Rape

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Damn, that was a long post...

To be completely clear: I do not, I repeat, I do not believe that all men accused of rape are guilty, nor do I believe that "all women are victims" or that "all men are rapists". Hell, I spend hours every semester drilling that specific garbage out of my students and getting them to understand why it would be said. It's not accurate, but it's inflammatory; if you want someone to sit up and listen, you don't read off a longwinded speech.

I don't disagree with your assessment of the authors, Chev/Aldeth; and believe me, I have plenty of contempt for militant feminism, although I guess my definition of militancy is different. Unfortunately, finding a more balanced article that canvasses these issues can be hard; people tend to invest a lot into their philosophies in this area and can become exceptionally self-righteous. Believe me, as a victims researcher I've run across more than one who I've ended up being berated by after doing little more than ask them to defend their arguments.

Article one was over-the-top, as a lot of feminist pieces can be. If it stuck to the matter at hand, rather than making grandiose allegations, then it would be a hell of a lot more compelling.

No, it's not new. Mendelsohn and Von Hentig were pioneering victimology in the early 20th century as a distinct discipline. Mendelsohn was in fact a Jewish lawyer, IIRC; following World War Two, he substantially revised his thesis to emphasise human rights in victimological study.
http://faculty.ncwc.edu/Mstevens/300/300lecturenote01.htm

And as I'll deal with this later, suffice it to say that these are definitely relevant.

Unfortunately, it is feminists like that who give the rest of them a hard time. By your own statement, though, there's more than one kind of feminism. The ones who are still fighting the same battles as 50 years ago and demanding rights to representation, I concur, are not operating in the same reality as the majority of us. The ones who are trying to improve the situation for women through affirmative action and policy change, however, cannot be viewed so negatively.

A few takes on types of feminism...
Light-hearted: http://monster-island.org/tinashumor/humor/femkinds.html

More serious: http://www.ecu.edu/wost/Types.html

Sanctimonious: http://www.colostate.edu/Depts/Speech/rccs/theory84.htm

No, they do not. There is a presumption of consent, certainly, but in such cases, the allegation of rape should be even more concerning. After all, if there is a general consent, why would they make a claim?

No argument here. However, my comment was about the stereotype of the "typical rapist", which can be a long way from the truth in some cases.

And I commend you for that. Plenty of people don't share that sentiment, Chev. In Australia, where the sportsman is the ultimate idol and can pick up women anytime, anywhere they want, do you think that instinct is still there? Not for a lot of them. "Yes" when they meet, "yes" when the offer is made, "no" when it becomes clear what that means is as good as a straight-up "no", in my book and probably yours too. Our attitudes, however, are a long way from universal.

The male rape myths listed, though, are not intended as statements of fact; they reflect persisting assumptions about rape. Again, not everyone buys into them, but for plenty of people, they are enough to base an assumption about the "worthiness" of a victim to claim that status. The jury is comprised of members of the public; the most ideological or knowledgeable of them will be screened out during the empanelling of the jury. Is it too much to assume that at least a few people will believe a few of these myths, or at least the underlying attitudes which give them a basis.

Chev, please tell me you didn't just say that. This line of reasoning can be (and is often) extended thusly: she was wearing revealing/provocative clothes; therefore she wanted to be noticed; therefore she wanted sex; therefore the mistaken belief of consent defence can be upheld.

I'm not going to assume that was how you meant that, but it is precisely that set of basic assumptions that can lead to the perpetuation of those "rape myths". Even if someone was acting unwisely, if someone attacks and rapes them, it's still a crime (factually at least).

I'm not going near that rape fantasy comment because I'll be guaranteed of infuriating someone.

And here we get to the nutbaggery of radical feminist diatribe. I don't intend to defend this woman's reasoning or ideology (and in different circumstances, would be the first to attack it). I find the language used to be offensive as well. However, I only cited it at the start of this article to make the point about rape myths, as it has done.

All the feminists I've ever met seem to have a major beef with the Bible. I'll give you that, Chev; what about the rest of it?

I don't give a scrap of credibility to the argument that rape exists as a purposive weapon to keep women in a subordinate position - that's complete BS. No, my brother and father didn't take me aside at puberty and tell me, "Here's how the world works - if a woman steps out of line, rape her". However, the view that is taken of "what is rape?" is founded on particular attitudes, laws, precedent and theories of behaviour.

Fair call, but going on the numbers, it's a fair generalisation to make. Of course men get raped, although almost always by other men, not that that's any less devastating or serious. I don't have conviction stats for that.

Ever been to a crisis centre? If you have no employable skills, no income, nowhere to go that he can't track you down and kids to look after, what options do you have - especially with police attitudes like that (more common than one might think)? What if you ran and he went after the kids? It's not as simple as choosing between being beaten or not being beaten, and often, the women in this position have been subjected to social isolation as well, further limiting their options.

True. The manner in which such activities are carried out - plus the basic justice principle that previous convictions are no indicator of guilt - are extremely unfair to the victim, since they are supposedly the wronged party. Yes, they have a role to play in the process, but why are their rights to privacy and freedom from intrusive questioning waived while the defendant's are almost untouched?

Agreed.

But since gender roles are indivisible from sexual behaviour, how can we simply divorce them from the issue of rape? I'm sorry, Chev, but this reads as if you believe in the existence of "Truth" as a monolithic entity which is separate from understanding. The statement made by the author is that the hardships endured by the typically-female victim of sexual assault are so terrible because of the nature of the crime - which women are more often subjected to. How can you argue that gender roles are irrelevant to rape when the whole problem is one of "what is consent" or "what is acceptable sexual behaviour"?

Read it again - viewed by police... the ones who said battered women who didn't leave enjoyed being beaten were cops, too. Being an agent of the justice systems does not bestow preternatural wisdom or insight; you get your views from somewhere, they don't just appear in your brain. While I agree with your assessment, you appear to have selectively misquoted or misinterpreted the point, which was about systemic attitudes.

Agreed to a point - you can't imprison on a he-says-she-says basis. That can be enough for statutory rape. Which, if I recall correctly, is a strict-liability offence which does not require mens rea, and is not really relevant to this discussion.

Agreed. My problem is with the manner in which it is done.

Having worked in the victims area extensively, I guess my opinion is a little biased. However, the nature of the court system has absolutely nothing to do with delivering justice, and that statement does nothing to undermine that position.

The point of article two was to show the problem with judicial attitudes being so dismissive. Yes, this is an exceptional case. Yes, I did pick it for that reason.

Are you serious? You're saying she's trying to foist everything off onto this one guy - of course not! Hypothetically, all of these scenarios are plausible. Just because she is taking one issue of judicial reasoning (ie: that you can't be raped in jeans) does NOT mean that any of these were true in this one instance. The whole outrage sparked over the principle behind those comments by the judge, not because of the facts of the case. That the judge emphasised that one point over the available evidence is galling.

If you disagree with feminists and rape advocates talking about patriarchal attitudes and barriers to justice, then for the love of God, don't give them a weapon like that!

Duress invalidates consent completely as well. Implied threat is where it gets difficult to prove; you'll need corroborating witnesses.

I move to have these remarks stricken from the record as they do not do you justice, Chev. In any such instance as the ones described (rather than the actual case), would it be rape? Yes. Would it matter if she was wearing jeans? No.

Since most defence lawyers don't ask, and since the accused does not have to give evidence, I agree that it is most definitely something which needs examining. There is a reason why some people use the same tone to say "rape defence lawyers" as they do for the word "scum".

At this point I will pause to make a formal apology to all SPers who are defence lawyers. However, I believe the nature of the adversary system is antithetical to justice in many criminal cases.

It has everything to do with it. Remember, guilt or innocence is predicated on consent. If a woman is considered "loose", then will their word carry as much weight as a "chaste" woman? No. Will this impact on the trial? Absolutely. The whole concept of the "ideal victim" will necessarily predispose people to take a person more or less seriously based on their exhibition of certain behaviours (couldn't find a link; original paper by Nils Christie).

True, but that's not to say that they are fair or appropriate.

Agreed, but it doesn't undermine the basic principle. Rape conviction rates are extremely low, and that's not even taking into account the amount of rapes that go unreported or do not proceed for a variety of reasons.

Of course not. The problem is the judge, not the alleged offender.

Okay, the paranoia and risk management I can agree with you about, Chev. But what's the point if you aren't going to be believed? Besides, as I've said before, the biggest threat isn't a stranger on the street, it's someone you already know. Only a truly dangerous or stupid individual would commit the "ideal rape" and fulfil all of the stereotypes discussed above.

Anyone from New York would know this one: if you're being raped, don't scream "Rape!", scream "Fire!" if you want people to help you. Of course, if it got to court, that comment could probably be construed as possible consent...

@ Aldeth:

This is what's called formal equality. I agree in principle. Look at any local public drunkenness statute or ordinance, and then ask yourself: does this apply to everyone equally? The answer is probably yes. Now, the second question: are there people more likely to be affected by this law than others? Again, the answer is yes. Given that second answer, is the law "equal"? No, because it does penalise certain groups.

The same principle applies to a lot of argument and reasoning about rape. While equal weight should be given to both the victim and alleged offender, people are not neutral in this regard. How do you determine if someone is credible when they're on the stand? Well, you listen to the examination. Is the accused forced to testify? No, he/she has a right to silence. Is the victim? If they want to succeed, yes. If the victim is systematically attacked and undermined by the defence, is this equal or fair? I don't think I need to answer that.

With all due respect, Chev and Aldeth, I think you're missing the forest for the trees. My position on this is that there are fundamental problems with the way rape allegations are handled, and that it is an inherently politicised issue. For that reason, I am willing to accept bias on both sides, although I sure as hell don't read it as fact and ask myself what any author has to gain from such a perspective being accepted by the reader.

Yes, each of the writers had their own pro-feminist agenda. The fundamental point they make is still relatively sound, even though they do their best to make themselves less credible. We seem all too ready to acknowledge social or economic, even political disadvantage in society. While I believe that feminists who cling to the "all women are victims of men" attitudes are a disgrace to feminism, it is difficult to deny that men have it easier, their word is more respected, they aren't often derogated for having several sexual partners and that due to centuries of male attitudes permeating lawmaking, judgements and legal principles, that the system exhibits some bias towards men in terms of its reasoning. After all, the standard for recklessness isn't called the "Reasonable Poor Uneducated Ghetto-Dwelling African-American Woman" test.

 

Well, you got it right. The author didn't make the term up. However, I had beef with making names up to make some concepts bash through better. If this makes any sense. As in the names argument. Calling something a semi-scientific made up name and looking down one's nose to sound more sophisticated and turn the attention away from the faulty and lacking logic of the thesis being proposed.

What I meant was the author was biased because she wanted to use rape to combat the "traditional gender roles" which seems to be the matter and substance of her life.

The quota feminists can and will be viewed negatively, at least by me. In the meaning of the products of their minds, not in the meaning of them as persons, that is. They are still ladies, you know, and there is a certain reverence and decorum due a lady.

"Why would they make a claim" applies to all kind of crimes. I've had my own time with it when being accused of totally made up things by liars and the compassionate people who so eagerly believe them.

Reasons are different and acknowledging any sort of "why would they make a claim" shifts the scale towards presumption of guilt. I agree that "why would they make a claim" is a perfect argument for defence in a libel or slander trial, but that's it.

People have always made up accusations. For a universe of malicious reasons, for the sake of their false ideas of retributive justice (no matter what the bastard really did, just getting him a couple of years for any given official reason will serve) or even unknowingly.

I can't imagine a good rapist. One just being misguided and simply giving in on one night. I can't, really. I only realise that some of them are trickster and will try to pass for caring folks, that's all.

I'm afraid I have to confirm.

Yeah. My exact line of thought.

In the very least she wanted guys to want to have sex with her, to desire her and so on.

There's no mistaken belief of consent if there is a "no" said. But I would say that a guy provoked by a certain kind of behaviour has a tougher job to do resisting the base urges he may have. I would give a shorter sentence to him than to an "ideal rapist".

Let's face it: women who are acting provocatively are playing with fire. And they like the thrill of it. Otherwise they would be applying subtler methods of seduction.

Just what I said.

Of course. It always takes a "special" guy to forego the consent part.

I don't care, I can hold them. I wouldn't believe any guy on this one, so everything I know about this comes from women, from women who have shared such fantasies in public to women who write things about those women. And from things women I have known have told me.

I guess I am male chauvinist pig for bringing this one up.

What with folklore? The woman has problems with the world in general, hence the Bible, folklore, tradition etc. I can agree on certain legal precedents and psychological theories created by some men.

Well, but IMHO it invalidates the "against rape victims ergo against women" kind of reasoning the author is using.

That's correct. I've seen much of it in the life around me. But sometimes it's more complex and the question "why stay" is valid. Of course, it doesn't make the guy's crime any less a crime. It makes it even more of a crime on his side of the fence, if you ask me.

If the "previous convictions are no indicator of guilt" argument is unfair towards victims, then the argument that mental records, criminal history and previous sexual conduct is no indicator of anything is unfair towards the accused.

The problem is that the defendant is the one presumed innocent and standing trial. The supposed victim is the one with the burden of proof. The victim must go through some questions of a very private and intimate nature and there's no avoiding of that. The answers can change the light of the case and thus affect the verdict, so the questions must be asked. Rights to privacy and freedom from questions should never work against the right to defence (to defend from the accusation and confront the accuser).

The accused is only (criminally, at least) responsible for his act and its direct, normal or foreseeable consequences.

Indeed I do. In case of facts, there is always a boolean 0/1 value even if we can't reach it. We aren't talking about evaluations like what's pretty and which colour is the prettiest one. Things like that are irrelevant from the point of view of anything absolute. However, if the supposed offender had foregone the consent part before having sex with the supposed victim, has the 0/1 value and is a physical fact.

Consent is un-extorted cooperation or allowance.

For the purpose of the crime of rape, if a girl agrees to have sex if just asked by a guy looking like 1.5 of a half-ogre because she fears what he could do if she didn't appear to be happy about it, it's still consent.

Rape requires force, threat or an insidious intrigue like date rape pill. Whatever else it is, may be a sex offence, but not legally rape. Even if morally those guys may look much like rapists in my eyes.

Well, I'm against any conviction for a sex crime on a "she says" basis. No person deserves such credit in a court and I hardly see the logic of the words to be enough to prove the supposed victim's case unless we actually get an agreement as to facts and controversy as to their meaning and implications.

Agreed.

Subconsciously but she is.

She's bringing those scenarios up to work against the guy. She probably doesn't realise this, but still. And the judge was likely speaking about scenarios similar to the case he was judging. Did he really have to add "by one man without an exceptional physique and without tying the victim up"?

And she's making a logical error when it comes to guns and knives. It still is active help of the victim when the victim removes the jeans for an armed attacked threatening to kill her. It isn't willing help, but still active. So the judge is logically right.

The woman is trying to make us believe it was some stigma against women wearing trousers or jeans in particular. And that's wrong. The whole thing was about jeans being tight and constricting.

No worries, their logic is such a load of BS that I do a fair job about it even when I'm almost too tipsy to type.

Depends on the supposed rapist's state of mind about the duress and about the act of supposed rape. Depending on our concepts, we can call it a rape in the objective sense without considering the guy guilty or we can say there was no rape. Some people insist there's no rape in the objective sense if there's no rape in the offender's subjective sense. Some insist there is rape but no rapist. Or that there's rape and rapist but the latter is not guilty of rape. Depends how you want to put it.

Example: If we have a man whom his wife fears and he asks her sex after which she consents because of fear and despite preferring to do something else instead, it isn't rape. Duress maybe, but not rape. Maybe in her mind, maybe in some moral sense, but not in the legal sense.

Plus the thin line between implied and imagined threat. Imagined threat doesn't make rape.

Please refer to what I said above. The woman does have issues with traditional concepts of society and she keeps trying to send a message that this is about a stigma against women wearing jeans.

The examples described are in no way relevant to the defending guy's case. They only undermine the judge's statement if it is interpreted as a generalisation. But if it's interpreted through the prism and within the boundaries of the case, it pretty much stands.

I am a law student myself. I would gladly take rape defence for an innocent guy. I wouldn't take a guilty one's for any money. I might only do this on the principle of never refusing help, but this would only be to avoid a sentence based on faulty premises or procedural errors. I wouldn't surely be aiming at acquittal.

If I didn't know if he were guilty ot not, I would be bringing up points for the court to consider, but not trying to blame the victim. I surely wouldn't let go of any single inconsistency, but I would interpret those in favour of the accused rather than to the detriment of the victim. I would also be very hard on deliberate lie. If the guy ended up declared innocent, I would report false testimony.

My attitude would be "Your honour, the lady's arguments mutually exclude each other therefore at least one is void and therefore both are 50% likely to be void and we can only guess which one is really void." Or "That fact alone does not prove anything because he might as well have meant/wanted/intended/thought/expected this and that." And so on and so forth.

Why? Loose is more likely to have given consent in a word vs word case where only the intercourse is proven but not the lack of consent. For the factual question of whether he did or not e.g. slip a pill into her drink, this is not relevant. But, let's say, a nun claiming that she didn't want sex but was drugged up appears more credible than a loose bar fly saying the same. It's just the question of how much credit should be given to the victim's words if the conviction is to depend on them. As you know, I am extremely skeptical towards the victim's words playing part in conviction.

That's the natural consequence of someone's behaviour. A hypochondric person isn't likely to be taken as seriously as any other patient by a GP, is he?

The woman being loose is a valid argument against credibility when it's word vs word and the court for whatever obscure reason doesn't want to dismiss the case but is desperate officially to side with either party.

It's also a valid line of partial defence based on "she provoked it". It doesn't exculpate fully, but it does make a mitigating circumstance.

Note: We can't even dismiss the possibility of the victim hating the guy and plotting a "rape", then teasing the guy up to "raping" her just to report him. This is called the rape game and doesn't usually go this far. In most cases it stops on a molestation accusation. She basically provokes you into making open advances and then cries for help claiming you're trying to molest her or even attempting to force her into something evil. Some will even undergo the "something evil" part to have a better case. It would take an immature woman acting on malicious motives, I grant this, but this means we have to examine the maturity and the motives. No line of defence should be dismissed prematurely. Fair trial and fair defence need to be taken seriously.

I know you probably don't think this, but convicting people with less proof presented won't solve the problem. I see a problem, but part if not most of it is that rape is indeed difficult to prove. It's already a big concession if some convictions are based on the word of the victim. And IMHO most probably shouldn't have happened.

Agreed.

Agreed (just not about the forest and trees ).

Yeah.

I prefer to filter BS... errr... bias... out. I have a fine BS... errr... bias detector in my head.

Yeah, but we have to decide if someone has really done it or not and for how long he's going to be rotting for this if he has. Politics and social things don't matter, let alone economy. We aren't considering whether the victim felt coerced. We are only examining the case to find out if the supposed offender had done anything to coerce the victim.

If he by negligence had had the victim believe he was coercing him/her, well, then I think it's right he has to face rape charges to examine the exact extent of his negligence (i.e. negligence rather than intent), but he shouldn't be convicted for rape. Not sure if it should be a sex crime, actually. If he in good faith says "it's time we went to bed", it's not his fault if the target feels victimised and cooperates out of self-induced fear.

Force/threat in rape takes an offender willfully intimidating the victim with the purpose of having sex with him/her in mind. Looking like a Chaotic Evil Half Ogre Level 20 Barbarian is not a crime. As for dolts without manners, it would be nice to see them prosecuted, just for a different kind of crime. They weren't really raping.

That's true. But I know many guys making a big deal of rape. I know guys who perfectly understand a woman who think that rape is fate worse than death and I've heard women say rape is overrated and it's just how males fight each other for the control of females.

Doesn't mean women should be expected to fight to death. But a clear "no" is a minimum unless the offender has expressed an intention to rape rather than merely ask for sex. No man should be expected to guess a woman's mind under the penalty of prosecution for rape.

It doesn't mean I'm blaming the victim for the act or for accusing the guy if I consider the accusation to be too weak to warrant conviction. I'm not necessarily taking the offender's side. But we need proof beyond reasonable doubt and it's not an either or situation. It's a good rule to shut up if one doesn't know and judges should stick to it.

[ March 16, 2005, 18:07: Message edited by: chevalier ]

 

An admirable sentiment, but how do you tell the difference? Unless the comes out and says, "Yeah, I raped the girl. Get me off the hook, would you?" it's a bit difficult to tell, no?

 

I said what I would do if I knew him innocent or if I knew him guilty. When you don't know, it's pretty much the standard situation.

 

You said:

Then you said:

Sounds as if you need to rethink your approach here...at least for your own sake, if for no one else's....

This is directed at Chev:

You said:

And you said:

Please don't make generalizations about women as it is against the forum rules to do so.

But this one goes too far:

I'm going to ask that you refrain from ever posting anything like this again, as such comments are degrading towards women. In the future, please try to show more respect towards women. Try to remember they are also fellow members on this board and may resent such comments.

[ March 14, 2005, 04:04: Message edited by: Chandos the Red ]

 

I have a couple of links to ponder before (or after, for that matter) asking "why would they go through it if it hadn't really happened".

http://www.menweb.org/throop/falsereport/commentary/mcd-norma.html

http://www.equityfeminism.com/archives/years/2002/000010.html

http://home.earthlink.net/~elnunes/frape.htm

And a large collection from New Zealand:

http://www.peterellis.org.nz/FalseAllegations/cases.htm

One will also notice that most of the false claims come from young women, from late teens to early twenties. This may be due to the fact that this is the group most prone to be raped, but there is also the problem of how the human organism develops along with psychological, mental and intellectual development. All crime reports from very young people need to be investigated very carefully because crimes against the young ones are the worst of all, but they also need to be investigated carefully in order for the judge not to give faith to confabulating and put an innocent person in jail driven by a misguided sense of compassion. Especially where credibility is key, and credibility is always key where witnesses' testimonies are the most important part of the evidence, maturity of the claimants needs to be taken into consideration. This is why medical records, especially mental ones, need to be made accessible and so do all data necessary to evaluate the mental and intellectual development, as well as moral and ethical (sharp difference between right and wrong, truth and lie and a good understanding of the "don't do unto others what you don't want to be done unto" rule).

Especially the New Zealand examples show that most of the stories are made up by people living partly in a world of fantasy and/or mentally unstable, or to avoid punishment or embarassment for something.

Here is a study from South Africa, where some lying about rape is also covered:

http://www.cycad.com/cgi-bin/pinc/apr97/tredoux.html

To provide a different outlook, here is a letter written by the father of a girl accused of making up a story:

http://www.ncava.org/articles/letter.html

This should remind us that a rape trial is the accused's rape trial, not the victim's false allegation trial. We need to consider the possibility of the victim making it up - as, after all, the accused retains all rights to honest trial and honest defence - but this can't be overdone. Victim blame, as it tends to be called, probably happens more often than false allegations, but the phenomenon of false allegations has a much wider impact.

The conclusion is going to be that false rape claimants do the gravest disservice to real victims. Even greater than rape defence lawyers. This doesn't always mean malice prepense. Quite often, it's a product of an unstable mind giving in to fear, attention deficit, desire for revenge or whatever else it can be. Sometimes people wake up drunk in someone ugly's bed and assume they would never have had consented. Sometimes abuse memories or even partial recollections after substance abuse can mix with fantasies. How big is the chance I don't know. The ratio of accusations proved false is anything between 5-10%. Some are probably never discovered to be false and there's probably a number of slim word vs word cases with controversial verdicts. But in order to serve justice, we need to examine all such possibilities. There's probably also a couple percent of errors - i.e. someone else mistaken for the real offender, too.

We need to be careful. We already have one life destroyed. We don't need to destroy another one.

This pretty much sums it up why I don't want to see any presumptions working in favour of the supposed victim in word vs word cases. And don't let us forget about the presumption of innocence. If the victim's and the accused's words carry the same weight and it relies on words, the controversy should be interpreted in favour of the accused.

What's worse - a potential rapist being released because of insufficient proof, or a potentially innocent man being raped many times in prison over several years by violent criminals with nothing to lose after he ends up there with the label of a rapist (especially abuser of minors), all the time knowing that someone framed him (willingly or not) and the rest believed the someone and not himself, let alone his life destroyed, job lost, family stigmatised and pushed into poverty?

I know it's tough, but we can't take it out on the accused people. If the accused end up imprisoned in large numbers for something they didn't do, the social effect of punishment will be lost. The public opinion will shift its position and start supposrting the accused, no matter if really guilty or not... and we will end up having another general trend of letting them go without examining their guilt sufficiently.

 

@ Chev:

Re: your last post... (well, apart from the Norma award one - anything which changes language for reasons of pure sexual politics annoys me). If there was a clapping smilie, there'd be a few of them too.

To sum up my thoughts, having reviewed the original post...

Unfortunately, the key issue in rape is consent. Since it's impossible to nail this in the majority of cases (no bad pun intended), until such time as the procedure changes to reflect that, not much will change. You can't convict on anything less than near-certain probability. To do otherwise is to make a mockery of any system of justice, and no agenda is worth that. However, a justice system that is hamstrung by procedure and forms is not doing its job; something has to change. When legal personnel advise rape complainants not to press charges, something is seriously wrong. Since consent is a socially-constructed perception, and since there is so much argument over what constitutes consent (and what invalidates it), it will continue to be a problem. The preceding debate/arguments should provide plenty of evidence for that.

We should not presume that all allegations are true, or that even a substantial minority of accusations are false. However, I do not see how the defendant's right to silence assists the pursuit of justice. One would assume that if someone is innocent, they will be more than willing to speak. That isn't to say that silence presumes guilt, only that the person's attorney has advised them not to testify.

Putting it another way: police not pressing charges does NOT always mean someone is innocent. Even in court, a verdict of "not guilty" is sometimes misleading: it only means that there is not enough evidence to confirm guilt. The OJ trial is a good example of this, as I suspect the Michael Jackson trial may be. I'm inclined to believe people who allege rape, even though I know it's not good enough to sentence someone for. I'm also keenly aware that it is not in the interests of some groups or organisations to engage in this debate at all.

What do we do about it? I don't know. I would argue that requiring the defendent to testify in court may be helpful, although I'm sure plenty of people will disagree with me. In an adversarial system, they have nothing to gain and everything to lose from doing so; if they are innocent and can demonstrate as much, a false complainant should be tried for perjury. I have problems with the attitudes pertaining to sportsmen and sex, particularly salient after last year's allegations against top-level Australian Rules Football and rugby players. That doesn't mean they're guilty, however; the silence of the accused apart from reading from a prepared statement gives me little to go on, and I have to operate off assumptions. They shouldn't go to jail on that, but neither should they be able to hide behind formality. To be advised by their lawyers or handlers, certainly. To remain silent - no. People have representatives for a reason; these seldom have anything to do with the pursuit of justice and truth so much as covering one's own backside. Hence the reason why I feel the inquisitorial system is a more "just" system than the adversarial.

The other suggestion I would have is for justice personnel to be more detached, on both ends of the spectrum. That's just plain wishful thinking, though, but a guy can dream, right? I realise that policing is a generally thankless task, and that since you're dealing with people at their worst all day every day, you will necessarily become cynical. People will carry their own baggage into any position, with all the presumptions and predispositions they entail.

 

I think when it comes to consent, we need to separate the supposed offender's side from the supposed victim's side. I would say it needs to be non-consensual on both sides, i.e. the victim must be non-consenting and the offender must be extorting or defrauding in some way. Realising or not realising it, but preferably some fine balance between being too lax and too stringent. People can't be punished for other's misconceptions, so I would say we can only speak about lack of consent relevant to crime if there had been any sort of extortionate or fraudulent acting on the offender's part. Just looking like the Nameless One on steroids and being given sex out of instinct fear to say no doesn't cut it and neither does getting roaring drunk together with the victim.

So "at least use a condom" example would be a tough one. Depends on the guy's attitude. If he had an intention of forcing his way of things, he would be raping nonetheless. If he were just rude about asking for sex and she freaked out and thought he was forcing her, she would be in error and he shouldn't be prosecuted. Eerr... not for this kind of crime, that is, if for any.

 

Why do women find dangerous men attractive?

Why do I manipulate my girlfriend's limbs when we make love rather than vice-versa?

All men are rapists...most (thank God) do not behave that way because we are civilized. Even more than that, we do not behave that way because we know the horrible pain and suffering raw nature inflicts upon the socialized soul.

A modern rapists is more of a sociopath than anything else. They either do not know the pain they inflict or do not care. Either way, they must be dealt with to protect future potential victims.

But I would not be afraid of the rapists inside yourself either...

Possessive, rough, athletic sex can be greatly satisfying (for both the woman and man) and can bring them closer together (if they are acting like themselves and feel comfortable of course...)

Isn't sex an inherently violent act in the first place? You are penetrating a person's body! It is no coincidence that most of the slang terms for sex have roots in violence. Take f*ck for example...ancient German word for "strike".

Screw, nailed, jumped, pounce, attack, f*cked, make love...these are all synonymns my girlfriend and I use for sex. Well...she mostly says "do it" or "make love"...but she is female and I'm a male...hence my terms for sex are colored by violence. And don't tell me that this is a taught behavior. All men around the world are this way. If all men have been teaching all men since there were men...well guess what, then that just might be the way men are!

I just think it is better to see the violence in the mirror and accept it. Then it is not so volatile and certainly better understood. And hey...if you meet the right girl and you are both horny, athletic, well-adjusted individuals...it's a special night when the Ancient Ancestor Animal inside of you gets to clench his jaw...he's only been doing this for a few hundred million years...he just might be good at it.

 

*groan*

Well? Why do women find dangerous men attractive? Why do you manipulate your girlfriend's limbs? And where does Rape come in? Do you want to express an opinion or are we to guess what you want to imply by this? Are you too shy to write something along the lines of "women find dangerous men attractive => women love to be raped. QED"?

Sorry if I get excited, but this is a topic bound to border on flames; we're doing quite well so far, I'd say.

(BTW: Athletic Sex? Do you wear funny suits and NIKEs and try to complete as much positions in a minute as possible? Or is it about who of you finishes fastest? )

Is sex inherently violent? Huh, is eating inherently violent? After all, you are penetrating your body with a fork! Outch! Seriously, you observe (correctly) that most slang terms for sex have a violent background - and then deduce that this is a sign for sex being inherently violent?

It's a sign for a violent attitude towards sex and especially towards women, sure enough.

And how do you mean "it's no taught behaviour"? All cultures on earth oppress women -> it's no taught behaviour -> it is natural -> it is a good thing to do? We kill each other, but ... well guess what, that just might be the way men are! Please...

A good shag is a good shag. And rape is rape. Anything heading towards "rape is just another form of rough sex" is pathetic.

And I hope you meant to say "pain inflicted on a conscious soul" rather than "socialized soul". Otherwise you are implying that the pain a victim of rape is feeling is not for real but just the consequence of unlearning the joys of "violent sex".

 

This is a tricky topic; as are most and perhaps we should all get a few more lifetimes under our belts before we jump to any conclusions.

 

@ Darkthrone

Yes, after I wrote that I realized I may have placed recreational sex and rape too close together on the spectrum.

However...yes, sex is inherently violent. So is eating. Your mistake was to think it was violent towards yourself...it is not...it is violent towards the creature you are eating. It is no accident that people (well...the fun ones...) bite during sex...

And of course women do not like being raped. But I have had more than a few women express fantasies to me that were very close...I hope that doesn't get deleted by the mod's, but it's true. Of course we are not talking about the horrible rapes we see in the news...their (the women's) fantasies seemed more about being controlled.

I think my point is this...

When you take a part of your body...place it into someone else whom you are pinning beneath you...and then bang your hips back and forth against theirs in an increasingly forceful (violent?) manner...

Well that sounds violent to me...but it also sounds like making love...so I believe the two are cut from the same cloth...

But maybe I'm wrong...who knows...I'm going to love sex either way though...

 

I remember female scientists writing on that subject and I've seen public discussions about it spanning over something like 20 forum pages in the end.

My point is that a mere fact that the sex went rough doesn't prove rape. Not even handcuffs or rope prove rape beyond doubt. Not even physical marks unless it's clear they can only come from a real fight. Let's face it: this likely is proof, but not necessarily. And we need to examine every possibility if justice is to be served. There is more to justice than locking people down for flipping out and escaping common social patterns of behaviour.

Sometimes, in special circumstances, the distinction between fantasy and reality fades and people can even lose it completely. Especially if there is a substance induced hole in memory.

Sometimes people will act on their fantasies but won't want to go all the way through. Should people go to jail for failing to detect each other's mood in bedroom when no clear signs are given? I don't think so.

It's a bit the same way as when you bring up provocative clothing and behaviour. People will immediately try to frame you into condoning rape, they will insult you and say you have no respect for women, but this doesn't change the fact that in word vs word scenarios, the word of a woman who went out dressed in sexually provocative way and sexually teased the accused before voluntarily getting drunk with him clearly doesn't carry the same weight as of your average woman. Heck, even if she went upstairs intending to have sex with him it still doesn't make it any less of a rape for him if he forces it on her, of course. But there is more room for miscommunication. Things get more complicated, especially on the victim's side.

Heck, even if you run into a room with two naked people because one of them has been screaming "rape", it doesn't prove beyond reasonable doubt that rape has really taken place, in my humble opinion. Yes, rape is probably the most despicable crime short of genocide, but it's extremely hard to prove. Therefore, we can't take shortcuts. We still need to prove the accused guilty. The accused doesn't need to prove himself/herself innocent. It's bad to let a real rapist go, but it's even worse to make a rapist of someone who didn't do that. We don't even have to berate the victim's credibility - it's enough if we stick to presumption of innocence and the right to defence and honest trial.

We won't solve the problem of rape or false rape claim in a court room. Especially to reduce the number of unfounded claims, proper education seems to be a much better way. Before people file rape claims, they need to know what rape is. They need to know that it isn't rape just because it wasn't their idea to have sex and they felt bad about if afterwards. They need to know it isn't rape if the "offender" is a bastard/bitch playing nice for the moment. They need to know it isn't rape if someone fails to get out of your bedroom soon enough or if you change your mind in the middle of the act. I know the chance of one of these happening is very slim, but the presumption of innocence dictates we need to consider such an explanation if the accused proposes it and the benefit of doubt works in favour of the accused. Doesn't mean he's right about the victim wanting it etc, but it's already enough to negate the "beyond reasonable doubt" requirement to sentence him. It's not enough if the accuser proves sex. The accuser also has to prove it was non-consensual. We won't be fair if we exempt the accuser from this duty. I know it's hard and doesn't look fair, but convicting people on mere words of someone else is even more unfair.

We need to remember that we need to jail the *perpetrator*, not the *accused*. Jailing the perpetrator is a good means of protecting the victim, but jailing the accused is not a legitimate means of protecting people. We don't need to put *someone* into jail. It isn't fair to put behind the bars someone the victim accuses of the act just in order for the victim to feel better and recover sooner. Each of us has the same rights and no one is more equal than the others. We need to find the *real* perpetrator, who really did it. It's justice, not therapy. The accused is not a part of the accuser's therapy.

If he really gets proven beyond reasonable doubt, jail him and castrate him all the way you want, but only then.

It would also be a good idea to make a specific crime of victim blame if done willingly. A lawyer who knows that his client is guilty but still tries to blame the victim should end up in the same cell. Even the accused should be tried for victim blame immediately if he's found guilty or maybe his prison term should be prolonged for this.

This way it would be a fair game. We would examine every line of defence and each possibility of mitigating (or aggravating, for that matter) cricumstance, but people would pay for lying and be treated for confabulating.

[ March 17, 2005, 01:29: Message edited by: chevalier ]

 

OK, chevalier. Your points are reasonable. Your stance is reasonable. You can find any amount of female scientists to base your arguments upon. And still I can't agree.

You say that it is all about context. You say that a girl going out on saturday nights is not the same kind of victim as a girl which only leaves the house for church services on sundays. You concede that both are victims but you cannot help to think that the first one bears part of the responsibility of what was done to her.

This kind of point can be made, of course. However, don't forget that in a discussion context is important too. And the context of your arguments is that in many (if not most) cases the female victims are to be blamed for being raped. Because of them acting like (or being) sluts. Because of them wearing sexually provocative clothing. Because of them having boobs. And ass. Because of them luring and seducing the men, offering themselves to the men and then backing out at the last possible moment - to make fun out of the poor creature.

All in all, they are partly to blame for anything a men does, because they are women. They drive us to great heights and bottemless pits. They produce the best and the worst in us. Isn't that so? I bet in some way or other they are responsible for 9/11 and the Middle Eastern crisis as well.

It's the context of the arguments that reveals the attitude behind them. Have you ever found anyone arguing in the above way about murder or theft?

"Well, he was rich. Yeah, stealing his car is still a crime, I know. But he shouldn't have gotten himself something as provocative as a Porsche."

"OK, the bloke was killed, hammer smashed face, and just to rob him of his money, sad thing. But I once heard him fantasize about suicide, so I guess he had it coming, right?"

Live in fear.

That's why some of us get so disgruntled if we see someone argue in this way. Because it is really about relativizing violence against women. Because some men feel that a women who doesn't behave in a specific way (i.e. morally acceptable - which is another term for subdued) is void of the full range of protection normally associated with any human being. And that's what I read out of your posts. I'm looking forward for you to correct me.

As for the other points: of course I agree with you about the difficulty to prove rape beyond reasonable doubt in all cases. This is a technical question more than a matter of principle. And true for any other crime, I might add. Although I realize that that in case of rape the task to find the truth is especially piquant.

@ Late Night Thinker: I understood what you said and look benevolently upon your sex life. (Have I said that? ) I just don't understand your point. Sex is related to violence, rape is related to violence => so? Rape and sex are the same?!? Should we dismiss rape as a crime?

 

@ Chev: It's very dangerous to bring up the whole concept of provocation as a defence or a disclaimer for rape. In most Western systems, provocation was initially introduced as a partial defence to homicide. More often than not, it involved duelling. Since it was invariably men duelling, you can see the problem a lot of feminist scholars have with the resort to this branch of victim precipitation. Yes, the woman may have caused men to act in a different manner to normal. However, that is not necessarily enough to absolve them of guilt.

Most of us live in societies where sex is glorified. if you can't get laid, you're a loser, a geek, or otherwise unsatisfactory as a person. We attach so much value to hedonism that we sometimes lose sight of the consequences of those attitudes and assumptions. Is sex the be-all and end-all of human existence? At a fundamental level, yes, but at a social level? Not really. If you take the "all you can get" line of thought as a woman, you get branded "loose" or a slut. If you're a guy, you're taught to believe that it's a measure of your worth as a man. The social expectations and realities are such that we wouldn't fault or blame a guy for the same actions as we would a woman. When you factor those into assessing someone's credibility as a witness or the worth of their testimony, I have a real problem with the differential treatment of gender.

As I've said, I've worked extensively in the victims area and while I think this is fabulous in theory, it is not going to happen. We can still dream, Chev... it would be excellent if it did, but I can't ever see it. Who'd ever take a rape case again? If I was a lawyer, I'd run like hell.

@ Late-Night Thinker: I can see your point, but I think it's missing the whole "consent" argument. The physical act of sex could often be construed as rape, particularly when things get vigorous or where fantasies are being indulged. That said, there is a big difference between rough sex and rape, and it hinges on consent. In fact, the only difference between any lawful sexual act and rape is whether both people are willing participants.

 

No, it's not what I say. It's what you say that I say. There's a subtle difference here, even if it tends to escape some people.

Again, the whole thing is your interpretation and it has nothing to do with what I said.

Where exactly did I talk about blame? Show me. Don't just tell me I did, but show me the quotes. I'm not going to take your word on what I said, that would be quite strange, as it were.

I was talking about credibility in word vs word situations.

News: credibility != blame. Or should I type this in caps?

I was speaking about the role of background information in determining how much weight the supposed victim's words carry. In the situation where the victim wakes up in the morning with a memory hole after getting roaring drunk and doesn't remember how he or she ended up in this bed, it's quite a slippery ground. We may or may not give credit to a date rape drug speculation. If the supposed victim had been seducing the supposed offender before the act, the probability of date rape drug having been used drops. This is what you get in word vs word scenarios. Personally, I believe there should be no word vs word convictions at all, so the problem wouldn't even exist.

As for blame, there must be some difference between raping someone who teased you and raping an accidental passer-by. This is a moral abstract and largely irrelevant in most legal cases, but it isn't hard to come up with imaginary situations where this would matter. For example, if the supposed offender were a mentally handicapped person with emotional issues. Someone who is easily provoked into hurting another by some aggression or taunting may well be more easily provoked to rape when being teased enough. This doesn't mean that rapists are so handicapped that they can't control themselves with some effort and this doesn't mean that victims tend to play cocktease games with offenders, but we need to take such a possibility into account if the accused or his lawyer brings it up. We simply have to examine every line of defence if we are to be fair. It doesn't matter that the probability is like 0.0001 or whatever such. We need to check if it has any merit.

What I'm saying is not that it's generally true, but that there is always such a possibility and we can't just say "Oh, it's victim blame. How evil. It can't be true". We actually have to examine it and check if it's true or not. It's about justice, not about political correctness.

In most cases it doesn't matter, but as I showed above, one can come up with hypothetical situations where it does. Fair trial is about examining such situations. We can't dismiss a line of defence just because it attempts to shift the blame. We don't have to believe it, but we have to examine it.

If I were a judge in a rape case, there would be no "what were you doing there alone at such a late hour" talk and no clothes-based excuses. But certain kinds of mindagames could make the prison term a year shorter than in the "ideal" case.

I'm a law student and have done my course in legal history and criminal law. Provocation doesn't justify the killer totally, but this doesn't mean it can't be a mitigating circumstance. The term should be shorter for a provoked person than for a cold-blood killer.

[ March 18, 2005, 05:40: Message edited by: chevalier ]

 

Excellent point. But everyone knows a woman who behaves and dresses "provocatively" is only asking for trouble anyway. Right?

 

Not really. Of course it is my interpretation. Dialogue is all about interpretation, in case you didn’t notice. Communication is a crook for getting others to understand one’s thoughts and feelings. It is a difficult thing. There is a difference between connotation and denotation – and if I was really lame, I’d say that the subtle difference between both tends to escape some people. It’s a good thing I’m not…

But my interpretation has certainly something to do with what you said. Because it is based upon what you said, here and in other threads. And since you seem to know a thing about credibility you should realize that it is an important factor not only for rape-fakers but for anyone else in any discussion as well.

I told the world what I felt was the tendency or – as you normally like to call it – the hidden agenda of your comments. There are several ways to respond to any such interpretation. Basically, one could either look into the subject at hand or one could wriggle out of it with lots of “that’s just what you think” and “I don’t have to declare myself to the likes of you.”

One could think “Holy Mary and Joseph, some people have got me wrong, how is this possible? They seem to think I am a chauvinist, but that’s not the case, so let’s see what the problem is and work towards a solution.” One could try to make things clearer if one felt there had been a misunderstanding.

One could think “Sissies! They don’t know how the real world works. I know a good deal more about women and their fantasies, so let’s show’em!” Accordingly, one could try to show’em.

Or, as a last resort, one could simply say “you ripped my quote out of context” in case others tried to debate a specific point – or say “show me where I said that” if someone tried to talk about context. Convenient.

One could write tons of texts to prove how moronic the other party is. Or - and now hold your breath for an amazing new concept – one could define one’s position. Hell, yeah, Jamez! Even if I felt that others got me wrong, and even if I felt that what they where talking about and referring to was a bit circumstantial, I would still feel the need to clarify things and say something like

“Don’t get me wrong, I would never ever hold any woman responsible for being raped, but that was not what I was talking about.”

or

“Of course both parties in a rape can be responsible for what has happened, but this is off topic and I was talking about credibility and not blame.”

I wouldn’t say “Blame != Credibility, now bugger off!” (Yeah, people, that’s right: another interpretation here! Better watch out, it seems to become a trend…)

But of course, that’s up to you.

Now to justify this answer in the eyes of the mods (“take it to PM, laddie”):

Credibility vs. Blame.

In an idealized world credibility comes before blame. First I have to gather facts or, if those are lacking, indications and signs. This is where credibility comes in, because I will only take those testimonies as indications or even evidence where the attestor has a certain level of credibility. After gathering all necessary (or more often: all available) evidence I form an opinion, distribute responsibility and hence blame.

Now, back in the real world, how do we measure credibility? We can either look back into the history of the specific person under scrutiny. Has he/she lied before? Has he/she a record of speaking the truth? Do we know how he/she acted under similar circumstances? Based upon those insights we assign a certain level of credibility to him/her. We take into account that the person may still tell the truth in the subject at hand, but we assign a certain probability to this.

What happens if we don’t know the history of said person? We rely upon the behaviour observed in other matters (manner, interaction with others, family life, social environment) and outwardness. However, this is no science. It is subject to the experience, attitude and world view of others (judge, attorney, etc.).

And in this process, blame slips in through the back door. The world view dictates our feelings and attitudes towards the witnesses. If we think like chevalier, then there is a difference between raping someone who teased you and raping an accidental passer-by. Here’s how this is depended on our line of thoughts:

The girl goes out on Saturday nights with revealing clothes. The next morning she claims to have been raped by an acquaintance of that night.

1st line of thought: she had don revealing clothes – those are sexually provocative for men – she chose to provoke men and tease them – she did so because she wanted to get laid – she has been laid – now she talks about rape? Credibility: low.

2nd line of thought: she had don revealing clothes – she feels comfortable with her body and is not afraid to show it – she’s got a high self-esteem – she’s enviably centered in herself – why would she need to lie? Credibility: high.

This may not be the perfect example, but it shows how the attitude of jurors and judges influences their findings. Thus, as long as we (“we” in the sense of “you”) tend to think along line 1, and that is what is happening in this male dominated world, credibility and blame are really not that far apart as you want to make us believe.