This is actually close to what I was trying to get at earlier, but from the the perspective of the one making the inference. Given a child with sexual knowlege beyond his or her years, I would indeed infer that she gained the knowledge at someone’s hands.It does not therefore follow that she gained it at this person’s hands, and I wouldn’t form such a belief without additional evidence. Although that could be part of the reason I always get bounced from jury pools ( I’m never sure which side does it )
Perhaps some objective evaluation of what a reasonable person would have thought about whether the victim in fact, consented will sneak in, and that’s not a bad thing, except when things are brought up that tell nothing about whether or not consent was given *at a particular time *? Does the fact that someone just has sex with a line of 49 before Eustace got there mean she must have consented to Eustace? Absolutely not. Does the fact that she consented to sex with Eustace last week mean that she must have consented today? Nope. If she was a virgin before she met Eustace, does that mean she couldn’t possibly have consented to sex with Eustace? No, it does not. So what does the victim’s prior sexual history tell you about whether or not she consented at the time of the incident? Nothing, in either direction. The most it could possibly tell you is how Eustace, in his own mind, came to the perhaps genuine, but unjustified, conclusion that he was entitled to assume her consent. And under at least some laws- like NY’s (see below) his mental state doesn’t really matter.
Rape in the first degree
A male is guilty of rape in the first degree when he engages in sexual intercourse with a female
1 by forcible compulsion *
2 who is incapable of consent by reason of being physically helpless **
3 who is less than eleven years old
forcible compulsion means to compel by either
a use of physical force or
b a threat, express or implied.which places a person in fear of immediate death or physical injury to himself herself or another person or in fear that himself, herself or another person will immediately be kidnapped
**physically helpless means that a person is unconcious or for any other reason is physically unable to communicate unwillingness to an act.
Sexual misconduct -A person is guilty of sexual misconduct when
1 being a male, he engages in sexual intercourse with a female without her consent.
Neither definition contains the words “intentionally” , “knowingly” ,“recklessly” or “criminal negligence” which are the culpable mental states in NY. making both offenses strict liability offenses, in which the accused’s mental state does not matter. The only reference to the defendant’s mental state in the entire article dealing with sex offenses, is that, when accused of a crime in which the victim’s lack of consent is based solely on the ability to consent due to mental defect , mental incapacitation or being physically helpless, it’s an affirmative defense that the accused did not know of the condition.
Eustace’s consent defense – I keep noting that it will turn on whether consent “was (reasonably) perceived” by Eustace; not whether it “was given” by Jane. For the reasons given above, and because that’s the law as to a defense offered by Eustace. It may seem a small difference, but under regimes that recognize the consent defense, your acknowledgment that “The most it could possibly tell you is how Eustace, in his own mind, came to the perhaps genuine, but unjustified, conclusion that he was entitled to assume her consent” begs the question as to whether whether the conclusion was “unjustified” – the very point to be determined. After all, that is the whole point of the jury examining the genuineness *and *objective reasonableness of Eustace’s belief. If they buy it (and Eustace had better come up with a persuasive story), then his belief is not “unjustified.” If they don’t, then indeed it is unjustified and a nullity. Again, this comes back to the vagueness of proving “consent” in the abstract, as though there were a little blue light that went on over Jane’s head when she consented. Because there isn’t, Eustace (the argument goes) can point to evidence that he thought supported the objective reasonableness of his (now rejected by Jane) belief of consent – this is the rationale for arguing that anything Eustace thought or knew about Jane at the time of the incident is potentially relevant to his impressions at that time.
New York’s law appears to be stricter than the majority and the common law (look up also if so inclined the Maine statute I referred to, which I think is analogous). However . . . lurking within that “forcible compulsion/to compel” language is, I fear, our old nemesis, the subjective inquiry. See my Japanese rape video example. Two days after the shoot, the actress complains (falsely or truthfully – no one knows) “This is a video of me being forcibly raped by compulsion.” What is the purely objective evidence of compulsion? The force we can see on the video, but the “compelled” scene on the actress’s video looks exactly the same as many a concededly-uncompelled, consensual fictional rape scene in other actresses’ rape videos (in addition to looking a lot like the concededly compelled rape scene on our security camera video). Therefore, it is only by reference to the statements and beliefs of the parties (and the objectively reasonable or unreasonable facts/opinions on which the parties founded these belief) that the “compulsion” can be established. Or are we going to rely solely on actress’s statement that she was “compelled” without allowing actor even an opportunity for rebuttal? And if we do allow him rebuttal (the Constitution might, like, require it), what else is he going to say except: We were making a rape video! We’ve been paid to make 50 beforehand! We filmed another rape scene that morning! She showed up on the set with that afternoon with her schoolgirl costume on just as the script provided! She took it off on cue just before the script called for me to start the rape scene!"
“Shocking! He’s talking about her prior sex habits, and her clothing, and implying that removing clothing is consent to rape.” Uh, no, he’s establishing that they were rape video actors in a rape video, and why under the circumstances, he believed she consented to forcible sexual conduct, thus negating the “compulsion” half of “forcible compulsion.” It cannot, cannot be the case that actor would be forbidden to introduce this evidence under even the strictest liability rape statute imaginable – which is simply to illustrate that, while your efforts to make explicitly and openly the case for strict liability, rather than burdening defendants with it sub rosa by rejiggering terminology and evidentiary rules, are admirably honest, I think you will have a very hard time removing subjective intent inquiries from a “crime” which consists of physical acts that (strictly qua physical acts) are performed millions of times a day with no question of penal sanction.
It wasn’t really necessary to introduce my lurid Japanese rape video example to show that no law can completely do away with the possibility that an alleged rapist will be allowed to offer his own subjective mental state in exculpation; you only have to imagine (since you mentioned mental incapacitation of the “victim”) a mentally incapacitated “rapist.” In almost any jurisdiction I know of or can imagine, strict liability or no, the opportunity at least to introduce and argue a defense of diminished mental capacity (that is, a mental state that made it difficult for defendant to perceive that he was participating in an act of “compulsion” or that consent was absent) would not be denied to a low-functioning/low-IQ/brain damaged defendant. My point is that as a practical matter criminal culpability always turns in some degree on the defendant’s “wrongful” or “not wrongful” state of mind in connection with his overt acts.
You may be right that it does not produce legal liability under the current system. I don’t know, and within the context of this discussion I do not particularly care because I am not here to study the law. Let me be perfectly clear upon this point. I do not come to this forum so someone else can explain existing law to me. I come to this forum in order to discuss and debate moral, ethical, religious, and political issues. Points of existing law may often be relevant, but you are much mistaken if you think that I am just going to throw up my hands because you say that legally it doesn’t matter whether someone consents to sex or not, it only matters if the defendant thinks they consented.
First of all, I do not believe that the legal definition of rape actually is “sexual activity in which one party believes that the other is nonconsenting” rather than “sexual activity in which one party is nonconsenting”. It’s just a problem I have with believing things that are stupid. But this problem sometimes gives me difficulty in believing things that are really true, so I admit that it is possible that you are right about this one and the law is just stupid. However, if that is the case then I can only say that the legal definition of rape should be changed. For the purposes of this discussion I more interested in what the law should say than what it does say, and I think it should say that “Her lips said ‘no’ but her eyes said ‘yes’” is not an acceptable excuse.
**
I’m not. Good thing too, it saves me a lot of time in replying.
**
If I were his victim I’d damn well think he was a rapist. Would I be wrong? Is it not enough that I simply say “No” rather than somehow ensure that the man trying to rape me isn’t suffering from the mistaken belief that the more I resist the more I really want it? Are you telling me that if a woman with the wrong kind of reputation gets raped then there’s nothing she can legally do about it?
It might be the case that the rapist would not be technically guilty of the crime of rape under the current legal definition, but if that is true then it indicates a huge problem in the current system. If the only answer to that is making rape a strict-liability offense then I must say that rape needs to be a strict-liability offense.
I mention the law as it actually exists because Bricker and catsix introduced some questions about the current legal regime that were interesting in the context of a discussion about rape and justice. You may recall that my first comment on the law as it currently exists was to decry the politicized double standard created by the Rule 412/Rule 413 evidentiary double whammy facing rape defendants. You don’t like current legal regimes so much either, because they allow a theoretical defense of “innocent mistake.” Conclusion: Neither of us much likes the current legal and policy regime as to rape.
You must see the unworkability of a regime in which the criterion for someone being a rapist is simply someone else thinking he is a rapist. This gets us back to the very OP, where we saw how frustrating it is to try to define a global rule for what “is” and “is not” rape. There are two people involved in every alleged rape and every “actual” rape. Determining whether to deem an alleged rape actual without reference to some standard outside the “victim’s” definition that she’s been raped (at a minimum, reference to societal norms of what compulsion is, or laws as to what rape is) – and even in some cases, reference to the subjective belief of the defendant (“rapist” if you must) – is impossible. That is, unless “rape” is to be defined in terms purely personal to each “victim,” which is a great theme for group therapy, but is almost a guarantee that society (whom you are asking to adjudicate and punish the crime of rape) will find it as a practical matter un-adjudicatable.
Living in a democracy with a right to jury trial, and trying to balance everyone’s personal and penal rights (as a matter of actual justice and honesty, which to me merit more consideration than any particular legal regime) poses real challenges, and it’s facile to pretend it doesn’t. Putting a thumb on the scale to make it lurch in favor of one interest group or against another, whether under the pretense of recognizing “facts” about a particular crime that are actually simplistic slogans, or jockeying to advantage one group over another by changing procedural provisions of law and policy, isn’t the way to ensure amity among these groups. When I hear you saying frankly that you favor significantly changing an existing legal regime in a given fashion, and offering reasons why both the law and our attitudes ought to change to take a much more severe view of X, or to limit the pernicious effects of juridical policy Y, I have optimism. I could engage you on those points; I could (if I disagreed) attack your factual premises; I could make counter arguments or provide counter-examples, and you could counter those with responsive facts and arguments, if you wished. This process I find much more productive than confronting P. Ireland as she brandishes a “Sex Assaults Are Always Hate Crimes” poster. In short . . .
The modest purpose of this board has not been thwarted because, as I noted to doreen, I think the debate has progressed.
And if we do allow him rebuttal (the Constitution might, like, require it), what else is he going to say except: We were making a rape video! We’ve been paid to make 50 beforehand! We filmed another rape scene that morning! She showed up on the set with that afternoon with her schoolgirl costume on just as the script provided! She took it off on cue just before the script called for me to start the rape scene!"
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He can say the parts that actually matter, if in fact they were making a rape video. Something roughly like this - " She agreed to make a rape video ,and having agreed ,she followed the script without deviation and never revoked her consent with words that weren’t in the script"Then he can provide a copy of the script and any documents that she might have signed relating to the video (contract, payment) at then have any others present testify as to her consent and the fact that she didn’t revoke it. The fact that they had previously made 50 rape videos is irrelevant until and unless she claims that she would never do such a thing. Because, again, the fact that she may have consented 50 other times doesn’t mean she did this time, and the fact that she made 50 rape videos does not in itself mean she’s likely to be lying about this time . What matters is did she ever consent and did she revoke it, and issues that do affect her credibility (such as a history of making false allegations) And while it will come down to “he says-she says” on the issue of consent, with the side that the jury finds most credible being believed, so do many other criminal cases “He stole my car” vs “She lent it to me”, "He snatched my pocketbook, vs “Wasn’t me”.
I didn’t actually know this until I just looked it up, but “mentally incapacitated” has a very specific meaning in NY- a person who is temporarily rendered incapable of appraising or controlling his or her conduct owing to the influence of a narcotic or inntoxicating substance administered to the person without his or her consent, or to any other act committed upon him or her without consent. “Mentally defective” means a person suffering from a mental disease or defect which renders him incapable of appraising the nature of his conduct. A defendant in NY who lacks a substantial capacity to know and appreciate either the nature and consequences of his actions or that such conduct was wrong the time of the offense has an affirmative defense which absolves him of any criminal responsibilty at all. Which doesn’t really involve a mental state at all ,but a mental capacity. There’s a very big difference between believing you have consent as you’re pinning her down on the bed because “The 50 other guys said she likes it this way” and having the mental/moral capacity of a 7 year old. And I believe in NY (IANAL, and I definitely don’t know about other places), such a defense would require a concession that the victim did not, in fact consent.
And if we do allow him rebuttal (the Constitution might, like, require it), what else is he going to say except: We were making a rape video! We’ve been paid to make 50 beforehand! We filmed another rape scene that morning! She showed up on the set with that afternoon with her schoolgirl costume on just as the script provided! She took it off on cue just before the script called for me to start the rape scene!"
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He can say the parts that actually matter, if in fact they were making a rape video. Something roughly like this - " She agreed to make a rape video ,and having agreed ,she followed the script without deviation and never revoked her consent with words that weren’t in the script"Then he can provide a copy of the script and any documents that she might have signed relating to the video (contract, payment) at then have any others present testify as to her consent and the fact that she didn’t revoke it. The fact that they had previously made 50 rape videos is irrelevant until and unless she claims that she would never do such a thing. Because, again, the fact that she may have consented 50 other times doesn’t mean she did this time, and the fact that she made 50 rape videos does not in itself mean she’s likely to be lying about this time . What matters is did she ever consent and did she revoke it, and issues that do affect her credibility (such as a history of making false allegations) And while it will come down to “he says-she says” on the issue of consent, with the side that the jury finds most credible being believed, so do many other criminal cases “He stole my car” vs “She lent it to me”, "He snatched my pocketbook, vs “Wasn’t me”.
I didn’t actually know this until I just looked it up, but “mentally incapacitated” has a very specific meaning in NY- a person who is temporarily rendered incapable of appraising or controlling his or her conduct owing to the influence of a narcotic or inntoxicating substance administered to the person without his or her consent, or to any other act committed upon him or her without consent. “Mentally defective” means a person suffering from a mental disease or defect which renders him incapable of appraising the nature of his conduct. A defendant in NY who lacks a substantial capacity to know and appreciate either the nature and consequences of his actions or that such conduct was wrong the time of the offense has an affirmative defense which absolves him of any criminal responsibilty at all. Which doesn’t really involve a mental state at all ,but a mental capacity. There’s a very big difference between believing you have consent as you’re pinning her down on the bed because “The 50 other guys said she likes it this way” and having the mental/moral capacity of a 7 year old. And I believe in NY (IANAL, and I definitely don’t know about other places), such a defense would require a concession that the victim did not, in fact consent.
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