about it?” because it’s his birthday. Note that I am not saying either of these scenarios is actually involved in alleged rapes in real life; rather the point is that the state of mind we must ultimately focus on is that of the accused, not of the accuser.

Many modern laws have adopted a standard roughly on the order of requiring a showing beyond a reasonable doubt that “the accused had sex [forcible sex] with accuser knowing or having reasonable basis to know that the accuser did not effectively [i.e., without intoxication or mental impairment] and voluntarily consent to the act.” Theft liability would follow a very similar standard, generally. Thus, if, say, you lent your car to me every week for two years, and I came by next week to find you gone, but the keys in the ignition, it could well be the case that I would be reasonable in assuming I once again had your assent – even if you had since privately taken a violent dislike to me and resolved never again to lend it. If an elderly philanthropist is in the habit of leaving sandwiches out on his doorstep for the destitute, the hobo who takes a pie as it is cooling on the philanthropist’s windowsill awaiting his birthday celebration may reasonably point to what he’s heard about the old gent’s generosity in the past.

And if Ted the fratboy has heard from his ten lunkhead friends that Philomena has begged each of them, over consecutive weekends, to indulge her in her pet fantasy of being forcefully ravished by a prowler as she tries to resist, then it is not logically per se ridiculous for Ted to say that denying him even the opportunity to argue that these lurid stories gave him a reasonable basis for pinning Philomena down in her bedroom when she asked him in for a nightcap is unfair and inconsistent – because other people who are held to a similar standard of intent for other crimes are at least free to present the argument of honest mistake as to consent of the victim, even if it strains credulity (e.g., the tramp who claims that he reasonably thought the millionaire wanted him to take not only the sandwiches and pie, but also the Bentley).

“But’s that’s horrible!” Well, it would be horrible if Ted’s story were simply made up and he automatically got away with it, or if the tramp got to keep the Bentley – but a built-in corrective for people giving wacky excuses based on consent is that the excuses are, well, wacky – and most properly-instructed juries won’t believe them. From a neutral justice perspective, we need to attack Ted’s credibility when he proffers with his lame-o shaggy dog story; not deny him the opportunity to present it at all, if similarly-situated defendants are allowed this opportunity and the state relies on ridicule alone as a check on abuse of the consent excuse.

Like it or not, unless you want to legislate rape into a strict-liability offense wherein the accused’s state of mind has no relevance, the subjective impressions of the defendant as to the consent of the accuser are always going to matter – and there will likely be some cases, where as a factual matter, these impressions are influenced in part by a combination of mutual drunkenness, wishful thinking – and the defendant’s internal oddsmaking as to just how complaisant his lady friend is; which in turn will be based on a lot of subjective and objective data, including, for some defendants, what they know about the lady and her reported openness (or non-openness) to sexual activity.

I know many of you won’t agree with this result, and that you will argue that as a matter of policy such arguments should never be allowed; if everyone knew that Jane had notched up 49 of the 50 members of the football team, and Eustace (the 50th member) finds himself and Jane necking on a couch, where they’ve just killed a bottle of Old Crow – then Eustace must be barred, from the outset, from even attempting later to claim that these circumstances and the locker room banter he heard every day made him subjectively think (wrongly; inaccurately; presumptuously; but genuinely; let us stipulate all of those) that it might be his turn to get lucky, and that Jane’s stifled protests as he proceeded with his conquest were actually throaty impassioned moans. If that’s what you believe should be the rule . . . then you’re in luck, because that is the rule. Eustace has no avenue to even make his full explanation of why he thought it was his night. And maybe it’s a “good” rule. But let’s have the honesty to admit that flatly barring Eustace’s explanation of his subjective belief on grounds of “irrelevance” is a political act that purports by fiat to define such excuses as necessarily unbelievable; and not a meaningful factual statement or finding that Eustace never could have, in fact, had this as a nondelusional subjective belief.

It’s no accident that my examples, and the controversy over rape shield laws, focus largely on these type of “date rape” scenarios; as activists have pushed for more stringent punishment of alleged “acquaintance rape,” they’ve inadvertently focused attention on the really punitive evidentiary standards that have been invented in the rape arena, and are now being applied to the Eustaces and Teds of the world, with penal consequence, in situations where (unlike the back-alley rape) it is not on its face factually ridiculous that the defendant could reasonably have lacked the requisite culpable intent or knowledge of the victim’s (real or claimed) lack of consent. Remember too that rape is not the only sex crime to which these punitive rules apply; they apply to any sexual assault, e.g., any nonconsensual sexual touching – allegations that could come up even more frequently, and in more ambiguous circumstances (with a date in a darkened movie theater; playing spin the bottle; whatever).

. . . the often inaccurate perceptions of society as a whole.
I’m wondering if we’re in theoretical territory – here and with the false dilemma of Rape=Violence Only vs. She Was Askin’ For It. I’m curious as to the last time a defendant even tried to interject the latter as a defense, or the last time a university or police department promulgated such a statement or policy. Keep in mind that (contrary to the implication that society tolerated or encouraged men to luxuriate in a nonstop Rape-o-Rama until the advent of the Rape=Violence-inspired laws and rule changes), rape was a crime punishable by death in many jurisdictions as late as the early 1970s, when the first rape shield laws, etc. were emerging. Someone in the big bad patriarchy apparently thought (yes, yes, for whatever no-doubt wrongheaded and chivalric patriarchal motives) that punishing rapists severely was worth it (by the way, consider the capital crime nature of rape when you bemoan some now-long-annulled horrifying evidentiary principle, such as the requirement that resistance by the accuser be shown in order to establish the forcible nature of the act; to me, requiring a little higher standard of proof in the days when defendant stood to lose his life does not strike me as being so unconscionable as we are commonly supposed to agree it is).

**Now another question for Huerta88 and Bricker
How important are Federal rules of evidence in rape cases? Judging by Bricker’s comment about not doing much federal work, I’m guessing that the states don’t always have the same rules as the Feds. I’m also guessing that the percentage of rape cases that land in Federal courts is very small. **
Fed. rules as such aren’t important in state courts; each have their own evidence rules. But . . . about 34 of the states have modeled their evidence rules in part or whole on the Federal Rules, and the Federal Rules are typically viewed as influential/especially authoritative because the Judicial Conference, Congress, and national bar participate in their formulation. Cite:
http://www.tourolaw.edu/Publications/lawreview/vol11n1/part4.htm
at FN14. State rules will differ in small or substantial part from the Fed. Rules, and sometimes will lag federal rule revisions by a few years. Most rape prosecutions will traditionally be in state court.

But . . . the Violence Against Women Act as introduced in 1998 stated an intent of federalizing prosecution of “hate crimes motivated by gender,” which does not seem too far up the slippery slope from a federal mandate to prosecute any alleged rape (with Rules 412 and 413 applying to the prosecution). If there were any doubt that rape were intended routinely to be classed as such a putative hate crime, the dispassionate factual testimony of one P. Ireland of the NOW settles any doubt:
“Finally, and most significantly, because sexual assaults are primarily crimes of hatred rather than of sexual desire or passion, H.R. 3514 would amend federal hate crimes law to include federal prosecution of crimes motivated by sex bias. Therefore, sexual assaults perpetrated because of gender animosity would be prosecuted on a similar level as crimes involving racial or ethnic hatred.”
http://www.now.org/issues/violence/vawa/testimony98.html
http://www.now.org/issues/violence/vawa/need.html

I am certain, certain that there is some quibble as to whether this is really sloganeering or whether Madame Criminologist actually had reams of statistical proof for her statement, or whether she is really a feminist or a leader of a feminist group (!) – but I’ll skip that portion of the discussion, because it’s seems so silly to me and nothing in the above paragraphs leads me to change my original impressions (q.v.) about whether activists have aggressively used (and have gained substantial political and criminological benefit/advantage from thus using) what I consider disingenuous slogans and political platforms disguised as neutral fact and policy. And I still don’t think that adopting such a model of discourse or persuasion, on the rape issue or wherever else it happens, represents a fair or desireable advancement for anyone.

Good luck.

[doreen]

Originally posted by doreen
Although consent might be a defense against a charge of stealing a car, would anyone really argue that because the victim lent his car to other people in the past, it tends to show that he lent it this time and is lying about it being stolen? Nor is there an attitude that if someone commonly rents his car out, any allegation he makes about the car being stolen is really a payment dispute. Or the feeling that if I lent you my car last year or last night, if you have my car today I must have consented to that as well.
Okay, let’s be careful here. Because rape (like theft) is not a strict liability crime, it requires a particular level of intent on the part of the accused. Therefore, we need to understand what we mean by intent (or consent) in rape, and in your examples.

I think you missed my point here. Sure, a car thief could make those arguments, but would he? No, because quite simply, * they wouldn’t work*. They would not be believed, because in your word, they are wacky and a jury wouldn’t find them credible. Why were these arguments fairly common in rape cases (and still are, outside of a courtroom)? Because people do believe them.The inaccurate attitudes I was referring to don’t appear in police department policies , but in the general public.
[

But let’s have the honesty to admit that flatly barring Eustace’s explanation of his subjective belief on grounds of “irrelevance” is a political act that purports by fiat to define such excuses as necessarily unbelievable; and not a meaningful factual statement or finding that Eustace never could have, in fact, had this as a nondelusional subjective belief.

I don’t believe for a moment that Eustace could never have had this as a nondelusional, subjective belief, but neither does disallowing this argument mean that the excuse is defined as unbelievable - it simply means that the law doesn’t care. Perhaps a better way would be to define sex crimes as strict liability offenses . Apparently, NY already has, as no mental state of the accused is mentioned in the statutes.There are other strict liabilty offenses, aren’t there?

Keep in mind that (contrary to the implication that society tolerated or encouraged men to luxuriate in a nonstop Rape-o-Rama until the advent of the Rape=Violence-inspired laws and rule changes), rape was a crime punishable by death in many jurisdictions as late as the early 1970s, when the first rape shield laws, etc. were emerging.

I didn’t even come close to saying that society tolerated or encouraged a Rape-O-Rama, just they were more likely to blame the victim and/or excuse the rapist than they are now. Perhaps that was in part a reaction to the very harsh punishment.

[Siege]

Originally posted by Huerta88
I’m curious as to the last time a defendant even tried to interject the latter* as a defense

*the latter:“She Was Askin’ For It.”
While I’m fairly sure this isn’t the last time someone used “She Was Askin’ For It” as a defense, This case struck me as a particularly horrendous use of it. Basically, a 23 year old vacuum cleaner salesman raped a 13 year old girl while she was holding a baby in her arms. He said she consented. He was convicted of rape. I started a Pit thread about this case but I couldn’t get the hamsters to surrender the link. Around the same time, there was a case where a man tied up a woman in the ladies room of a bar and raped and again tried to claim it was consensual. I’m afraid, Huerta that “She Was Askin’ For It” still hasn’t managed to go out of style.

CJ

[catsix]

Being that some of the posts in this thread have touched the issue of what is and isn’t rape, I’d like to ask for opinions on the following hypothetical situation which came up at the University of Pittsburgh during my time there regarding consent.

A man and a woman (both over 21) are at a bar where they are drinking. During the course of the evening, they both reach about the same level of drunken-ness and eventually meet and go home together to one of their apartments.

After they arrive at the apartment, intercourse occurs. The following morning, the one whose apartment it isn’t goes home. Neither of them objected to sex the night before, and no actual force was used by either to coerce the other.

Has anyone been raped?

This specifically comes to mind regarding a ‘zero tolerance’ policy that says it is rape if the woman is drunk because she cannot give consent, but takes no such consideration for a man (i.e. that if he is drunk, he’s still making a rational decision).

Opinions please?

[Bricker]

There are only three basic possible defenses to a rape charge:

1. It never happened.
2. It happened, but she consented.
3. It happened to her, but was doen by someone else. (In the PD’s office, we used to call this the SODDI defense: Some Other Dude Did It).

I suspect what huerta is suggesting is not that it’s been a long time since consent was offered as a defense, but rather a long time since there was a “Look what she was wearing, where she was walking, and how many guys she’s banged before…” type defense.

I won’t lie to you, though. Part of a successful rape defense is getting the jury to dislike - or at least not sympathize with - the victim. Juries like Good Victims, women who struggled rather than submitted, because physical injuries show lack of consent. They like women that get upset and tearful - but not hysterical - on the stand. They like victims with good jobs or social standing: teacher, policeman’s wife, bank teller. They don’t like hearing from a stripper that was raped, or a sullen teenager who was raped as a runaway.

As a member of society, I think those attitudes are dangerous, because it sends a subtle message that it’s OK to rape some of us, but not others.

As a defense lawyer, of course, I was required to do what was necessary and legal in order to provide a vigorous advocacy for a client.

Sorry - got off track and started musing. To answer the point, consent is constantly raised as a defense; “Look What She Was Wearing” is a creature of the past.

• Rick

[Huerta88]

*Originally posted by catsix *
A man and a woman (both over 21) are at a bar where they are drinking. During the course of the evening, they both reach about the same level of drunken-ness and eventually meet and go home together to one of their apartments. . . .Has anyone been raped?

Factual answer: You didn’t mention whether the young lady later declared that she hadn’t consented, or that she said she felt that she had been too drunk to know better. I’m assuming your hypothetical includes something like this. Under many current laws, if so, the answer could be maybe; or at least fratboy’s going to have a hard time disproving it. To oversimplify, there are two separate rules at work here: the girl is allowed to point to her drunken stupor as proof she couldn’t have given effective consent, but the boy isn’t allowed to point to his drunken stupor as exculpatory evidence that in his impaired state, he took her lack of resistance as complaisance rather than incapacitation.

Supplement: Now, forbidding the boy to point to his drunkenness as any form of exculpation is not exactly one of the rape shield problems we’ve been talking about; generally, criminal defendants (for most crimes, not just rape) are not permitted to point to voluntary intoxication, in itself, to negate an element of the crime (public policy favors not encouraging people to get so drunk that they abdicate their judgment). If there’s a problem here, it’s not per se the problem of denying the boy the right to use drunkenness as a general exculpation; it’s creating a per se rule, as to the girl, that someone who’s drunk can never be reasonably perceived (by anyone, drunk or sober, in any circumstances) as manifesting effective consent to sex. Once again, this sweeping approach makes a lot of sense if you analogize the sex in this case to a form of violence (or, per P. Ireland, hate), and the female sex participant as presumptively a victim, but perhaps less clearcut sense if you analogize it to, well, sex – because few sober people would readily consent to be the recipient of an act of violence or hate, whereas even as we speak, people are readily, indeed enthusiastically, consenting to be recipients of acts of sex, and drunken acts of sex, and acts of drunken sex. I’d suggest that the paradox you raise, catsix, wherein the tie as to drunken bad sexual decisions cuts rather starkly against the boy under our current policies and laws, is not completely unrelated to the propagandized environment created by P. Ireland et al.

cjhoworth: What Bricker said. And you note that in the one case you know the outcome of, the far-fetched consent (not “She Was Askin’ For It”) defense was apparently treated as such, as you note he was convicted. Ridiculous defenses are often treated with ridicule.

doreen:Why were these arguments fairly common in rape cases (and still are, outside of a courtroom)? Because people do believe them.The inaccurate attitudes I was referring to don’t appear in police department policies , but in the general public.
Aha. You don’t have a problem with the law or with what rape is or with rape policy; you have a problem with your fellow man and the jury system, and the fact that the rabble hold (you say) unenlightened or inaccurate or biased beliefs (how we’d prove the proportion of the jury pool that disproportionately excuses rape vs. disproportionately excusing O.J., I’m not sure). The problem is that the defendant has (or used to have) the tripartite constitutional rights to be tried by his peers, however dim they are, to present relevant evidence in his defense, and to be confronted by his accusers. You’ve been pretty forthright in agreeing that a lot of the issues here are political issues, and when you’re honest about that, it’s always an option to lobby for a particular change in law or policy; but I do think you’ve got a bit of an uphill battle in justifying significant additional restraints on this particular issue, i.e., rape defendants’ ability to proffer and pursue any particular defense theory, because of these constitutional issues. And I hope we’re all agreed that creating ad hoc exceptions to core constitutional rights in aid of a worthy policy result is . . . a troubling trend.

A few states (Maine comes to mind) have created what might be called strict liability for rape. I equivocate here because I can’t imagine any rape law that didn’t include an element of nonconsensuality, otherwise every act of sex would be rape. And I can’t imagine that, in practice, the existence vel non of consent can be determined solely by reference to the what the accuser felt in her heart of hearts; because how can we ever determine that forensically? And what is the relevant time at which she had to have “really” felt that way? And what if she asserts that she said one thing, but liability should still exist if she “really” felt another way (note that true strict liability would lead to a jail sentence in my “practical joke” scenario where the woman says yes with enthusiasm, but has her fingers crossed and springs the joke on boyfriend afterward). What I’m saying is that even if we enact strict liability, some objective evaluation of what a reasonable person would have thought as to whether the victim really consented, and at least a little inference about whether the defendant subjectively did so believe, is always going to sneak in. And that if we were to enact such a significant change as altering hundreds of years of common law definitions of rape and required intent, we should, once again, do so with more deliberation, openness, and frank arguments, and less unsubstantiated demagoguery a la P. Ireland’s assuring Congress that most sexual assaults are motivated primarily by hate.

[Lamia]

*Originally posted by Huerta88 *
**
Rape is not defined as “sex that the accuser does not wish to have”

**

Correct, it is defined as “sex that the accuser did not consent to”.

**
if it were that simplistic, rape liability could arise if a woman clearly and without coercion said yes, but was really playing a practical joke: she meant no, then sprung this surprise on her counterpart afterward; or in the case of a married woman who’s had a bad day at work and wants nothing more than to go to sleep, but says “okay” when her husband nudges her and says “How about it?” because it’s his birthday.

**

Informed, uncoerced, and unforced consent in both cases = not rape. Pretty easy.

**
Like it or not, unless you want to legislate rape into a strict-liability offense wherein the accused’s state of mind has no relevance

**

If I am raped, I am not going to care whether or not my rapist honestly believed that when I said “No” and tried to fight him off I really meant “Yes, let’s play the Big Bad Rapist and his Little Helpless Victim!” I am not be any less raped if he thinks I “really wanted it”. If the only way to protect victims and punish rapists in such cases is to make rape a strict-liability offense then so be it.

By the way, you should try to be more careful with your coding – you botched it so badly this last time that I couldn’t even use the “quote” button to reply, I had to cut and paste.

[Huerta88]

*Originally posted by Lamia *
Correct, it is defined as “sex that the accuser did not consent to”.

. . . Not quite, and that is the point that I thought I made. The accuser is not the one on trial, as women’s advocates quite rightly point out. She is not facing criminal penalties administered by the state. The defendant is. Therefore focusing the consent question on her subjective state of mind per se is not legally relevant to anything that is at issue in the trial; the intent that is required to establish mens rea is the intent of the defendant. It’s an important distinction; the inquiry is, whether you like it or not, on whether the defendant knew or reasonably should have known that the sex was unconsented to, in the totality of the circumstance. In many, many cases, the result will be the same: he jumped her in an alley, she subjectively didn’t consent, he subjectively knew she didn’t consent, thus mens rea established; he gave her roofies, she passed out, she subjectively didn’t consent, he should reasonably have believed she didn’t/couldn’t consent; intent established. In a small subset of cases, defendant will claim that her subjective belief as to consent, and his subjective belief as to her consent, were different, and that the disparity was reasonable. For any subjective intent crime, the entire edifice of the common law has allowed (and still allows in almost every case) such an argument to at least be proffered, and (in almost every case) provides that a reasonable, subjective, mistaken belief that accuser consented by defendant can indeed trump the “true” subjective belief of accuser, in these narrow circumstances. That’s not my opinion; that a description of how the law currently is structured for subjective intent crimes – the legal focus is always on the intent of defendant (who faces penal sanction), whether you like it or not.

Again, what the law and facts are, and what you wish the law and facts were, are two different things, and how we get from point A to point B does matter, in my opinion; I don’t think that simply insisting “It was rape because I say I didn’t consent,” or “It was rape because rape is a crime of violence” is the sound doctrinal vehicle for getting there; you’re approaching more of a coherent argument when you advocate for strict liability, and I encourage you to continue arguing the merits of that political position as such.

Sorry about the coding.

[catsix]

said Huerta88:
Factual answer: You didn’t mention whether the young lady later declared that she hadn’t consented

I didn’t mention whether anyone said later that they ‘hadn’t consented’. However, I find it interesting that you automatically assume it would be the ‘young lady’ that later declared this.

What if she did?

What if he did?

*or at least fratboy’s going to have a hard time disproving it. *

It’s interesting to me that you refer to her as a ‘young lady’ and him as a ‘fratboy’. I never said either of them belonged to any Greek organizations or made any statements as to their prior behavior or character. All I said was that they were both adults over 21 years of age.

*To oversimplify, there are two separate rules at work here: the girl is allowed to point to her drunken stupor as proof she couldn’t have given effective consent, but the boy isn’t allowed to point to his drunken stupor as exculpatory evidence that in his impaired state, he took her lack of resistance as complaisance rather than incapacitation. *

Ah but this is exactly what I was getting at. If they’re both at exactly the same level of drunkenness, why is it automatically assumed she’s too impaired to give consent, but he’s not too impaired to give consent to her? Why is it that he’s assumed to have to maintain rational thought and she is not?

My problem with the situation is that it seems at any point she can later decide she was too intoxicated to give consent, but if he was falling down half conscious drunk, he’s still supposed to be sober enough to get explicit permission from her.

What if he were the one who said he was too drunk to give consent and she had taken advantage of him?

[Huerta88]

catsix, I did indeed notice that you didn’t specify the sex of the respective parties. Because one of my themes throughout this thread has been that we should deal with and state facts as they actually exist, and not in some hypothetical or counterfactual world, I purposely continued your incomplete hypothetical along the lines that every single “date rape” case I’ve ever seen or heard of – thus I added the assumptions that there had been a subsequent denial of consent by the “victim (if not, it’s a tree-falling-in-the-forest type of issue),” and further that the “victim” was the female party. The fratboy part I threw in just for fun, because the activists love to theorize that frats, and organized athletics, and Newton’s Principia, are systematically inculcating a culture of rape.

As to your subsequent question (“Why is it that he’s assumed to have to maintain rational thought and she is not?”) – I don’t know why; as noted, I was describing the law, not justifying it. I noted that the rule that sinks fratboy is “voluntary drunkenness is not a defense per se for any crime, because public policy disfavors encouraging/allowing people to get so drunk that they lose their judgment sufficiently to put themselves in a situation to commit a crime.” Are you suggesting – which I didn’t dare to do, but it raises an interesting question – that public policy should also impose on the co-ed the obligation not to voluntarily get so drunk in a potentially-sexual situation that she is incapable of rendering effective consent; i.e., that we should dilute the per se presumption that drunken co-eds can’t make rational decisions?

If so, you’ll naturally be accused of blaming the victim (I don’t think this necessarily follows, but you’ll hear it). Are you in fact positing a disparity between the policy burdens we shift to “potential date rapists” by varying our evidentiary standards/policies, and the burdens we categorically refuse to shift to potential “date rape victims” to keep themselves out of situations in which mutually-drunken parties honestly mistake her ability to give effective consent?

[catsix]

I’m suggesting that either one of two things should happen.

1. Either party can, at any later date, claim they were ‘too intoxicated’ to have given consent and that the other party raped them regardless of their gender along with the corollary that if one person was ‘too drunk’ and never said no, the defense of the other person can be ‘I was too drunk to stop him/her in the middle of foreplay and ask ‘Are you sober enough to agree to this?’’.

2. The ‘I was too drunk to consent’ gets tossed out the window and people have to live with the (bad?) choices they make when they voluntarily get intoxicated and go home with someone at the end of the night and charges cannot be filed unless the person was drugged without their knowledge.

IOW: If I get drunk off my rocker and go home with someone and sex occurs, either both of us have the option of calling it rape in the morning and pressing charges against the other, or nobody does.

I’m not saying that public policy should forbid women from getting drunk if they want. What I’m saying is that it shouldn’t assume a drunk woman can make rational decisions but a drunk man can.

Because I honestly wonder how many ‘date rape’ situations are more regret the day after. And unpopular as it is, I think if I go out and get drunk and invite some guy back to my apartment who is also drunk and the two of us get it on without a single objection or ‘No’ from either of us, then despite the fact that I might feel used or hurt or whatever, I made a choice that I have to live with.

A stupid choice on my part (getting drunk and sleeping with some drunk guy) does not necessarily equal rape on his part.

[Lilairen]

Why should the woman get out of the need to get her male partner’s consent because she’s drunk?

I know rather a few male victims of rape.

[Lamia]

*Originally posted by Huerta88 *
**
. . . Not quite, and that is the point that I thought I made.

**

I believe you are failing to distinguish between “giving free, informed consent to sex” and “possessing a sincere desire to engage in sexual activity for its own sake”. The latter may be irrelevant in a rape trial, but you have not convinced be that the former is.

**
In a small subset of cases, defendant will claim that her subjective belief as to consent, and his subjective belief as to her consent, were different, and that the disparity was reasonable. For any subjective intent crime, the entire edifice of the common law has allowed (and still allows in almost every case) such an argument to at least be proffered, and (in almost every case) provides that a reasonable, subjective, mistaken belief that accuser consented by defendant can indeed trump the “true” subjective belief of accuser, in these narrow circumstances. That’s not my opinion; that a description of how the law currently is structured for subjective intent crimes – the legal focus is always on the intent of defendant (who faces penal sanction), whether you like it or not.

**

I believe you are also failing to distinguish between “intent to engage in a specific physical act with another person” and “intent to cause a specific harm to another person”. I think that both, along with whether or not the plaintiff freely gave informed consent, are relevant in a rape trial, while you seem to believe that only the second one is.

I’ve already discussed consent, so here’s my piece on intent. When people intentionally perform specific acts then they can be held accountable for those acts. That these acts may sometimes have unintended consequences does not absolve the agent of all responsibility for those acts.

I would not have a problem with opening up a new legal category that would be the rape equivelant of voluntary manslaughter. I have difficulty imagining a likely scenario in which a rapist might both sincerely and reasonably believe that his victim had freely given informed consent, but I agree that such a rapist should not be punished as severely as a rapist who possessed both the intent to perform a specific sex act and the intent to perform it on an unwilling victim. I just don’t think he should get a “Get Out of Jail Free” card, which is what you seem to be advocating. He should still bear some responsibility for the harm he caused his victim. Even if the harm was unintentional the act was not, and the harm was a forseeable and preventable consequence of the act.

**
Again, what the law and facts are, and what you wish the law and facts were, are two different things, and how we get from point A to point B does matter, in my opinion; I don’t think that simply insisting “It was rape because I say I didn’t consent,” or “It was rape because rape is a crime of violence” is the sound doctrinal vehicle for getting there

**

But, provided that I am not lying, “It was rape because I say I didn’t consent” is exactly what makes it rape. It’s just like saying “It was kidnapping because I didn’t consent to getting into that car with him and being taken to Mexico.” It is the fact that something was done to me against my will that makes me the victim of a crime.

**
you’re approaching more of a coherent argument when you advocate for strict liability, and I encourage you to continue arguing the merits of that political position as such.
**

I do not actually want to advocate such a position, and would do so only if I believed it were the only alternative to letting a rapist walk if he could prove that his victim had a reputation (deserved or not) for engaging in rough consensual sex and that he sincerely and reasonably believed that her struggles and cries for help just meant that she was having a good time.

[Huerta88]

Lamia:

I’m trying to put this as clearly as I know how, because I think we are still on different pages. Your reference to [the alleged victim’s] “giving free, informed consent to sex” as a touchstone of rape liability convinces me I haven’t described what I’m trying to describe with precision – because your reference continues to focus on the accuser, not the accused; understandable, on grounds of sympathy, but technically irrelevant on grounds of how the law is structured in one of these cases. So here goes:

A rape trial is what we are talking about. The defendant is the only person on trial. The ultimate issue is his conviction. He will be convicted if, but only if, the prosecution proves all the elements of the crime of rape against him beyond a reasonable doubt. There are two elements of the crime of rape at common law and in most modern jurisdictions. One is an overt physical act (the actus reus) by the defendant. One is a mental state, act or intent (the mens rea) on the part of the defendant. That is all. The acts, thoughts, intents of the accuser are not, per se, part of either of these two elements of the crime. To the extent that they are relevant, they are relevant only as they relate to or reflect upon the operative question, i.e., the defendant’s commission of both actus reus and mens rea. Specifically, the law as we currently have it deems that rape exists, and defendant’s excuse of consent is not effective (as a legal matter; please, please understand that in this instance we aren’t speculating, or theorizing, or advocating for what we individually feel “is” rape, or for what ought to be rape) if, and only if, the jury is convinced that:

1. Defendant committed the overt physical act of sexual contact [in some versions “forcible sexual contact”] with the accuser (the actus reus);
and
2. Defendant intended to effect such physical act, and defendant knew or had reasonable cause to know that the accuser did not effectively consent to the act (the mens rea)

Notice that when the defendant attempts to prove consent as a defense, the focus is on his state of mind. It has to be, not only because he is on trial, but because “consent” of the victim is a meaningless, and certainly unobservable concept, except with reference to another person. That is, you cannot consent to sex in the abstract or if you’re the only person on the planet; you are consenting (or not consenting) to the possibility of sex under particular circumstances, and as to particular persons – and the “internal” part of your consent (your mental decision to have/not have sex) is unknowable and undiscernible (and thus irrelevant) except as it is expressed and perceived in the physical world – and specifically, in the case of a rape defendant, perceived by him in such a way that he knows, or should by objectively reasonable standards have known, that you did not consent.

Similarly, I have trouble with your concept of “intent to engage in a specific physical act with another person,” which you seem to imply could be, in itself, a part of establishing rape liability. If the physical act that you mean is “sexual contact,” then you are right only to the limited extent that intentional sexual contact is part of the actus reus of rape. We all know what intentional sexual conduct would look like, and unless he claims that he slipped on a bar of soap and unintentionally found himself, um, in situ with her, we’ll assume he had the intent to physically penetrate her from the fact that he did. Standing alone, though, this does not produce any liability. If you are referring to a separate purely physical “act of rape,” you are referring to that which does not exist; because there is no purely physical, objectively observable set of actions (and actions alone) that constitute rape – there is only physical penetration, which must then be examined in light of the issue of whether it is consensual to determine whether we will deem that act rape. Don’t believe me? Then film for me a purely physical “act of rape.” Wait, neither of us want that – and we don’t need it, because those nutty Japanese have done it for us with their weird “rape fantasy videos.” Put one of those lovely videos on the VHS; next to it put, say, a closed circuit video of an actual, brutal, nonconsensual rape in a parking garage. Turn the sound down (or turn it up), and – without knowing which is the porno with a paid actress pretending to be raped, and which is the horrible real life one – tell me in which video an “act of rape” is being perpetrated. You can’t – unless you know the crucial answer of whether the “rapist” did, or did not, reasonably believe he had consent, or that his forcible behavior was not authorized by the woman.

**I have difficulty imagining a likely scenario in which a rapist might both sincerely and reasonably believe that his victim had freely given informed consent, but I agree that such a rapist should not be punished as severely as a rapist who possessed both the intent to perform a specific sex act and the intent to perform it on an unwilling victim. **
This I suggest simply betrays a gross bias. As I hope is clear from the discussion “a rapist [who] sincerely and reasonably believes that his victim had freely given informed consent” is not a rapist at all; he is a defendant, and if the law has functioned as it is structured to function, an acquitted defendant at that. Your phrasing is very telling, and does nothing to diminish my fear that theorizing about what the “act of rape” “is,” or starting the analysis of a disputed sexual encounter with the default assumption that the accused is a “rapist” to whom you will generously leave open the possibility of obtaining a less severe penalty for his “act of rape,” are bad things; bad things borne of a climate in which women are encouraged to think that men in large numbers “hate” them and that sexual contact is more to be associated with violence, fear, and domination than with lust. At least lust, though one of the 7 deadly sins, offers the potential for being a positive experience for both parties in some circumstances.