Women in jeans cannot be raped

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My goodness! You guys sure know how to make long posts...

 

Yes they do, and I wish they would post something worth reading for a change instead.

 

What if the student legitimately deserves an A which is withheld from her?

Naw. Sorry, but if someone goes to bed with a teacher to get an A, she has no right to complain about her oh so precious virtue being trespassed on.

Nihil attinet.

In this case, what's crucial is if and how she communicated her refusal or at least lack of consent.

Next, we might need to consider if lack of express consent in the absence of active refusal is incriminating or not.

IMHO, it takes a creepy guy to go on after hearing anything close to "no", but a lot depends on the supposed victim's subsequent behaviour, including body language.

And no, I'm not trying to "blame the victim". I just stick to the presumption of innocence for the sake of proper procedure. Not like the guy looks like a saint and he's obviously guilty of a sexual crime. Thing is, if it really is rape.

You'll talk differently when cops and prosecutors come after you. Some boring lawyer is going to be the most interesting guy you've ever met.

 

I don't think so. I don't tend to attract attention from Police etc.

 

One thing I'm wondering is why on earth would she consent to have sex with her driving instructor, who she presumably just met? She's 18, he's 45. I sincerely doubt she consented just to pass her driving test. The only way this would've been consentual if she brought up the idea, and I didn't see any statment or hint of that sort in the article.

Whether or not her jeans were too tight is just like saying OJ is innocent because the gloves didn't fit. Not enough for reasonable doubt.

 

Hedron, you're right on the mark. Why on earth ...

But hey, she wore a tight jeans, which is as the judge, in his deep wisdom, has decreed is impossible to remove without consent, so - voila - consensual sex!

Legal magic at work here - just define the problem away, and welcome to the world of fiction

And Sarevok, if you want to contribute something, you're always welcome ...

 

No thanks, but if you want to post something funny in the whatnots, go right ahead!

 

Didnt really get that reference, don't suppose anyone could explain?

Much as I would say "he must be guilty" for the sake of it, I really can't.

Forasmuch as the article gives us the event in question it really doesn't have that much useful information, and by that I mean statements, evidence and questions like: Was a rape kit done? If so what were the results? What conclusion did the doctor or forensic officer come up with? What did the psychiatrist say? Is a polygraph possible? Useful? These questions etc. are currently unanswered by the article so I can't really make a snap judgement on culpability.

Back to a more relevant point:

So am I, Ragusa.

Yeah, OK, lets look at that for a moment shall we?
Before we go through the rigamarole of clothing=consent which in some cases: such as wandering around in the dead of the night with nothing on but a G-string (semi-understandable but still a damned crime) to jeans and a tee (absolutely ridiculous)that I will not go any further into at this time, I had an idea that could prevent this *whole* situation.

What if we could formulate a device, a sort of sophisticated nanotracking system released into the air all over the world, self replicating and capable of releasing high intensity electric shocks, voice activated by recognition of an emotionally charged phrase like 'help me' or 'no', maybe 'police' or with tactical and thermal scanners (not optical I think, too privacy invading) recognising the situation at hand and acting with a large current of electricity... Sweet.

 

I have to weigh in on this one too. Here goes:

1: Sexual contact occurred. He says it was consensual, she says it was rape. So far, as it stands, a jury would have to acquit without any further evidence of rape.

2: The prosecution's allegations were that he held her down and removed her jeans. The defense claimed that this allegation is untrue, as the difficulty of removing the tight jeans one handed is extreme.

3: If the prosecution alleged that he threatened her and thus forced her in that way, the case may have had more weight.

I have a hard time believing that an 18 year old girl would want to get busy with a 45 year old man, and on that basis I would give her story more credence were I the judge, but in the absence of any physical evidence or a more plausible story from her (as in "he said he'd leave me 50 miles from civilization if I didn't do it"), I can see why they would have reasonable doubts as to the veracity of her story.

In an ideal world without legal nitpicking, though, he'd be busted for having sex with someone that much younger than him, not to mention someone with whom he had a fiduciary relationship.

 

Yeah, you'd have a hard time even if the girl were skin and bones. Especially if she were fighting, as it was claimed (I doubt the judge meant that "struggling with all her might part" was the requirement for non-consent -- that would be too dumb of anyone with any law degree -- it must have been a reference to the prosecution's claim). And without beating her up first or something (the crime qualification would be different, like brutal rape or what). I don't think I could pull that off myself, even if I'm twice younger than 45.

A possible course of events might have been that the girl initially struggled with all her might but then sort of convinced herself it was hopeless or panicked and stopped resisting but closed in herself instead. That way she might have seen it as struggling with all her might later in the court. A stupid guy could even take that as a game and final yielding to his charms. But this isn't exactly a sure bet.

 

@Chev & Ragusa:
You've put up way too much since I last looked at this thread for me to respond in any way other than generalization. I think you two have become the prosecution and defense for this case, and that's okay, but personally, I have a hard time believing either person's story as it was stated.

In trial, with the burden of proof on the prosecution, I'm afraid I'd have to go not guilty, for fear of convicting an innocent man. I wouldn't be happy about it, though, and hopefully it would just result in a hung jury and another trial, where wiser people than I (hopefully) could make a better decision.

In an appeal, however, I think the burden of proof should be on the person filing the appeal to prove his innocence, since someone else already proved him guilty. This being said, I doubt the judge who reversed the conviction is sleeping very well at night. And if he is, could someone please give me his phone number so I can wake him up in the middle of the night?

 

So have I. IMHO, there's something wrong with both accounts. I wouldn't discard the possibility of an 18 year old girl falling for a 45 year old man. It's almost normal at that age, if typically not reaching anything close to a sexual stage. Wouldn't go as far as to think she could have been trying to help her chance in the test. But I have a hard time believing in the one hand tight jeans removal story, with also her struggling. Sorry. So... both aren't telling everything IMHO. There is a lot of missing pieces in this puzzle. I'm just defending the judge's sanity here.

Well, what you need in an appeal is typically to point out what the judge screwed up. This will tend to be contrfactual premises of the thesis of the sentence, breach of material law, violating the proper procedure, failure to enable the possibility to defend oneself.

[ June 29, 2005, 01:25: Message edited by: chevalier ]

 

The unfortunate reality is that, under circumstances where no corroborating evidence exists, a judge would have to acquit. It doesn't matter that you disagree with the verdict; in every adversarial system in existence, you can't convict on the basis of the victim's testimony alone. I am quite familiar with plenty of cases like this, but this one is exceptional because of the comments of the presiding judge. This case is getting a bit old, IIRC, but the issue it presents is definitely still current.

However, at the trial the accused was not acquitted; this is the appeal. The guy was already convicted once and that conviction was quashed for a clumsy rationalisation that "tight jeans = remove requires assistance = consensual sex"; an obvious mistake of judgement.

I am generally inclined to believe a claim of rape in circumstances like these, particularly when the defence and verdict hinged on such a tenuous and flimsy reasoning and where the sexual act is not contested. That said, I would like to have known a great deal more about the facts as presented to the court and the circumstances surrounding the alleged rape. Prima facie, it hardly seems like grounds for reasonable doubt.

Having been on the wrong end of violent crimes, I find the logic of those opposed to "implied threat" a little absurd. Someone threatened with serious physical harm will react as if that threat is going to be acted upon; responses to the perception of reasonably-apprehended threat are as valid as having that threat carried out, in my opinion. If someone threatens to harm you unless you have sex with them, stops you from escaping and tries to subdue any resistance, and if there is no reasonable way you could escape from the situation, have you really been coerced? The answer is yes, and it would invalidate any claim of consent, since you could not freely decide your actions. The level of threat is immaterial; threatening to blackball someone is as potentially coercive as threatening to kill them.

Without knowing all the information, I couldn't present this scenario as fact. However, if what happened was anything like what I suggested, the defendent is guilty as hell, irrespective of who took her jeans off. That a tried case should be overturned so flippantly is a disgrace.

@ Chev: The judge was not merely "pondering" the technical possibility; he was resorting to old archetypes of resistance. To meet them typically requires someone to have been beaten into submission, to the point where resistance is physically impossible. Since neither of us are in full possession of the facts, it's a bit presumptuous for either of us to claim to know the situation. From my reading of it, the appeal was successful largely because of a perceived flaw in the prosecution's argument rather than any exoneration of the accused man. That such a subjective assessment of the situation should overturn a guilty verdict would be laughable were it not so serious.

EDIT: Something positive from Victoria, if a little off-topic.

[ July 05, 2005, 08:27: Message edited by: NonSequitur ]

 

IMHO the media screwed up a bit. As I said, I'm pretty sure the emphasis on assistance being necessary to remove those jeans must have been a reference to the prosecution's story.

From Victoria:

Good.

Offender-friendly justice is wrong but claimant-friendly trial is not good, either. It's up to the claimant to prove things, so restrictions on proof from previous sexual history are well-meant but misguided. It won't matter in an assault rape or even date rape if you can prove the use of substances. But previous sexual history always matters in word vs word cases or when determining consent or lack thereof, as in, what makes consent for a particular person. The claimant's comfort is NOT more important than material truth.

All those efforts by lawmakers seem to rely on making it easier to put the accused in jail. Justice or truth or anything doesn't count. Let's just be good boys and make alleged victims feel better.

 

i have to agree with chev on this, the prosecution claimed that the girl was raped by him in a manner by which he forcefully removed her jeans by himself. the judge ruled that he couldnt have done that - case closed.

if he had threatened or coerced her to remove her jeans and then raped her they the prosecution must make that claim. if they make a false claim then it is a mistrial.