Rape

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That's another misinterpretation of what I said and I would hoped things have been made clear to you, but I seem to be mistaken again. Please concentrate on what I really say when you are debating with me. Otherwise, you are debating with your imaginary concepts and that's hardly productive, together with the unnecessary cynicism.

The supposed victim's behaviour is relevant to the supposed offender's reaction. As I explained above, justice is more than just pointing out that rapists are bad. Justice is about giving a punishment proportional to guilt in order to heal the wound on the society's body and to restore the balance. Disregarding relevant details in the name of being politically correct doesn't save balance. Whatever can help the accused needs to be taken into consideration or the trial isn't fair. It's hard to understand for someone who isn't a lawyer, I know, but a couple of years studying it, let alone practice, changes one's outlook.

The quotes on "provocatively" are not necessary because pretty much everyone knows that clothing and certain kinds of behaviour can provoke the other gender. Every species has some mating rituals and humans aren't an exception.

If we are to be successful in protecting our children from rape, we need to teach them some obvious things which tend to be disregarded in the modern "liberated" culture. As it isn't quite reasonable to hit someone twice bigger than you first, it isn't any more reasonable to tease aggressive, "ruggedly handsome" types, especially if they come in groups or have been drinking. Pretending it doesn't matter is doing our daughters harm. If we would teach John that taking it out on bigger and less sensitive classmates is not a good idea, why wouldn't we teach Jane that behaving in a sexually open way around the same guys is not a good idea? Because we need to maintain an illusion that clothes don't matter? Why is that?

Credibility means that someone should or shouldn't be believed on his words alone when it comes to such things as accusing people. Someone who has a history of loose sexual conduct especially with partying, alcohol and drugs related, is not as credible as your average person when it comes to waking up in someone's bed and not realising how he/she got there. It's a simple fact and I don't see why we should strive to maintain the illusion that it doesn't matter?

Must we be so politically correct that reality stops being a concern?

You are claiming that you know my mind better than I do.

Had to involve Mary and Joseph, didn't you? Once again you apparently know my mind better than I do.

Links have been given, plus I don't claim I know everything. A good deal maybe, but not everything. Lots of adult people are immature enough to confabulate and this is particularly damaging when it comes to criminal accusations. The police and prosecutors have to deal with a lot of that and it's no fun. As I said, mental records will probably be irrelevant when it doesn't need to go word vs word (if we discover traces of fight, samples of blood or skin under fingernails etc). But they will be relevant if we are to take the claimant's story for granted.

How many times do I have to remind some people of what I really said and what the whole context was? I've been doing this a lot recently.

That has nothing to do with my words and you are drifting away on full sea.

When consent or lack thereof is not clear, the victim's behaviour can warrant a mitigating circumstance for the offender.

Case study 1:

John is 7' tall, heavily musculated and ugly like no tomorrow, let alone proper manners and people skills. He tells Jane he wants to have sex with her, in his own way. He believes he is just asking her and letting her choose, but she gets so frightened by his presence and perceived insistence that she submits out of fear even though she doesn't want to do it with him. When done, she goes to the police station and reports rape.

Do you still believe that the victim's behaviour doesn't make difference?

Disclaimer: This isn't against women. In fact, if I reverted the roles and made John the victim and Jane the big dim brute, it could still be interpreted as against women. Some reasonability is advised in interpreting this case.

Case study 2:

John and Jane enjoy rough sex. They often leave bedroom with marks and scratches etc. They toy with ropes, handcuffs and other such. He pretends to be the hunter, she pretends to be the prey and so on. But all of a sudden Jane claims that she didn't want to go this far on the given day, so John went against her wishes and she feels raped.

Do you believe it's totally the same as if he assaulted a random woman on the street?

Disclaimer: Of course, John might as well have been the one tied up and victimised and Jane the unwilling offender. But then I would be making women look bad, wouldn't I? Again, applying some reason before accusing me of being against women is advised.

Case study 3:

John is a loner a bar fly and Jane shows up in his favourite bar dressed and behaving in such a way that even someone with the sensitivity of a rock would realise she's looking for sex (regardless if this is true or not) and so does John think. He has the luck to be somewhat handsomer or wittier than other bar flies, so she fixes her attention on him. They drink a lot, flirt and talk sexually and then they go to his or her place. Some fooling around goes on, alcohol goes in their heads (or at least hers), but before it comes to sex, she's so affected by alcohol that he must help her with the zipper. In the morning police wake him up and Jane claims she only wanted to have some petting but not sex and John took advantage of her when she was drunk.

Still believe it's the same as if he went out and assaulted a random woman?

Disclaimer: Nothing says that Jane couldn't be the active one and John the passive one, but so much as you can say I'm against women for portraying Jane as a loose and irresponsible woman, you could say I were against women for portraying Jane in John's current role as a local Casanova from the bar. So again applying some reason is advised before concluding that I am against women.

So you are saying that we shouldn't investigate the accuser's credibility in word vs word cases?

Actually not. The chance she really got raped is actually high. But if she got drunk with a guy she barely knew but acted like irresistibly sexually attracted to, I would spend some time reflecting on the possible scenarios, if I were the judge of that case. I would think twice before accepting any "I didn't want sex. He took advantage of me" kind of talk from her. If we discover traces of fighting or other form or resistance, it doesn't matter what she was wearing and it doesn't matter how seductively she was acting unless she made him believe she was giving him a permission or invitation. I am speaking about a situation where her lack of consent wasn't clearly indicated. If lack of consent is clearly indicated, the offender can't use any teasing excuse. Teasing doesn't excuse the offender for forcing someone into sex despite refusal, but it may take an important part in leading the person to believe that consent was given or at least implied or at least that there was no opposition. Mistaken belief of consent needs to be investigated for the sake of justice, even if it isn't the most politically correct thing to do.

Or a low self-esteem and seeing herself as only an object and not a person in sex, believing she needs to use gratuitous sex to get a guy interested.

Thanks!

Yeah, exactly what I think.

 

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



You still seem to think that we're engaged in some kind of contest. That the debate at hand is a matter of who's wrong and who's right. Well, we're aiming at different things here: I'm trying to find a basis, a common ground for the debate. You're trying to prove that political correctness is a dumb thing.

I said it before: it's up to you how to respond to a more or less direct question. If I say "here's my interpretation" you can of course answer "this is just what you think." I don't see what it contributes to the topic though.

I put the "what you normally call hidden agenda" part in for you to have something to quote. Same with Mary and Joseph. Do you feel you have answered to it in the right context?

Easy. If you want to make yourself understood: every time this context is questioned. If you want to feel untouchable: never.

We have different aims in this debate: you try to defend a position. I try to understand other positions and make mine understood.

Because of this I will only answer to the relevant points of the reprise.

Your case studies and your question if I was saying that we shouldn't investigate the accuser's credibility in word vs word cases.

No, I wasn't saying that. I said that credibility is nothing that's tattooed on your forehead. I say that we have to rely on credibility of witnesses more often than is good for justice. There is no other way and we all agree that it is difficult. And not every claim of rape is really a case of rape regardless of the circumstances. Not much of a debate here.

But, again, how credible is Joe, Jane or John? Your examples do nothing to answer this question, because they make clear what has happened. Your case studies are "she seduces him, she gets laid, she accuses him of rape - how credible is she?" What's the point?

Now, my example (and see how I'm surrounded with the golden shimmer of pride while I'm saying this) is more inclined to portrait reality. We don't know what happened. We have a state of "before" and a state of "after" with a black box in between. How credible are our protagonists if we don't know that "They drink a lot, flirt and talk sexually and then they go to his or her place."?

We have to rely on our assessment of each of their character's. Cf. the above. And this assessment tends to be biased. And stereotypically so.

What makes a woman incredible?

* Drinking Alcohol.
* Wearing revealing clothes.
* Visiting Bars.
* Go out alone after ten o'clock (six o'clock in eastern Europe ).
* Having consenting rough sex on a regular basis.
* Having had sex before in her life.

What makes a man incredible?

* Hm.
* Well.
* Dunno.
* Being Michael Jackson?

Now, what makes him credible?

* Having consenting rough sex on a regular basis.
* Visiting Bars.
* Being ugly as hell.
* Drinking Alcohol.
* Being handsome.

I'm glad I'm on the winners side. Yay!

Disclaimer: (Hey, this is fun!) Please notice how I'm talking about the male dominated justice system and not about what chevalier said. Although I still don't see where there's that much of a difference. But that's only me on full sea.

Do you see how I cunningly used the word "disclaimer" to make a claim? Ha, the disclaimer "I'm not an anti-semite, but..." is hardly ever heard from others than anti-semites. (OK, and from Ragusa, cheers mate! ).

The other part I found relevant in chevaliers above post:

Sounds good, on we go! But wait, what are those obvious things?

Oh dear! Our children are dying in traffic accidents? Don't let them leave the house anymore!

Teach our children that earning money is not a good idea - it will successfully protect them from being robbed.

Teach them that work is not a good idea - it will protect them from loosing their jobs.

Your ideal of a society cannot be reached - and what is your response? Forcing something onto the victims and law-abiding citizens. And yield to the pressure of criminals. But wait, this would be a task for the "liberals". What would be the "conservatives" idea? (Does anyone know why we have to use them quotation marks?)

I guess it might well be morality again. Good stuff...

 

Nice long rant but the whole idea is that what you are quoting is not what I'm saying, you're basically talking to yourself.

 

We heard that before. I pulled that last part out of thin air? You never said something about which obvious things we have to teach to our children? Your SP account has been hacked then.

Well, no harm done, after a good night's sleep I'm not to happy with my last reply anymore as well.

So I'll tackle it from a different angle.

The case studies.

No1, No2 and No3 are really the same in different colors. They are about how it may be difficult or even next to impossible to find out about the intention, desire or consent of a woman. Could 7' John have perceived that intimidated Jane has not been consenting? How could John No2, rouch jockey that he is, have known that in this one situation at this one time of day his prey Jane was not consenting?

Am I still within the chevalier approved range of what he said? Good.

Well how could the Johns have known? I stated earlier that communication is a difficult thing. But is it really that difficult? Case study 1 is extremely construed and it is very hard to imagine that there has been no utterance of "no, please..." or "oh my god, don't..." If there was, which I think is likely, intimidation or not, then maybe John 1's problem is that he thinks yes and no are basically the same for a woman? But if John really has no social or emotional intelligence whatsoever - and if he really has no clue about why Jane goes completely stiff when he touches her and why she doesn't take up his rhythm etc. (you know, all the things bound to happen during consenting sex are not happening in this case - strange) - well, then he might be one out of a million. Autistic. It is difficult to tell if this really was rape or not - even I'm inclined to think that. But this is concerning the question whether there is something like forced consent or consent because of fear or something like this. It is not really center of this topic.

John No2. How could he have known? Well, to put some reality into your scenario: as far as I'm aware (hey, this is only hearsay, folks!), people doing this kind of SM sex where rape fantasies are involved or pain and wounds are inflicted agree upon a code before starting to have a go at each other. They may scream and cry all they want without influencing the course of the sex/fake rape. But as soon as one of the utters the code, the show is over immidiately.

In your case, they don't seem to know about this safety catch. OK. Is John 2 aware of Jane's current state of mind? Does he perceive a difference in her behaviour towards the numerous times they were acting in their hunter/prey roles? If the answer is "no", if there really was no chance for John to find about Jane's consent or rather the lack thereof - well, then technically he might not be a rapist. Is this the same as if he assaulted a random woman on the street? Absolutely! If he didn't know that his actions were not welcome and he had objectively no means to find out - where should the difference be? The scenario may be hard to construe with a random woman on the street - but it is already bordering on the impossible, so you should manage to adept it. Maybe the random woman was Jane 1 by chance? Poor sod, again she was so intimidated that she didn't want to show that she was not consenting.

However, if there was even the slightest chance for John 2 to find out about Jane 2's true feelings - then it is rape, plain and simple, with no real difference to jumping out at women in the park at night. It may be even worse, since a personal level of trust and affection is involved.

If I was Jane 2, I would boot John 2 out after such an episode in any case.

Basically the same applies to Case No3.

But you mustn't try so hard to build special cases I rarely have ever come across in any news I read. All cases have the same in common: one says it was rape, the other claims it wasn't. There's no further evidence, nothing else that helps us finding the truth. That's all we need to know to make a trial out of this.

At this point it is, again, just a case of whom we believe most. And whom do we believe? The one with the highest credibility. And who has the highest credibility?

Scotty, beam me up, I fell through a hole in the space-time-continuum. Feels like I've been here before.

It's a bit sad that this nice long rant has not a bit to do with what you're saying. But fear not, I hope there are others out there I'm talking to.

 

@ Chev:

I know - I was in fact counting on that with my reference to provocation. As a social scientist (for want of a less self-important term), I am concerned about the presumption that law or procedure is justified by tenure and existence. I do not think that this is conscious, but that it is simply easier to focus on matters at hand rather than the reasoning behind the reasoning behind the reasoning, so to speak.

The part about provocation wasn't to say that it is an outmoded or inappropriate part of criminal law (although it is being substantially revised in Victoria at the moment). It was intended to convey the reasoning and attitudes behind the development of that defence in criminal law. Essentially, the only reason why I brought it up was to illustrate the non-gender-neutrality of a lot of judicial reasoning. This isn't to say that the law operates solely in the interests of men (as some *ahem* academics would have people believe), but that the logic and reasoning behind established precedent and procedures are almost invariably those of the privileged older male. This is problematic precisely because it has the capacity to affect contemporary reasoning and cases in ways which are no longer supported as much or at all by the majorities of Western society.

And you'd be justified in considering all mitigating and aggravating factors before passing sentence - in fact, you wouldn't be doing your job otherwise. Of course, that implies that we have a guilty verdict... which is the heart of the problem, and we've been through that at length on this thread.

Re: your case studies - Darkthrone has gone over these in some detail, so I won't repeat what has been said. In general, though, I wouldn't expect too many cases like this to reach court; the second example would be my pick as the "most likely to proceed to court" because of the nature of the relationship. For a rape case to get into a courtroom requires enough evidence to make a case against the accused; few prosecutors are going to push for a trial they don't think they can win, and police do not have the resources to fully investigate everything. Resources will be prioritised accordingly, and cases which are not proceeding apace will seldom result in charges being laid. The unfortunate reality is that few cases are as simple as the examples you've provided, Chev - there are just too many questions to be asked. Hypothetical case studies almost always are; unless you can find the minor details, it is hard to construct anything more than a simple line of reasoning. In these cases, the problem with that is obvious. I'll give you credit for trying, though; I just don't feel that these are reflective of the realities of rape.

@ Darkthrone: Thank you for explaining what I did not; that perception is as good as truth in many of these cases, and that generally, perception is biased because of how we are socialised.

That isn't to say that everything needs to be taken into account and a lot of tough questions may need to be asked. It does demand, however, that if we are going to assume a position of objectivity and neutrality, we need to be aware of and consciously neutralising those socialised beliefs, assumptions and attitudes which will affect how we view the evidence available. In rape cases, this is all too frequently a question of the credibility of the victim and the accused - and you pretty much nailed it a couple of posts ago.

 

That's my exact point in this thread: we need to consider all circumstances and we can't dismiss lines of defence just because we think it's so bad to try and shift the blame on the victim. Something that fails to be recognised in this thread is that the accused is not always guilty and that accused people have rights.

This is why I'm playing the advocatus diaboli role here: chances are slim that the accused is right, but a small probability doesn't make something impossible. Statistically, such an occurence is bound to happen from time to time through the sheer number of claims.

Most people would like to see all the accused person's arguments dismissed without thought, but this wouldn't be justice. I'm repeating this all over and over, but people tend to be impervious to such arguments until they grasp some legal knowledge or become themselves accused of something they didn't do or it happens to someone they know.

And yes, you rightly guessed I'm all about trying to find some exceptional circumstances. It's hard for me to think of any mitigating circumstances in case of the "traditional" rape, but I'm worried about those word vs word cases where people go to jail for failing to be sensitive enough or even pay for communication problems for which both parties bear the blame (someone will probably use the last sentence to claim that I said that victims bear blame for brutal rape ), such as in my imaginary case studies. Criminal law must be certain, there can be no lottery. People need to be able to rely on the hope that if they know the law and follow its letter they won't find themselves behind the bars.

I stick firmly to the presumption of innocence and benefit of the doubt working in favour of the accused as fair trial dictates. Someone's human rights don't disappear just because he's been accused of rape. Everyone could be accused. We can't play compassionate towards the claimants and put the accused to jail without listening to them much. That's not even compassion, but deluding oneself. What about compassion for the accused?

It's wonderful that people are ready to stand up for the oppressed, but it's worrying how they are also ready to skip the finding out about the truth part. There's no justice without truth and we won't find the truth if we don't seek it. Unless we are willing to admit that we want accused people to be jailed on the accuser's word for the sake of political correctness.

Edit:

@dmc: Have a decent link? Wouldn't like to rely on a google search for this.

 

I can't say much from the article, so I'll have to speak in hypothetical terms.

First, it seems that the victim engaged in some sort of sexual behaviour with Bryant. I don't really believe in love from first sight with an attractive married celebrity, so the kissing had to be sexual rather than romantic. This suggest some kind of a foreplay. Therefore, it was reasonable for Bryant to assume that sex was going to follow.

Second, there seems to be some proof that the victim had sex with three different men within a close time. This shows that sex is quite an important part of her life, as it were. Perhaps it's not a perfectly safe assumption that she wanted to have sex with Bryant, but surely a reasonable one and not unfounded.

Still, it doesn't mean that she couldn't have changed her mind or that her wanting sex created any right for Bryant. However, it wasn't even negligent to assume she wanted to follow through. In fact, it was the most reasonable guess to make in that given situation. Let's be realistic: in the heat of a fast, rough, lust-driven sexual situation, one doesn't really think to make the partner pledge consent. The possibility of there being any problem with it is the last thing to come to one's mind.

So the mistaken belief of consent line is defensible.

However, it is also said that he pinned her and proceeded in a rough way, so she wasn't really in much of a condition to offer active physical resistance. This creates a stale mate situation because we can neither assume that he wanted to incapacitate and abuse her and she would have offered resistance if possible, nor can we assume that she wouldn't have offered resistance and that he was right to do what he did.

It is said that she said no a couple of times, but it we don't know when she first said no, in what way she did (e.g. if it sounded like an opposition to the act or like screaming from pain associated with rough sex) and if her body language matched that. The latter (body language) is important if she told him no when he was already in her (i.e. telling him to withdraw). It's also important if he unzipped her and bent her over the chair after some kissing or if they were partially naked and engaging in some kind of foreplay. There is a chance that she wanted sex but not in the manner in which Bryant did that, so she felt the manner of the act went against her wishes and so felt raped.

Plenty of room for excuses for Bryant.

However, it also seems possible that he didn't pay attention to her reaction but was so focused on hitting it off that no's didn't reach him or he didn't realise them. Again, what is important here is when and in what way she started saying no. It's also important how she behaved after the act. If she felt raped immediately or after some deliberation. It's possible the who issue is in fact not about being raped but by being used like a rubber doll by a total stranger who took advantage of the opportunity she created.

To sum up, it seems like the court would need carefully to listen to Bryant and his lawyers and examine their claims. We have a whole range of possibilities from Bryant being an insensitive primitive animal driven by his penis, to the victim mistaking being used like an object for being raped (not like those feelings are a mile apart).