British Poll: Rape and Victim-Blaming
| November 21st, 2005Reader MB sent me a link to this story:
A new ICM opinion poll commissioned by Amnesty International indicates that a third (34%) of people in the UK believe that a woman is partially or totally responsible for being raped if she has behaved in a flirtatious manner.
The poll, ‘Sexual Assault Research’, published today (21 November) as part of Amnesty International’s ‘Stop Violence Against Women’ campaign, shows that similar “blame culture” attitudes exist over clothing, drinking, perceived promiscuity, personal safety and whether a woman has clearly said “no” to the man.
For instance, more than a quarter (26%) of those asked said that they thought a women was partially or totally responsible for being raped if she was wearing sexy or revealing clothing, and more than one in five (22%) held the same view if a woman had had many sexual partners.
Around one in 12 people (8%) believed that a woman was totally responsible for being raped if she’d had many sexual partners.
Similarly, more than a quarter of people (30%) said that a woman was partially or totally responsible for being raped if she was drunk, and more than a third (37%) held the same view if the woman had failed to clearly say “no” to the man.
UPDATE: See also Volsunga’s post.
UPDATE 2: And The F Word.
UPDATE 3: Mind the Gap has a list of links.
November 21st, 2005 at 8:00 am
Of course, as numerous threads here have made clear, there is much dispute about what it means to say “You are responsible for X.”
For some, it means, “You are responsible because you increased the chance of X by a non-negligible percent.” This is largely an empirical question. Apparently, about half of rapes occur when the victim is drinking alcohol. By chosing to drink alcohol in a social setting, the woman is — on a statistical level — increasing her chances of being raped, and is therefore “responsible” under that definition.
For other, it means, “You are responsible because you were asking for it, and it’s your fault. I blame you — the victim — for what happened to you.” This is a moral judgment.
Assumedly, for many people there is some sort of combination of the two in their definition of “responsible,” but the wording of the questions makes it hard to distinguish who among the one-third or so who think the women are “responsible” are moralists or just empiricists.
This comment was written by Richard Bellamy.Report this comment to the moderators
November 21st, 2005 at 9:16 am
A good indication of the kind of thinking at work here is the comment section on the Daily Mail’s coverage of the story - the Mail being a right wing tabloid newspaper in the UK. For example:
i.e. Women provoke rape by dressing like sluts, call foul unneccessarily and should understand that rape is just this thing men do.
It’s horrible reading.
This comment was written by bookdrunk.Report this comment to the moderators
November 21st, 2005 at 9:51 am
It’s kind of funny the way Richard makes excuses for people who blame the victim while….blaming the victim. For example, about half of all rapes occurr when the victim isn’t drinking alcohol…..but you can’t blame the booze and the victim then, so let’s ignore it, shall we?
This comment was written by ginmar.Report this comment to the moderators
November 21st, 2005 at 10:07 am
Guh. How vomit-inducing. My favorite part is:
Two things here I love. First, the implication that if a woman doesn’t ‘understand the psyche’ of a rapist and gets raped, it’s her fault, because, after all, it’s the job of every woman to get inside the head of every potential rapist in the world, and to not do anythbing that might tweak their particular sick little rape triggers.
That’s one.
The other thing that I just adore about this quote is the implication that this is “just one of those things that men do.” It’s not even about the rapists’ psyche, it’s about “the male psyche.” Well, include me out of your little club, fucker.
—Myca
This comment was written by Myca.Report this comment to the moderators
November 21st, 2005 at 10:17 am
Ginmar,
You have been making that argument, but I don’t think it is logically correct. It would be if people were drunk half of the time. If women are drunk 1/10 of the time, then they are 9 times more likely to be raped when they are drunk than when they are sober. If half of all rapes occurred in Wyoming, we wouldn’t say that Wyoming is just as safe as the rest of the world. We’d recognize that there are many fewer women in Wyoming, and they are all in much greater danger.
Also, I was merely drawing a distinction between the “Victim Blaming” in the heading and the question wording of “Is the woman responsible?”
Or do you think that question wording has no impact on results, and “Is a woman who drinks partially RESPONSIBLE for rape” would get exactly the same result as “Is a woman who drinks partially TO BLAME for the rape?”
This comment was written by Richard Bellamy.Report this comment to the moderators
November 21st, 2005 at 10:37 am
I think of all the stats its the “37% [view the women as partially or totally to blame] if the woman had failed to clearly say “no” to the man” that bothers me the most. The idea that silence (or even a less forcefull no) equals aquiesence is the foundation for everything else. Or rather, the idea that we are always talking about female aquiesence, never what the woman wants and desires, is the foundation for everything else.
“The other thing that I just adore about this quote is the implication that this is “just one of those things that men do.”"
Myca, I also like how, despite all their insistence that women can be (reasonably) safe by not associating with the wrong type of men, the people who tend to blame the victim also tend to see rapists lurking in every man.
This comment was written by Jenny K.Report this comment to the moderators
November 21st, 2005 at 10:46 am
Somebody else pointed out that, as much work as we still have to do, it still shows a tremendous amount of progress in attitudes.
Just flip the numbers and look at the other side:
Not perfect by any means, but in contrast to attitudes ten, twenty, thirty years ago… Back then, most people would’ve thought the woman was responsible in these situations; now that’s a minority.
Can we at least acknowledge that success and feel good for that much, even as we recognize there’s still more work to do?
This comment was written by Lis Riba.Report this comment to the moderators
November 21st, 2005 at 10:47 am
Whoops; not sure why the blockquoted text is bolded. That wasn’t my intent.
This comment was written by Lis Riba.Report this comment to the moderators
November 21st, 2005 at 11:01 am
Richard, I’ll tell you what. I thnk you’re splitting hairs. You don’t want to deal with the raping habits of men and prefer to discuss the drinking habits of women who those men rape—but only if it’s alcohol.
I really don’t care how you word the question. If it’s got ‘woman’ in it instead of ‘man’ it’s victim blaming. Everything else is just refusing to deal with the issue.
Now, come one, split some more hairs. But the fact is, you’re talking about women and the women in this article aren’t committing rapes.
This comment was written by ginmar.Report this comment to the moderators
November 21st, 2005 at 11:24 am
Richard: when even framing the topic as “British Poll: Rape and Victim-Blaming” the default is that rape is the status quo, the inarguable fact of life, and that the only shades of grey or areas of question are the actions of the women who are rape. The status quo view of rape is a disembodied act that is played out on women because of what women choose to do. To continually *not focus* on the men who are raping is to continually blame women for rape.
A more appropriate approach would be to name the rapists out-right: British Poll: Men who rape and Victim-Blaming.
Then it becomes obvious upon whom the focus should be.
This comment was written by Q Grrl.Report this comment to the moderators
November 21st, 2005 at 11:53 am
Richard B,
You are confusing probability and responsibility again.
I could significantly reduce the probability of being killed by a motor vehicle if I never go out my front door again. When I see you recommend that as a course of action then I’ll start to take you seriously.
Besides, it only takes one cloistered nun to be raped or one 80-year-old with limited mobility to blow your theory completely - both of these happen and even the right wing tabloids will give you the stories.
This comment was written by maureen.Report this comment to the moderators
November 21st, 2005 at 11:54 am
In the past few weeks I learned that British men’s demands for prostituted bodies is estimated to have doubled in the past ten years, that lapdancing clubs only first opened in England the 1990’s, and the popular weekly ‘lad mag’s’ have only been around the past 5-10 years. British men’s perceived ‘right’ to access women’s bodies anytime, anywhere, any way undoubtedly has an impact on attitudes towards rape and in fanning the flames of an already raging rape culture.
Men’s demand for prostitution doubling in the past 10 years has been stuck in my head since I read of it because I’m often told that prostitution always has been and always will be, like it’s some unchangable force of male nature I’m stupid for trying to alter. Yet, if men’s demand for prostitutes can be shown to double in a matter of ten years time, surely men’s demand for prostitutes is not the immutable constant prostitition’s defenders say it is. If it can change one way it can change the other, and as quickly too.
The Guardian article says, “The conviction rate for rape is 5.6% - the lowest ever recorded, with 741 cases resulting in conviction last year. A study in 2002 found that one in 20 reports of rape led to conviction, compared to one in three in 1977.
Before someone pops in with the old “correlation is not causation” line, I’ll add that even if it were possible these are unrelated phenomena (I can’t see how), wouldn’t that beg the question of why they’re correlated? Why would British men be demanding more prostitutes, more lapdances, more male-defined sexual activity from women at the same time they increasingly think less of women as humans for doing it?
This comment was written by Samantha.Report this comment to the moderators
November 21st, 2005 at 12:22 pm
You are confusing probability and responsibility again.
No, I am just stating that the word “responsibility” means different things to different people. If I am “confusing probability and responsibility”, then chances are many poll respondents are, too.
It is also the case that polls that given “Total/Partial/Not at all” choices tend to generate “Partial” as an answer, no matter what the question is.
This comment was written by Richard Bellamy.Report this comment to the moderators
November 21st, 2005 at 12:25 pm
UK of all the crazy things. If I’ve heard once I’ve heard 1000 times how much better they are than we are.
I am often in the UK. This means…what? That I’d better not carry money on me or in my purse, because if I get robbed it’s my fault? And being a woman seems enough to justify being raped.
Well, my bad.
This comment was written by Susan.Report this comment to the moderators
November 21st, 2005 at 12:36 pm
This comment from a male reader –
Rape is an appalling crime, but we need to realise the basic instinct on the man’s part that drives them to commit such an act. There will never be an antidote for it, and although it is unfair on women, it will continue to happen. Women need to be aware and take steps to make sure they don’t become victims. If this means dressing modestly or drinking in moderation, so be it.
made me yet once again think of Golda Meirs’ comment when it was suggested that the solution to outbreak in assaults against women was a curfew to keep women in after dark: “But it’s the men who are attacking the women. If there’s to be a curfew, let the men stay at home, not the women.”
No one who offers the excuse that men can’t control themselves ever suggests that controlling men’s behavior is the answer. Instead the solution is always for women to give up their freedom. That men should curtail their activities to make women safer never enters into the discussion; the focus is always on women’s behavior. And the only explanation for that focus is that no matter they may say to the contrary, people do blame women who are raped for their rapes.
This comment was written by AndiF.Report this comment to the moderators
November 21st, 2005 at 12:47 pm
I hadn’t hear that Golda Meir quote before. Thanks for posting it! We should make bumper stickers of it for our next Take Back the Night march, although I doubt it will do much good.
This comment was written by Lee.Report this comment to the moderators
November 21st, 2005 at 12:54 pm
If rape were instinctual, we’d be castrating men.
This comment was written by Q Grrl.Report this comment to the moderators
November 21st, 2005 at 1:49 pm
I just found this How to stop rape, dunno if it’s original to that blogger or been around, but it’s worth reading.
It begins:
And goes on from there.
This comment was written by Lis Riba.Report this comment to the moderators
November 21st, 2005 at 1:53 pm
If rape were instinctual, we’d be castrating men.
Maybe castrating rapists would be a good idea.
“Instinctual” is not the same as “can’t be controlled.” Instinct tells people to do a lot of anti-social behaviors that we have learned to control.
My quibble with the idea of a “rape culture” is with the idea that humans are basically good*, so that the reason men rape is that culture is screwing them up. I think the opposite is true: humans are inherently savage, and society exists to control and eliminate savage behavior.
* Or with the idea that in a “state of nature,” women and men would rape in equal proportions. Every time someone points out that nearly all rapists are male as a signifying something about our society, they are implicitly assuming that in a “state of nature,” men and women would rape in equal amounts (or not at all).
This comment was written by Glaivester.Report this comment to the moderators
November 21st, 2005 at 2:07 pm
I am often in the UK. This means…what?
This comment was written by Lis Riba.Probably not much. Keep in mind that all these startling statistics remain a minority POV, even by this poll.
Report this comment to the moderators
November 21st, 2005 at 2:18 pm
The “idea” of a rape culture is that the particular culture does work to control and eliminate savage behavior, but turns a relatively blind eye towards rape, viewing rape as normative rather that truly savage.
This comment was written by Q Grrl.Report this comment to the moderators
November 21st, 2005 at 2:23 pm
The problem, Lis Riba, with telling men not to rape is that men who actually care about stopping rape probably are already taking it.
I do, however, think that the admonition for men to call the police whne their friends are engaged in rapacious activity is useful, because I have a feeling that there are a lot of men to whom the possibility of taking the initiative and telling on a friend simply would not occur if it were not pointed out to them.
What advice would I give men?
(1) Don’t get drunk unless you either know that you do not become aggressive when drunk or unless you have a trusted (and stronger than you) sober friend who will restrain you if you do become aggressive.
(2) If you plan on having sex, make certain that you do not get drunk or high or whatever enough that your ability to comprehend whether or not your partner has consented is impaired.
(3) Do not make close friends with anyone or any group who displays tendencies that make you think he would be a rapist; you don’t want to get into a situation where you friend or friends ask you to get involved in a gang rape. Plus, if you need to turn one of them in to the police later, not being a friend will make it a lot easier.
(4) Do not take substances that are known to cause aggressiveness (e.g. anabolic steroids) outside of genuine medical need.
(5) Actively intervene if you see a man trying to attack a woman (I have actually done this - intervened, that is). At the very least, call the police.
I’m sure there are more, but that’s all I have for now.
This comment was written by Glaivester.Report this comment to the moderators
November 21st, 2005 at 3:26 pm
but turns a relatively blind eye towards rape, viewing rape as normative rather that truly savage
Or, as Catherine Mackinnon (and others) have noted, our culture permits a great deal of overlap between what is considered appropriate male sexual behavior and what is considered inappropriate. Refusing to take ‘no’ for an answer, for example.
This comment was written by mythago.Report this comment to the moderators
November 21st, 2005 at 4:12 pm
re: behaving in a flirtatious manner and wearing sexy clothes.
I was 33 when I got married. In my single days, people often told me that the reason why I had not yet succeeded in landing a man was because I wore clothing that was too frumpy and I didn’t know how to “send out signals” to a man. So women are supposed to know how to dress just sexily enough and act just flirtatious enough to be properly attractive, without crossing the line and inviting rape. Yeah, right.
This comment was written by LAmom.Report this comment to the moderators
November 21st, 2005 at 4:21 pm
Richard, the different meanings of the word “responsibility” does not explain the “many sexual partners” question. How is it susceptible to a probabilistic interpretation? I submit that the respondents must have been using the term in the normative sense in responding to this item, and if that’s the case, it casts real doubt on whether they were using it as you suggest in response to other items.
This comment was written by Thomas.Report this comment to the moderators
November 21st, 2005 at 4:26 pm
Richard, the different meanings of the word “responsibility” does not explain the “many sexual partners” question. How is it susceptible to a probabilistic interpretation?
One of the major components of rape is men who think that past consent is an indefinite open pass, is it not? Obviously, the more such men there are, the greater the odds that one of those men will ignore a “no”.
This comment was written by Robert.Report this comment to the moderators
November 21st, 2005 at 4:48 pm
Robert, your answer has the respondent thinking like this: “Well, if he knows she consents to intercourse with many other men, than any guy whom she has not consented to intercourse with but who knows she’s had many partners can be expected to assume that she’ll consent to intercourse with him, and to continue in that assumption even when she says no.” Further, the 8% that said a woman who was known to have had many sexual partners was totally responsible is tied for the highest “totally responsible” answer. So, between those two things, do you think that the “merely speaking empirically” explanation is really prevalent in the partial/total respondents? Or is it likely that many more of them simply think that rape is the proper punishment for female promiscuity?
This comment was written by Thomas.Report this comment to the moderators
November 21st, 2005 at 4:56 pm
You asked how it could be probabilistic; I answered you. I have no psychic insight into the motivations of the survey respondents.
This comment was written by Robert.Report this comment to the moderators
November 21st, 2005 at 5:21 pm
WALKING THE ATTRACTIVENESS TIGHTROPE
Both Alas and feministing link to this Amnesty International study on attitudes about rape in the UK. In the survey, a significant minority of respondents said that women were partially or totally responsible for being raped in the presence of
This comment was written by LAmom.Report this comment to the moderators
November 21st, 2005 at 5:42 pm
Glaivester,
I appreciate your constructive ideas on how to stop rape. Changing men’s behavior will decrease incidents of rape far more than changing women’s behavior. Restricting women from drinking or wearing certain kinds of clothes never completely eliminates the risk, but preventing men from raping always will.
This comment was written by natural.Report this comment to the moderators
November 21st, 2005 at 5:45 pm
Ah, daytime TV.
I got the flu and got stuck with it for a few days.
This guy showed up on one of these who-is-the-father shows, and said, “Well, we had sex on the first date, so she’s a slut.”
And that makes you what exactly?
LOVE the Golda Meir thing.
This comment was written by Susan.Report this comment to the moderators
November 21st, 2005 at 6:01 pm
Tuomas:
I think that Robert was assuming that we were talking about someonme being raped by someone who was formerly a sexual partner. What I think that Robert was saying was that the more sexual partners a woman has, the greater the probability that one of them will be someone who is willing to rape her. (E.g., if 1 out of 10 men is willing to rape someone they have slept with, then someone who has one sexual partner has a 10% chance of having a sexual partner with such an attitude, and a woman with 5 has a 41% chance of having at least one sexual partner with such an attitude, assuming that the sexual partners are chosen randomly throughout the population. On the other hand, if women who have large numbers of sexual partners tend to choose partners who are less likely to be willing to rape, then larger numbers of sexual partners may actually reduce the risk of rape).
I am not saying, of course, that having large numbers of sexual partners excuses rape, nor for that matter am I making any normative arguments about number of sexual partners. I also doubt that most of the people taking the survey were distinguishing normative from probabilistic arguments.
But I do want to be clear about what I think it is that Robert said.
This comment was written by Glaivester.Report this comment to the moderators
November 21st, 2005 at 6:12 pm
Well, yeh, knowing lots of men increases the odds that one might meet a rapist (a criminal), since most rapists are men. Since statistically more men than women are murderers by violence, knowing lots of men increases the chances that one may be murdered by violence. I guess.
On the other hand, knowing lots of women increases the odds that one may meet a poisoner, since poisoners tend to be women.
And all this adds up to…what? That we all ought to sit in closets and never see anyone??
And why do so many people seem to think that all this criminal activity is OK or is the victims’ fault or something?
it cannot be said often enough. Rape is a crime. Accordingly, rapists are criminals. We have always had criminals, and probably always will. The victims of crime may or may not have been imprudent (like, by not staying in home in their closets all the time) but fundamentally such considerations are irrelevant. Who cares? The people who need attention, and restraint, are the criminals.
This comment was written by Susan.Report this comment to the moderators
November 21st, 2005 at 6:22 pm
It’s like a lot of this discussion seems badly focused to me. Rape happens. So, it’s the woman’s fault. (For whatever reason.) Or, it’s not the woman’s fault.
Women (and men) should to exercise prudence (like, by not walking alone at night in questionable locations). Or, no one has any obligation to exercise prudence. Or something.
Rape is a crime of violence, not unlike robbery, assault, murder, and their friends. That rape occurs sometimes in intimate surroundings does not distinguish it from its buddies. Very often murder, for example, occurs inside an intimate relationship.
There are things you can do to diminish the likelihood that you will be murdered, from not walking alone at night with conspicuous jewelery in slum neighborhoods all the way to never going outdoors at all (and never having anyone in). Every individual has his or her own comfortable risk level.
But whatever your personal level of comfort may be, crime is crime. And crime is committed by criminals. Nothing the victim did or didn’t do diminishes that.
This comment was written by Susan.Report this comment to the moderators
November 21st, 2005 at 6:55 pm
These results don’t look good at all. But for them to establish that people take a particular view of *rape*, rather than crime in general, don’t we need to compare these results to the results for similar questions regarding other offenses? Maybe we’d get similar numbers for mugging.
I mosly agree with Ampersand on rape issues, but we still can’t draw that inference from these data. If we do, we’re just engaging in circular reasoning.
This comment was written by Empiricist.Report this comment to the moderators
November 21st, 2005 at 7:25 pm
Glaivester, Tuomas and I are not the same person.
Also, I think you are wrong about what Robert meant. I said that the question did not admit of the explanation that Richard supplied. Robert says that one could reason that a woman who is promiscuous is more likely to consent in general, and that therefore a man who has not been her sexual partner might nonetheless presume she consented to intercourse with him. I said I thought that reasoning was not defensible, and Robert did not claim that it was, but merely said that was one way that Richard’s explanation could apply to the question. If I had misinterpreted Robert’s response, he would have so advised me.
This comment was written by Thomas.Report this comment to the moderators
November 21st, 2005 at 7:32 pm
Robert says that one could reason that a woman who is promiscuous is more likely to consent in general
No I don’t.
This comment was written by Robert.Report this comment to the moderators
November 21st, 2005 at 7:37 pm
but the reality is that people tend to place themselves in the situation and assume that others will behave as they would. blame is something constantly thrown around because many people hold certain groups more responsible for their actions than others, and often consider certain acts and certain behaviors, regardless of severity, negligible at best.
one of the more interesting things i learned from a practicing attorney was that prosecutors often try to avoid mostly female juries in rape trials because of the greater likelihood that the women would simply blame the accuser.
the blame game is part of our culture, and unfortunately it is considered acceptable when applied to certain groups of people. even in the instance of rape, reverse the situation and it is considered absolutely acceptable to hold the accuser responsible.
This comment was written by jaketk.Report this comment to the moderators
November 21st, 2005 at 7:49 pm
Thomas:
Sorry. My mistake. I need to read people’s names more carefully.
Well, yeh, knowing lots of men increases the odds that one might meet a rapist (a criminal), since most rapists are men. Since statistically more men than women are murderers by violence, knowing lots of men increases the chances that one may be murdered by violence. I guess.
On the other hand, knowing lots of women increases the odds that one may meet a poisoner, since poisoners tend to be women.
And all this adds up to…what? That we all ought to sit in closets and never see anyone??
I don’t know that Robert intended it to add up to anything. I thought it was just a musing on how one might argue that having more sex partners increased the risk of being raped, in response to Thomas’ question (comment #25).
This comment was written by Glaivester.Report this comment to the moderators
November 21st, 2005 at 7:57 pm
Susan, the problem is that sexual assault–unlike most other crimes–intersects directly with cultural ideas about women’s sexuality and autonomy.
This comment was written by mythago.Report this comment to the moderators
November 21st, 2005 at 8:05 pm
but the reality is that people tend to place themselves in the situation and assume that others will behave as they would.
Well, OK. And this is true of a lot of other crimes as well. People who live in upper-class, gated communities don’t make good jurors where home invasion is involved. They don’t sympathize. (“Everyone should be as safe as I am.”)
Don’t confuse the difficulty of getting a convinction under specific circumstances with the fact that certain behavior is, by definition, criminal.
Susan, the problem is that sexual assault”“unlike most other crimes”“intersects directly with cultural ideas about women’s sexuality and autonomy.
Yes. But that’s the kind of idea we’re trying to move away from, yes?
We need to insist upon the idea that behavior defined in the criminal code as a crime is in fact a crime, and accordingly should be punished. In no criminal code of which I am aware is the victim’s behavior mentioned. If a rape victim did not consent to intercourse, if a mugging victim was not engaged in charity when he gave his wallet to the mugger, well then, the rape/robbery was a crime, and should be so treated.
We need to insist upon a certain amount of inflexibility here.
This comment was written by Susan.Report this comment to the moderators
November 21st, 2005 at 9:26 pm
Speak of the devil…
About all these posts about rape, can we all agree that the concept of risk reduction and the concept of rape reduction are (mostly) separate issues?
Here goes:
Risk Reduction (2 broad categories, or don’ts and dos):
1)The measures women can take to avoid potential rapists, or to avoid potential rape situations. Personally, I think all this boils down to what a woman personally can do, or will do, and there is little need for me or anyone else to assume that women are being stupid on purpose, or just haven’t heard any of it before. And much of this advice is basically “not-meism”.
2)Women being aware of their rights, and willing (if needed) to assert those rights. In short, trusting their own instincts, verbal assertiveness, physical assertiveness (self-defence classes etc.). I suppose this is o.k. advice generally, and doesn’t hurt. Nor does it demand that women to give up essential freedoms. However, let’s not pretend that this makes the woman immune from rape. And also, some people just aren’t naturally assertive, and have hard time faking it.
Rape reduction(education, law, and inviduals):
1) Fighting all the prevalent Rape Myths (he paid for the dinner, she owes him sex, if she is dressed “provocatively” she is asking for it etc.)
2) Law enforcement. Making sure rapes are investigated with vigor, and rapists are prosecuted and punished with harshness befitting the crime. Essentially, making sure rapist don’t get away with rape, and pay the price.
3) To men (and why not women): Work on acknowledging attitudes that you (or I!) have that consider women anything less than full human beings and inviduals, even when objectifying them. Challenge sexist attitudes. Also, Glaivester’s list on post 22 was good.
Problems arise when people who focus on risk reduction respond to strawman definitions of the feminist position (that is focused on the men who rape, and on rape-supportive attitudes). Such as “We can never create a society where no one rapes”(true, but it doesn’t mean we cannot reduce rape).
On this survey, I wasn’t really surprised. Are you familiar with the the cognitive bias known as Just World Hypothesis (google should give some results)? Seems to me that these people have attitudes that line up well with that theory. Shortly, the JWH assumes that many people have the attitude of “We get what we deserve, and deserve what we get”, and innocents victims challenge that worldview. Therefore, the innocent victim can not really be innocent, but must have brought the crime upon themselves. Thus the need to second-guess the woman’s actions, and even to call her stupid, or a slut.
(Oh, and men are raped too.)
This comment was written by Tuomas.Report this comment to the moderators
November 21st, 2005 at 9:27 pm
Robert, are you referring only to men who have been the prior consensual partners of the victim? Because I do not understand that to be the question the respondents were asked. They were asked if a woman was wholly or partly responsible for being raped if she was known to have had many sexual partners, not if the assailant was one of her prior partners.
This comment was written by Thomas.Report this comment to the moderators
November 21st, 2005 at 9:27 pm
As a woman who has been raped I think it necessary to point out that the culture of blaming is incredibly damaging.
I was raped by my first lover. We’d been having sex for five months. That morning I went to his flat expecting that we would have sex. I’d previously been taking the Pill but wasn’t covered that day and told him so before I got there. I said that he’d need to wear a condom and he agreed, saying that he had some. After I got to his bedroom he changed his mind. Despite my protestations he put his penis inside me without a condom. I said ‘no’ very clearly. I told him that he was hurting me and that I was scared. He shook his head at me and told me to relax. Eventually I stopped saying ‘no’. Because he wasn’t listening. We were both sober. For reasons I never managed to wrap my head around he also anally raped me that day and repeatedly forced me to deep throat him (he made me gag so much that if I hadn’t had an empty stomach I would have vomited on him). Towards the end he told me that he wanted to come in my mouth. I shook my head. He said it again. I looked at his eyes apprehensively and said ‘no’, anticipating that he would force me to oblige. He didn’t and I remember feeling incredibly grateful. Because, you see, he’d forced me to do everything else that I’d said I didn’t want to do that day. It was kind of him to give me a choice, don’t you think?
Not.
I didn’t report the incident. The rape. I worked in the same institution as this man and may do so again in the future. I felt that I was to blame for the rape. I thought others would blame me and tell me that I deserved it. After all,
- I went to his place, knowing that I would be alone with him and expecting that we would have sex
- I’d had oral, vaginal and anal sex with him previously
- I’d changed the rules by telling him that I wanted him to wear a condom
- I only said ‘no’ about 20 times
- I didn’t scream loudly, just said “no”, “please stop”, “you’re hurting me” and “I’m scared”
- He was more sexually experienced than I (he was the first person I’d had sex with; I certainly wasn’t the first person he’d had sex with) and I figured that I was probably just mistaken about what had happened
- He was a ‘good guy’ and (I figured) good guys don’t rape so I really must have been mistaken.
So, thanks to the blame culture, after I was raped by a man I trusted and adored I tortured myself by telling myself that I deserved it. I didn’t report it because I didn’t want to hear others tell me that I deserved it. I cried for months. I haven’t seen him since. I sometimes think that I see him in the street and I shudder with fear. My stomach does flip-flops. It’s a pretty fucking screwed up situation but thankfully it’s a lot better than it used to be.
And, in case it makes a difference to anyone, I wasn’t a young teenager when this happened. I had a university education when I started having sex with him. So I wasn’t young, although perhaps I was naive. Naive enough to think that the man I loved wouldn’t rape me. Naive enough to believe that it was my fault.
Whenever I hear someone say that women should take more precautions to reduce the risk of rape I feel as though he/she is saying that it was my fault that I was raped. Please stop with the blame culture. It wasn’t my fault. It was his fault. His choice. Not mine.
This comment was written by Barbados Butterfly.Report this comment to the moderators
November 21st, 2005 at 9:30 pm
I tend to agree with Susan that, ultimately, rape is first and foremost a violent crime, not a sex crime. It’s about power and control and ownership. It is a physical act that says, “I will not be denied.”
By definition, the victim has no choice in the matter. So how is the woman supposed to be responsible?
Richard, if you don’t shove your wallet down the front of your tighty whities, and subsequently have your pocket picked, are you responsible? Should pick pockets get a pass because you tempted them with your wallet there bulging in the ass of your pants?
This comment was written by media girl.Report this comment to the moderators
November 21st, 2005 at 9:31 pm
Pardon the bad grammar. No caffeine, and english as a second language.
This comment was written by Tuomas.Report this comment to the moderators
November 21st, 2005 at 11:24 pm
Samantha, how did you arrive at this astonishing premise? How did they measure demand for sometime-illegal services? And did they report it as a percentage, or an absolute number?
This comment was written by hf.Report this comment to the moderators
November 22nd, 2005 at 12:26 am
Here in Egypt and in other middle eastern countries making eye contact is a come-on. Since I livedi n Saudi Arabia I can’t make eye contact with people on the street anymore as it has become engrained in my psyche that I should immediately look at the ground if there is a guy in sight strolling in my direction. Also, if they do hit on you (which happens to me occasionally in spite of head scarf and looking down) you are not supposed to talk to them at all even to tell them to leave you alone. Anything you say will be encouragement. I was followed nearly to my door becuase I made the mistake of telling the guy to stop and leave me alone. I was actually getting kind of scared though it is a crowded neighborhood and he could not have done much. I jsut get mad that people think that a woman in public deserves to have her privacy violated in that way to begin with.
The women who want to dress attractively here basically give up the right to be treated like human beings. The harrassment of non-headscarf-wearing women is appalling. As I wear a headscarf I don’t get harrassed (usually), but boy do I see how the other women get treated. And they are not dressed “provocatively” by Western standards at all. Usually they are wearing very, very modest clothes, but if they have their hair down that is enough to prompt the guys to act like utter creeps. And all you hear from the elders and the media and everyone is that it is the girls’ fault for the way they dress.
I think those who blame any victims of violent crime in the US (and the UK in this example) and particularly those who blame victims of sexual crimes, seem to have a wish to make American/British culture even more like Middle EAstern culture than it already is, and i think this would not be a good thing. Although I love the middle east and I love living in Egypt the double standards about women’s behavior and the limits the society seeks to place on women really disturb me on a daily basis.
A story like the above one from “barbados butterfly” would not even be told. A woman would never tell anyone. Alternatively women who have had something like this happen to them in the Middle East end up in prostitution as they are considered not marriageable.
By the way I think you are very brave for telling your story even anonymously on the Internet. And it was completely not your fault, if he chose to force behaviors on you it is his fault for using force.
This comment was written by Anna in Cairo.Report this comment to the moderators
November 22nd, 2005 at 3:33 am
So, thanks to the blame culture, after I was raped by a man I trusted and adored I tortured myself by telling myself that I deserved it. I didn’t report it because I didn’t want to hear others tell me that I deserved it. I cried for months. I haven’t seen him since. I sometimes think that I see him in the street and I shudder with fear. My stomach does flip-flops. It’s a pretty fucking screwed up situation but thankfully it’s a lot better than it used to be.
Thank you for sharing your story with us.
I’m so sorry this happened to you: I hope you’re getting help.
This comment was written by Jesurgislac.Report this comment to the moderators
November 22nd, 2005 at 6:59 am
Barbados Butterfly, I’m sorry that happened to you. A similar incident happened to one of my roommates. Please consider getting counseling - you don’t deserve to be walking down the street feeling upset because you might see him again.
This comment was written by Lee.Report this comment to the moderators
November 22nd, 2005 at 7:27 am
that was not my intent. it is just that the difficulty of getting a conviction is part of the systemic problem of blame.
This comment was written by jaketk.Report this comment to the moderators
November 22nd, 2005 at 7:38 am
I guess what it comes down to is that I would like a “control” survey:
A person (or a man) is fully/partially responsible for being assaulted and mugged if:
a: He is walking alone at night.
b: He is dressed in a very expensive suit in a poor neighborhood,
c: He is looking through his wallet jammed full of cash in a public place.
d: He was walking around drunk.
e: He was boasting and swaggering around saying how he was the strongest man in the room.
etc.
I’m guessing that you’ll get twenty to thirty percent of people saying that a man is at least “partially responsible” for the assault in any of these cases. I don’t know, though, since the study has not been done.
The prevalance of rape-specific victim-blaming would then be the difference between those who said men were “partially or totally responsible” for assault and who said women were “partially or totally responsible” for rape.
You would certainly get a much smaller number.
This comment was written by Richard Bellamy.Report this comment to the moderators
November 22nd, 2005 at 7:44 am
In re Barbados Butterfly: Corner case. Her experience sounds like a nightmare, but she has experienced an statistically atypical rape and is generalising.
This comment was written by MG.Report this comment to the moderators
November 22nd, 2005 at 7:51 am
it is not that surprising since people tend to distance themselves from criminal acts. the further away it is from them, the less they have any responsibility to fix it or deal with it. and it cannot get any further than saying the person brought it on herself. even the concept of “innocent” tends to make people point their fingers. essentionally they ask, “how innocent can you be if you’re drunk?” or “how innocent can you be if you were flirting with him?”
the only real way i see this changing is by getting people to internalize the experience of the victim.
i do not think it is that rapists do not consider women fully human. they could think women are people, and still do it. in most instances, the act has next to nothing to do with the victim, hence it can happen to any woman. the issue is more that we need to challenge the perception that it is alright to act out whatever it is going through your head, or to take out your feelings of anger on other people.
we need to address the fact that it is wrong to violate someone’s boundaries, and perhaps start having some stricter penalities for doing so.
it is unfair to real victims to equate unagreeable male sex with real rape.
This comment was written by jaketk.Report this comment to the moderators
November 22nd, 2005 at 8:15 am
Richard Bellamy: I guess what it comes down to is that I would like a “control” survey
Why would you like a “control” survey? From your further comments, it appears you would like one in order to be able to persuade yourself that “blaming the victim” is something that just happens, and that all victims are similarly blamed, and avoid having to face the fact that women are blamed for being raped as a means of keeping all women in fear.
it is unfair to real victims to equate unagreeable male sex with real rape.
We don’t know that Tuomas meant to do this: he may only have meant, as men often do, to try and wrest the subject of discussion away from women, on to men.
This comment was written by Jesurgislac.Report this comment to the moderators
November 22nd, 2005 at 9:21 am
Is it really astonishing that since the internet pornography explosion men would increasingly seek pornography in the flesh starring themselves?
Here’s the link to the Oct 2 Guardian article mentioning the British Sexual Attitudes Survey.
“The number of men who pay for sex has doubled in the past 10 years, according to the British Sexual Attitudes Survey, and campaigners say myths about ‘happy hookers’ persist. In fact, around 80 per cent of prostitutes in London brothels are from overseas, and at least 1,400 women a year are trafficked into the UK sex industry.”
This comment was written by Samantha.Report this comment to the moderators
November 22nd, 2005 at 9:24 am
From your further comments, it appears you would like one in order to be able to persuade yourself that “blaming the victim” is something that just happens, and that all victims are similarly blamed, and avoid having to face the fact that women are blamed for being raped as a means of keeping all women in fear.
I don’t understand this. There is a study that you conclude means that we “blame the victim” of rape. Further, you conclude that rape is the only crime in which this happens, or that it happens far more commonly than for any other crime.
All I am saying is that one data point does not create evidence. My experience clearly does not match those of many posters here, but I accept that it is possible that my experience is not “the norm.” I would think that others would accept the same, and look at comparative evidence, not simply evidence that support your pre-conceived views.
A person who think that’s men are responsible for being assaulted and that women are responsible for being raped when either is out alone at night is not evidence of a “rape culture” that permits rape above and beyond other crimes. To make the point, you need to show comparisons between crimes, not simply one data point.
This comment was written by Richard Bellamy.Report this comment to the moderators
November 22nd, 2005 at 9:35 am
I think I have posted this before, but I have been on a jury once in my life.
It was a carjacking case where a man claimed that three men took his keys and stole his car. The defense? He lent us the car, and then got scared that we didn’t bring it back far enough. There was a girl at the party, and he was trying to impress her, and they claimed that he lent them the car to show how generous he was because the carjacker was friends with the girl. No one else at the party testified (I don’t know why.)
In the jury room, we deliberated for three days. Four of the 12 jurors of both genders (not me) began with thinking “Not Guilty — Guys do stupid stuff to impress girls all the time.” I remember thinking how stupid this guy was to go to a party in a rough neighborhood where he didn’t know anyone just to go try to pick up a girl. It didn’t sway my vote, though. We eventually convicted on most (although not all) of the counts.
Male victim, male defendants, all the same race. It played out EXACTLY like the stereotypical jury room in a date rape case, except that it was “acquaintance carjacking.” This is part of the reason that I am dubious that there is a “rape culture” any more than there is a carjacking culture. I think it comparable non-rape situations, most people are similarly likely to assign some blame to the victim, or accept a “consent” defense. That is why I look for comparable statistics from non-rape situations.
This comment was written by Richard Bellamy.Report this comment to the moderators
November 22nd, 2005 at 9:49 am
All I am saying is that one data point does not create evidence.
And yet, as far as I can tell, nobody even thought about conducting a survey asking about victims’ culpability in any other crimes committed against them.
Doesn’t that very lack of foresight indicate that bias exists?
The entire focus of this survey is on whether rape victims bear any responsibility for being raped.
Nobody’s asking about the perpetrators ["Do you believe a man is totally responsible, partially responsible or not at all responsible for raping if he is drunk?"]
Nobody’s asking about other crimes. ["Do you believe a person is totally responsible, partially responsible or not at all responsible for being mugged when walking alone late at night?"]
It’s just rape, and it’s just focused on the victim.
This comment was written by Lis Riba.Report this comment to the moderators
November 22nd, 2005 at 10:01 am
And yet, as far as I can tell, nobody even thought about conducting a survey asking about victims’ culpability in any other crimes committed against them.
Doesn’t that very lack of foresight indicate that bias exists?
A bias by Amnesty International? There’s just no vested interest in researching other crimes.
I described a lengthy example of an actual jury I was on in which a man accused other men of carjacking, and the defense was consent, but it’s “awaiting moderation.” Some jurors thought it was a valid defense. I don’t know how often “acquaintance carjackings” occur — at least once in my experience — but it played out just like a date rape case.
This comment was written by Richard Bellamy.Report this comment to the moderators
November 22nd, 2005 at 10:16 am
Richard: There is a study that you conclude means that we “blame the victim” of rape.
You don’t think this study means the victims of rape are being blamed? Suggest you go read the threads following Nick’s posts about rape: you will see many direct instances of victim-blaming. This study isn’t bringing up an unusual idea: the only startling thing about it is the proportion of people who still believe that a woman who is raped is wholly or partially to blame for being the victim of a violent assault.
All I am saying is that one data point does not create evidence.
If this were the only study on how people think about rape, rapists, and victims of rape, and if there were no other information anywhere to be found, you would be correct in referring to it as “one data point”. But it’s not, and there is plenty of other information.
A person who think that’s men are responsible for being assaulted and that women are responsible for being raped
Interesting that you should put it that way, as if you believed that being robbed or non-sexually assaulted was something that happened only to men.
when either is out alone at night is not evidence of a “rape culture” that permits rape above and beyond other crimes.
However: one person is not evidence by him or herself of a culture’s attitudes - one person could be a psychotic freak. Hence the study referred to did not just question one person, but about a thousand: and, as I’ve said already, many people plainly do assume that if a woman is raped, it’s wholly or partially her fault. Look at some of the responses to Nick Kiddle: look for jokes about rape (Nick quoted one in one of her posts).
Look at your own attitude that suggests that a woman who is raped is in an equivalent position to a man who’s had his wallet stolen - and that robbery, being non-sexual, is not something that happens to women.
This comment was written by Jesurgislac.Report this comment to the moderators
November 22nd, 2005 at 10:17 am
Thank you for your very clear story, Barbados Butterfly. I am so sorry so ugly a thing happened to you! The only reasonable way I can see that you might have avoided it was to stay indoors all the time.
This guy was really a piece of work, on that we can all agree.
I’m interested too in how your story supports the idea that rape isn’t about sex or sexual pleasure primarily - it’s about power, the exertion of power. This creepo was obviously miffed that you, mere woman that you are, should deny him his Prerogatives, so he’ll show you, you uppity woman.
I wish him all the misery his attitudes and behavior promise.
Next,
I think so too. We’re playing with the word “resposible.”
On the one hand, it means “the initiator of the action, the person ultimately to blame for how things worked out.” This is always going to be the rapist/mugger/murderer/other criminal.
Or does “responsible” mean “prudent,”as in, “That guy who walked through the slum with his big fat wallet showing is partly responsible for what happened to him when he got mugged.” In other words, he didn’t exercise enough prudence to protect himself from what were, on any reading, bad men.
A lack of prudence is unlikely to be morally reprehensible, though plenty of rapists try the excuse, “Well, she was asking for it.” Crime is committed by criminals. The law does not excuse crime on the ground that the carelessness or lack of attention of other people made the crime possible. It’s still a crime.
However, those of us who do not wish to be victims of crime exercise - men and women both, it isn’t just women who lock doors - some prudence to prevent that. How much? That’s an individual decision.
This comment was written by Susan.Report this comment to the moderators
November 22nd, 2005 at 10:22 am
I don’t think the man that raped Barbados Butterfuly was statistically atypical. Ginmar had a thread a while ago where women could share their rape experiences in a safe(r) space and there are so many women who had similar stories of trying to say no to friends and boyfriends and not being listend to, and these men they trusted raped them. What’s your evidence, MG, that this kind of rape is atypical?
This comment was written by Tara.Report this comment to the moderators
November 22nd, 2005 at 10:27 am
Jesurgislac, nothing in Toumas’ post makes me believe that he is trying to turn this into a debate about men.
Also, I do think that he does point out one major flaw with the survey - it focuses on female victims. I would be interested to see the result of a similar questionare about male victims - here I would expect that 0 procent (or close enough) would blame the victim, which clearly would illuminate the victim-blaming of the people who answered affirmative to the question about female victims. It’s only the victims fault if it is a woman.
This comment was written by Kristjan Wager.I find it repulsive that we, in this day and age, still encounter people who think that the victims of rape, are in any way to blame.
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November 22nd, 2005 at 11:32 am
I just wanted to respond to Susan’s notion of “prudence.” I do agree with you that people should be responsible for themselves and to err on the side of caution when entering sketchy situations, but the problem I have with your argument is that one cannot always foresee potential danger unless it is clearly visible. Perhaps you are an extremely perceptive person and can judge a person’s character and their intentions when you first meet him/her, but most cannot. Most people aren’t psychic, and as much as one can do to prevent bad things from happening to them, that just isn’t always good enough. I think you’ll find in many situations, there is nothing that can prevent them. Beyond locking your doors and wandering alone in the middle of the night, what more can you do to protect yourself?
Secondly, how does one measure the goodness or badness of a person, male or female? Do you have a chart to gage it? My goal here isn’t to be sarcastic and rude, but I question the how realistic your argument is. Life is not based on careful calculations and strategically planned guides to ensure your personal safety. Even if one could, such a guide would not work for everyone because everyone has different life situations.
For example, I live in an extremely safe, middle-class surburbia, where almost all the houses are not only deadbolted but have security systems. My friend, on the other hand, lives in a rundown apartment building in the downtown area, where a car blew up outside her apartment building in her back alley, and a gang shooting took place in the same alley two nights later. I do not need to take the same precautions as she does because my living situation is far different from hers. However, if she did not take those precautions, would it be her fault if something bad happened to her? She can’t afford to live anywhere else to improve her situation, but should she spend all of her time attempting to prevent something from happening when chances are that if something were to happen, it would happen regardless of her precautions?
One can make up as many “should haves,” “would haves,” and “could haves” as he or she wants, but they often don’t make a bit of difference. I’ve been physically assaulted and sexually assaulted. The latter I never pressed charges for because I was ashamed. In both cases, precautions wouldn’t have worked because the first scenario happened while I was still in grade school, and as much as I ignored and avoided this person did not prevent him from attacking me. In the second scenario, I was drugged and raped by a man I trusted implicitely and didn’t take any precautions because I didn’t feel I needed to. I had known him for a long time. Does my error in judgement mean that it was my fault?
I’m not expecting sympathy or any “I’m sorry that happened to you” comments, but I simply disagree with your analysis. Perhaps my own personal bias has a great deal to do with that, but prevention, in my opinion, is a fruitless effort to avoid the inevitable. Perhaps locking your doors makes you safer from a break-in, but don’t you think that if someone wanted to break into your home that a lock would prevent him/her from doing so? And regardless of whether or not one exercises the appropriate amount of caution (how do you judge how much is appropriate?), it is never the victim’s fault that someone has harmed him/her. A person never asks to be assaulted. Even if you think it is stupid for someone not to be careful, stupidity isn’t a good enough excuse to blame the victim for a crime committed against him/her.
This comment was written by Donna.Report this comment to the moderators
November 22nd, 2005 at 12:11 pm
This is absolutely correct. I am no better at this than anyone else.
Of course not. And even if you had knowlingly gone home from a bar with Jack the Ripper rape is not your fault. I thought I made that clear. In all cases, crime is the fault of the criminal.
I’m not sure what analysis you are attributing to me with which you disagree. I’m finding it difficult to locate anything in your post where we differ, except possibly your last sentence in the immediately above paragraph.
I don’t think rape is in all cases “inevitable.” This is pretty strong language. I, for example, have never been raped; since I’m now 60 years old, this “inevitable” thing better hurry up if it expects to get me. I am not attributing this relative immunity to anything but good luck; but there is good luck, you know. Perhaps one can increase the odds in one’s favor somewhat by exercising prudence (0r, as in your case, maybe not), but there’s no guarantee of course.
People lock their doors and install burglar alarms all the time. Sometimes their homes get broken into anyhow; but the locks and alarms load the dice, just a bit, in the direction of safety. (Or that’s what lock and alarm companies would have you believe.) If you don’t alarm your house for whatever reasons, it still isn’t your fault when you are burglarized. Burglary is the fault of the burglar.
I think we can do a few things, if not everything. But that staying indoors in the closet alone at all times is a sure-fire rape-prevention strategy doesn’t mean we all have to or should do that, or are morally culpable if we don’t.
We have to live. Living, unfortunately, includes risk. One of these risks is rape. People who think that rape alone of all crimes is likely to be the fault of the victim need to be hit upside the head.
You weren’t asking for sympathy. But I am sorry this happened to you.
In all Anglo-American jurisdictions, rape is a crime, right along with assault, murder, robbery, and a host of other buddies. All these crimes restrict or can restrict the safety with which law-abiding persons can use the public space, and are thus doubly represensible.
In all cases, crime is the fault of the criminal. Criminals should be apprehended, restrained and taken off the streets.
This comment was written by Susan.Report this comment to the moderators
November 22nd, 2005 at 12:13 pm
You don’t think this study means the victims of rape are being blamed? Suggest you go read the threads following Nick’s posts about rape: you will see many direct instances of victim-blaming. This study isn’t bringing up an unusual idea: the only startling thing about it is the proportion of people who still believe that a woman who is raped is wholly or partially to blame for being the victim of a violent assault.
Again, you are (consciously?) NOT addressing my point. OF COURSE there is victim-blaming. I am only asking whether there is MORE victim-blaming regarding rape than for other crimes. Accumulation of evidence that there is victim-blaming in rape does not address how it compares to victim-blaming of non-rape crimes. Citing seventeen examples of victim-blaming for rape, or a study showing that 30% of people blame rape victims, does nothing to show how it compares to other crimes.
Because people DO blame other crime victims (whether they should or not, and assuming the same definition of “blame”) for walking alone at night and getting mugged. And people DO say that a braggart was “asking for it” when he gets punched in the nose.
To show that there is a “rape-culture” and that rape is tolerated at higher levels than other crimes, your study needs to also look at OTHER CRIMES! That is why I suggested at #52 a study that would ask about crimes against men.
If there is a rape culture and lots of implicit mysogynism, then the results of my poll in #52, when asked about male victims, will look very different from the results of the actual poll. My belief is that they will not, because the level of blame directed at rape victims is very similar to the level of blame directed at other crime victims who engage in behavior that a societal consensus (correctly or incorrectly) believes to be “risky”.
This comment was written by Richard Bellamy.Report this comment to the moderators
November 22nd, 2005 at 12:14 pm
What’s your evidence, MG, that this kind of rape is atypical?
I have the sick feeling that it isn’t.
This comment was written by Susan.Report this comment to the moderators
November 22nd, 2005 at 12:18 pm
Richard Bellamy: you might want to note your persistent identification of crimes against property that belongs to men with crimes of violence against women, because I’m fairly sure this is an example of your unconscious bias, not a deliberate equation of women as property that belongs to men. Still, it’s certainly there.
Moving on:
Male victim, male defendants, all the same race. It played out EXACTLY like the stereotypical jury room in a date rape case,
With the important exception: We eventually convicted on most (although not all) of the counts.
Stereotypically, had this been a woman who’d gone to a party where she knew none of the people there, and had been raped, the odds of any jury convicting her attacker would be miniscule.
“ This is part of the reason that I am dubious that there is a “rape culture” any more than there is a carjacking culture
There isn’t a carjacking culture, because you and the other jury members agreed that a crime had been committed - a man’s car had been stolen - and convicted the perpetrators, even though you thought the man was stupid to have put himself in that situation.
There is a rape culture, because in the same situation, a man who raped would not be convicted: his victim would be blamed for her behavior.
This comment was written by Jesurgislac.Report this comment to the moderators
November 22nd, 2005 at 12:20 pm
I suspect that Richard is onto something here. We do have a tendency to blame the victims of all types of crime. It’s a way of assuring ourselves that we have (a wholly illusory) sense that we are in control of what is probably an uncontrollable situation.
(”I, being smart, would never take strangers home/leave my house unlocked/walk alone with a conspicuous wallet at night/ pick a verbal fight in a bar; therefore, I will never be raped/burglarized/mugged/assaulted.”)
I for one need more data, of the type suggested by Richard, before I’ll buy into the idea that rape is unique here. It may be. It may not be. On the data presented, we just don’t know.
This comment was written by Susan.Report this comment to the moderators
November 22nd, 2005 at 12:30 pm
Susan: We do have a tendency to blame the victims of all types of crime.
Do we? Does a person who is mugged normally have to convince the police that they didn’t consent to hand over their wallet to the mugger? Does a person who has been burgled before normally have to convince anyone that this didn’t mean they wanted to be burgled this time? If someone’s taken by a con artist, do they usually have to persuade people that they didn’t actually want to lose their life savings to someone else? If you’re hit in the face do your friends ask you if you wanted to be hit? If you’re shot by an acquaintance, does anyone argue that as you knew this person socially, you must have consented to being shot by them?
No, Susan. People really don’t make the same excuses for other criminals and other kinds of crime that they do for rapists and for rape.
This comment was written by Jesurgislac.Report this comment to the moderators
November 22nd, 2005 at 12:31 pm
I have begun an interesting exercise lately. While watching the morning news, I am observing language bias. So far I have noticed that almost all property crimes are set up as “The thief did x”. Assaults are more variable, but commonly, when the victim was a man, the form is “The assaulter did x”, but for a woman the form is “The victim was assaulted”. Rape is almost entirely in the form of “The victim was raped”.
Leaving aside for a moment obvious journalistic problems with passive voice as less interesting than active voice, what is the purpose of using passive voice when describing female victims? My assumption is that the use of passive voice allows one to forget the actor and focus on the object (the victim). For people who are lazy of thought (far too many of them) the object becomes the actor. In other words, by saying “The woman was raped” rather than “The man raped the woman”, the media is not so subtly transfering blame to the victim. It’s almost as though the perpetrator doesn’t exist if you don’t mention him. I guess all these women who are “being raped” are accidentally impaling themselves on a man’s accidentally erect and naked penis after accidentally having their pants or skirts removed.
This sort of critical review of the media is very instructive. I recommend it to anyone who doesn’t think that there is a bias toward victims.
This comment was written by odanu.Report this comment to the moderators
November 22nd, 2005 at 12:33 pm
I agree with many posters here that, in my opinion, rape victims are blamed for their victimization more than other crime victims.
Still, there’s nothing wrong with testing beliefs. I don’t see anything wrong with doing a study of the sort Richard suggests; on the contrary, the way that rape victims are blamed is something that should be studied more, and in a variety of ways.
This comment was written by Ampersand.Report this comment to the moderators
November 22nd, 2005 at 1:03 pm
I lived in a high crime city and I can say without reservation that most people blame crime victims for being victimized, regardless of the crime. And a man who gets robbed when drunk or by a prostitute barely registers as worthy of anything but derisive laughter.
But I think rape is different, still, because some people just won’t get it through their thick heads that acqaintance rape is a cruel crime committed by criminals, and not a “misunderstanding” between friends. If you have any doubts I have two words for you: Kobe Bryant. Go read the police report on the Smoking Gun if you want to see how violent his attack on that hotel worker was. And yet people were so willing to believe it was all just a big mistake.
This comment was written by Elena.Report this comment to the moderators
November 22nd, 2005 at 1:04 pm
The distinction in the case of rape may be related to the nature of the crime.
Rape is sexual contact without the consent of one person. People do not commonly consent to handing over their wallet to a stranger in a dark alley, so that’s not usually an issue in a mugging. But people consent to sexual contact all the time. How to tell if this was one of those cases, or one of the other kind?
Well, we could take the victim’s word for it.
But wait, it gets more complex. In our legal system we don’t convict anyone of a crime unless the criminal intended the criminal conduct. If a man, for example, is sleepwalking, and kills someone in the process, if he can prove that he was not conscious he cannot be convicted of any crime. We need what lawyers call the rens mea, the evil mind.
Thus, sexual intercourse happens. (That’s pretty easy to tell.) She says she didn’t consent. That’s her testimony, subject, as is all testimony, to be tested. Is she telling the truth? He says, she consented, or he reasonably thought she consented. If he reasonably (not in his wildest dreams, but reasonably) thought she consented, he’s like the sleepwalking murderer. He’s not guilty of rape, because he didn’t intend rape.
Now, there is ample room for people to lie their heads off here, especially the guy. But just as not all women are telling the truth when they claim they were raped, so also not all men are lying when they say they honestly thought she consented.
I fully realize that I’m going to get shot in the head here for this explanation, but like it or not, that’s how the law works. Rape is a tough crime to prove for a number of reasons.
This comment was written by Susan.Report this comment to the moderators
November 22nd, 2005 at 1:04 pm
There is a rape culture, because in the same situation, a man who raped would not be convicted: his victim would be blamed for her behavior.
Once again, is that true? Anecdotally, I’m sure it is. But statistically? The statistics I found said:
” Less than half of those arrested for rape are convicted, 54% of all rape prosecutions end in either dismissal or acquittal. The conviction rate for those arrested for murder is 69% and all other felons is 54%.”
So, outside of murder, accused rapists are convicted 46% of the time, and other accused felons are convicted 54% of the time. Perhaps the bias you describe is seen in 8% of juries? I’d buy that, and think it should be fought against, but 8% is a relatively low number.
In total numbers, juries convicted 3100 people of sexual assault in 1997, compared to 3100 robberies, 4700 aggravated assaults, and 3200 murders (See Table 6 of link).
http://www.ncsconline.org/WC/FAQs/VioCriFAQ.htm
So rape is being prosecuted at levels comparable to other violent crimes. Maybe that level is too low for all crimes? Probably. I haven’t been in a “real” fight since I was 12, so it’s very easy for me to say anyone who punches anyone anytime should be locked up.
The same argument applies to the small percent of sexual assaults reported to police. How many fights that meet the legal definition of “assault” are reported to the police? How many bar fights? Neighborhood brawls? High school slaps?
I do not doubt that there are some extreme mis-carriages of justice regarding rape. I merely question whether those mis-carriages are of a type different than for other crimes. If rapists are 10% less likely to be prosecuted, that should be fought against, but it doesn’t create a “rape culture” any more than it creates a “violence culture.”
This comment was written by Richard Bellamy.Report this comment to the moderators
November 22nd, 2005 at 1:06 pm
the way that rape victims are blamed is something that should be studied more, and in a variety of ways.
Actually, I went looking in the scholarly literature to try to find some comparative figures to those reported by this study. Unfortunately, most of the articles are locked behind subscription barriers, but if you search Google Scholar on “rape myth” you’ll find massive numbers of articles and measures on the subject.
This comment was written by Lis Riba.Report this comment to the moderators
November 22nd, 2005 at 1:38 pm
>>So, outside of murder, accused rapists are convicted 46% of the time, and other accused felons are convicted 54% of the time. Perhaps the bias you describe is seen in 8% of juries? I’d buy that, and think it should be fought against, but 8% is a relatively low number.>>
I think this number needs to be taken into context per one of the other survey responses described in the article:
“Six out of seven people either said they didn’t know that only 5.6% of rapes reported to the police currently result in conviction or believed the conviction rate to be far higher.”
This comment was written by piny.Report this comment to the moderators
November 22nd, 2005 at 2:35 pm
Again, though, where is the point of comparison?
5.6% seems like a very small number. But is it?
How many reported simple assaults/ aggravated assaults/ robberies lead to convictions? 5.7%? 10%? 50%? I have no idea.
This comment was written by Richard Bellamy.Report this comment to the moderators
November 22nd, 2005 at 2:42 pm
“Six out of seven people either said they didn’t know that only 5.6% of rapes reported to the police currently result in conviction or believed the conviction rate to be far higher.”
How many thefts reported result in a conviction? I can’t find the statistics but considering the cops’ attitude when I tried to report a theft “we’re never going to find the guy” I would be unshocked to find that it is a low number.
This comment was written by Sebastian Holsclaw.Report this comment to the moderators
November 22nd, 2005 at 2:42 pm
Very sensible, Richard. I have heard, again anecdotally in newspaper articles, that only a small fraction of murders ever result in an arrest, let alone a conviction. And although murder can be concealed, it’s a lot harder to hid than rape, obviously. (There’s usually that inconvenient dead body to account for.) But again I don’t even know if this is true in the first place.
I definitely agree that before we decide that this is a “rape culture” we need a lot of better information about other crimes. Perhaps it’s just a “criminal culture” which would certainly not be good news (!) but is quite a different matter.
This comment was written by Susan.Report this comment to the moderators
November 22nd, 2005 at 2:46 pm
Good point, Sebastian. When our house was burglarized the police candidly told me that they had no intention whatever of even looking for the burglar, let alone finding him. I guess we just filed the police report so we could invoke our homeowner’s insurance.
Does that make this a “theft culture”? Perhaps it does.
This comment was written by Susan.Report this comment to the moderators
November 22nd, 2005 at 3:10 pm
http://www.ojp.usdoj.gov/bjs/pub/html/cjusew96/cpo.htm
This comment was written by piny.Report this comment to the moderators
November 22nd, 2005 at 3:19 pm
victim implies that one is not responsible for the acts, in which case it would be inappropriate to use that term in reference to males. however, from my experience men who have had unagreeable sexual encounters and boys who have had early childhood sexual experiences tend to get held to a higher standard than real victims because gender expectations.
i suppose one could conduct a study to measure the amount of “blame” projected on such males, but any such study would prove irrelevant to the issue at hand. and without a similar study being done for all crimes there is nothing to guage it against.
This comment was written by jaketk.Report this comment to the moderators
November 22nd, 2005 at 4:02 pm
Susan: If he reasonably (not in his wildest dreams, but reasonably) thought she consented
But who gets to define reasonably?
Ginmar has linked to a case from her journal where a court found that three young men who filmed themselves having sex with a woman who was drunkenly unconscious were “reasonably assuming” she had consented - after all, she hadn’t told them no, so (the court concluded) it was reasonable for these young men to assume she’d consented.
Nor is that case unique. Rapists have produced as a defense that their victim had already consented to sex with them before; that their victim had willingly gone off to be alone with them; that their victim hadn’t said no; that their victim was dressed “like a tramp”, that their victim had agreed to invite them in for breakfast; that their victim was out on her own, was home alone and had left her bedroom window open - and all of these defenses of “reasonably assuming consent” have been accepted by a court.
He’s not guilty of rape, because he didn’t intend rape.
So, basically, providing a man keeps it firmly in mind that the woman he’s having sex with has consented to have sex with him - and bear in mind, above, exactly what rationale men have offered as “she consented” - in your view, even if the woman didn’t consent, the man didn’t “really” rape her? Because it’s the man’s point of view that defines rape, to you - how the woman feels about it just isn’t relevant?
This comment was written by Jesurgislac.Report this comment to the moderators
November 22nd, 2005 at 4:10 pm
I would like to see the citation of the case where “she was dressed like a tramp” or left her window open were accepted as indicating consent.
This comment was written by Robert.Report this comment to the moderators
November 22nd, 2005 at 5:17 pm
Robert: I would like to see the citation of the case where “she was dressed like a tramp”or left her window open were accepted as indicating consent.
“Left her window open” was an actual case discussed in Susan Brownmiller’s Against Our Will. A woman who lived in a basement flat said she left her window open for ventilation: the rapist said she left her window open as an invitation: the rapist was acquitted, on the grounds Susan seems to think are adequate - the court decided that the man genuinely thought that having a window open was an invitation and the woman therefore consented. This was in the 1970s.
“Dressed like a tramp” is a standard defense that I recall from a number of rape cases: how the woman dresses is used to judge that she was indicating she was sexually available and therefore the man could “reasonably assume” she’d consented to have sex. But specifically I was thinking of a case from 2001, which I read about three years ago, in which the rapist’s lawyer used the fact that the victim had at the time been wearing a thong on which the words “little devil” were written as a defense for the rapist. (The rapist did get convicted in that case, even though the girl he’d raped had been made to hold up her thong in court and read out the words written on them. The girl was lethally convicted: she killed herself after the case was over. link)
It is a standard tactic for lawyers defending rapists to ask questions about the victim’s clothing - including even the clothing she was wearing at court. “One barrister spoke of a case in which ‘the girl was basically just cross-examined because she had a miniskirt with a zip in it’”.link
This comment was written by Jesurgislac.Report this comment to the moderators
November 22nd, 2005 at 5:56 pm
So, in terms of actual citations, you have a case from the dark ages, and a case in which the rapist was actually convicted. And then a lot of handwaving about lawyers asking leading questions about modes of dress to get juries to think the victim was a slut and thus “deserved it”, which I agree is a shitty practice but which has little to do with what reasonable people accept as consent.
This comment was written by Robert.Report this comment to the moderators
November 22nd, 2005 at 6:01 pm
But who gets to define reasonably?
This is the job of the judge and/or jury.
Unhappily, courts make mistakes and hand down outrageous rulings all the time. I’d contend that most cases come out correctly, but anyone can look through case reports and come up with some colossal goofs.
This proves what? That our court system isn’t perfect? But we knew that, I thought. Anything any of us can do to educate the judiciary and the population generally about the realities of rape will produce more sensible court decisions. But while we remain human we will never get it right every time.
Still, I’m willing to bet that there are a lot of cases where the guy is packed off to prison without undue discussion. If indeed as Richard cites, “accused rapists are convicted 46% of the time,” then this not such a bad statistic. Remember that some of the accused rapists in question were in fact innocent of the crime, and should not be convicted. So maybe we’re not doing too bad.
I didn’t say anything like that. What I did say is that in all crimes, not just this one, the state of mind of the accused is relevant. In my hypothetical of the man murdered by the sleepwalker, the victim is just as dead as he would have been if the murderer had been awake. It seems, perhaps, unjust that we take the criminal’s state of mind into account, but we do. We always have. If a man accused of rape reasonably thought the woman consented, that’s important to us.
Try this one out. The man and the woman have sex. She consents, he consents. Then, later in the evening, they quarrel about something else. She decides to make life difficult for him by accusing him of rape. She didn’t “really” consent, is her story. Think this never happens? Well, everything happens sooner or later, including this. His state of mind really is important.
I am neither a prosecutor nor a defense lawyer, but I hear that rape is a difficult crime to prosecute. Perhaps less so now than previously. Precisely because the state of mind of the accused is so difficult to ascertain, as is the exact series of events. (”He said, she said”)
I am in no way defending rapists. I think they should be hung up upside down. Permanently. It is kind of a tough crime to deal with in the real world, though.
This comment was written by Susan.Report this comment to the moderators
November 22nd, 2005 at 6:19 pm
Robert: So, in terms of actual citations, you have a case from the dark ages
Within living memory, Robert. The 1970s may be the “dark ages to you” but not to me.
and a case in which the rapist was actually convicted
I had actually forgotten he was convicted in the specific case of the thong - that the girl killed herself a month later was something I’d remembered much more strongly.
And then a lot of handwaving about lawyers asking leading questions about modes of dress to get juries to think the victim was a slut and thus “deserved it”, which I agree is a shitty practice but which has little to do with what reasonable people accept as consent.
Robert, when lawyers ask questions in court about what the crime victim was wearing in order to show to the jury that the rapist might reasonably have believed she’d consent, they do it because it works - that’s their job as defense lawyers.
Susan: If a man accused of rape reasonably thought the woman consented, that’s important to us.
Given that “reasonably thought the woman consented” has been defined as “too drunk to say no”, or “dressed like a slut”, no, actually, it’s not relevant that the man thought she’d be willing. Part of the problem of the rape culture is that men are taught to assume that when they are entitled to sex, they are entitled to assume the woman is willing. And this permeates what a jury is entitled to assume is “reasonably thought the woman consented”.
Try this one out. The man and the woman have sex. She consents, he consents. Then, later in the evening, they quarrel about something else. She decides to make life difficult for him by accusing him of rape. She didn’t “really” consent, is her story. Think this never happens?
Not nearly as often as rapists claim it does, no. A woman who accuses a man of rape makes life difficult for herself, first and foremost, and knows - the police will warn her - that most likely she won’t see him convicted. But it’s a classic defense that rapists use: she was willing then, she just changed her mind later.
This comment was written by Jesurgislac.Report this comment to the moderators
November 22nd, 2005 at 6:40 pm
Jesurgislac, what alternative standard do you propose? Yes, courts and juries are going to make mistakes, and they are going to reflect social views that we may disagree with. But what’s the alternative?
It is undoubtedly the case that there are a lot of instances where what a man thought was consent was not, and it is certainly the case that there are men who pretend (or convince themselves) that there is consent where no reasonable person would agree (”the window was open, she wanted it!”). But men (and women) of good faith have to gauge consent nonetheless - and the variances in expectations and beliefs are going to inevitably lead to mistakes and confusion.
People do not behave like automatons from textbooks. Training boys and men to elicit/expect enthusiastic assent from their partners, rather than tacit assumptions of consent, is undoubtedly productive and leads to healthier sexual outcomes; it’s how I raise my kids (or will when they hit the appropriate age). But that isn’t the reality for 99% of sexually active people, and the legal system has to deal with people who behave how they behave, not how we might wish they would behave.
Women go to bars and get drunk and go home with guys whose motives are hazy at best - and there are a lot of rape cases generated from such encounters. What standard do you propose courts adopt to determine whether consent was in fact given, in cases where it is not obvious to outside observers?
This comment was written by Robert.Report this comment to the moderators
November 22nd, 2005 at 6:58 pm
Robert Writes: Jesurgislac, what alternative standard do you propose?
Certainly I think any idea that what the victim was wearing is any indication of whether she consented or whether the rapist thought she would have consented can be ruled out of court. Her clothes don’t consent for her. Neither should her past sexual history be brought up in court, under any circumstances. Nor, frankly, should any “I assumed she consented because she didn’t actually say she didn’t consent” reasoning.
But that isn’t the reality for 99% of sexually active people, and the legal system has to deal with people who behave how they behave, not how we might wish they would behave.
That’s a wonderful continuing excuse for letting men continue to rape women and get away with it, sure - if you assume that the law has to allow people to “behave how they behave”. The legal system doesn’t let a man who thinks he’s entitled to hit anyone who gets in his way escape conviction because “people behave how they behave” - why should it allow men get away with rape just because they honestly think “consent” means “she was dressed like a slut and she only said no a couple of times” or “she’s my girlfriend/wife so I’m entitled to assume she always wants to have sex with me even if she isn’t actually saying yes this time”. The legal system is all about not letting people “behave how they behave” when how they behave is criminal.
What standard do you propose courts adopt to determine whether consent was in fact given, in cases where it is not obvious to outside observers?
The standard Susan has offered appears to be: Assume the man accurately reports his state of mind, and his state of mind - whether he thought it was rape or not - shall be allowed to decide whether or not he shall be convicted of rape. For added bonus, assume that the woman might well be lying to get the man into trouble.
This is a terrible standard, as anyone can see: if I were to hit you over the head and kicked you in the balls, Robert, I would not expect you to have to convince a court that you really, really hadn’t consented to have that happen to you, no matter what you were wearing, nor where you were. And if I claimed that I’d believed your wearing tight trousers meant you were really asking to be physically assaulted, I wouldn’t expect a jury to believe me. Nor do I think a jury should believe a rapist who claims the same thing.
The witness shouldn’t have to discuss her past sex life, or her previous sexual encounters with the rapist, and certainly it’s irrelevant what she was wearing or if she’d been drinking. She’s testifying to a crime of violence: her veracity is at issue, not her sobriety or her sex life or if she’d spoken to the perpetrator or gone for a ride in his car. A rapist’s self-belief in his entitlement to sex is really not a defense.
This comment was written by Jesurgislac.Report this comment to the moderators
November 22nd, 2005 at 7:06 pm
Jaketk, would you mind clarifying what you mean by this?
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November 22nd, 2005 at 7:16 pm
A rapist’s self-belief in his entitlement to sex is really not a defense.
Yeah, that’s true. But courts don’t deal with “rapists”. Courts deal with accused rapists. And an accused rapist’s belief that the woman he had sex with wanted to have sex with him is a perfectly valid defense. It would be great if the court could psychically detect the truth of all cases - we could dispense with a lot of tedious procedural issues, and could forfeit a bunch of civil rights that would no longer be needed in the bargain. But courts don’t know.
When I say that people behave as they behave, I am not talking about people who go out and commit crimes. I am talking about the sexual behavior of the human animal - which is messy and contingent and not generally in conformance with the “can I touch you there” Antioch plan. (Which was unfairly mocked, but which is far from the norm.) Courts have to deal with that - which requires evaluating the state of mind of the victim and the perpetrator.
The standard for that which Susan has offered bears no resemblance to the absurd caricature you are presenting. The standard she has offered is the legal standard, that the state of mind of a perpetrator is material to whether he or she committed the crime. If you reasonably thought it was a deer, it’s manslaughter, not homicide. Courts have to decide whether the self-report is plausible or realistic - “you thought she consented because she was wearing a halter top? you’re a moron - lock him up.” - and that does leave open the possibility of a clever con-artist, or the beneficiary of a misogynistic jury or court, getting away with a crime. But again, what’s the alternative? Human judicial systems are imperfect.
The special pleading for what rape victims ought or ought not have to testify about, or have brought into court, is mixed. Generally, I agree that there can be no relevance to clothing. But many of the other things you mention are arenas where a legitimate defense can be built. Of course it’s relevant that the victim was drinking - if she has acknowledged that she doesn’t remember what happened, and thus the testimony of other people will be given more weight of necessity. Of course it’s relevant that she had rough sex with another man that same day - if part of the prosecution’s case relies on her thighs being bruised as an indication of violence. And so forth. It simply isn’t possible, or just, to exclude vast areas of evidence simply because it is possible those areas of evidence will be used to unfairly prejudice a jury. That’s the case in every crime. Could a prosecutor use the fact that an accused killer is a member of a violent gang to influence a jury? Sure could. Is the gang membership nonetheless relevant, in at least some cases? Sure is.
You mention that the victim’s veracity is what is at issue. And that certainly is material. But it isn’t the entire story; there is no crime on the books where the only material evidence is what the victim thinks, nor should there be. Certainly not one as serious as rape.
This comment was written by Robert.Report this comment to the moderators
November 22nd, 2005 at 7:40 pm
Robert writed:
I would like to see the citation of the case where “she was dressed like a tramp” or left her window open were accepted as indicating consent.
I remember hearing about this case at the time - this is the best reference that I could find:
BYLINE: KING, JIM Jim King Staff writer STAFF
DATE: March 30, 1990
PUBLICATION: The Atlanta Journal and The Atlanta Constitution
EDITION: The Atlanta Constitution
The Atlanta Journal
SECTION: LOCAL NEWS
PAGE: E/2
Steven Lamar Lord, who gained national notoriety last year when he was acquitted in a controversial Florida rape case, was convicted of attempted rape Thursday by a Gwinnett County jury that deliberated only 25 minutes. Lord was convicted of attempted rape, aggravated assault, robbery and false imprisonment for an attack on a 20-year-old Gainesville woman in 1988. Steven Lamar Lord, who gained national notoriety last year when he was acquitted in a controversial Florida rape case, was convicted of attempted rape Thursday by a Gwinnett County jury that deliberated only 25 minutes.
Lord, 26, of Lawrenceville, was convicted of attempted rape, aggravated assault, robbery and false imprisonment for an attack on a 20-year-old Gainesville woman in 1988. The victim had stopped at a gas station near Interstate 85 to use a pay telephone.
Lord forced his way into her car, then ran off when another motorist approached.
Last year, in a separate case, Lord pleaded guilty to raping a woman in DeKalb County in 1988 when she stopped to use an automatic teller machine. He was sentenced to life in prison for that crime. He still faces separate aggravated assault charges in Cobb County.
Gwinnett Superior Court Judge James A. Henderson sentenced Lord to 50 years in prison to be served consecutively to the DeKalb County sentence. Assistant District Attorney Scott Smeal said Lord will be eligible for parole in seven years.
“Clearly, the first interest of society is to isolate him due to the fact that he does present such a danger to women,” Mr. Smeal said. “He should be incarcerated until it’s determined he’s no longer a danger to society.”
Lord received national attention last year after a Florida jury acquitted him of rape charges in Fort Lauderdale. A juror in that case said jurors voted in favor of acquittal because they believed the victim had “asked for it” by wearing a lace miniskirt and no underwear.
Although evidence concerning the DeKalb and Cobb cases was presented in Lord’s three-day trial, the jury was not made aware of the Florida case.
Judge Henderson ignited controversy during jury selection by barring the public, including reporters, claiming his courtroom is too small for spectators and prospective jurors.
This comment was written by Jake Squid.Report this comment to the moderators
November 22nd, 2005 at 8:12 pm
Another garbled misquote of wht I said.
1. The man’s state of mind according to himself is not the only question we have to ask. We also have to ask if his take on this was “reasonable.” Meaning, would a reasonable person in his same position hold that same state of mind.
For an illustration, let us take a man and a woman together. He wants to have sex. She really does NOT want to have sex but for whatever reason does not convey this to him, not by word, not by action. Is this rape?
Well, she didn’t consent. But she concealed that from him. I’d say (and the law would say) that it isn’t rape, because the man wasn’t in possession of the relevant fact (she didn’t want to do it) and hence lacked the requisite intent.
2. Rape is an unusual crime in that it depends on the intentions of both parties. If you murder Richard, say, it’s still murder, even if he liked it and asked for it. His consent or lack of consent is irrelevant. You can still be prosecuted. But since sexual intercourse under the right circumstances is a good thing (unlike murder) we have to do all this pondering about what the victim was thinking, as though trying to figure out what the suspect was thinking wasn’t hard enough.
3. News flash. Men lie sometimes. Women lie sometimes. We can’t take anyone’s word for anything without asking a few questions at least. You’ll be glad we do if you are ever accused of a crime you didn’t commit, on someone’s bare say-so.
4. I’m glad they finally got that guy in Florida. What goes around comes around, usually.
This comment was written by Susan.Report this comment to the moderators
November 22nd, 2005 at 8:55 pm
Jesurgislac, Kristjan Wager:
My comment was not meant to wrestle the discussion from (raped)women to (raped)men, I added it as a disclaimer against the possible accusation of ignoring male victims. Certainly men aren’t raped anywhere near the number women are.
Indeed, I think there should be surveys measuring other crimes, or male rapes, to find out whether there is more/same/less victim-blaming in those cases. My gut feeling would say less. I think rape victims, especially women, are blamed more for their rapes than victims of other crimes.
jaketk:
I agree, we do not know the rapists motivation. However, misogynist attitudes may have something to do with (some) rapes. On the issue of boundaries, I agree 100 %, I thought it was clear from my post, when I talk about law enforcement.
I don’t equate unagreeable male sex with real rape. How did you get that idea?
This comment was written by Tuomas.Report this comment to the moderators
November 22nd, 2005 at 9:00 pm
Come to think of it, I’m not sure I understand what jaketk meant by unagreeable male sex. Clarification would be nice.
This comment was written by Tuomas.Report this comment to the moderators
November 22nd, 2005 at 9:03 pm
you know,
I don’t FUCKING CARE if a woman is running around naked with “FUCK” painted on one thigh and “ME” on the other.
her apparel is not consent unless she specifically says it is.
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November 22nd, 2005 at 9:12 pm
jaketk:
victim implies that one is not responsible for the acts, in which case it would be inappropriate to use that term in reference to males. however, from my experience men who have had unagreeable sexual encounters and boys who have had early childhood sexual experiences tend to get held to a higher standard than real victims because gender expectations.
jaketk seems to be suggesting that men never get raped, which is, of course, false. Of course, male victims are usually raped by other men, not by women.
In terms of questioning whether or not male victims of rape get blamed, I think it is important to note that a large proportion of male-on-male rapes occur in prison. So for a large number of these cases, the victim proibably gets blamed not because of “he led him on” reasoning, but because of “the S.O.B. got what was coming to him for robbing that woman/breaking into that house/shooting that storeowner, etc.
Of course, I think that the issue of prison rape is more of an issue of how we treat prisoners generally than an issue of sexism per se.
As for the issue of trials, the essentialy problem is this:
Rape can be a difficult crime to prove because, as others have pointed out, often the only issue of contention is whether or not there was consent to an act that people perform consensually all the time. In such a case, forensic evidence is of limited value because it generally cannot establish whether or not there was consent unless the rapist used physically harmful violence in order to subdue the victim (i.e. it could show if there was injury) and the physical damage can be seen to imply lack of consent.
So what we are often left with is a trial based largely on he said/she said testimony.
In such a case, the general assumption is that the victim has to be the one to prove her case that she was raped, because our courts operate under the presumption of innocence. (More precisely, the state has to prove that she was raped, unless we are talking about a civil trial). In a sense, this does translate into the court acting as if it assumes that the victim is lying, in that her case is the one that needs to be proven, and not the defendant’s.
To be honest, I am not entirely certain how we can make it easier to convict in such cases without essentially throwing out the presumption of innocence.
This comment was written by Glaivester.Report this comment to the moderators
November 22nd, 2005 at 9:13 pm
What is unagreeable male sex exactly. I won’t read into the comment all of the possible meanings, and wait instead for clarification.
This comment was written by Mendy.Report this comment to the moderators
November 22nd, 2005 at 10:15 pm
Another factor to add in to questions about jaketk’s use of the terms “real victims” and “unagreeable sexual encounter” is that the overwhelming majority of men I know who have been raped were raped while well under the age of consent, usually by an older relative or babysitter, but occasionally by a stranger (a female stranger, in my case).
I don’t know how well my circle of friends map to society, but I’d bet that for men, after prison rape, statutory rape and child molestation is the next big chunk.
It makes me wonder if raped children qualify for jaketk’s “real victim” status or not.
This comment was written by anonymous.Report this comment to the moderators
November 22nd, 2005 at 11:07 pm
To be honest, I am not entirely certain how we can make it easier to convict in such cases without essentially throwing out the presumption of innocence.
Good analysis, Glaivester. I don’t know either, but I’m pretty sure that presuming everyone arrested by the police is guilty is not a very good idea.
This comment was written by Susan.Report this comment to the moderators
November 22nd, 2005 at 11:21 pm
Glaivester, Susan:
I think the current situation is that women are afraid to report rape because they then have their morals questioned, and may and with the reputation of a lying slut, in addition to having been actually raped (if there is no conviction). This is a tough issue, but the principle that “everyone is innocent until proven guilty beyond reasonable doubt” is a good one. In short, assuming every accused person is guilty would lead to a similar situation than medieval witch-hunts were (it would be an easy way of getting rid of rivals. Governments shouldn’t give people incentives to tell lies).
However, we need to acknowledge that just because an accused rapist didn’t go to jail, the woman didn’t necessarily lie (proving a false accusation should have same, high standards of evidence). Sadly, many people see it in more simplistic terms.
This comment was written by Tuomas.Report this comment to the moderators
November 23rd, 2005 at 12:01 am
tuomas, the comment seemed like an unnecessary add-on as it had nothing to do with the rest of your post.
This comment was written by jaketk.Report this comment to the moderators
November 23rd, 2005 at 12:21 am
jaketk:
If I remember correctly, I put it there because I had noticed that my post was about rapist men and rape victim women (the most common type). But since there are man-man rapes ( less common), woman-man(rare)rapes, and woman-woman(very rare) rapes, I thought it would be good to acknowledge them, too. Can you respond to what you mean by unagreeable male sex? Certainly men and boys can be raped, and I don’t hold them any more responsible for being raped than women who are raped are.
This comment was written by Tuomas.Report this comment to the moderators
November 23rd, 2005 at 12:23 am
jaketk seems to be suggesting that men never get raped, which is, of course, false.
well, that is often subject to opinion.
It makes me wonder if raped children qualify for jaketk’s “real victim” status or not.
i would hope so considering i am one, i am related to several, and work with many. however, it is better to use different terminology rather than consider the acts comparable. the conflict that follows such comparisons is grossly unnecessary.
but as this has nothing to do with the issue at hand, it is best to drop it.
This comment was written by jaketk.Report this comment to the moderators
November 23rd, 2005 at 12:43 am
I’m very sorry to hear that, jaketk. FYI, I consider the act of rape comparable to rape, not a different one, no matter what sex the rapist and his/her victim are. I think feminists here would agree.
This comment was written by Tuomas.Report this comment to the moderators
November 23rd, 2005 at 12:48 am
To clarify: I don’t think it’s necessary to have different terminology or laws for rapes that differ from the man-rapes-woman standard of rape, nor should rape victims be put on a scale of “x is more victim than y”.
This comment was written by Tuomas.Report this comment to the moderators
November 23rd, 2005 at 5:07 am
. And an accused rapist’s belief that the woman he had sex with wanted to have sex with him is a perfectly valid defense.
Only if he believed she wanted to have sex with him because he asked her, she said yes, and at no point did she then say “no”. Otherwise, no.
This comment was written by Jesurgislac.Report this comment to the moderators
November 23rd, 2005 at 6:33 am
Yes, I’d want to drop it too if I’d said something as inhuman and vile as you seem to have said.
This comment was written by anonymous.Report this comment to the moderators
November 23rd, 2005 at 8:12 am
Yes, I’d want to drop it too if I’d said something as inhuman and vile as you seem to have said.
no, i want to drop it as it only serves to detract from the issue at hand. in the past, such threads have often devolved into proving its commonality, occurance and severity, which again has nothing to do with women being blamed for rape. i chose my terminology to match the subject’s consideration here. my personal opinion of the subject is quite the opposite.
but i do apologize if i am too blunt or distant. such is my way, annoy as it is.
This comment was written by jaketk.Report this comment to the moderators
November 23rd, 2005 at 8:14 am
However, we need to acknowledge that just because an accused rapist didn’t go to jail, the woman didn’t necessarily lie (proving a false accusation should have same, high standards of evidence). Sadly, many people see it in more simplistic terms.
Yes, that is very important for people to understand. I’m not certain what the legal system could do towards that end. I suppose that if more women for whom the state lost in the criminal trial launched civil suits (where the standard of proof is different) judgments against the defendants would give some measure of vindication (i.e. if the accused rapist was ordered to pay restitution, it would send the message that he was probably guilty but it couldn’t be proven sufficiently to send him to prison), but that could lead to people charging that she was just “crying rape” to get money, especially if she lost the civil trial. [I am thinking about civil trials becasue that was the strategy used after losing in the murder trials of Robert Blake and O.J. Simpson).
I think it would be interesting to ask how many people actually think that Kobe Bryant was proven innocent and how many are unsure whether he did it or not, and how many people think he did it and got away with it (but rightfully, as they think he did it but it couldn’t have been proven if the trial had finished) and how many think he did it, think it could have easily been proven beyond a reasonable doubt, and think that he essentially got away with it unjustly.
This comment was written by Glaivester.Report this comment to the moderators
November 23rd, 2005 at 8:33 am
because of the nature of the crime, i think it would be unwise to do such a thing. the burden of proof in civil trials mostly ranges into whether or not it was possible. given that situation, i do not think civil trials would all that fair for the accused person.
This comment was written by jaketk.Report this comment to the moderators
November 23rd, 2005 at 10:30 am
Ok, so I had to stop reading about three quarters of the way down this comments section. I’ll be brief, but here is my story in a nut shell:
got very very drunk. gave blowjob to one guy (in a public place). Took him and friend home to have threesome. changed my mind when they started acting creepy and violent. they beat the crap out of me and raped me for at least five hours (i lost consciousness at some point and don’t know exactly how long it was). lost a part of my life that night. Will never be the same. have not slept through a night in ten years.
Now, I am your classic case of did everything risky. I took risks all the time then, I was your invincible 18 year old who was getting back at the world by drinking and drugging and having a lot of sex with random people. Stupid, yes.
I will never stop blaming myself for this night. Never.
And conversations like these enforce the fact that it was my fault. Everytime I read, “she was in her house when it happened,” or “it was my best friend” or “it was my boyfriend,” and then everyone jumps up and says “SEE? It could happen anywhere, she didn’t do anything wrong.” Well, all of that reinforces the fact that my rape was partially my fault. It was not my boyfriend. I was not sober. I was not at home. I could go on.
So conversations like this one are very harmful to people like me. And everyone who thinks that it’s just a statistical fact that women who don’t get drunk and give blowjobs to strangers are less at risk of rape may be technically “correct” but they perpetuate this conversation and make me want to die all over again.
Right, wrong or indifferent, women should be allowed to grow up and make all their mistakes and go through all of their growing pains without the added risk of men raping them. End of story.
This comment was written by HC.Report this comment to the moderators
November 23rd, 2005 at 11:34 am
Jesurgislac, while that might be a valid point of view from the perspective of stranger rape, I don’t think it *nessecarily* applies for aquaintance rape.
As Robert points out, people have sex all the time. Very few of them, each time, enter into a dialog about “So, is it okay if I do this? how about this? Can I penetrate? Is that okay?” each and every time.
Seriously, if you are currently involved in a long term, consenual, sexual realtionship, you probably don’t ask those questions very often, if at all, anymore.
When two people are beginning the sex act and one does not either vocalize or physically indicate that they want to stop, consent is *probably* considered to be implied. To proceed past that point because YOU want to irrespective of what your partner has indicated is definately rape.
To have one partner “go along with it” even though they don’t really feel like it, but NOT to be honest with his/her partner about their feelings is (unless there are extenuating circumstances), probably NOT rape.
For someone to have sex and decide afterwards that they regret it and it was a mistake, also isn’t rape.
Unfortunately, people tell the truth, people lie, sometimes they do both, and the legal system is left with the unfortunate and difficult task of deciding who, if anyone, is criminally culpable in these situations. Robert does make a valid point: the accused rapist’s state of mind is a part of his or her defense. What the judge and jury have to decide is if his state of mind is realisitic, given the evidence. Just because something is regrettable doesn’t mean the accused person was criminally culpable, and the justice system has to take that into account.
This comment was written by wookie.Report this comment to the moderators
November 23rd, 2005 at 12:01 pm
His state of mind? Please. He can lie about his state of mind.
Not that he would ever do that, oh no.
This comment was written by ginmar.Report this comment to the moderators
November 23rd, 2005 at 12:02 pm
Not really. His belief is an important piece of evidence, and he can and certainly should bring this up in his defense. But it’s hardly a slam/dunk. We need to inquire what the basis for this alleged belief of his was, and whether a reasonable person in his position would share that belief. Verbal exchange is helpful but not necessary, but we’re not giving a free ride to every sociopath who holds weird “beliefs.”
Good point, to the same effect.
Indeed. A good summary.
Those of us who are out here in the trenches trying to make this society work have to deal with a lot of facts which are inconvenient to people who don’t have that job. Like the fact that people, both men and women, sometimes lie their heads off.
I would be even more interested in having sat through the trial. The jury did their best, given the evidence they had, I’m willing to assume. What I’m not willing to assume is that I, who did not hear any of the evidence first hand, know more than the people who did. Myself, I think the jury was wrong, but I recognize that that opinion of mine is wholly incompetent.
Here’s the real problem. And that is the infamous double standard, which is alive and well.
Everyone concedes in such a case that sex was had. (This is fairly easy to establish.) If sex was had, the woman is a “slut” whereas no onus attaches to male behavior absent proof beyond a reasonable doubt that he raped her.
I’m thinking of a conversation I heard recently on daytime TV. (I had the flu, and had no energy for anything else.) It was one of these paternity cases, where she’s asserting he’s the father of the baby, and he denies it. He said, and I quote, “Well, we had sex on the first date, she’s nothing but a slut!”
And I’m thinking, if so, what does that make YOU?
This comment was written by Susan.Report this comment to the moderators
November 23rd, 2005 at 12:11 pm
His state of mind? Please. He can lie about his state of mind.
That’s true, he can. So? People can lie about anything. That leaves us with the courts trying their best to exercise judgment and discretion, and figuring out whose story makes sense.
If you are suggesting that we move to a standard of accepting only objective physical evidence, then you are arguing for a significant reduction in successful rape prosecutions.
This comment was written by Robert.Report this comment to the moderators
November 23rd, 2005 at 12:36 pm
Very few of them, each time, enter into a dialog about “So, is it okay if I do this? how about this? Can I penetrate? Is that okay?” each and every time.
And this probably explains why so many rapes go unreported - because boyfriend/husband, having known his girlfriend/wife for whatever length of time is needed, just stops asking and starts taking. The “we’re in a long-term relationship” rape defense, you might say.
Verbal exchange is helpful but not necessary, but we’re not giving a free ride to every sociopath who holds weird “beliefs.”
The idea that only sociopaths rape is well past its sell-by date. As Robert just described (and I quoted) nice, normal boyfriends/husbands rape.
This comment was written by Jesurgislac.Report this comment to the moderators
November 23rd, 2005 at 12:47 pm
They do indeed. But someone in a long term relationship who is so far out in left field that he hasn’t figured out, under normal circumstances, that the woman doesn’t want to do this, is properly called a sociopath. A person who does this cannot reasonably be characterized as “nice” or “normal.” Nice, normal men do not rape, get it?
Your analysis doesn’t hold up. The buyer of stolen goods will be nabbed because a reasonable person under these circumstances would know the goods are stolen. If I go to Good Guys and buy a stereo, and it later turns out that Good Guys stole it, I’m off the hook, because not only did I intend to buy a legal stereo, a reasonable person in my position would think that was a legal stereo.
If a man engaging in sexual intercourse reasonably believes that the woman consents, he’s not a rapist.
Well said. In rape (and, buying stolen goods, and many other crimes) the state of mind of the accused is relevant indeed. Needless to say, we don’t have to take the guy’s word for it, though. We apply a “reasonable person” standard.
This comment was written by Susan.Report this comment to the moderators
November 23rd, 2005 at 12:58 pm
Sorry, Robert but the fact of the matter is men get believed and women don’t. Work on that first. Oh, wait, it’s called feminism. Never mind.
This comment was written by ginmar.Report this comment to the moderators
November 23rd, 2005 at 1:00 pm
But someone in a long term relationship who is so far out in left field that he hasn’t figured out, under normal circumstances, that the woman doesn’t want to do this, is properly called a sociopath.
I’m doing what I hate–going slightly OT here. But I just want to point out that you don’t have to be a sociopath to feel entitled to take what you want, no matter what your partner says. A sociopath has no empathy for anyone, they have little or no attachment to anything or anybody (including themselves). Narcissists do this as well (they have attachment to themselves, but little to anyone else), and nice, people who are otherwise empathetic and “normal” are also capable of this, or other crimes. If you are raised with the idea–or if you grow up in a society that often imparts the idea–that a specific group of people is inferior to you, should defer to you, and/or count less than you, you’ll be that entitled. So a wealthy person may be empathetic and kind, but may still bust their company’s union or lay their employees off or be a tyrant of a boss and provide godawful working conditions. A normally nice, compassionate philanthropist may treat the waitstaff like shit and expect the cleaning crew to go above and beyond for little money. And a man who grew up around the attitude that women don’t count as much, etc. may rape.
Plenty of abusers and rapists are seen as nice, normal people. And they even show/have empathy for others. They just don’t extend it to their partners.
This comment was written by Sheelzebub.Report this comment to the moderators
November 23rd, 2005 at 1:02 pm
Now I’m probably going to be assassinated for this one too, but you know, intercourse isn’t just the male “taking” something from the woman. News flash, we like it too.
Men are or should be well aware of this, one would hope.
Now if you-all feminists assert that I’m not having a good time too, I’d refer you to Queen Victoria, who is said to have just laid there, looked at the ceiling, and thought about the Empire. (I don’t believe this story, by the way.) And if you don’t like it, I’d advise you most earnestly to stop doing it. And if you’re married to a man, divorce him.
Speak for yourselves. I like it a lot.
In a long term relationship, let alone a marriage, as opposed to the fanged guy who springs out of the bushes and whacks you over the head, we’re talking about communication. Can we talk? Do we know where everyone is? Can we really be in such different places that he thinks she wants to do this and she thinks it’s rape? OPEN UP YOUR BEAKS, LADIES! Is this guy just making assumptions in the absence of evidence?
I really do think women have some sort of responsibility here to communicate their preferences. If a husband thinks his wife of many years is agreeable to sexual intercourse, doesn’t ask every single time ahead of time (how crazy is this?!?), and she never tells him, well, we have a problem here the law cannot solve.
If you clearly say NO, that’s a different case. But the quotes above address a situation in which you don’t. If you don’t want to do it, SAY SO IN NO UNCERTAIN TERMS.
This comment was written by Susan.Report this comment to the moderators
November 23rd, 2005 at 1:15 pm
Well, yes, you do have to be a sociopath to “feel entitled to take whatever you want, no matter what your partner says.” This is normal, acceptible behavior? (Acceptible to whom??) Forget sex, do we give him access to her bank account? Narcisists are a subclass of sociopaths, so saying that some of these people are narcisists proves my point, not yours. I don’t know where you hang out, but “nice, normal people” where I live do not engage in such behavior. No, not even once.
They may be seen as nice, normal people, but that is an illusion. (Many sociopaths seem normal, until you get to know them.) They are not. Actually, men who have intercourse with women (or, other men) when they know their partner does not consent are not only sociopaths, they are criminals.
It does no good to anyone to pretend that such behavior is “nice”, “normal” or “acceptible.” It needs to be treated as what it is, criminal behavior.
This comment was written by Susan.Report this comment to the moderators
November 23rd, 2005 at 1:25 pm
acceptAble, sorry, I am a terrible speller. :(
This comment was written by Susan.Report this comment to the moderators
November 23rd, 2005 at 1:26 pm
hey Susan, call me crazy, but I like sex too. **AND** I ask my girlfriend each and everytime if she is OK with having it.
Strange thing that consent issue.
Are you saying that guys are incapable of comprehending that marriage or no, it’s someone else’s body and they need to seek permission, not assume it because nothing is said. What kind of sexist privilege is that?
This comment was written by Q Grrl.Report this comment to the moderators
November 23rd, 2005 at 1:29 pm
Sorry, Robert but the fact of the matter is men get believed and women don’t…
Then why are there rape convictions? A few of them can be explained by preponderance of physical evidence. Most of them are cases of he said, she said. And there are convictions.
Odd that the observed facts and the facts as you describe them don’t mesh. Well, OK, not that odd.
This comment was written by Robert.Report this comment to the moderators
November 23rd, 2005 at 1:39 pm
Well, yes, you do have to be a sociopath to “feel entitled to take whatever you want, no matter what your partner says.”
No.
A ruler who is very nice and empathetic to his family or associates is still capable of being pretty horrible to his subjects. The head of a company may treat his wife like a queen and be very nice and kind to everyone in his life, but is still capable of committing some horrific workplace safety violations and treating the workers like crap. If you believe on some level that you are above and better than a certain group, you won’t feel as badly about taking what you want from them–you’re entitled. It’s situational and dependent upon a sense of superiority and/or entitlement.
This is normal, acceptible behavior? (Acceptible to whom??)
Did I say that? No. Stop putting words in my mouth Susan. It’s tiresome.
Forget sex, do we give him access to her bank account?
I thought you said that sex wasn’t something that men take? But you’re also conflating abuse and rape. Granted, rape is highly likely to happen in abusive relationships, but guys who insist they are very nice–and who have people around them who back them up–have raped. They don’t have to take money from someone’s bank account to do so.
Narcisists are a subclass of sociopaths, so saying that some of these people are narcisists proves my point, not yours.
No they aren’t. It’s a different personality disorder, often confused with sociopathy, or antisocial personality disorder. They may be confused with sociopaths because of the way they act, but they aren’t sociopaths.
I don’t know where you hang out, but “nice, normal people” where I live do not engage in such behavior. No, not even once.
Again, misconstruing my words. I never said that truly nice, normal people do so–only that people who are otherwise nice and normal are capable. See my example above if you need a refresher as to why.
This comment was written by Sheelzebub.Report this comment to the moderators
November 23rd, 2005 at 1:41 pm
Now if you-all feminists assert that I’m not having a good time too, I’d refer you to Queen Victoria, who is said to have just laid there, looked at the ceiling, and thought about the Empire. (I don’t believe this story, by the way.) And if you don’t like it, I’d advise you most earnestly to stop doing it. And if you’re married to a man, divorce him.
Speak for yourselves. I like it a lot.
Oh, red herring! My favorite! I’ll take mine with a dill-cream sauce please.
You know, it’s all about us feminists hating teh sex. Of course.
This comment was written by Sheelzebub.Report this comment to the moderators
November 23rd, 2005 at 1:58 pm
Hey, everyone runs their own relationship like they like it. No blame. I’m glad it’s working for you.
I’ve been married 39 years. We don’t ask every time, because we’re in better communication than that. (Heck, I know what he’s thinking before he knows it, and vice versa.) He knows, I know, all that. No, we don’t just think we know, we really do know. If you guys still need to ask, go for it. Ask away. Everyone is different.
Treating people you’ve never met like shit - while reprehensible - is different from treating the people closest to you like shit. You can do the one and just be a villain; I’d contend that you can’t do the other without being a sociopath. (Or a narcisist, or whatever label. Not Firing On All Thrusters, OK?) Of course being a sociopath does not and should not excuse one from criminal liability. I’m just pointing out that in a psychological - not legal - way, such persons are not exactly “normal.” Not like I like them normal anyhow. People with their heads together, who are still in spite of everything the majority of the population, don’t behave that way.
And in addition to whatever psychological label we want to slap on them, rapists are criminals according to the law.
Some of these people here are not interested in facts, Robert. They have an agenda which doesn’t have a lot to do with what is really going on, except in their own heads.
This comment was written by Susan.Report this comment to the moderators
November 23rd, 2005 at 2:04 pm
Sheelzebub,
People are either nice and normal all the time, even when the going gets rough, or they aren’t nice and normal at all. Being a good person isn’t something you turn on and off like a water tap. In fact, we don’t really find out how good a person is until they’re in a position where being good isn’t easy. Anything else is just PR.
There isn’t such a thing as someone who is “otherwise” nice and normal who engages in rape in his off hours. If he does that, he’s out of the “nice and normal” group. All the time. Permanently.
This comment was written by Susan.Report this comment to the moderators
November 23rd, 2005 at 2:13 pm
Susan: but you know, intercourse isn’t just the male “taking” something from the woman.
We’re talking rape, Susan, not “intercourse”. (”Taking” may still be the wrong verb, I suppose.)
I’d contend that you can’t do the other without being a sociopath.
“Sociopath” is a word with an actual meaning, Susan. It doesn’t just mean “any husband who thinks he’s entitled to sex with his wife whether or not she wants it”, though you are flinging it around as if it did.
In the US, marital rape accounts for approximately 25% of all reported rapes, and between 10% and 14% of married women experience rape in marriage. cite
Sociopaths are estimated to be about 4% of the population.
So, no, Susan: men who rape their wives may sometimes be sociopathic, but mostly, they’re just “nice, normal men” - who don’t bother to ask.
Some of these people here are not interested in facts, Robert. They have an agenda which doesn’t have a lot to do with what is really going on, except in their own heads.
Pot, kettle, black.
This comment was written by Jesurgislac.Report this comment to the moderators
November 23rd, 2005 at 2:23 pm
I don’t want to argue about the exact psychological definition of “sociopath.”
Men who have intercourse with women, whether they are married or not, whom they know or should know are unwilling, are not, by any rational definition, “nice” or “normal”. You may think that’s normal and nice; I don’t.
As I said before, good people are good all the time, not just when it suits them. If they have intercourse against the wishes of their partners, they’re out of the “nice and normal” category all the time, at least by me. Furthermore, they’re criminals according to the law.
Your point was what exactly?
This comment was written by Susan.Report this comment to the moderators
November 23rd, 2005 at 2:41 pm
I’m trying to figure this out.
Is it someone’s position here that rape is “normal” or “nice”? If so, I’d appreciate an up-front statement to that effect, and then we’ll deal with it. Does someone think that the majority of men have raped (or will rape, given the opportunity) and that that fact makes rape “normal” (as in, majority behavior)? Again, an up-front declaration about that would further the conversation.
It is my belief that rape is abnormal (ie, minority) behavior. The criminal law agrees with me, and saddles rape with prison time. Furthermore, both I and the majority culture view rape as unacceptable behavior, for which I would cite again the criminal statutes.
Rape under any circumstances whatever is criminal behavior under the law. It is sometimes a difficult crime to prove, but that does not dilute the strong statement made by the criminal statutes here. If the number of accused rapists we’ve heard about here really are convicted, the law is doing a good job as to those cases.
If many cases are not being reported, we need to work on the reasons that may be so.
But on the evidence it’s crazy to argue that rape is normal, nice behavior.
This comment was written by Susan.Report this comment to the moderators
November 23rd, 2005 at 3:04 pm
Susan: Men who have intercourse with women, whether they are married or not, whom they know or should know are unwilling, are not, by any rational definition, “nice” or “normal”. You may think that’s normal and nice; I don’t.
You probably know men who rape their wives, and you probably think they’re normal, nice men. You undoubtedly know men who have committed rape, and you probably think they’re normal, nice men. That’s the point: rape is a common crime. Men commit it who, to everyone except their victims, appear to be normal, nice men. Making inaccurate judgements about only sociopaths committing rape is about as helpful as assuming that only working-class men beat their wives.
If many cases are not being reported, we need to work on the reasons that may be so.
One reason it is so, is because people like you are all too ready to assume that when a normal, nice man claims he really believed the woman he raped consented, obviously he’s telling the truth, and she’s probably lying to cause trouble.
This comment was written by Jesurgislac.Report this comment to the moderators
November 23rd, 2005 at 3:12 pm
I must have missed it. Where did Susan claim this?
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November 23rd, 2005 at 3:13 pm
This may be true. I may also know men (and women) who are embezzlers, thieves, child abusers, whatever. If I think they’re nice and normal, I’m wrong, that’s all. I don’t know all the facts.
Also, one may believe that the corporation he embezzled consented. People can believe anything whatever, and sometimes do.
But to say that “people like me” believe this is to make a personal accusation. I myself don’t make those assumptions. I don’t know who this “people like me” may be. I can only answer for myself. I don’t make such assumptions. I am ready to believe that anyone whoever may be capable of whatever crime.
Not that I assume that the accusation is equivalent to the conviction. We don’t do it that way here. We believe that everyone accused is innocent until proven guilty. But I’m ready to listen to the evidence.
You don’t know me, Jesurgislac. We’ve never met. Aren’t YOU making a lot of unfounded assumptions about me?
This comment was written by Susan.Report this comment to the moderators
November 23rd, 2005 at 3:18 pm
“People like you.”
I get it. I think. I, and everyone “like me” (whoever that may be) are condemned out of hand. The poster knows all about our opinions. Before we have a chance to speak for ourselves, even.
I keep repeating myself.
Men who have sex against the wishes of their partner are rapists. Rape is a crime in my jurisdiction, which makes rapists criminals.
This comment was written by Susan.Report this comment to the moderators
November 23rd, 2005 at 3:20 pm
I agree with Susan and with anonymous - the “people like you” comment was out of line.
Although not as bad, this comment by Susan:
Was also out of line.
Please, let’s try to continue this discussion without refering to the other posters on “Alas” in derogatory ways such as “these people” or “people like you.”
This comment was written by Ampersand.Report this comment to the moderators
November 23rd, 2005 at 3:23 pm
Susan, I think there are two different understandings of the word “normal” going on in this thread.
You’re saying that being a rapist is not “normal” in the sense that most men don’t rape. That’s true.
Others are saying that rapists are “normal” in that, apart from committing rape, most rapists appear to be - and are accepted as - nice, normal guys. I think that’s true, as well. Nothing about that denies that rape is a criminal act.
This comment was written by Ampersand.Report this comment to the moderators
November 23rd, 2005 at 3:23 pm
Sorry, Ampersand. I don’t want to descend to personal attacks here. I was wrong.
This comment was written by Susan.Report this comment to the moderators
November 23rd, 2005 at 3:29 pm
Well, there’s obviously (to me at least) a big difference between looking normal and really being normal.
The biggest creeps in the world often look “normal.” In fact, when serial killers are apprehended, the most common comment from the neighbors is, “Gee, he seemed so normal.”
Yes, he probably did. But only a lunatic would argue that killing 43 nurses in a row and storing their bodies in your freezer is “normal” behavior.
Behavior for the neighbors often confuses. People can hold it together for short periods without really being normal, or sane even.
I fully recognize, as I think I’ve said at least three times, that people who look “normal” may nevertheless be rapists. However, I resist the conclusion that being a rapist is actually “normal” (as in, majority) behavior.
Thank you for your clarity here.
This comment was written by Susan.Report this comment to the moderators
November 23rd, 2005 at 3:30 pm
Ampersand: Please, let’s try to continue this discussion without refering to the other posters on “Alas” in derogatory ways such as “these people” or “people like you.”
You’re right, Amp. I apologise.
This comment was written by Jesurgislac.Report this comment to the moderators
November 23rd, 2005 at 3:34 pm
Susan: However, I resist the conclusion that being a rapist is actually “normal” (as in, majority) behavior.
Ah. Well, if you are redefining “normal” to mean “51%”, no, being a rapist isn’t “normal”: I doubt if 51% of men have committed rape. What word do you use, then, to describe the behavior of a large proportion of the population, more than 10%, less than 50%? That is, the proportion of the male population who commit rape, the proportion of husbands who rape their wives, and of the general population who justify rape and claim that it’s reasonable enough under some circumstances, or that the victim is actually responsible?
This comment was written by Jesurgislac.Report this comment to the moderators
November 23rd, 2005 at 3:48 pm
HC, I’m so sorry for what happened to you.
It was not your fault.
You did not deserve what happened.
You do not deserve to feel like it was your fault.
You do not deserve to feel suicidal for what happened.
It was NOT your fault.
You may never be the same but I hope that in time you will be able to put it aside. Not forget, because I suspect from my own experience that this is impossible. But please stop telling yourself that you are to blame, even in part. There are wonderful men in the world who would never have done what those men did that night. There are wonderful women who will support you. There is a lot of good in the world.
I have dark days when I feel hopeless and cry, wondering what it was that I did that made my lover think it was OK to rape me. Days when I feel fearful and think I see him in the street, or in a shop. But most days are good. Most days I do not have symptoms of PTSD and I do not feel depressed. Most days I recognise that it was his choice and I had nothing to do with it. The act was something he chose to do. I was there, but I did not choose to be part of it.
I choose not to feel guilty. He chose to rape me.
I, too, will never be the same. These days I am stronger. Growing stronger as time passes. Not physically stronger than him, that would never be possible. I suspect that one day I shall come across him again, perhaps even be put in a position where I am expected to work with him. I shall deal with that if and when it happens, but I shall do it with the support of people I trust. It will be OK. I believe that. I have to. It took me a long time to trust again and I regret that I no longer trust people absolutely… but that, too, makes me stronger. In a few years I may even be formidable. This makes me smile.
HG, try to identify all the myths and faulty logic that makes you feel as though you did something wrong. Break them down. Re-wire your thinking. You were not to blame. You are not to blame for feeling the way you do or thinking the thoughts you have. You cannot make other people think differently but you can change yourself. Take what power and choices you do have. You can make yourself stronger than you ever thought you could be.
I never sought counselling but I think I should have because I think it would have made me feel better earlier. It would have helped me to hear from others that they didn’t think it was my fault. But I didn’t want to be considered a victim. And I couldn’t even think about it without crying for months.
It was a really shitty thing that he did that day.
I’m sorry I was there at the time.
I’m sorry you were there when those guys did those things.
A big hug to you.
This comment was written by Barbados Butterfly.Report this comment to the moderators
November 23rd, 2005 at 3:52 pm
I’d like to know where you’re getting your numbers from, Jesurgislac, before we go on about what’s “normal.” Do have any hard (ie, peer reviewed, published) data to suggest that a substantial proportion of married men, say, have raped their wives? Or what you describe as a “large proportion”? I’d be interested in seeing your citations.
You have made that statement (that it is more than 10% and less than 50%). Where do you get this idea?
This comment was written by Susan.Report this comment to the moderators
November 23rd, 2005 at 3:55 pm
Jesurgislac, I could claim it’s 2%. Or 3%. I could make up any number I liked.
You victims, if it’s you it was 100%. I’m so sorry.
But I’m not willing to blame all men or most men or 20% of men or most normal-looking men - or anyone, really, except the actual perpetrator.
This comment was written by Susan.Report this comment to the moderators
November 23rd, 2005 at 3:57 pm
Jes,
I think you are slightly overestimating the number of rapists, and underestimating the number of people who think rape is understandable under some circumstances (but don’t do it themselves).
The statistics I have seen put the percent of men who rape closer to the 5-8 % category, and even the marital rape statistic can be read this way, if we assume that men who rape their wives tend to get divorced, remarry and rape again (which would not surprise me).
However, I agree that the 5-10 % category is a very different category from the 1-2% category, although it isn’t far off from the sociopath 4% estimate (particularly if we add in the entirely separate category of narcissists).
However, what sociopaths choose to do is still certainly socially influenced, as very few of them become murders, while even border-line and non-sociopaths choose to become rapists. So the question of what things in society make sociopaths, borderline sociopaths, and narcissists feel that they can reliably get away with rape is still an important one.
There is also the question of whether the percent of sociopaths and narcissists is inherent, or whether it is responsive to social influences.
This comment was written by Charles.Report this comment to the moderators
November 23rd, 2005 at 4:05 pm
Charles, all good.
But whether it’s 2% or 10% or whatever it is, these folks need to be restrained, by force if necessary. Whether it’s their “fault” or not, whether they are “sociopaths”, “borderline sociopaths”, just plain “weirdos” or whatever. I’m sure you’d agree.
However. I’d be interested in hearing where you get your “5-8 percent” figure, just for curiosity.
My point is, this kind of behavior is not “normal”, nor is it all that common, if your figures are accurate (and they sound about right to me). But even if it is common, rape is a crime; rapists are criminals. Criminals should be apprehended and restrained.
Are we arguing here? Why?
This comment was written by Susan.Report this comment to the moderators
November 23rd, 2005 at 4:19 pm
HC,
Echo what Barbados Butterfly said. It was not, and never will be, your fault. I would suggest counselling for you to go through your feelings in a safe place. You may find that group counselling is less intimidating. It is never too late to begin to heal.
This comment was written by natural.Report this comment to the moderators
November 23rd, 2005 at 4:30 pm
Susan,
Absolutely no one here is arguing against that part of your argument (rape is a crime, and should be punished).
I think what people are arguing against is the idea (which I see as strongly implicit in much of your arguments here) that rape is simply a crime, and one committed by people who are basically wrong in the head, and that therefore there is not a whole lot that can be done about how many men rape. If that is not an idea you agree with, and you think that certainly the number of men who choose to commit rape is a product of the society, and not just the inexplicable wrongness of some people, then it doesn’t get conveyed very well in your writing.
I’m taking my numbers from stuff Amp has written previously. Looks like I inflated the 4.5% to 5 - 8%. Not sure if I had any basis for doing so (like having seen something else that said 8%). The 10-14% women raped by husbands Jes was mentioning is probably from a study Amp wrote about here.
Actually, simply searching this site for “rape statistics” will turn up a trove of articles about rape statistics sources and numbers, and Amp is an extremely reliable source when it comes to treating studies fairly and cautiously, in my experience.
This comment was written by Charles.Report this comment to the moderators
November 23rd, 2005 at 4:41 pm
Sorry, Robert but the fact of the matter is men get believed and women don’t…
Then why are there rape convictions? A few of them can be explained by preponderance of physical evidence. Most of them are cases of he said, she said. And there are convictions.
Odd that the observed facts and the facts as you describe them don’t mesh. Well, OK, not that odd.
Robert, what the fuck planet are you on, anyway? Rape is the most underreported crime there is, therefore the rate of conviction is shamefully low. You seem to care a whole lot more for sneering at feminists than in actually listening to what we say.
This comment was written by ginmar.Report this comment to the moderators
November 23rd, 2005 at 5:09 pm
Rape under-reporting is a shameful thing, and I am inclined to agree with feminists who lay the blame for that on justice systems that are hostile to women’s rights and social structures that punish women for reporting rape, instead of punishing the men who commit the crime.
But when rapes are reported, the rate of conviction is quite high - higher than for crimes like assault by almost a factor of ten. (Thanks to Piny for posting the link to this very illustrative set of graphs).
This conflicts with your stated belief that men are believed and women are not. In a world where that is true, the conviction rate for rape is nearly zero. The conviction rate for rape is much, much higher than that - it’s half the rate for murder, and as any attorney can tell you, it is enormously easier to make a case against a murderer than a case against a rapist.
Do you have an idea for how to reconcile the conflict between your stated belief and the empirical data? You are angry at me for not listening to feminists - but you are a femininst, and I am listening to you, and what you are saying is contradicted by the data.
This comment was written by Robert.Report this comment to the moderators
November 23rd, 2005 at 5:58 pm
Interesting charts.
The rape conviction chart at first suggests that British juries have been tending to believe women less, while US juries have been tending to believe women more, but both trends are mirrored in the assault, burglary, and car theft trends. Whatever is causing US juries to convict more and British juries to convict less is clearly not specific to rape (actually, looking further, it may simply be lower rates of charging at all, so it may be a police issue, not a jury issue).
I started to write that you also needed to take into account cases in which a complaint was made to the police, but no charges were filed. Looking more carefully, those cases are included. Only the massive number of cases in which no complaint is made to the police, and the smaller number in which a complaint is attempted, but turned away by the police, are ignored.
However, I think women frequently are advised not to make a police complaint because there is little or no chance a case like theirs would win at trail, so the disbelief of women does push down the number of women going to the police.
Rape charging rates are so extremely low, that they can pretty much only include the most obvious and convictable of cases, where physical evidence of resistance are present, or the rape is between two people where lack of consent is likely to be obvious (mostly stranger rape). Marital or date rape without non-sexual physical violence is unlikely to be prosecuted (because women will not be believed in those circumstances) so they don’t have an effect on conviction rates.
If women were reliably believed when they press charges for rape, the conviction rate would be closer to 100%, and the frequency of charges would be much higher. And they would press charges far more often.
Obviously, ginmar’s statement can be read as being an absolutist statement, but that is not the only way to read it. Instead, it can be read as a generalized statement: “Women are more likely to be disbelieved, men more likely to be believed. When there is no evidence but their statements, and both appear to be reasonably credible people, the man will reliably be believed at the expense of the woman being believed.” I wouldn’t say she has provided strong evidence for this position, but rape conviction rates alone are certainly not a convincing argument against it.
To read her otherwise is to fail Amp’s standard of civility (unless she makes clear that she wishes to be read otherwise).
This comment was written by Charles.Report this comment to the moderators
November 23rd, 2005 at 6:10 pm
If women were reliably believed when they press charges for rape, the conviction rate would be closer to 100%
Examine your assumptions there.
Instead, it can be read as a generalized statement…To read her otherwise is to fail Amp’s standard of civility
I wouldn’t want to do that. Ginmar, were you making the rather absolute statement that I assumed you were making, or were you making the rather weak statement that Charles has interpreted?
This comment was written by Robert.Report this comment to the moderators
November 23rd, 2005 at 6:40 pm
HC, I hope you’re in therapy so you can stop thinking in that pattern (blaming yourself).
This comment was written by anon y mouse.Report this comment to the moderators
November 23rd, 2005 at 6:48 pm
HC: addendum to my last comment - I just realized that you’re about my age, and I went off with guys alone a lot too in college. No actual intercourse, but I did tend to wander off with them for all sorts of fooling around. I’ve never been raped, and never experienced anything that by any stretch of the imagination could be called rape.
I could say I’ve been very very lucky, and I suppose I have, but everyone should be so lucky. My experience should be perfectly normal. Every 18-year-old should be free to wander off with anyone sie wants to without having to worry about being raped. I know things aren’t like that in the real world. But they should be. Not all men are rapists. Men need to identify the traits that make a man not a rapist and emulate them. Because obviously they’re having no luck doing the reverse (finding what makes a rapist and trying not to be like that).
I did worry, sometimes. But I’ve stopped worrying.
This comment was written by anon y mouse.Report this comment to the moderators
November 23rd, 2005 at 6:49 pm
I don’t want to argue about the exact psychological definition of “sociopath.”
Considering the fact that you don’t know what the exact psychological definition of sociopath is (or antisocial personality disorder), I’d suggest you’d stop throwing the term around to explain away why men rape.
Is it someone’s position here that rape is “normal” or “nice”? If so, I’d appreciate an up-front statement to that effect, and then we’ll deal with it. Does someone think that the majority of men have raped (or will rape, given the opportunity) and that that fact makes rape “normal” (as in, majority behavior)? Again, an up-front declaration about that would further the conversation.
No one here said that rape was nice or normal–kindly read the posts here more carefully. I said–and several others agreed with me on this–that men who appear to be nice and normal to everyone have raped women, including their girlfriends and wives. There have been studies done on men who were convicted of raping their partners, and they did not all rate on any scale of mental illnesss, including sociopathy. What they all share is a sense of entitlement and superiority over women. Not necessarily people in general, but women.
This comment was written by Sheelzebub.Report this comment to the moderators
November 23rd, 2005 at 6:55 pm
I have an idea that the rapist’s sense of entitlement extends farther than just superiority over women. There has to be a lack of empathy in order to intentionally hurt another person, and that lack of empathy would show itself in other places. The man may appear nice and normal to his male friends, but be an open racist for example.
A quick question, what percentage of spousal rape occurs within an also physically abusive relationship?
This comment was written by Mendy.Report this comment to the moderators
November 23rd, 2005 at 7:09 pm
Susan, for a full description of the clinical criterion for sociopthy you should check out this link.
I’m sure quite a few rapists fall into this category, probably most sexual predators. There are others that could be borderline especially if alcohol or drug addiction were involved.
However, there is a large portion of men who rape because they do not understand that what they are doing is rape. They take a woman’s tearful silence as consent, when in fact she is too terrified to speak. Some men still believe that “no” really means “I want to say yes, but I need you to persuade me”, and yeah I can believe there are some that just don’t care what the woman thinks.
None of this excuses the fact that our society lays the burden of proof on the victim — not the DA but the victim herself. That is what needs to change.
This comment was written by Mendy.Report this comment to the moderators
November 23rd, 2005 at 7:20 pm
Well, yes. Criminals are often skilled at disguising their real nature by appearing to be “nice”. This is an appearance only.
The anger and personal attack in this post seem to me to be off topic. Even if Robert is the worst person on the planet, the topic of discussion remains what it is. Try making sense. What evidence do you have that “rape is the most underreported crime there is?”
Well, I don’t know whether criminals are “wrong in the head.” That would seem to excuse criminals, which I do not wish to do. I would say that criminals should be restrained, so that the rest of us do not have to deal with their behavior in the big picture. No society I know of has succeeded in preventing all criminal behavior, but maybe you are The One who has the answer? Go for it. We’re all on the edge of our seats.
Rape is a crime, in my jurisdiction. Accordingly, rapists are criminals. However, our legal system assumes that the accused is innocent until proven guilty beyond a reasonable doubt. Even under these restraints, hundreds of convicted rapists are sent to prison every year. Do you have some problem with this analysis? And if so, what is it?
I don’t know what can be done about the number of men who rape. (Or, the number of men and women who murder, steal, whatever.) This question is a bit over my head. A lot of people who are a lot smarter than I am have pondered this, and not come up with anything much, but we’re all eager to hear what you might have to say about preventing criminal behavior.
I suppose that the number of men (and women) who commit murder is also “a product of society” as you put it (though all societies I know of have produced people like this), and if we could somehow change the society so that we no longer produced criminals of any sort, this would be great. Again,we await your insights on this point.
This comment was written by Susan.Report this comment to the moderators
November 23rd, 2005 at 7:29 pm
Mendy, I hear you, but our legal system assumes that the accused is innocent until proven guilty beyond a reasonable doubt.
I know you wish rape could be an exception, but think for a minute what our society would be like if the accused of rape (or of any crime) were guilty until proven innocent. Think what powers the police would have. We don’t want that. Or I don’t want that.
This comment was written by Susan.Report this comment to the moderators
November 23rd, 2005 at 8:10 pm
I understand both the concept of reasonable doubt and “innocent until proven guilty.”
What I, and I believe most on this thread take exception to, is the underlying idea that what a woman wears has any bearing on her ability to consent. Or that how many sexual partners she’s had previously bears on her ablility to consent.
Oh, and you cannot introduce an accused prior bad acts unless you can prove a Molono (sp) exception that is the evidence is used to establish the accused’s MO. Now, I would ask why any rape victim’s previous consenual sexual encounters should be used in defense of an accused rapist? How would her previous sexual history prove or disprove her giving consent on this occasion? It seems to me that the use of these tactics is evidence of defense attorney’s playing on underlying societal beliefs…ie: “she was wearing a thong and is a slut.” “She’s had 50 partners and is a slut.” “And if she was a slut then she was asking for it.”
These are the attitudes that I want to fight. What bothers me is that there is an unlevel playing field in a rape case. Ie: her sexual history is relevant, but his is not even if it establishes pattern because it would be deemed “too predjudicial”.
I’m all for protecting an accused person’s Constitutional rights, but I am not for raking the victim’s over the coals to do it.
This comment was written by Mendy.Report this comment to the moderators
November 23rd, 2005 at 9:04 pm
HC,
Thankyou so much for sharing your story with us. I can only guess at how difficult it must have been to do so.
Rape survivors are not statistics and some people need reminding of that.
The people responsible were the men who raped and tortured you. It doesn’t matter what risks you took, they are the ones who should answer for what they did.
I’d offer you a hug but I’m not sure if you’d like that…
This comment was written by Seranvali.Report this comment to the moderators
November 23rd, 2005 at 10:43 pm
Well . . . how about if the defense is claiming that the marks on an accuser’s wrists and ankles were from a consensual BDSM encounter, while the accuser testifies that she’s not into BDSM, and would not consent to that manner of sexual activity. In that case, introducing evidence that the accuser is, in fact, into BDSM seems absolutely proper. NO, NO, NO, NO, NO I’m not saying that “being into BDSM” implies consent for “any and all BDSM-type activities” in any way whatsoever, but if there’s evidence that demonstrates that the testimony of any of the primary parties is false (and thus would tend to draw their other testimony into question), it needs to be presented.
This is, of course, true for the accused as well.
If a white man is accused of raping a black woman, and part of his defense is that he’s never been interested in black women, and doesn’t find them attractive, and thus wouldn’t have been interested in sexual contact with one, it’s perfectly appropriate to bring up the fact that his last 35 girlfriends were all black. (and yes, for the purposes of this example, I’m ignoring that rape is a crime of violence, not sex, and thus not being attracted to a victim isn’t necessarily a barrier for the rapist. Relax, it’s just an example)
Now, I know that this isn’t how ‘past sexual histories’ are usually used in court, and yeah, I know they’re used to demonize the accuser and try to terrify them into not testifying, and yes, that’s a very very bad thing, and it needs to be addressed. I’m just pointing out that there are legitimate reasons for their use as well, and it’s not just a slam-dunk against.
This comment was written by Anonymous.Report this comment to the moderators
November 23rd, 2005 at 10:55 pm
So, Robert, any reaction to comment #95? Just curious.
This comment was written by Jake Squid.Report this comment to the moderators
November 23rd, 2005 at 11:39 pm
Thanks for the cite. What other reaction should I have?
This comment was written by Robert.Report this comment to the moderators
November 23rd, 2005 at 11:54 pm
Glaivester:
Re #113:
That is a difficult question. I’m not sure if the civil trial system would work, and I admit that I don’t have an easy solution to the problem I mentioned (that either the rapist goes to jail, or she is a false accuser).
One possible solution could be closed trials. That is, the trials would be mostly behind closed doors. It would be for the benefit of the accuser and the accused, because there are always people who make judgements one way or the other, and why exactly would the popular opinion, as manipulated by (possibly) biased news coverage in search for shocking (and profitable) stories get to decide anything (not the trial, but the popular judgement, basically there are two trials, the actual legal one and public opinion)? Essentially, why should I have the right to know so much personal stuff about the alleged victim, or the alleged criminal? Perhaps the stuff should be opened for the public eye after the fair trial. I’m not sure if such suggestion is workable, while maintaining the principles of free speech and non-censorship.
Also, Richard Dawkins (I’m not his biggest fan, but he has written some good stuff too) has made a suggestion about “double-blind” jury. Two juries operating in the same case, and if both independently come to the same conclusion, case closed. If not, new juries. Obviously, such solution requires in some cases lot of work, but it would make sure that a hugely biased jury would not blow a trial that “should have gone the other way”. (I’m not sure there would be many juries in the world who would have found O.J. not guilty, for example.)
Problematic stuff, and more so for someone like me who isn’t a lawyer.
This comment was written by Tuomas.Report this comment to the moderators
November 23rd, 2005 at 11:58 pm
That was too abrupt. Let me expand.
I asked Jesurgislac for cites of something she presented as being normative; she came up with a thirty year old case. You have a cite of a case…from 15 years ago, which was followed up by the same guy getting nailed to the wall. Basically, I’m less than impressed with the level of evidence of a wave of incredibly lame excuses being accepted as indicative of valid consent by the patriarchy’s courts.
Does it happen? Undoubtedly. Am I being blown away by the level of it? Nope.
Happy Thanksgiving!
This comment was written by Robert.Report this comment to the moderators
November 24th, 2005 at 1:20 am
Susan,
So yes, the central disagreement does exist, and it is not over whether rape is a crime.
I don’t feel that I have any particularly exceptional insight into what can be done to decrease the rate of rape in this society. However, I tend to agree with the many ways that have been mentioned by many many other people in the hundreds of posts so far. The society needs to be changed to be less accepting and supportive of rape. Rape needs to become a crime that is more reliably punished, and for which there are far fewer apologists (and yes, I know you think there aren’t any apologists for rape, even though there have been several on Alas on various rape threads). How to do that is a question on which many many people have put a lot of thought and effort. Effort which you seem to find ridiculous.
That seems to me to be the central disagreement between you and many other posters here.
This comment was written by Charles.Report this comment to the moderators
November 24th, 2005 at 1:52 am
We just - 2003 - changed the law on consent for England and Wales to eliminate what was being read as consent by default in cases where the victim was in no state to consent or not consent.
Then this hapens …
http://www.guardian.co.uk/uk_news/story/0,3604,1649328,00.html
Robert - is that recent enough for you?
Susan - http://www.opsi.gov.uk/acts/acts2003/30042–b.htm - the Act is here.
This comment was written by maureen.Report this comment to the moderators
November 24th, 2005 at 2:02 am
Susan Writes: But whether it’s 2% or 10% or whatever it is, these folks need to be restrained, by force if necessary.
Except that so long as there is a cultural standard that says that women lie to cause trouble (as you suggested yourself further upthread); and that a husband who rapes his wife must be a sociopath and the man isn’t a sociopath and so he couldn’t have raped his wife (as you were close to saying upthread); and that what a woman is wearing, or how many previous partners she’s had, or whether she previously consented to have sex with the man, has any bearing on whether she consented to have sex with him this time; and that, in any case, rape is something women want - as strongly suggested by the many jokes about rape prevalent in this culture - so long as the US, or the UK, has a culture friendly to rape, rapists will neither be restrained nor feel themselves restrained.
Are we arguing here? Why?
You have persistently argued that victims ought to be disbelieved, that rapists ought to be believed, and that only sociopaths rape their wives. That’s why we’re arguing.
This comment was written by Jesurgislac.Report this comment to the moderators
November 24th, 2005 at 3:57 am
maureen,
the second link doesn’t work.
This comment was written by Charles.Report this comment to the moderators
November 24th, 2005 at 4:19 am
Sorry about that!
Here’s the link to the preamble page - http://www.opsi.gov.uk/acts/acts2003/30042–a.htm#end
If - I hope not - you end up having to google for it the act is the Sexual Offences Act 2003 and I found the full text on the above Office of Public Sector Information site.
This comment was written by maureen.Report this comment to the moderators
November 24th, 2005 at 4:25 am
People, I just tested that second link and it does not work. Will see if I can find the text elsewhere but, as they say, I may be some time.
This comment was written by maureen.Report this comment to the moderators
November 24th, 2005 at 6:42 am
If those were the only instances were used in court I wouldn’t be that offended, but you see they aren’t. And it is a fact that you cannot introduce an accused rapists previous activities if no convictions were made. Well, you can’t at least in my state. And that is the problem as far as I see it.
The legal system is very concerned with protecting the rights of the accused, and rightly so, but in rape cases alone, those protections serve to make it nearly impossible for someone to be convicted. For example: If the accused rapist routinely refers to women as “sluts” that could and should be used to show a general dismissive attitude toward women. But that wouldn’t be introduced either.
I’m just saying that in order to fix the legal system we first need to look at society’s general attitudes about women.
This comment was written by Mendy.Report this comment to the moderators
November 24th, 2005 at 6:52 am
Gee, Robert, are you actually asking me to clarify what I said instead of making one of your offensive assumptions?
Pointing to conviction rates for rape is stupid. As you yourself said, the report rate for rape is shameful. The latter means that only the rapes that the prosecutor thinks can be prosecuted go to trial. The rapist can avoid leaving DNA by wearing a condom. How come you don’t combine the two facts?
I’ve read too many books and studies and reports about rape to cite them all. You always assume, however, that I and other feminists are talking out of our asses. You do not appear to have read any of the same things that we have, which indicates to me that at least you’re not familiar with the concept of rape or with the feminist study of it. Why, then, are you hanging around on a feminist web site, making snippy remarks?
Men get believed by other men. Women do not. You’re kind of proof of it.
This comment was written by ginmar.Report this comment to the moderators
November 24th, 2005 at 7:00 am
Ginmar,
I agree with everything you’ve said so far, but I think the idea that only men believe other men and only men disbelieve women is too simplistic.
The fact is that during the Kobe Bryant trial as many women as men were blaming the victim for her attack. And just as many women said that she was just doing it for the money.
The problem isn’t just men’s attitudes about this but also other women’s as well. It is a societal problem, and the attitudes of the entire society need to be changed.
This comment was written by Mendy.Report this comment to the moderators
November 24th, 2005 at 9:33 am
Susan,
Well said. In rape (and, buying stolen goods, and many other crimes) the state of mind of the accused is relevant indeed. Needless to say, we don’t have to take the guy’s word for it, though. We apply a “reasonable person” standard.
Okay, the reasonableness standard only works if “reasonable” is objectively defined. In theft cases, we can assume that any reasonable person should find suspect someone selling high end electronics from the trunk of his car.
But, in rape cases the reasonableness of some arguments that juries accept is appaling. For example: A jury found that a woman who wore a sheer lace skirt with no underwear to be “reasonably aussumed” to be giving consent to sex. That is not reasonable. That is evidence of how our society views women as “asking for it” if she dresses in a way that is in the least bit provocative.
People have assumed that women under the influence of GHB or Rohipnol (sp?) that they didn’t willingly take could be reasonably assumed to have given consent, even though they had passed out. And yet, most people will tell you that it isn’t reasonable.
This is what I’m talking about. Underlying (unadmitted) social attitudes affect directly what juries consider reasonable. And demonizing or pilloring the victim of any crime is reprehensible, and yet I don’t see that happening in many theft, burglary, forgery, extortion, or fraud trials. I only see it in rape cases, sexual assault cases, and certain murder trials with sexual components. How is that *reasonable*?
This comment was written by Mendy.Report this comment to the moderators
November 24th, 2005 at 10:22 am
Ginmar, your attack appears to come down on the side of the absolute interpretation of your remark. Were you making the rather absolute statement that I assumed you were making, or were you making the rather weak statement that Charles has interpreted?
This comment was written by Robert.Report this comment to the moderators
November 24th, 2005 at 11:54 am
but I think the idea that only men believe other men and only men disbelieve women is too simplistic
I don’t think anyone said this was an absolute. But it is a lawyer’s truism that women aren’t automatically going to be on the prosecution’s side in a rape case.
“Double-blind juries” and closed courtrooms are fucking stupid ideas, no offense intended.
This comment was written by mythago.Report this comment to the moderators
November 24th, 2005 at 1:51 pm
wow what a controversial topic, first of all I think it is unfair that a victim has her past dragged through the mud for all to see, to show a pattern of behavior or whatever but a accused rapist gets all his past protected, why is that? how fair is that?
if the accused is so innocent why the cover up? if there is a definitly pattern to his behavior or attitude the victim has as much rights as he does if she is dragged through the mud so should he (or whoever it is).
it has only been a few decades since woman started to have more say in their lives, before back in the 1900’s and 1800’s and probably all the way back through human history, woman had two choices in life, except where there were exceptions, she could be a wife, mother or she could be a prostitute.
she was given the position that since she is weaker, she must be inferior, talking of course about a time period before technology, where physical strength was a necessity for survival. men generally are stronger, physically, and faster, so naturally these traits are honored and encouraged.
and woman were there for the men’s needs, servants as it were, (this is the way they were viewed and treated) if you were a man you had many options, you could be a carpenter, a horse trainer, a farmer, a ship faring guy, during times when there were ships, you could be a rancher, you could go where you wanted when you wanted, especially when this country was founded if you were a white male, so if you were female, black hispanic or whatever you were dirt or just a servant or both.
you also could pretty much do what you want without conscious or punishment, except for those behaviors at adversly affected other males, such as murder, theft that sorta thing, but if you wanted to neglect your family by traveling, leaving the wife and children to do all the tending you could, if you wanted to run around with your friends for days on end and neglect your family emotionally, physically (such as chopping wood or helping with repairs, or whatever) and even spiritually, you were not chastised for that.
but let a woman do the same thing and she is a terrible person for neglecting her husband or children to go out and have fun, or if she wanted to work outside the home that was afront to the husband and society standards and no one would hire her, heaven forbid that a woman has any freedom to enjoy life the way she wants too. (double standard as it were)if she was forced by circumstances to prostitute herself to avoid starving she is shunned as a wicked person, even tho socieity is to blame for that by not giving assitance or other alternatives.
if you had a little money you could own slaves in some areas, even today slavery is still in force. and have them do all the work for very little in return, even not feeding them enough. no one would fault you.
that attitude has not deminished as much as we would like it to, it is still carried from father to son, especially in households where the husband was treating his wife like a servant and person of no account, naturally children are going to grow up with the same attitude.
rape is no exception, a bad attitude is what causes a man (or some others to rape) to rape in the first place, and with society being so lack about teaching people, including men that they are responsible for their own behavior, and not someone else, as long as we excuse boys, (you know boys will be boys) or men they will the mentality and belief that they are entitled, but to avoid going to jail will imagine all kinds of things that to them means consent, and open window is not one of them, but some will try that
if a man wants to rape you he will make something up in his imagination, you know see what he wants to see regardless of the facts. I am sure you all have met people who see only what they want even when the facts are starring them right in the face? you can show physical evidence that the earth is round, but some people will belive it is flat no matter what (this is only an example) they just don’t want to believe it for whatever reason,
you can tell a rapist that an open window is not an invitation all you want he will not see that he sees only what he wants to see other wise he would have to admit he was wrong and heaven forbid a guy like that wouldn’t want to have to take full responsiblity for his crime.
, I can’t see how an open window would wash considering that half the neighborhood probably had their windows open because of the heat.did he rape any of those people? so the courts system really needs to clean up it’s act and if you do to one, expose past deeds of the victim then the accusor has no right to have his hidden.
that sense of entitlement has gotten to be addressed children need proper examples, and violators sent to jail or worse, that you are not entitled to have sex or steal their money of anyone just because you want it, they need to be taught that you have no right to hurt others just because you feel superior to them in one way or another.
I agree too about the corporations (the big shots in government and in companies too) do tend to look down on the poor man, and their workers are considered only a commodity to be used up, with minimal expense as possible, and that they are not human beings with the same rights as they do, this is something that have to conjure up in their minds to ease their consciousness (if indeed they have any) because if they didn’t they would feel guilty about exploiting the community in which they operate.
in fact I read a newspaper article that said that most of the ceos in large corporations fit the category of psychopaths, (I guess that means selfish greedy so and so who have no regard for anyone else but themselves, we all have selfish traits but these people take it to extremes to where they end up harming alot of people very severly.)
so this is what I read. I bet these same individuals (those in power one way or another) would think a guy raping a woman was a manly thing to do, of course they don’t call it rape they call it having fun.
RR
This comment was written by roberta robinson.Report this comment to the moderators
November 24th, 2005 at 2:51 pm
As you know very well, I have argued nothing of the sort. It’s kind of a waste of time to have a discussion with you, Jesurgislac. You can go back and read my remarks any time you want to.
Mendy, I’m certainly not arguing that our legal system could not stand improvement, in the area of rape and in every other area too. We’re pretty much trying to do the best we can with what we have to work with, but in a system administered by human beings there will always be miscarriages of justice.
I have not met the accuser in the Bryant case, nor have I ever met Mr. Bryant. All I know is what I read in newspapers, a notoriously unreliable source of information. Did Bryant rape her? Did she consent? Did she “just do it for the money”? I really have no idea. All these things are possible (but not all of them at the same time, of course.) We have courts to sort out questions like this, and a court did. They may have been right, or they may have been wrong. Both happen.
A very wise conclusion.
This comment was written by Susan.Report this comment to the moderators
November 24th, 2005 at 3:05 pm
maureen;
I’m really not clear what happened in the case you’re talking about. It appears the woman in question couldn’t remember anything, and the case appears to have been brought to trial on the basis of the man freely admitting to having had consensual sex with the woman saying she couldn’t remember what happened, but would not have consented.
If you’re unconscious that will be taken as not having consented, and the onus shifts to the accused to prove consent. But she couldn’t remember whether she consented or not, and I’m not sure what they mean by “unconscious”, under cross-examination she seems to admit to having some recollection of what happened. Which would imply consciousness. It seems to me the case was brought upon really thin evidential grounds. What’s nasty is that something horrible has happened to someone, whichever scenario actually took place.
On top of all this there are people worried about women being taken advantage of while drunk, and advocating that “drunken consent” should not be valid.
This comment was written by nik.Report this comment to the moderators
November 24th, 2005 at 4:59 pm
Nik,
I only have information from the media which may or not be true and balanced. With that caveat, what seems to have happened is this. The woman had some alcohol while getting ready for a party - how much we don’t know. When she got to the party she had one drink and suddenly found herself more drunk than she had ever been, also feeling ill. At some stage the man, whom she had not met before, was walking her home. After that she has no memory of what happened. The next day she had flashbacks which she could not make sense of and on day three she sought help from the university welfare people.
When the man was interviewed by the police he said that they had had consensual sex. She says she did not realise that the sexual act had happened until the police told her about it.
So, there is a real question as to whether the woman was able to give consent to sex - either because she was very drunk indeed or because someone had slipped a date rape drug into the one drink she had at the party. I am not an expert here but the pattern described seems to match what I have read.
Under the law as it has been since the 2003 Act, where a doubt is raised as to whether the woman was able to give a valid consent - and it is raised here - then the defendant is supposed to explain how he came to believe that valid consent has been given and can be cross-questioned about it. Instead, the case seems to have been halted before this could happen.
For the case to get to court in the first place then both the police and the Crown Prosecution Service must have believed that the case was strong enough to be pursued.
I’m just a lay person watching from the sidelines but the fact that Vera Baird QC MP - who is an expert here and who helped steer the 3003 Bill through - is making an almighty fuss and the fact that both the Lord Chancellor and the Director of Public Prosecutions are conducting enquiries and have said publicly
that they are doing so give me some confidence that my own reading of the case is not a million miles off track.
Amp quite rightly wanted to enjoy his Thanksgiving festivities but he has the full text of the new Act and when he has time will patch it together from several e-mails and post it for reference.
Am not sure, Nik, where on the planet you are so if anything I’ve said does not make sense do, please, ask again.
This comment was written by maureen.Report this comment to the moderators
November 24th, 2005 at 6:27 pm
None taken. Heh. That line of thought sure didn’t get far.
This comment was written by Tuomas.Report this comment to the moderators
November 24th, 2005 at 6:55 pm
I’m not sure what the rule is here in the States - and of course it is probably different in different States - as to the “rape” of a woman who is seriously drunk.
I do know that certain mentally-challenged women and women below a certain age are held as a matter of law to be unable to consent, whatever they say or do. This is sort of an inherent diminished capacity.
If a man is drunk and commits a crime (say, murder) he may in fact have been so out of it that he could not form the requisite intent to be charged with a crime. (Remember, crimes always require some intent.) Suppose for our case here that he’s hooting drunk, doesn’t know who he is or where he is, and strikes down his victim and doesn’t even remember the incident later.
It then becomes a question: how did he get drunk? Was it at such a time and such a place that getting drunk was reckless? Well, then, he will not be heard to complain later that he should be let off his crime because he was drunk, because whose fault is that? On the other hand, if someone slips him a drug without his knowledge, his plea of diminished capacity has quite a bit going for it.
Lack of the woman’s consent is an element of the prosecutor’s case in a rape trial - that is, he or she has to prove that the woman did not consent. I certainly would argue - to what effect I do not know - that a severely intoxicated woman is temporarily incapable of consent, and that the reasonable man should know that. That is, that sex with her under those conditions may well be rape, and probably is. How she got drunk, whether voluntarily or not, should not be an issue in that case, because she didn’t then run off and commit a crime; she was the victim of a crime. Men who stumble drunk into dark alleys and are mugged are not held responsible for the mugging, and the assailant’s crime is not lessened by the incapacity of the victim. The law does not require us to be cold sober all the time lest we run afoul of some predator.
What if the rapist is the one who gave her the drug that knocked her out in the first place, and we can prove that? Well, now his goose really is cooked, and they’ll get him for assault as well as rape as well as God alone knows what else. As well they should, the creep.
This comment was written by Susan.Report this comment to the moderators
November 25th, 2005 at 12:42 am
but a accused rapist gets all his past protected, why is that?
Because in most crimes, we don’t want a jury or a judge to say “Hey, this guy’s been bad in the past, so he must have been bad now.” There are exceptions, but what we want to prove is that this defendant is guilty of this crime–not that he’s a criminal so who cares if the bad guy was him this time or not.
This comment was written by mythago.Report this comment to the moderators
November 25th, 2005 at 1:25 am
Susan: You can go back and read my remarks any time you want to.
You can, too. But I don’t suppose you will think about what you’ve said in this thread.
This comment was written by Jesurgislac.Report this comment to the moderators
November 25th, 2005 at 7:54 am
Mendy, women would not have any reason to disbelieve other women were it not for the example set by men. If you bash other women, you’re one of the guys instead of one of those nasty women.
Gee, look, there’s Robert totally ignoring anything I said. What a shock.
Nik, did you get the part where the rapist in case of the drunken woman was a security guard who she asked to walk her home? It was his job to keep her safe from rape. Instead he raped her.
This comment was written by ginmar.Report this comment to the moderators
November 25th, 2005 at 9:05 am
Susan: Lack of the woman’s consent is an element of the prosecutor’s case in a rape trial - that is, he or she has to prove that the woman did not consent.
And there, I guess, is the key problem - so long as the default state of all women is assumed in law to be consent to sex, then it will always be incumbent on the victim to prove she didn’t consent, never on the man in the dock to prove she did.
And it’s much harder to prove a negative than to prove a positive.
This comment was written by Jesurgislac.Report this comment to the moderators
November 25th, 2005 at 10:07 am
Well, how about “so long as the default state of all defendants in criminal cases is assumed in law to be innocence, then it will always be incumbent on the prosecution to prove the defendant comitted the crime, never on the defendant in the dock to prove he didn’t. “
This comment was written by anonymous.Report this comment to the moderators
November 25th, 2005 at 10:40 am
Hm, Jesurgislac, interesting suggestion. So….
Now, as it is, we assume that she did consent - that is, we assume, as to this element of the crime, that the alleged rapist is innocent. A man and a woman have sex, and the law assumes that she consented to that, that is, the law assumes that it was not rape. The prosecutor has the burden of proving that she did not consent, that is, that it was rape.
But if we start out with the assumption that she in all cases did not consent, we’re assuming that every sexual act is rape unless proven otherwise - that is, we’re assuming that every man accused of rape is guilty, and it’s up to him to prove that she consented.
This turns our legal system on its head. For a thousand years, we’ve assumed that everyone charged with a crime is innocent unless the State can prove the contrary “beyond a reasonable doubt.” This is true of all crimes, including rape. Englishpeople and Americans have long had a wariness of the State and of State power. Thus, we turn a lot of guilty people loose, believing that that’s better than convicting the innocent. (Of course that happens too, but the dice are weighted in the other direction.)
This rule is not written in the stars, and there are legal systems which make the opposite assumption. I don’t want to live in any of them, and I’d guess you don’t either, but I could be wrong about that.
This comment was written by Susan.Report this comment to the moderators
November 25th, 2005 at 11:02 am
first of all I think it is unfair that a victim has her past dragged through the mud for all to see, to show a pattern of behavior or whatever but a accused rapist gets all his past protected, why is that? how fair is that?
actually, rape shield laws prevent the inclusion of the accuser’s past even when it is relevant to the case. defendants are offered no such protection. i am not sure where you got this from.
This comment was written by jaketk.Report this comment to the moderators
November 25th, 2005 at 11:07 am
Well, how about “so long as the default state of all defendants in criminal cases is assumed in law to be innocence, then it will always be incumbent on the prosecution to prove the defendant comitted the crime, never on the defendant in the dock to prove he didn’t. “
that would be a nice idea, but unfortunately in these situations it is one person’s word over the other. i think the disconnect here is that the accuser does not have the burden of proving the case; that lies in the hands of the prosecutor. if the prosecutor fails, the rape may or may not have actually happened, but it was not proven beyond a reasonable doubt.
This comment was written by jaketk.Report this comment to the moderators
November 25th, 2005 at 11:53 am
Mendy, women would not have any reason to disbelieve other women were it not for the example set by men.
Eh? How about they might disbelieve other women because they’re aware that other women, being human beings, sometimes lie? This seem like you’re saying women are helpless to make their own decisions - oops, some men did something and now we have to copy them. Surely that isn’t what you mean?
This comment was written by Robert.Report this comment to the moderators
November 25th, 2005 at 12:45 pm
Which state’s rape shield law are you referring to, specifically? I haven’t read every state’s rape shield law, but the several I have read all allow the judge to admit evidence about the accuser’s past if the judge thinks it’s relevant to the case.
This comment was written by Ampersand.Report this comment to the moderators
November 25th, 2005 at 12:53 pm
ginmar,
I don’t agree that it is because women are copying an example set by men per se. I see some of the same kind of competitive, negative behavior exhibited in groups of my daughter’s friends (and they are not at the age where a boy’s opinion really matters much) to ostracize a girl for being different or saying something that goes against the “group”.
So, I believe that women can and do make fun of, blame other women for reasons other than “I have to be one of the guys.”
And I’ve also wondered about socialization. Most kids are socialized by their parents, in the traditional model of my parent’s generation this had the Dad out of the house and Mom at home. Mom did almost all of the education in regards to how boys treat girls, girls treat boys, and how people should behave.
I’m just wondering if women are also unintentionally perpetrating male privilege in the way they raise their children.
This comment was written by Mendy.Report this comment to the moderators
November 25th, 2005 at 12:56 pm
i live in illinois, and just recently this case happened. also you can have a look at the rape statutes here. judges do have some discretion, but as in the case of Kobe Bryant, even the accuser’s acts after the alledged attack are technically not admissible. for instance, past allegations of rape fall under rape shield laws.
This comment was written by jaketk.Report this comment to the moderators
November 25th, 2005 at 1:05 pm
Your link doesn’t support what you’re saying it does, jake. It also isn’t a link to the statutes; it’s a link to a cached page of a prosecutors’ summary, current as of mid-2003, of various states’ rape-shield laws.
Taking your link at face value, Illinois’s law has an exception when the accuser’s history “is relevant and its probative value outweighs danger of unfair prejudice”. That’s a pretty big exception and there’s room for the judge’s discretion. “Relevant” and “probative value” would include allowing the defense to show that injuries or semen came from having sex with another man, or that the accuser was not a virgin if she is claiming the defendant was the first man she ever had sex with.
defendants are offered no such protection.
This is flat-out false. Where did you get this nonsense?
This comment was written by mythago.Report this comment to the moderators
November 25th, 2005 at 1:19 pm
Susan: Now, as it is, we assume that she did consent - that is, we assume, as to this element of the crime, that the alleged rapist is innocent. A man and a woman have sex, and the law assumes that she consented to that, that is, the law assumes that it was not rape. The prosecutor has the burden of proving that she did not consent, that is, that it was rape.
Susan, I absolutely do not want you or any other woman to be raped. Or anyone to be raped, or to be in fear of rape.
But what you’re arguing for here is that we ought to assume - take as a default - that any man has the right to have sex with any woman, and no one can assume she didn’t consent to it - that unless she can absolutely prove she didn’t consent (and if she’s too drunk to resist, as in this case, she can’t) then by default, the man did have a right to have sex with her. Her state of mind is not relevant.
One question: Is this a situation you’re content to live with? Do you, personally, feel quite happy with the idea that any man can have sex with you against your will, and no court will take your word over his that you did not consent, because the court’s default assumption is that you did?
This comment was written by Jesurgislac.Report this comment to the moderators
November 25th, 2005 at 1:24 pm
It is a fact that prior bad acts cannot be introduced against a defendant unless they serve to create or substantiate a pattern. And believe me judges rule on these motions with utmost care lest they be overturned in appeals court. The term “unduly predjucial” is used to keep information that would lead the jury to convict the guy because he is a creep and not because he is guilty of the crime he is charged with.
I do not mind if an accuser’s actions provide a legitimate alternate theory of the crime. As in those the mythago describes above, but defense attorney’s routinely introduce a victim’s clothing as if that in itself proves an alternate theory of the crime. It doesn’t it serves to shame the victim and influence the jury unduly.
This comment was written by Mendy.Report this comment to the moderators
November 25th, 2005 at 2:34 pm
“Relevant” and “probative value” would include allowing the defense to show that injuries or semen came from having sex with another man, or that the accuser was not a virgin if she is claiming the defendant was the first man she ever had sex with.
mythago, the article states:
your statement is the direct opposite of the ruling that was made. in cases where the man, or boy, is saying he did not commit the act, then the evidence might be brought in if it is deemed relevant by the judge. if the man, or boy, says the accuser consented, then in illinois the evidence will likely not be allowed in.
It is a fact that prior bad acts cannot be introduced against a defendant unless they serve to create or substantiate a pattern.
mendy, you are talking about the Admission of Propensity Evidence. however, that is not the same as a rape shield law. with rape shield laws, unless it has something to do directly with the defendant, it is not very likely it will be allowed into in. so similar past behavior or previous statements could easily be inadmissible. also, defendants, unless they are charged as juveniles, do not have their identities protected. so in the instances of mistrials, acquittals or exonerations, the defendant in the case has had his, or her, reputation potentially ruined. and no, i am not saying that men are falsely acused of rape. i am speaking strictly of what exactly occurs.
This comment was written by jaketk.Report this comment to the moderators
November 25th, 2005 at 4:07 pm
That’s not stated quite right. If it comes down to he said/she said, the court might very well take my word over his, depending on a lot of other circumstances.
Am I happy with this situation? I think it the lesser of evils. I believe that the State is more dangerous, potentially, to me and to everyone else, than any number of individual criminals. If an individual bad guy gets loose he can rape me, murder me, and so forth; if the State has no restraints, it can and probably will create a society which to me would be unlivable.
It is for this reason that we require that the State prove its case against an individual, not the other way around. I don’t want the presumption to go the other way: that every person the police are pleased to pick up, for whatever reason or for no reason, is presumed guilty, and has to come up with evidence to the contrary.
This comment was written by Susan.Report this comment to the moderators
November 25th, 2005 at 4:29 pm
jake,
Yes a man who is aquitted of rape may have his reputation ruined, but the reputation of the accuser is also ruined.
The woman in the Bryant case recieved death threats for coming forward, etc.
Oh, and it is admissable if the man takes the stand in his defense. He can choose not to do that.
And that still didn’t answer the question of how a woman’s clothing has any bearing on consent?
This comment was written by Mendy.Report this comment to the moderators
November 25th, 2005 at 5:03 pm
Susan: If it comes down to he said/she said, the court might very well take my word over his, depending on a lot of other circumstances.
That’s not what you were arguing for, though, is it? Or do you feel that you are special, and deserve to be treated differently from other women for whom the default is “consent”?
This comment was written by Jesurgislac.Report this comment to the moderators
November 25th, 2005 at 5:23 pm
Jesurgislac,
I don’t understand your comment.
The court will not automatically believe either party; however, the prosecution has the burden of proof. That means that the woman’s word along with whatever other evidence is available may well be believed, or not, but that evidence of guilt must be convincing. That is, if everyone comes into court and no one says anything, the guy goes free.
I wouldn’t be treated differently from any other woman, and I don’t think I should be.
This kind of discussion is from time immemorial. There are bad guys out there, not just rapists, but murderers, robbers, burglars, you name it. No matter how sure we are, deep in our bones, that Mr Ultimate Badguy is guilty of whatever crime or crimes, we still require the State to prove it. As a result, very many bad guys get off. Everyone who knows anything about the system knows that, so you’re not delivering a news flash here.
I’m not “arguing for” anything. I’m describing how the system does in fact work. Or should work; in practice, like all human institutions, it works very imperfectly. It is certainly a possible opinion that every person picked up by the police should be presumed guilty. You may hold that opinion. I don’t, for reasons I have already explained.
Unrestricted police power makes me very nervous.
As I said before, there are jurisdictions on this planet who do assume that everyone arrested is guilty. I wouldn’t care to live there, though.
This comment was written by Susan.Report this comment to the moderators
November 25th, 2005 at 5:53 pm
Robert, you’re being deliberately obtuse again. If there were no rape, would the stereotype of women as liars be worth anything at all? Christ, I don’t know why in fuck I bother with you.
Women who like to believe women lie—who like to believe that other women are evil are doing so to pander to men. If men didn’t have allt he power, they wouldn’t do it. If women had the power we’re entitled to, we wouldn’t have to lie or to think evil of other women. If we were equal, we’d be able to speak the truth out in the open instead of just in safe spaces—and you notice how we have to deal with trolls here, too? Keeping us unsafe keeps us off balance.
Anybody ever heard of Ann Coulter? Phyllis Schlafly? Christina Hoff-Summers? Katie Roiphe? Camille Paglia? Beverly LaHaye? All those backlash babes who think they’ll get to be in the boys’ club if they trash other women enough? They’re telling sexist lies about women so they can get ahead in a man’s world.
This comment was written by ginmar.Report this comment to the moderators
November 25th, 2005 at 6:04 pm
It’s been an interesting few days following the conversations, discussions, or arguments. I’ve learned a few things about myself, and I’d like to think about those around me.
I’ll enjoy reading further, and ya’ll keep at it.
This comment was written by Mendy.Report this comment to the moderators
November 25th, 2005 at 6:31 pm
Women who like to believe women lie…who like to believe that other women are evil are doing so to pander to men. If men didn’t have allt he power, they wouldn’t do it. If women had the power we’re entitled to, we wouldn’t have to lie or to think evil of other women. If we were equal, we’d be able to speak the truth out in the open…
But Ginmar, the truth is that women are human beings. And human beings lie, cheat and steal. Not everybody, and not all the time - but most people lie at least once in a while, and some people lie all the time. Some of the people in all of these categories are women.
You seem to be playing into an anti-feminist stereotype here, of the “feminists are people who say that women are perfect” variety. Is that really your intention?
That aside, your construction is not consistent or coherent even within its own framework. If men have all the power, then why does it matter what women think? If women had the power you’re “entitled” to, then what is there about all these (apparently) dreadful women who currently suck up and lie for men, that would make them suddenly become good moral actors who don’t harm others?
This comment was written by Robert.Report this comment to the moderators
November 25th, 2005 at 8:45 pm
your statement is the direct opposite of the ruling that was made
No, jake, my statement was directly in line with the ruling that was made. You’re just unwilling or unable to understand what ‘relevant’ means.
The exceptions to rape-shield laws, by the page you cited, have to meet two tests: Is the evidence relevant? and Would it be more probative than prejudicial? (In other words, would the evidence’s value outweigh any prejudice resulting from the evidence?)
If the defendant is not alleging that the semen or injury came from somebody else, then it isn’t relevant that the accuser had sex with another man. If the defendant is claiming that it wasn’t him, and the semen was from another man, then it is relevant that the accuser had sex with another man.
I notice you have stopped trying to argue that the defendant has no similar protection. You know against the prohibition on evidence of “prior bad acts”, right?
(As for protecting identity–adult defendants never have their identity protected in criminal cases.)
This comment was written by mythago.Report this comment to the moderators
November 25th, 2005 at 11:04 pm
I have been reading up on the rape shield laws, especially here in Colorado because of the Kobe Bryant case. (Our laws are about the toughest in the country, too.)
It pains me greatly to state that Mythago’s interpretation is exactly correct. The rape shield laws that are in place do allow the defendant to introduce evidence about the victim’s behavior, history, &c when that information is material to the defense hypothesis. It’s usually the judge who decides, in a private session, whether the evidence is material or not. Which is what ought to happen, in my opinion.
Now if you’ll excuse me, I have to go wash the shame of Mythago-agreeing from my typing fingers. Get it off get it off GET IT OFF ME.
This comment was written by Robert.Report this comment to the moderators
November 25th, 2005 at 11:46 pm
Oh, c’mon. A little lipstick and we do something with that hair, and you’d make a smashing Lady Macbeth.
This comment was written by mythago.Report this comment to the moderators
November 26th, 2005 at 8:31 am
Let’s try this out.
One of the big problems with rape is that the victim feels guilty. Even if it really was rape, there’s this big thing about not disclosing the name of the victim without her consent, etc. (The same is true in spades of male rape, which does happen, folks, yes it does.)
Now, what kind of sense is that supposed to make? Here’s where we see the uffed-up attitudes of the society as a whole. If my house is burglarized, do I feel shame? If I am mugged in a dark alley, do I want to conceal my identity? If someone knifes me, is that a reason that I should feel ashamed?
What’s going on here? Can anyone speculate? It’s not just women, either. Even the male children raped by priests were ashamed to come forward in most cases.
A rape victim is the victim of a crime. This is a bad experience, yes, but no reason to feel ashamed, one would think. I’d contend that if we by magic could get rid of the idea that the victim of this crime should feel guilty about it (??!?@) we’d get more and better convictions, and take more of these creeps off the streets.
This comment was written by Susan.Report this comment to the moderators
November 26th, 2005 at 9:11 am
Yes a man who is aquitted of rape may have his reputation ruined, but the reputation of the accuser is also ruined.
one’s reputation cannot be ruined if one’s identity is kept from the public. outisde of those involved in the case or who know the parties involved in the case, an accuser’s identity and reputation are more or less intact. and as it has been said, simply because someone is aquitted does not mean the rape did not happen.
The woman in the Bryant case recieved death threats for coming forward, etc.
as did Bryant. outside of Michael Jackson and R. Kelly, in most instances both parties are subject to that sort of behavior.
Oh, and it is admissable if the man takes the stand in his defense. He can choose not to do that.
what is admissible?
This comment was written by jaketk.Report this comment to the moderators
November 26th, 2005 at 9:22 am
No, jake, my statement was directly in line with the ruling that was made. You’re just unwilling or unable to understand what ‘relevant’ means.
perhaps you are unwilling or unable to understand what “the judge’s discretion” means. the judge ultimately decides whether or not the evidence is admissible, whether it is considered relevant or not. the judge has the authority to allow it in, as in the Michael Jackson case (granted, that was a specific law, but the judge was still able to decide what came in, despite it’s relevance), or disallow, as in the illinois case.
are you really suggesting that relevant evidence is never disallowed in court cases?
I notice you have stopped trying to argue that the defendant has no similar protection. You know against the prohibition on evidence of “prior bad acts”, right?
the defendant does not have the same protection as rape shield laws. a defendant’s character, credibility, and behavior is still open game. rape shield laws prevent any such questioning of the accuser.
As for protecting identity”“adult defendants never have their identity protected in criminal cases.
and in virtually every other case, with the except of protected witnesses, adult accusers never have their identity protected either.
This comment was written by jaketk.Report this comment to the moderators
November 26th, 2005 at 2:42 pm
the judge ultimately decides whether or not the evidence is admissible, whether it is considered relevant or not.
Why, yes; that’s how pretty much all evidence works. What’s your point? Because all I’m seeing is that you don’t understand what “more probative than prejudicial” means.
a defendant’s character, credibility, and behavior is still open game. rape shield laws prevent any such questioning of the accuser.
Wrong on both counts: so you don’t know what the prohibition on ‘prior bad acts’ is, and obviously don’t remember the “Kennedy rape case”. For that matter, you seem to be unclear on the concept that the defendant doesn’t have to testify if he or she does not want to.
This comment was written by mythago.Report this comment to the moderators
November 26th, 2005 at 4:29 pm
Because all I’m seeing is that you don’t understand what “more probative than prejudicial” means
yes, of course. pardon my male stupidity. it just seems that your whole notion of evidence being allowed in because of it’s relevance does not hold true if ultimately that decision lies in the hands of the judge.
Wrong on both counts: so you don’t know what the prohibition on ‘prior bad acts’ is, and obviously don’t remember the “Kennedy rape case”.
yes, of course. pardon me for having this moronic preoccupation with graduating college. all that concern about finishing school prevented me from concentrating on the more important media feeding frenzy.
but, surely you are not implying that most victims have their names splattered all over the place like that? surely you do not think that every defendant has the fame that results in such media circuses? and yes, obviously a defendant does not have to take the stand. that however, does not prevent the prosecution from placing witnesses on the stand to damage the defendant’s credibility. the defence cannot do such acts, even to establish a pattern, just from the outset. the accuser’s character typically is not allowed to be directly questioned. that is why the JC Penny evidence in the Michael Jackson case was so controversial.
but i understand your point: the law is on the side of the defendant, not the accuser.
This comment was written by jaketk.Report this comment to the moderators
November 27th, 2005 at 11:11 am
pardon my male stupidity
Where did you get the silly idea that your ignorance is a result of your gender? Certainly Robert seems to get the concept, and he hasn’t had a sex change last I heard.
it just seems that your whole notion of evidence being allowed in because of it’s relevance does not hold true if ultimately that decision lies in the hands of the judge.
Why don’t you go back and read the web page you cited again?
Judges ultimately rule on evidence. That’s true in every case, criminal or civil. Rules of evidence set out what the judge is supposed to consider when making those rulings.
Now, if what you’re saying is that that judges can really do whatever they want and the rules of evidence are meaningless, then you have to admit that cuts both ways. In other words, a judge who ignores the rules about a defendant’s background can ignore the rules about an accuser’s background, too.
pardon me for having this moronic preoccupation with graduating college
Being a college student gives you a lifetime pass from having to back up your arguments? Who knew?
Since it also seems to have crippled your ability to use Google, I’ll give you a hand:
Exclusion of evidence in the William Kennedy Smith rape case
Admission of previous conduct in the Michael Jackson case
Prior bad acts in general
but i understand your point
Nope. My point is that your claims about what rape-shield laws do, and what evidence is or isn’t admissible, are flat-out wrong.
This comment was written by mythago.Report this comment to the moderators
November 27th, 2005 at 11:16 am
Jake,
the defendant’s “prior bad acts”, “character”, etc. are generally not allowed into evidence unless the defendant takes the stand and then and only then can the prosecution use his past to impeach him on the stand. If he gave testimony contrary to what is true.
For example if the defendant has a previous rape conviction and takes the stand and says under oath that he has never raped a woman, or he’s never been arrested… then those items can be used to impeach his credibility as a witness.
Here’s the thing. The defendant does not have to take the stand, and if he doesn’t then none of his prior history can be brought into evidence. However, until those rape shield laws were enacted a defense attorney could and routinely did drag up a woman’s entire sexual past as a mean to discredit her. And in almost all rape trials, the accuser has to take the stand.
And yes, the laws are written to protect the rights of the accused. And this is for the most part as it should be. I think certain things should be changed, but I’m not going into it at the moment.
Oh, and I’m trying to graduate college, too. I don’t pay anymore attention to the media circuses that surround sensationalized trials than you do apparently. However, I do on occasion go sit in the courtroom to witness those trials here that are open.
This comment was written by Mendy.Report this comment to the moderators
November 27th, 2005 at 2:08 pm
You seem to be playing into an anti-feminist stereotype here, of the “feminists are people who say that women are perfect” variety. Is that really your intention?
You’re displaying your bias here, Robert, because this is what you really really want to believe that feminists are like. You don’t go around countering the stereotypes that women are evil, yet when a feminist argues that women are regarded as natural liars, you claim that that’s not true—why? Because you’re unaware of it or unwilling to see it.
What part of th is is so hard to get? Society views women as liars, and has since Potiphar’s wife. We have the stereotype of the furious ‘woman scorned’ yet it’s scorned men that stalk, rape, beat, and kill women who reject them—and reject them because of their violence. Saying women are human beings lie is just being flat out ignorant. Let me make it simple for you, okay?The problem isn’t that women lie: the problem is that when women till the truth they get called liars, and oh by the way? When you tell feminists that what we’ve seen, experienced, read about, and endured didn’t happen, you’re calling us liars, too. Which is pretty much what you make a habit of doing. Then you turn around and say that we’re claiming women are perfect, when in fact we’re just reacting to your constant nitpicking and arguing for the sake of argument.
This is the last time I’m going to bother with you, Robert, as you’ve just proven to be a waste of my time. You don’t make any effort to listen and you’re just interested in winning an argument and not listening. You don’t want to listen. I’m done with you.
This comment was written by ginmar.Report this comment to the moderators
November 27th, 2005 at 3:05 pm
The problem isn’t that women lie: the problem is that when women till the truth they get called liars
When that happens, it’s a dreadful thing. It’s very difficult for people who aren’t intimately acquainted with the facts in particular cases to know who is telling the truth, however. The evidence appears to show that women generally tell the truth about sexual victimization, but not always. That makes things tricky.
When you tell feminists that what we’ve seen, experienced, read about, and endured didn’t happen, you’re calling us liars, too. Which is pretty much what you make a habit of doing.
That would be a genuinely wrong thing for me to do, and I apologize for having done so, although I cannot think of an example. Perhaps you could show me an example of me doing this, so that I have something concrete to look at as I attempt to not do this any more.
Then you turn around and say that we’re claiming women are perfect, when in fact we’re just reacting to your constant nitpicking and arguing for the sake of argument.
Whether you’re reacting to someone arguing with you or not, don’t you agree that we’re all responsible for our own statements? If you say things that lead a reasonable observer to think that you’re claiming women are perfect, then that’s what a reasonable observer is going to think. In fact, I didn’t go to that conclusion - I just pointed out that you were making statements that could easily be interpreted that way, and asked you if that was really your intention.
This is the last time I’m going to bother with you, Robert, as you’ve just proven to be a waste of my time. You don’t make any effort to listen and you’re just interested in winning an argument and not listening. You don’t want to listen. I’m done with you.
I think the trouble isn’t that I don’t listen to you; the trouble is that I do listen to you, and in doing so I hear the contradictions and inconsistencies in what you say. When asked for clarification or explanation, you seem to prefer changing the subject, launching personal attacks, or making statements that you’re done and aren’t going to engage anymore.
This is, of course, your prerogative. It was your prerogative the last half-dozen times you’ve said this, or something similar to this.
This comment was written by Robert.Report this comment to the moderators
November 27th, 2005 at 3:35 pm
Susan said “But if we start out with the assumption that she in all cases did not consent, we’re assuming that every sexual act is rape unless proven otherwise - that is, we’re assuming that every man accused of rape is guilty, and it’s up to him to prove that she consented.”
When someone goes to court because they’ve been mugged and their wallet stolen, what is in question is whether or not the defendant is the person who committed the crime, not whether or not a crime actually took place. That’s a given…the identity of the criminal is under prosecution, not the existence of a crime. Why is it different with rape? Why do we *assume* that the rape may not have happened, when we do not ask the same question of a robbery or a mugging or other assault?
This comment was written by Broce.Report this comment to the moderators
November 27th, 2005 at 4:34 pm
Broce:
1. The existence of a crime is very much an issue in most cases.
The issue of whether a crime has in fact been committed is indeed an issue in a mugging. It’s just that it’s usually easier to tell, because the victim usually alerts the police while his head is still bleeding and all that.
But in murder, say, it is very much an issue (a) whether the person is dead (if we don’t have a body), (b) whether the person died of natural causes, or (c) is a suicide. This is very much an element of proof in a murder case. Arson, another example. Yes, there was a fire, we ordinarily know that (just as we ordinarily know whether sexual intercourse happened in a rape case), but… was it an accidental fire? Did the owner start the fire himself, in which case it’s not arson, but insurance fraud? And so forth.
Also, did the “mugging victim” really lose his wallet, or is there something else going on? The police ask, believe it.
2. Assuming that in all cases sexual intercourse happens against the will of the woman involved flies in the face of what most people, including me, believe to be the real situation. I fully realize that there is a party (I think they’d call themselves extreme feminists) who think that all heterosexual sexual intercourse is in reality, or is at least de facto, rape. I believe that this is a minority opinion, however, and I don’t know of anyone who seriously proposes prosecuting every male who ever has intercourse with a woman.
Charles Darwin, where are you when we need you?
This comment was written by Susan.Report this comment to the moderators
November 27th, 2005 at 4:45 pm
My experience was almost identical with yours, HC. I have stopped blaming myself long ago (having had counselling and therapy - that started 10 years after the rape), but I do know other people think I’m to blame. And that hurts.
This comment was written by Princess of Cybermob.Report this comment to the moderators
November 27th, 2005 at 5:00 pm
Susan: Assuming that in all cases sexual intercourse happens against the will of the woman involved flies in the face of what most people, including me, believe to be the real situation.
Assuming that in all cases sexual intercourse happens with the woman’s full consent also flies in the face of what most reasonable people believe to be the real situation. Yet, that’s the argument behind acquitting Ruairi Dougal - because he admitted sexual intercourse but claimed it had been consensual, and she said she couldn’t remember enough about it to swear to whether or not she had consented, she was by default assumed to have consented, and the prosecutor and the judge between them simply ended the case.
This comment was written by Jesurgislac.Report this comment to the moderators
November 27th, 2005 at 5:08 pm
Who’s Ruairi Dougal? Do I take it that this is another alleged miscarriage of justice?
And if it is, your point would be what? That there are miscarriages of justice?
In spite of your efforts, you have yet to convince me that the accused in a rape case (or, any other case) should be assumed to be guilty until proven innocent.
We who defend the current rule fully understand that its application will result in the release of numerous guilty persons for lack of proof. This is true not only in the case of rape, but in the case of every other crime. A long long time ago we in this culture decided that this is preferable to convicting numerous innocent persons for lack of proof of innocence.
As I have said repeatedly, there are jurisdictions where every person picked up by the police for any reason or for no reason is assumed to be guilty as charged unless and until that person can prove innocence. You are welcome to move to one of these places if you think that a superior rule. I for one am staying put.
This comment was written by Susan.Report this comment to the moderators
November 27th, 2005 at 5:12 pm
Call me heterosexual or something, but I believe that in the majority of cases of heterosexual intercourse, both parties consent.
This comment was written by Susan.Report this comment to the moderators
November 27th, 2005 at 6:20 pm
Susan said “Assuming that in all cases sexual intercourse happens against the will of the woman involved”
Who assumed that, Susan? Certainly, I did not, and I believe that’s a bit of a strawman.
This comment was written by Broce.Report this comment to the moderators
November 27th, 2005 at 8:32 pm
Susan, you are heterosexual, or something. ;)
The point isn’t that every accused rapist should be considered guilty, that’s just silly. The point is that every rape victim shouldn’t have to prove they are innocent and blameless. That is what the survey was saying, that people blame the victim for simply being a victim. Rape is the only crime where the victim has to prove they didn’t deserve to be a victim.
This comment was written by mousehounde.Report this comment to the moderators
November 27th, 2005 at 9:56 pm
I believe that Jesurgislac is arguing for that proposition, or rather arguing that the law should make that assumption, unless I grossly misunderstand her (?) posts.
I couldn’t agree more. Rape shield laws as well as other devices are being introduced to change this, but we have a VERY long way to go. Simply assuming the guilt of the accused, however, and forcing him to prove consent is going too far, however. In my opinion.
This comment was written by Susan.Report this comment to the moderators
November 28th, 2005 at 5:35 am
Susan: I believe that Jesurgislac is arguing for that proposition, or rather arguing that the law should make that assumption, unless I grossly misunderstand her (?) posts.
You do indeed grossly misunderstand my posts (which you may feel is poetic justice, given your persistent complaints that I grossly misunderstand you!).
I do not believe that the law should assume a woman consents. Neither do I believe the law should assume a woman does not consent. I believe the law should deal with the facts as they stand: if it can’t be established to legal standards of evidence whether or not a woman consented, then prove it was rape by the usual means of presenting evidence and asking the jury to determine on “reasonable doubt”.
We don’t instantly dismiss murder cases if the accused claims the dead person asked to be killed: we determine if it was likely that the dead person would have asked to be killed.
Simply assuming the guilt of the accused, however, and forcing him to prove consent is going too far, however. In my opinion.
Arguing that where we don’t know whether or not the victim consented, it should be left as a “don’t know” and the trial proceeds, is not the same as forcing the accused to “prove consent”.
About Ruairi Dougal.
This comment was written by Jesurgislac.Report this comment to the moderators
November 28th, 2005 at 6:28 am
Jesurgislac:
I am utterly confused. How can the trial proceed? What is there to proceed with? Consent is the heart of the issue, the whole issue: If there was consent, it was sex, not rape, if there wasn’t, it was rape. All the other stuff is completely irrelevant.
And the murder comparison is odd, people don’t consensually kill each other on a regular basis, while people (and in all sex combinations not just man/woman, I might add) have sex with each other consensually more or less on a regular basis (preferences and opportunities vary). In fact, “consensual killing” (eauthanasia) is legal in very few places, and heavily regulated where it is legal, IIRC. We assume that if a killing has occured that it was a murder.
This comment was written by Tuomas.Report this comment to the moderators
November 28th, 2005 at 6:35 am
Tuomas: I am utterly confused. How can the trial proceed? What is there to proceed with? Consent is the heart of the issue, the whole issue: If there was consent, it was sex, not rape, if there wasn’t, it was rape.
Okay, let me explain.
Whether or not it was rape is completely dependent on how the victim perceived it. But we are not completely dependent on “how the victim perceived it” to determine whether or not it was rape.
If the accused rapist says the alleged victim consented, and the alleged victim says she did not consent, then the jury determines, on the evidence available, whether a reasonable person would believe that the alleged victim consented. Right?
If the accused rapist says the alleged victim consented, and the alleged victim says she doesn’t remember - and has good reason not to remember, such as, in the case linked to, she was drunk enough to need help getting home (the security guard asked to help her get home is the accused) - then again, it should be up to the jury to determine, on the evidence available, whether a reasonable person would believe that the alleged victim consented.
Deciding that since the victim doesn’t remember it can be assumed she consented, is effectively deciding that a woman’s default state is consent - that women have to prove they didn’t consent before any case of rape can even be tried.
And the murder comparison is odd
I brought it up as an example where we have no testimony from the victim, but we don’t just thereby assume that the accused is innocent because he says so himself.
This comment was written by Jesurgislac.Report this comment to the moderators
November 28th, 2005 at 6:53 am
1:
2:
There is a leap in logic there! 2 does not (in this case) follow 1. “A woman doesn’t remember” is very different from “a woman has to prove they didn’t consent”. I wonder why the case even was in the court if the woman wasn’t sure whether she consented or not.
On the other hand, I do think that very drunk, or very drugged consent should not be considered consent, and the man was at least an asshole (if she had said yes in her current state) or a rapist (if she didn’t say yes). But again, it boils down to consent.
And in the murder again: My point was that people don’t usually consent to be murdered, and in most places even can not consent.
This comment was written by Tuomas.Report this comment to the moderators
November 28th, 2005 at 6:58 am
I meant in the drunk/drugged case: But it is very hard to draw a precise line in there. (How drunk? Which drugs?)
This comment was written by Tuomas.Report this comment to the moderators
November 28th, 2005 at 7:12 am
Third post in a row, sorry Amp, I’ll try to be more careful and not click the “post” -button too early from now on:
Jesurgislac:
This comment was written by Tuomas.What I’m trying to say is that rape trial is usually he said/she said, and the jury has to weigh in all testimonies, evidence etc. That case is he said/nothing much, since the woman isn’t saying she didn’t consent.
Report this comment to the moderators
November 28th, 2005 at 8:30 am
This is an interesting idea, but I’m not sure it would work.
We run our court system on the idea that one party or other has, as to every fact, the “burden of proof.” That is, for example, if I slip and fall in your front yard, it is up to me (not you) to prove that I fell (you don’t have to prove that I didn’t), that I was injured, that it was your fault, and that it cost me money. If I can’t prove any one of those, my case gets thrown out.
We don’t just throw facts at the jury and say, “Well, no one knows what happened so you figure it out.” Because in a lot of cases proof is hard to come by, so we load the dice one way or another, assuming that all accused are innocent until proven guilty, that you aren’t to blame for me stumbling, that I wasn’t negligent in that car accident, and so forth. Without these assumptions the system would be even more clogged than it is already.
We’re not trying to construct Intellectual Perfection down here in the trenches. We’re trying to make this society work, more or less, under difficult circumstances, at a reasonable price. (Courts cost money. Your money.)
The way we run our system, if someone is charged with a crime, the State has the burden of proving every element of the crime. (Rather than, say, requiring the accused to prove innocence.) Thus, if burglary is charged, the State must prove (beyond a reasonable doubt) that someone or other did break into the victim’s house under the requisite circumstances, that something was stolen, and that the accused is the one who did it. (As opposed to, for example, the homeowner breaking his own window and hiding some of his stuff so he can make an insurance claim.)
Your idea - I think - is that if the State cannot prove that the woman did not consent (like, she just doesn’t know one way or the other), then it might still be possible for the acccused to be convicted of rape if the jury thinks that she shouldn’t have or probably didn’t or something. (Did I get this right?)
This would significantly erode the protections we erect around individuals to protect them from the State. Thus, if your roommate (if you have one) is found dead in the room, and you are charged with murdering him/her, and the State cannot establish beyond a reasonable doubt that you were available to have done the crime (say, you were drunk and don’t remember where you were, and they don’t have any information on that either), the jury would still be given license to convict you if they think you might of done it or if they don’t like your color or gender or ethnicity or sexual orientation or the way you dress or something.
Needless to say, we don’t do things that way here, and as I have said, I don’t think we should. For reasons which are obvious to me anyhow.
Or do you think rape alone should be an exception to how we handle crime? I’d make the same arguments. A black man in Mississippi is accused of raping a white woman. She sort of can’t figure out whether she consented or not. Do you think the jury should be allowed to find him guilty (on God alone knows what basis)?
This comment was written by Susan.Report this comment to the moderators
November 28th, 2005 at 8:51 am
Tuomas: I wonder why the case even was in the court if the woman wasn’t sure whether she consented or not.
The woman was sure she wouldn’t have consented, but was so drunk she remembered nothing about the evening: the security guard admitted he’d had sex with her in the corridor outside her home, but claimed she’d consented and was conscious.
Effectively, by deciding that “doesn’t remember” amounted to “she must have consented”, the court decided that the default state of all women is consent to sex with any man. No man can even be put on trial for raping a woman - no matter how much evidence there is that he raped her, including his own testimony - unless the woman can prove she didn’t consent.
Susan: Or do you think rape alone should be an exception to how we handle crime?
No, I think rape should not be an exception to how we handle crime, which it certainly is at present. We don’t insist that people prove they didn’t want to give a total stranger their wallet and cellphone; we don’t demand proof that someone didn’t want to die before we put a total stranger on trial for killing them; we don’t insist that someone demonstrate they didn’t want to be burgled before we try the thief. We allow the accused to be deemed innocent till proven guilty, but except with regard to rape, that doesn’t mean that their own assertion of innocence means that they can be acquitted without trial.
This comment was written by Jesurgislac.Report this comment to the moderators
November 28th, 2005 at 9:00 am
. A black man in Mississippi is accused of raping a white woman. She sort of can’t figure out whether she consented or not.
A woman is drunk enough that it seems to her friends she shouldn’t be allowed to go home alone. (This happens on a university campus.) They ask a campus security guard to walk her home because she’s drunk. The woman wakes up the next day with a mostly-blank memory of the previous evening, and a vague thought that something happened. She talks to one of the university counsellors, and two days later, the security guard admits he had sex with her in the corridor outside her room. He claims she was conscious and it was consensual. She says she would never have consented to sex in the corridor when her bed was a few feet away, but doesn’t remember enough about the evening to know if she consented or not. The security guard was a stranger to the woman.
Now, obviously the security guard is going to claim she consented. There is good reason not to doubt the woman’s testimony that she doesn’t remember - her friends can confirm that she was very drunk.
Assume that all women by default consent? That’s what the court did in that case.
Or try the case on the evidence available - would a reasonable person believe the security guard’s story, or the woman’s story? Does it seem reasonable that a woman would want sex with a total stranger? Does it seem reasonable that the security guard, asked to see her safely home because she was drunk, should have assumed she was in a fit state to give consent?
Maybe the jury would have believed the security guard. Maybe not. He had a right to a fair trial, but I can’t see why “innocent till proved guilty” means he had a right to be acquitted without any trial at all. Unless you believe that all women can be assumed to have consented to sex with any man, or unless you assume that any man accused of rape is entitled to be acquitted just because he claims she consented.
This comment was written by Jesurgislac.Report this comment to the moderators
November 28th, 2005 at 9:33 am
J, in your hypothetical (I guess it’s not so hypothetical), on the facts you give (which may not be all the facts, remember) I’d say the case should have gone to trial under the rules we use.
If you’re surprised that our legal system doesn’t always work as it ought to, you need to get out more.
As to your distinction between murder and rape, say, the difference is that hardly anyone wants to be killed (and legally we don’t recognize that desire as legitimate anyhow) whereas usually when there is sex the woman want it. So killing someone is sort of right off the top questionable, whereas sex is only questionable if someone didn’t consent. (Or, in the case of a minor, couldn’t consent.)
A blanket legal assumption that women don’t consent to sexual intercourse, besides running contrary to observed fact, compromises the rights of the accused to a degree unacceptable to our legal system (and, unacceptable to me).
This means a lot of rapists will get off scott free. As do many murderers, burglars, robbers, you name it.
This comment was written by Susan.Report this comment to the moderators
November 28th, 2005 at 9:58 am
Two quick points.
1) I believe that the case in question took place in the UK, where the rules of evidence, I suspect, are somewhat different than they are here. I am utterly and completely ignorant of how they differ, but I suspect that in the US, this case would have gone to trial and the accused would have been found not guilty.
2) And, as much as it bugs me, I think that’s the right decision. When we don’t know, we acquit. That’s because, when we don’t know, there’s almost always a reasonable doubt. Think of the mugging example. You go out drunk one night, and when you wake up the next morning, your wallet is empty of the $500 you had with you. Somehow you discover that the homeless guy who lives near your apartment has your cash (Well, had. It’s been spent.). He says that when he panhandled you last night, you tossed a wad of 20s at him and walked on. You suspect he rolled you while you were drunk, andit’s likely that you’re right. In posession of your full mental capacities, you never would have given $500 to some random stranger. The only lucid witness (the panhandler), however, says that you did, and I tend to think he’d be aquitted of mugging you, as although it’s unlikely, there is a reasonable doubt. I’m uncomfortable with the idea of convicting anyone of anything based on what ‘probably’ happened.
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November 28th, 2005 at 10:22 am
A blanket legal assumption that women don’t consent to sexual intercourse
…works just as badly as a blanket legal assumption that women always consent to sexual intercourse, which is the argument you’re making.
This comment was written by Jesurgislac.Report this comment to the moderators
November 28th, 2005 at 10:24 am
Susan: If you’re surprised that our legal system doesn’t always work as it ought to, you need to get out more.
If you think that any man, anywhere, has a right to assume you’ve consented to sexual intercourse with him - which is your argument - then you need to get out less.
This comment was written by Jesurgislac.Report this comment to the moderators
November 28th, 2005 at 12:55 pm
well reasoned, anonymous.
Jesurgislac, we’re talking about two different things.
You’re discussing what some random man has the right to assume when he runs into me. I’m talking about who has the burden of proof in a criminal trial.
I do not think that any man has the right to assume that I’m consenting to sex with him. A prosecutor in a rape case is required to prove, beyond a reasonable doubt, that the woman did not consent to intercourse during the incident in question.
These two statements do not contradict each other.
This comment was written by Susan.Report this comment to the moderators
November 28th, 2005 at 5:13 pm
Susan: I do not think that any man has the right to assume that I’m consenting to sex with him.
Then why argue that he does have that right?
A prosecutor in a rape case is required to prove, beyond a reasonable doubt, that the woman did not consent to intercourse during the incident in question.
Precisely. Because (if you were that woman) it is assumed that you do consent to sex with any random man who wants to have sex with you.
I don’t think it ought to be that way. I don’t think the defendent in a rape case ought to be able to claim as a fallback position that the default for all women at any time is always consent.
But so long as you’re arguing that as a standard, you are arguing that any man, any time, any where, has a legal right to assume you consent - and if it comes to court, you’ll have to try to prove a negative. He won’t.
This comment was written by Jesurgislac.Report this comment to the moderators
November 28th, 2005 at 5:29 pm
[...] This relates closely to a recent article by Ampersand, quoting a study by Amnesty International in Britain, which basically says that close to 1/3 of respondents think that women can make themselves responsible for rape by how they dress and behave. [...]
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November 28th, 2005 at 5:31 pm
Jesurgislac, prosecutors do not have to prove a lack of consent “because it is assumed that [women] do consent to sex with any random man”. Prosecutors have to prove a lack of consent because our legal system presumes innocence. Once innocence is presumed, then guilt must be proved. In the case of man-on-woman vaginal rape, what determines guilt? The question of whether or not the woman consented to the sexual act. So that’s what (de minimis) a prosecutor has to demonstrate in order to prove rape - lack of consent.
This isn’t complicated.
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November 28th, 2005 at 5:52 pm
Robert: Jesurgislac, prosecutors do not have to prove a lack of consent “because it is assumed that [women] do consent to sex with any random man”.
Actually, they do, because the system does assume that. As you then pointed out, beautifully contradicting yourself. Women are assumed to consent, at any time, to any man who wants them. In order to bring a charge of rape, a woman has to prove a negative - because if she can’t prove she didn’t consent, that means the man had the right to assume she did.
That you interpret this as “innocent till proved guilty” is because you too have swallowed the cultural idea that women have two default states: either assumed to consent, or (in rare cases: nuns, very pregnant or very elderly women) assumed not to consent. The idea that women don’t have a default state is clearly somewhat foreign to you.
This argument in fact gives men accused of rape a special protection. They’re not “innocent till proved guilty”: they can’t even be charged with rape - no matter what evidence suggests they committed rape - until, first of all, the woman can prove a negative. If she can’t prove a negative, no matter what the other evidence, her default state is assumed, and since that is consent, the man obviously didn’t rape her. No case can be brought to court.
(Susan, I logged back on to apologize: it wasn’t my intention, but I feel that my last couple of comments have come closer to personal attack that I feel comfortable with.)
This comment was written by Jesurgislac.Report this comment to the moderators
November 28th, 2005 at 6:26 pm
You are drawing cultural and individual conclusions from legal premises. It doesn’t work that way, and I don’t have the time or energy to argue with your idee fixe.
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November 28th, 2005 at 7:17 pm
Well, I’ll try.
Jesurgislac, how would this “no assumptions” policy work in practice?
Suppose you are accused of rape, but at trial the prosecution brings no evidence against you. In the absence of information supporting the charge, should the jury just flip a coin? Or should the prosecutor actually have the burden to prove its charge? And if the prosecutor fails to prove the elements of its case, what inference should the jury draw from that fact? If you agree that the jurors should refrain from convicting unless the prosecutor convinces them otherwise, then I suspect this dispute is merely semantic.
Note that I am speaking about the presumptions of jurors. You and I as private citizens are free to presume anything we like without any evidence whatsoever, and free to object to any presumption as well. But if we were called to a jury pool, we’d take an oath to presume the defendant is innocent of all elements of the crime until evidence proved otherwise.
The need to prove a negative doesn’t seem that hard in most cases. (Q: “Ms. Jones, on the night in question, did you consent to have sex with the accused?” A: “No.”) If a prosecutor can’t present evidence to support the idea that a woman did not consent to sex with the accused, then the prosecutor SHOULD refrain from bringing a rape charge, right?
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November 28th, 2005 at 8:27 pm
There is a lot of misunderstanding of the burden of proof here. The prosecution is accusing somebody of a crime; they have to prove, beyond a reasonable doubt, all the elements of that crime. That is the way prosecution of all crimes works. “Without consent” is an element of the crime of rape (generally speaking).
If we required the defendant to prove lack of consent, what you’d be doing is making all sexual intercourse prosecutable as rape, but allowing an accused to raise “consent” as an affirmative defense to the crime of rape.
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November 28th, 2005 at 8:27 pm
duh, should be “defendant to prove consent” in the above.
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November 28th, 2005 at 11:32 pm
Precisely, mythago. Thank you.
Jesurgislac,
No apologies necessary. You have been generous and well-mannered throughout, so far as I can tell.
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November 29th, 2005 at 1:41 am
RE The comment that Barbados Butterfly’s experience was atypical - in reality, it’s about as typical as you could get. It’s much closer to the norm than the “bad man in a dark alleyway” idea that people are so fixated on.
This comment was written by BritGirlSF.Also, in reference to Kristjan Wager’s thesis about male victims not being blamed - that has not been my experience at all. I had an ex-boyfriend who was gang-raped, and EVERYONE blamed him. After all, the reasoning went, he’s 6ft 3, so surely he should have been able to beat off 5 or 6 drunk assholes. What seems to happen in the case of male victims is that people apply to them all the same crap that usually only gets applied to women. My ex was criticised for what he was wearing, for being in a bad neighborhood, for being too friendly to strangers…all the usual crap.
I’m not sure that that says about the whole phenomenon of rape culture. Maybe that it’s really not about women at all (big surprise there, huh?), it’s about the idea that men should never be expected to alter their behaviour out of consideration to others. To me it says that the core idea is really that, that our society thinks that male sexual behavior is uncontrollable and that no-one should ever expect it to be otherwise. I find it odd that more men don’t get offended by that idea. If I was a man I would find that implication that I was incapable of self-control downright insultuing.
Barbados Butterfly - horrible story, and sadly all too common. I hope that you’re getting counselling. If you’re not and you want to and are ready to, I’m sure that between us the people on this board could find a service that offers counselling in your area. We’re a pretty resourceful lot, and many of us understand what you’re going through all too well.
About this “it is unfair to real victims to equate unagreeable male sex with real rape. ”
I’m confused about what you mean. What is the line between “unagreeable” sex and rape, in your mind? By definition, rape is sex that was not agreed to. I think a huge part of the problem is the idea that there is a category of sex that was unpleasant, and that one person clearly didn’t want, and that somehow this isn’t “really rape”. Which is bullshit, IMO. If you’re with a partner and they appear not to be into the sex you’re having you need to stop, right away, and find out what’s going on. Anyone seeing a reluctant partner, who seems to find the sex they’re having “unagreeable”, who doesn’t stop to check in and find out what’s going on and make sure their partner is OK with what’s happening is a rapist, as far as I’m concerned. It’s probably not possible to convict them as such in a court, but in a moral/ethical sense they’re a rapist. I’m not sure where the idea that this falls into the “shit happens” category comes from, but that idea is one of the basic planks that keeps the whole rape culture ship afloat, and we all need to challenge it whenever we see it.
I hope that makes sense, I’m starting to get sleepy and kind of feel like I’m babbling here.
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November 29th, 2005 at 2:20 am
Robert said “People do not behave like automatons from textbooks. Training boys and men to elicit/expect enthusiastic assent from their partners, rather than tacit assumptions of consent, is undoubtedly productive and leads to healthier sexual outcomes; it’s how I raise my kids (or will when they hit the appropriate age). But that isn’t the reality for 99% of sexually active people, and the legal system has to deal with people who behave how they behave, not how we might wish they would behave.”
This comment was written by BritGirlSF.Clearly you and I do not live in the same universe. Do you really believe that only 1% of people are capable of communicating clearly in a sexual context, or that only 1% of men expect/elicit enthusiastic participation from their partners? I have, quite literally, never had a sexual partner who falls into your 99% category. Hell, I’ve had a sexual partner where we barely even spoke each other’s languages and yet we still managed to fall into your elusive 1% category, and even with the language barrier he still managed to make sure that I was an enthusiastic participant (and stopped to check in and resolve the situation when I got into an awkward position for a moment and said “ouch”). Either I’m the luckiest woman on the face of the earth, or your conception of how most people interact sexually is way off target.
This attitude is one of the reasons that rape culture persists. Most men are perfectly capable of good sexual communication. It’s not rocket science. It doesn’t require specialised training, just basic empathy. The idea that proper sexual communication is just too hard for most men to master is bullshit, and that it’s unrealistic to expect it is bullshit. It’s an excuse, and not a very convincing one.
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November 29th, 2005 at 2:35 am
Robert Writes: You are drawing cultural and individual conclusions from legal premises. It doesn’t work that way
Tell that to every woman who was raped and then told that it had to be assumed that she consented, because she couldn’t prove she didn’t. It does work that way.
mythago Writes: If we required the defendant to prove lack of consent, what you’d be doing is making all sexual intercourse prosecutable as rape, but allowing an accused to raise “consent” as an affirmative defense to the crime of rape.
Again, you really don’t seem to have a concept of women not having a default state.
The idea that all women must be presumed either to be not consenting to sex with any random man (which is, actually, much more realistic as a concept: answered honestly, given 24/7/365, how much of that time does any woman spend feeling like that she wants sex with any random man she meets? Or even with her boyfriend/husband?) or else must be presumed to be in a state of consent, is just — well, dehumanizing.
All other criminal offenses require only proof beyond reasonable doubt: if a juror considers it reasonably unlikely that the person accused committed the crime, they should acquit. When a man is accused of rape, he has the extra-special double-line of defense: even before he can be tried, the victim has to prove, absolutely, that she didn’t consent. Her word is not enough: nor is the court allowed to decide whether a reasonable person would want to have sex under the circumstances described, because all women are assumed to consent at any time to any sex with any man. Therefore no man can be accused of rape unless a woman can manage to provide negative evidence against that assumption: otherwise, any man who had sex with any woman was just acting out his legal right to assume consent.
And only then does the case move forward into “innocent till proved guilty beyond reasonable doubt” territory.
BritGirlSF: To me it says that the core idea is really that, that our society thinks that male sexual behavior is uncontrollable and that no-one should ever expect it to be otherwise.
I think it’s a twin assumption - although it’s a horrible story about your friend, I think the two assumptions run side by side: women are assumed to be in a state of consent, and men are assumed to be sexually uncontrollable.
This comment was written by Jesurgislac.Report this comment to the moderators
November 29th, 2005 at 3:21 am
Jesurgislac, you may be right. It’s a whole set of interacting assumptions, to be sure.
This comment was written by BritGirlSF.I’m still mulling over your idea about people assuming consent as a default state. I think that most people, ie the average person in the street, actually assume non-consent - as you said, how many men whom she runs into on any given day do we really assume that the average women wants to have sex with? Not many. However, this does not mean that the courts are using the same standard. In practise, they still seem to typically assume that whether or not a woman consented can be assumed based on past sexual behavior (is she either a virgin or a nun?) or percieved sluttiness, which is nonsense. Even if a woman is a prostitute, she can be raped.
On an emotional level I’m in agreement with you that assumed non-c0nsent seems like a reasonable standard to use but I’m not sure that it works in a legal sense any better than assumed consent does.
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November 29th, 2005 at 3:57 am
BritGirlSF: On an emotional level I’m in agreement with you that assumed non-c0nsent seems like a reasonable standard to use but I’m not sure that it works in a legal sense any better than assumed consent does.
I don’t see why the woman’s consent or non-consent should be assumed before the trial begins, though. Whether it is likely she would have consented to that particular man in that particular situation at that particular time - that’s what the trial is supposed to determine, once a charge of rape is brought.
This comment was written by Jesurgislac.Report this comment to the moderators
November 29th, 2005 at 3:57 am
BritGirlSF: On an emotional level I’m in agreement with you that assumed non-c0nsent seems like a reasonable standard to use but I’m not sure that it works in a legal sense any better than assumed consent does.
I don’t see why the woman’s consent or non-consent should be assumed before the trial begins, though. Whether it is likely she would have consented to that particular man in that particular situation at that particular time - that’s what the trial is supposed to determine, once a charge of rape is brought.
This comment was written by Jesurgislac.Report this comment to the moderators
November 29th, 2005 at 6:03 am
The trial can only begin with her admission that she did not consent (except in cases that no legal consent is possible). No jury can decide whether she consented or not if she does not remember that herself. They can not presume to know that a rape happened, if there is only one story, that it was consensual. That’s what the charge of rape is all about - the woman says she did not consent, and probably he claims she did, and the trial is for finding out the truth (without reasonable doubt). There are no “default states” involved in a legal sense, and I don’t believe many people, in a social sense, assume that women are by default in a consenting state. In short, there can be no charge of rape without lack of legal consent. We can not proceed with the trial. (This is different from the double-protection you spoke of).
I hope I don’t sound too harsh, but I feel like I’m repeating myself and repeating other people with more knoledge of the law, and it is frustrating that we talk past each other. I suppose I’ll bow out too.
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November 29th, 2005 at 6:26 am
Tuomas: There are no “default states” involved in a legal sense
That women’s default state is consent is precisely what you are arguing for, Tuomas. At least acknowledge it.
and I don’t believe many people, in a social sense, assume that women are by default in a consenting state
1 in 20 men commit rape: 94% of rapes never result in conviction.
Clearly enough people believe that women are assumed to consent to sex, however “many” that means.
This comment was written by Jesurgislac.Report this comment to the moderators
November 29th, 2005 at 6:57 am
Come on, show me how I did that, or drop it.
Or they don’t care, yet they don’t want to look in the mirror and see a rapist, so they made stories to cover that up for themselves too. (”of course she wanted it!”, in other words: denial). Few people, no matter how evil, think of themselves as evil. It is disgusting that there are people in this world who are making excuses for those men (mostly absent from this thread, but one needs not to search for long in the internet to find those people).
I agree that the conviction rate is horribly low, but I really think the problem here are the people who, when faced with a clear rape case, know that there was a rape, but think “she deserved it” (as in the study this thread is about, and all those “miniskirt” or “slut” defences). And the rapists. Not the heavy burden of proof, that exists for all crimes.
This comment was written by Tuomas.Report this comment to the moderators
November 29th, 2005 at 7:11 am
Come on, show me how I did that, or drop it.
You argued: No jury can decide whether she consented or not if she does not remember that herself. They can not presume to know that a rape happened, if there is only one story, that it was consensual.
So you argue that a jury CAN decide she consented, but can’t decide she DIDN’T consent.
You argued: I wonder why the case even was in the court if the woman wasn’t sure whether she consented or not.
So you argue that if a woman is too drunk to remember, she should be assumed to have consented.
At least own your assumption, Tuomas.
This comment was written by Jesurgislac.Report this comment to the moderators
November 29th, 2005 at 7:14 am
The problem with the University case was they had to prove sex took place and it was not consensual. There were two eyewitnesses: the woman and the guard. The guard said consensual sex took place. The woman could not remember not happened, but it was her opinion after the fact that she would not have consented. This obvious leads to a huge evidential problem for the prosecution - there’s no evidence the sex wasn’t consensual, so the couldn’t prove rape. So the case was abandoned.
I’m not sure a “default state” comes into it.
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November 29th, 2005 at 7:22 am
Ethics clash with the burden of proof here. I already wrote about this on #237.
I repeat: If she cannot remember whether she consented or not, she cannot know whether she was raped or not. And you wrote:
See? How can the trial proceed?
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November 29th, 2005 at 7:23 am
I think the suggestion was that if a woman is too drunk to remember she has no value as a witness as to whether consent was given or not. If she’s the only prosecution witness you have then you can’t prove beyond reasonable doubt that a crime took place. There’s nothing to say she may have not consented, but you just can’t demonstrate that. I think the question is about evidence, not assumptions about default states of consent.
This comment was written by nik.Report this comment to the moderators
November 29th, 2005 at 7:38 am
I just want to say I don’t think Jes is totally out of line.
If you wound someone that’s prima facia illegal, once this is demonstrated the defendent then has to prove the act was legal. If you have sex with someone, for it to be rape, the prosecution has to prove it was nonconsensual.
If you knock down a listed building it is no defence to say you were mistakenly under the impression it wasn’t listed. If you are accused of rape it is a defence to say you were mistakenly under the impression consent was given. I find this particularly disturbing as it implies we are willing to expect people to live up to a certain standard in order to prevent historic buildings from being knocked down, but not in order to prevent people from being subject to nonconsensual sex.
I would be entirely possible to change rape law to make it stricter, the changes wouldn’t be incompatable with what we call “justice” in other instances.
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November 29th, 2005 at 7:59 am
If there’s a reasonable doubt either way, then yes, that’s almost true. Very nearly true.
If there’s a reasonable doubt, the jury must acquit.
If there’s a reasonable doubt, the jury cannot convict.
The problem is that what you’re saying isn’t actually true in essence. That is, the Jury doesn’t have to make any decisions as to whether the accuser consented or not. All they have to do is determine whether there’s a reasonable doubt. Judging a defendant not guilty is NOT the same as deciding that the accuser is lying and really, secretly, consented to sex.
The default assumption is the innocence of the defendant, not the guilt of the accuser.
The reason issues of consent come up so often in these cases is that consent is so often used as a defense by the defendant. If there’s a case of rape where the defendant claims that yes, it was rape, but no, he wasn’t the guy who did it, then consent doesn’t come up at all. There’s no debate. There’s no “assumption of consent.” Instead, there’s an assumption that the defendant wasn’t the guy, and the prosecution needs to present evidence that he actually was the guy. If they don’t have any convincing evidence, he’ll probably go free.
If there’s an armed robbery case where the prosecution claims that the defendant menaced the accuser with a bloody machete, and the defendant claims that he’s never held a bloody machete in his life, the prosecution needs to show some evidence of a bloody machete.
If there’s an embezzlement case where the prosecution claims that the defendant embezzled 5.7 Million dollars from the company he worked for, and the defendant claims that he’s never worked for that company, the prosecution needs to show some evidence that he was employed there.
This is PRECISELY the same level of evidence required in rape cases that’s required in each and every single other criminal case in the USA. It makes just as little sense to extrapolate from the rape case you reference to a generalized assumption that women consent as it would to extrapolate from the assault case to a generalized assumption that assault victims lie.
There is no generalized assumption. The prosecution must answer the defense and make their case solidly. If they cannot, then there is a reasonable doubt.
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November 29th, 2005 at 8:06 am
Right! Right right right right right.
I would like to ask Jesurgislac how she would have preferred the trial to go, or how she thinks it ought to have gone. If there’s a proposed change to our system that she believes would both remove the “assumption of consent” and preserve the presumption of innocence and ‘reasonable doubt’ standard of conviction, I would be very open to hearing it. I don’t see one, but that’s just me.
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November 29th, 2005 at 8:06 am
I practice law (although not criminal law), and all of this is news to me.
Please walk us through the procedure: A prosecutor files a rape charge based solely on a victim’s testimony. What happens next to keep the case from going to trial? What motion would the defense file to dismiss the charges?
To be sure, prosecutors have a lot of discretion regarding the charges they choose to prosecute. So prosecutors may choose not to bring charges if the trial will simply boil down to “he said/she said”; after all, prosecutors bear the burden of proof. But I am not aware of any legal prohibition on going to trial simply on the basis of the victim’s testimony. The jury will have the opportunity to observe the demeanor of the witnesses (including the defendant, if he chooses to testify), and to render judgment on that basis. I am not aware of any legal doctrine that says that the jury cannot base its decision solely on the demeanor of the witnesses.
The prosecutor says, “Ladies and gentlemen of the jury, the defendant says that she consented to having sex with him in the alleyway as the broken glass was cutting into her back. This is just not credible….” The defense lawyer will jump up and say, “Objection, your Honor, that line of argument is impermissible because…” What’s the grounds for excluding the argument?
So no one has ever been convicted of raping and murdering his victim? (After all, a murder victim would not be alive to deny consent; if I understand your argument, the court would therefore have to assume the victim consented.) I have not researched this question, but it sure seems counter-intuitive.
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November 29th, 2005 at 8:11 am
Well, it kinda is, though, isn’t it? I mean, if you say that you’re under that impression because Karl back at the main office gave you a work order saying that this was the one to demolish. . . and the prosecution is unable to produce a work order showing a different address . . . I think most juries would find that that’s a reasonable doubt.
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November 29th, 2005 at 8:16 am
While we’re discussing legal procedure, here’s the classic excerpt from the drama “A Man for All Seasons” by Robert Bolt, about the life of Sir Thomas More:
DAUGHTER: Father, that man’s bad.
MORE: There’s no law against that.
ROBERT: There is. God’s law.
MORE: Then God can arrest him.
WIFE: While you talk he’s gone.
MORE: And go he should, if he were the Devil himself, until he broke the law.
ROBERT: So, now you would give the Devil benefit of law?
MORE: Yes. What would you do, cut a great road through the law to get after the Devil?
ROBERT: Yes, I’d cut down every law in England to do that.
MORE: Oh? And when the last law was down and the Devil turned round on you, where would you hide, Robert, the laws all being flat? This country is planted thick with laws from coast to coast. MAN’S LAWS, not God’s. And if you cut them down - and you’re just the man to do it - do you really think you could stand upright in the winds that would blow then? Yes, I give the Devil benefit of law - for my own safety’s sake.
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November 29th, 2005 at 8:27 am
Minor quibble: Bad example. In the USA, consent is not a defense for murder.
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November 29th, 2005 at 8:33 am
Sorry for the confusion. To convict a defendant for murder AND rape, you’d need to convict for rape, so consent would still be a defense to that charge. Even in the US. :-)
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November 29th, 2005 at 8:35 am
Ah yes. Right you are. Carry on.
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November 29th, 2005 at 8:58 am
anonymous: The problem is that what you’re saying isn’t actually true in essence. That is, the Jury doesn’t have to make any decisions as to whether the accuser consented or not. All they have to do is determine whether there’s a reasonable doubt. Judging a defendant not guilty is NOT the same as deciding that the accuser is lying and really, secretly, consented to sex.
Actually, in the specific case I linked to (here’s the link again) what the judge said was that if the woman couldn’t remember, that meant she consented. cite
While we’re discussing legal procedure, here’s the classic excerpt from the drama “A Man for All Seasons” by Robert Bolt, about the life of Sir Thomas More:
Yes, you are far from being the first person to think that “the default state of women is consent” is the same as “innocent till proved guilty”.
Anonymous: Well, it kinda is, though, isn’t it? I mean, if you say that you’re under that impression because Karl back at the main office gave you a work order saying that this was the one to demolish. . . and the prosecution is unable to produce a work order showing a different address . . . I think most juries would find that that’s a reasonable doubt.
Men accused of rape don’t even have to show a work order. It’s as if all buildings were assumed to be available to anyone with a demolition truck to knock down, and if you wanted to prosecute someone for demolishing a listed building, you first have to prove they shouldn’t have demolished that building. And if there’s no proof anyone ever asked them not to demolish that building, then acquit them without a trial - they had a legal right to demolish any building, anywhere.
This comment was written by Jesurgislac.Report this comment to the moderators
November 29th, 2005 at 9:23 am
Yes, and this was not a case here in the USA. This case indicates precisely nothing about how standards of evidence, consent, juries, etc., work here. As I said earlier, I think here in the US, the case would have likely gone to trial. I’m discussing US law because that’s what I’m familiar with.
AND NEITHER WOULD THE DEFENDANT IN THE CASE I POSITED. Absent hard evidence (like a work order) validating either the prosecution or the defense, the presumption is for the defense. That’s my point. It IS up to the prosecution to prove that 1) The accused shouldn’t have demolished that building and 2) if he claims he was instructed to demolish it by a lawful authority, to show he wasn’t.
And look, the evidence that he wasn’t instructed to demolish it can include many things besides a work order, like ‘Karl at the main office’ saying “Look, I remember for a fact I didn’t tell him to destroy 704 Maple Lane, I told him to destroy 407.” That’s admissable. If Karl says, however “Well, I don’t really remember what I told him. I was pretty drunk at the time. I don’t have a work order, but I don’t think I would have told him to demolish 704,” well . . . let’s just say that that’s good for the defense.
I hear what you’re saying, I really do. My impression (and please restate or claify if my impression is mistaken) has been that you would like the court to rule on what’s likely or not . . . to look at a case like the Dougal one and say “Well, come on, she’s never had sex with this fellow before, and they were in the hallway, and she was drunk . . . it’s very likely it was rape.” And that’s true. I believe that this was probably rape. I believe that this Dougal guy is most likely a rapist. The problem is that as long as he says “She consented” and she is unable to say “No I didn’t,” there’s going to be a reasonable doubt. Is it possible she consented? Yeah. Is it wildly implausible? No, I don’t think so . . . it’s kinda implausible, but not outside the bounds of reason. Add in that our presumption is of innocence and our legal principle is that it’s better to let a guilty man go free than to convict an innocent one, and I just don’t see how the change you’re proposing would work.
I would love to see more rape convictions. I would love to see less rape. I’m unwilling to risk changing our standards of evidence in order to achieve that end.
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November 29th, 2005 at 9:33 am
So far as the cite you provide goes the judge didn’t say that if the woman couldn’t remember, that meant she consented.
(1) During cross examination the defence barrister argued it was impossible for her to be sure she had not consented, as she could not remember what happened.
(2) The prosecution barrister then said he was abandoning the case. As after cross examination there was an evidential problem. She could not remember what happened. So she couldn’t testify that she didn’t consent. As drunken consent is still consent, she may have consented (the defendent’s position), then it may not have been rape. That was fatal for the prosecution’s case.
(3) The Judge then instructed the jury to return a not guilty verdict.
Anonymous;
You could say you were under a false impression because Karl back at the main office gave you a work order saying that this was the one to demolish. . . and the prosecution may be unable to produce a work order showing a different address . . . but you are still in trouble. That’s simply not an excuse. As the law stands you have a responsibility not to knock down listed building. Ignorance of whether they’re listed isn’t a get out.
This comment was written by nik.Report this comment to the moderators
November 29th, 2005 at 9:37 am
The fact that some of us are lawyers and some of us are not is clogging this discussion beyond rescue, I’m afraid.
Lawyers, remember in law school when they told us they were going to teach us “to think like lawyers”? Surprise, they meant it!! Furthermore, it’s mode of thinking not common in the non-lawyer population. And even further than that, it’s a mode of thinking which is unintelligible to most people.
All I can say is that lawyers are in the business of trying to make this society work. Unhappily, there are people who have no regard (or, not enough regard) for the rights of other people, and these folks commit what the law defines as crimes. One crime is rape, commonly defined as sexual activity without the consent of the other party.
When we say that the guilt of the accused must be proven beyond a reasonable doubt, that the burden of proof of guilt is on the State, and that lack of consent is an element of this crime, we are not trying to make Great Big Statements about the relationships between men and women, about whether women have to think that every man they meet has some kind of “right” to assume that they want to hop into bed with him that minute, all that.
We’re just trying, in the most straightforward way we can think of, with due regard to the rights of the accused (a big value in this culture), to identify these creeps and get them off the streets (out of the bars, out of your bedroom, whatever).
Let me clear one thing up, however. If the only evidence we have about the woman’s consent is her statement that she didn’t, it is entirely possible - it happens all the time - that this will convince the jury beyond a reasonable doubt that she didn’t consent. (After all, who would know better than she would?) Nothing in the law requires more than that.
If she says she didn’t and he says she did, then the jury will decide who they believe, on the grounds upon which we all of us judge all statements. That’s why we have juries - to listen to testimony and to apply common sense (not lawyer “sense”) to the question of who is telling the truth. If she is unavailable to testify (say, he killed her afterwards) then the jury will decide whether she consented on the basis of whatever other evidence is available. (If he killed her afterwards, his goose is cooked on the rape issue usually.) Was she unconscious? I as a reasonable juror would have to hear something pretty fancy from the defense to move me from my idea that she didn’t consent. And that’s OK, that’s enough to convict.
Proof “beyond a reasonable doubt” doesn’t have to arrive in the form of a semi full of gold-sealed documents. For example, I believe right now beyond a reasonable doubt that my husband is at his office, and I haven’t checked or called him or something. That’s perfectly acceptable, and would be if I were a juror.
This comment was written by Susan.Report this comment to the moderators
November 29th, 2005 at 10:01 am
Anonymous: And that’s true. I believe that this was probably rape. I believe that this Dougal guy is most likely a rapist. The problem is that as long as he says “She consented” and she is unable to say “No I didn’t,” there’s going to be a reasonable doubt.
Only if (a) we assume that the default state of all women is consent, and (b) we assume that “reasonable doubt” means “I can, though I think it’s really, highly unlikely, see some way that this person could just possibly not be guilty”. If we don’t begin by assuming that women consent to sex with any man, anywhere, any time, and we then examine Dougal’s statement, does it stand up to the “reasonable doubt” test? You just said that it didn’t.
And look, the evidence that he wasn’t instructed to demolish it can include many things besides a work order, like ‘Karl at the main office’ saying “Look, I remember for a fact I didn’t tell him to destroy 704 Maple Lane, I told him to destroy 407.” That’s admissable. If Karl says, however “Well, I don’t really remember what I told him. I was pretty drunk at the time. I don’t have a work order, but I don’t think I would have told him to demolish 704,” well . . . let’s just say that that’s good for the defense.
Dougal with a demolition truck demolishes a house. Claims that Karl told him to do it. He has no previous professional connection with Karl: his story is that Karl, who he met by chance that day, whom Dougal knew was drunk, told him to demolish the house. Karl says he was drunk, doesn’t remember Dougal, and is sure he wouldn’t have told Dougal to demolish the house.
We can leave to one side the issue of whether or not Karl did or didn’t tell Dougal to demolish the house, or whether it was 704 or 407 that should have been demolished.
The question before the court is: Should Dougal have demolished the house, even if it’s true that (as Dougal claims - there is no other evidence) that Karl told him to do it?
This comment was written by Jesurgislac.Report this comment to the moderators
November 29th, 2005 at 10:05 am
One change I would really like to see made in the law is that drunken consent should not be considered consent (Unless consent has already been granted prior to the drunkenness. I want to preserve the right for my wife and I to get wasted and have sex with each other.) It would have neatly cleared up this case, and, I suspect, plenty of others.
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November 29th, 2005 at 10:14 am
One change I would really like to see made in the law is that drunken consent should not be considered consent (Unless consent has already been granted prior to the drunkenness. I want to preserve the right for my wife and I to get wasted and have sex with each other.) It would have neatly cleared up this case, and, I suspect, plenty of others.
Well, aside from the question How Drunk (one beer? six beers?) this seems a good idea.
I don’t practice in this area, and the law on this will vary from State to State, but just on general principles I’m guessing that this is already the de facto rule in a lot of jurisdictions, just because it makes sense. If I were on the jury, this argument would certainly make sense to me.
This comment was written by Susan.Report this comment to the moderators
November 29th, 2005 at 10:34 am
No, but see, it has been asserted, by an eyewitness, that she did consent. There has been no testimony in contradiction. We assume everyone is telling the truth unless there’s a conflict.
No, I didn’t. I said that he’s probably guilty. Do I have doubts? Yes I do. Would I vote to convict? Probably, but only because of my belief that drunken consent is not consent, which I’m unsure is supported by law. If you are a person who believes that drunken consent can still be considered consent, then there’s absolutely a reasonable doubt.
More to the point, agree or disagree with this, it’s still the exact same standard of evidence that’s used in every single criminal case, and doesn’t require any invention of ‘presumed consent.’
We are not ‘presuming’ consent. One of the primary parties claims consent, and the other does not dispute. THIS IS NOT A PRESUMPTION.
That’s a good question. That’s the question of whether drunken consent is consent. You know my position on that, and what I believe the law’s position on that should be. Of course, the house demolishing example doesn’t map precisely, as it involves a third person (the owner of the house) and house demolishing is generally not consensual, and sex generally is, and for many other reasons. I only brought it up to demonstrate how standards of evidence work.
I’m not arguing that the outcome of this case is optimal. I’m just arguing that there isn’t a different standard of evidence when it comes to rape than when it comes to anything else.
I’m still very interested in what concrete changes you would make to the law, Jesurgislac. We agree that this is a problem, and I’ve proposed one change I would make. What changes would you make? How should this have played out?
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November 29th, 2005 at 11:06 am
Yeah. What I worry about is cases like this where the judge instructs the jury that if consent was given, regardless of the mental state of the victim, then it’s consent. I tend to think it’s safer to avoid that altogether.
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November 29th, 2005 at 11:55 am
I think the idea that drunken consent should not be considered consent is a really, really, really, idiotic idea.
In the extreme case: two people get drunk and have consensual sex, they both live happily ever after. Should this be prosecutable? While you write your answer I’d like you to bear in mind the logic that made being gay a crime for most of last century.
If you think don’t think the above is a crime, then I”d like to hear why. They clearly didn’t consent, so I suppose you’re going to need some form of binding future consent (marital rape, anyone?) or some formal definition of after the fact consent (So a crime has occurred, until you wake up the morning after, at which point you can give consent and it hasn’t).
Now, assume we prosecute the man for rape. He goes to jail. But he was drunk too, so hasn’t the “rape-victim” also commited a crime upon her rapist? If drunken consent isn’t consent, then he couldn’t have consented to anything either, and she’s guilty of indecent assault.
If one person’s drunk and the other’s not, then the sober person can consent, but the drunk can’t. So blame lies upon the shoulders of the sober party. Can you see where I’m going with this? It could be the basis for an interesting drinking game, but I think it’d make a bad law.
This comment was written by nik.Report this comment to the moderators
November 29th, 2005 at 12:05 pm
This *is* the law in the UK 9since 2001) - hence the uproar and the referral of the case back to the Director of Public Prosecutions as it appears that the Judge did not know the law.
This comment was written by spicy.Report this comment to the moderators
November 29th, 2005 at 12:13 pm
Hmm. All good points.
I tend to think that the law could be written with sufficuent caveats so as to avoid a lot of this, but yes, a blanket “drunk=rape” is probably a bad idea.
To address a few of your specific issues:
No. Who would press charges? I think of this more like theft and less like murder, in that I don’t think it should be prosecutable without the victim pressing charges. I actually think of many sexual crimes this way, as what’s sexual battery to you may well be a pleasant night of spanking to me. If you’re so poorly in touch with your partner that after an evening of drunken sex together, they press charges, I tend to think that maybe that is rape.
As for who’s the rapist . . . hmm . . . I tend towards saying that the sober party needs to bear responsibility for what happens, as they’re the one without the diminished mental state. All of this is just gut reaction stuff, though, and the issue of consent tends to be confusing to me when it gets into this kind of territory or age of consent issues.
I don’t want to end up with a situation like we have now where if two 16 year olds take pictures of themselves having sex, they’re both guilty of rape and posession of child pornography. That’s crazy, and I realize that.
I don’t know the answer, but thanks for keeping me honest, Nik. It’s good to look at the unintended consequences of all of this.
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November 29th, 2005 at 12:43 pm
nik Writes: In the extreme case: two people get drunk and have consensual sex, they both live happily ever after. Should this be prosecutable?
If neither party brings charges, of course not. Are you arguing that, if someone gets drunk in company, their consent to sex with whoever they’re with can be presumed? If so, that’s going to lead to a lot of solitary drinking…
This comment was written by Jesurgislac.Report this comment to the moderators
November 29th, 2005 at 1:53 pm
Jes/Anon;
As I understand it charges are pressed - in the UK - by the CPS. You can procecute someone for a crime without the victim’s consent. All that is needed is the crime to be reported to the police, and enough evidence to be collected to make it stick. It’s (obviously much) harder to prosecute without the cooperation of the victim, but it’s been done. A third party can report something, the police can find evidence, and things can go from there. If dunken consent wasn’t consent; then all you need to prove is that someone was drunk and that sex took place.
I think, that for such a serious crime, you shouldn’t brush away examples of it being committed which you don’t object on the basis that they won’t get brought to court and your just after the bad guys. Someone could not have a problem at first, but could always change their mind and bring an accusation later - say if things had gone badly in the relationship. They would have still been drunk, a serious crime would have still been committed, and the person who committed it would still be liable. I think if legitimate activity falls inside it, then it’s a bad law.
This comment was written by nik.Report this comment to the moderators
November 29th, 2005 at 2:17 pm
Although I, personally am restricting my discussion of what I think is good and proper for the law to do to discussion of US law (which may be part of why I’m unclear on your argument about ‘listed buildings’), I take your general point.
I do think the concept of pressing charges against the wishes of the victim is something that needs to be restricted to certain very specific crimes where a victim is unlikely to be able to press charges on his or her own, rather than just any crime in general. This prosecution against the wishes of the victim has lead to such famous British travesties of justice as prosecuting (and convicting) a husband for mutually consensual BDSM activity with his wife.
Anyway, that’s a bit far afield, but no, I’m not talking about the UK, and yes, I think there are problems with the drunk=rape proposal, but yes, I still think that there has got to be a way to make it workable. I mean, heck, I’d like to read the text of the law Spicy references . . . it’d be interestign to see how they actually did it.
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November 29th, 2005 at 2:19 pm
Oh damn. Please remove one of the duplicate posts . . . and this post. Thanks.
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November 29th, 2005 at 3:13 pm
This is a really trivial point, but “the UK” isn’t a single jurisdiction. Scotland has a separate legal system, in which crimes are prosecuted by the Procurator Fiscal (rather than the CPS), and in which different standards of corroboration are required. (We also have the worst attrition rate for rape in Europe. Go us.)
N. Ireland is also a separate jurisdiction, but I know nothing about their legal system, except as it pertains to equalities issues.
This comment was written by Emma.Report this comment to the moderators
November 29th, 2005 at 5:36 pm
You’re absolutely correct and I apologise for my sloppiness.
You can read the full text here but there are summary versions here and here.
There’s also these two reports: ‘A gap or a chasm? Attrition in reported rape cases’ and ‘Investigation & Prosecution of Rape Cases: HM Inspectorate of Constabulary’.
The first of these reveals that 80% of reported rapes never make it out of the police station to the prosecution.
This comment was written by Spicy.Report this comment to the moderators
November 30th, 2005 at 6:38 am
Anon;
BDSM (and earlier prosecutions for “consenting” gay sex) was one of the concerns I had in mind when I wrote the post. And just on a basic level: if something’s wrong it should be a crime and if something’s not wrong it shouldn’t be a crime. I’m very wary about making something that isn’t wrong a crime on the basis that we’ll just ignore that “crime” and only go after the bad guys.
I’m not sure Spicy’s correct that drunken consent isn’t consent in the UK. All I can find in the law is a presumption that if someone causes the complainant to (non-consensually) take a substance which could cause the complainant to be overpowered at the time of the relevant act, and the defendant knows this, then the complainant is presumed not to have consented. And a similar presumption if the complainant is unconscious.
This comment was written by nik.Report this comment to the moderators
November 30th, 2005 at 8:46 am
Again, you really don’t seem to have a concept of women not having a default state.
Again, you really don’t seem have a concept of how criminal law works, and you don’t appear know the difference between ‘elements of a crime’ and ‘affirmative defense’.
The default state of a criminal defendant is that his innocence is presumed. It is the prosecution’s job to prove every element of the crime beyond a reasonable doubt. “Without the victim’s consent” is an element of the crime of rape.
If you require the defendant to prove consent, you’re making it an affirmative defense. Which means that “without the victim’s consent” is NOT part of the crime of rape. Your rape law now becomes “sex with another person is rape, but a defendant may prove that the other person consented and therefore it was permissible sex.”
It’s not about assuming that the default state of women is consent (though surely there are idiot judges and juries who do).
This comment was written by mythago.Report this comment to the moderators
November 30th, 2005 at 8:57 am
It’s not about assuming that the default state of women is consent
Indeed, it is. But this debate has gone stale.
This comment was written by Jesurgislac.Report this comment to the moderators
November 30th, 2005 at 9:32 am
John is found with Steve’s lawnmover, and Steve presses charges. John says, “He gave it to me when we were drinking one night.” Steve says, “I don’t remember that night at all, I was so drunk, but I don’t think I would have given away my lawnmower.”
This case would not go to a jury, and charges against John for theft would be dropped.
Is Steve’s default state consent to theft?
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November 30th, 2005 at 9:37 am
But this debate has gone stale
If by ’stale’ you mean that you still don’t understand the whole having to prove somebody guilty of a crime thing, yeah, it has.
You’re conflating criminal procedure with ordinary behavior. In real life, the default state is ‘non-consent.’ In a criminal proceeding, the default state is ‘you must prove the accused did this bad thing’.
This comment was written by mythago.Report this comment to the moderators
November 30th, 2005 at 9:45 am
Jesurgislac and Mythago, thanks for your very interesting posts. I think I understand where you’re trying to go, and it appears to me that Jesurgislac is talking about the assumptions out of which the current way the crime of rape is defined and prosecuted developed, while Mythago is talking about how things work in the current criminal law system. But I think in order to address Jesurgislac’s point, we would have to come up with a whole new and different criminal justice system. I’m not a lawyer or a constitutional scholar, so I can’t even begin to go there, though.
This comment was written by Lee.Report this comment to the moderators
November 30th, 2005 at 11:31 am
Going a bit off-topic, this distinction is clear procedurally but clouded conceptually. Conceptually, a legislature cannot override the Constitution. Conceptually, the Constitution grants a defendant a Due Process right to be presumed innocent until a prosecutor persuades a jury of every element of a crime.
BUT the definition of the crime is a matter (largely) left to the legislature. Thus, I believe that states have generally drafted criminal statutes to make lack of sanity an affirmative defense, rather than make the prosecutor prove the defendant’s sanity. This legal practice seems to comport with everyday thinking because we tend to assume that a person is sane until proven otherwise. But this is not so different than Jesurgislac’s argument about creating a legal presumption that better comports with everyday presumptions.
So if the legislature defines rape to mean “sex without the consent of all parties,” then the prosecutor has to prove all these elements. But conceptually the legislature could define rape to mean “sex, with the proviso that consent shall be an affirmative defense.” This statute would, in effect, shift the burden of proof to the defendant to demonstrate consent. (That is, men would assume the risk of a rape conviction every time they have sex. Presumably they’d be free to pursue documentation of consent if they wished.)
More generally, a legislature could conceptually adopt a new criminal code as follows: “A person who is found to have pissed off a police officer shall be deemed guilty of violating The Criminal Code unless the person can demonstrate that 1) she did not commit murder, 2) she did not commit manslaughter, 3) she did not commit tax evasion, 4) she did not commit littering, 5) ….” In effect, this would adopt a typical criminal code, but with all the burden of proof shifted to the defendant.
I suspect a court would reject The Criminal Code for violating the Due Process clause, but the limits on the ability of legislatures to shift the burden of proof is unclear to me.
Ok, back to the topic at hand….
This comment was written by nobody.really.Report this comment to the moderators
November 30th, 2005 at 1:54 pm
The case wouldn’t go to a jury in part because Steve can get the lawnmower back. (I’m assuming even though you don’t say so, that the assumption is that Steve got his property back.)
But - it might go to a jury after all if the item in question was car or a piece of jewelry - something more expensive than a lawnmower - even if John gave it back.
(and people wonder why we bitch about rape being minimized)
But what if Steve woke up and found bruises on his body? And John claimed that Steve was the instigator? Or that Steve went along with some stunt that would have fit in well on “Jackass”? It may very well go to a jury then, even if Steve had been drunk.
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