motorfirebox said:
Is this tradeoff giving up too much for not enough reward? It doesn't seem to me like it does.
I'm philosophically troubled by your trade-off, but that's a whole dissertation for another time, as I am about to head bedwards.
Assessing it in its own terms, as briefly as I can, I don't think it passes muster.
It addresses (potentially!) those cases of rape where someone has misread the signals and is moving too fast or too far, not realising what signals are being sent. The (for want of a better term) "clueless rapist" case.
It does not address cases of rape where the rapist simply does not care and is intent on taking what "he" wants regardless of the victim's desires are.
It also does not address cases where consent seems to be involved on both sides, but heavy degrees of intoxication are involved re one or more parties such that the veracity of the consent itself may be called into question.
Well... it actually can address a lot of those. For instance, we don't know the actual intent of the rapist in the case originally being discussed. The judge and even the prosecution seemed to assume that, at worst, he was a guy who ignored signals that should have made him stop make sure everything was okay. But he might just be a fucker who knew full well that his victim didn't want to have sex with him. It addresses almost any case where someone might view the 'mitigating circumstances' as making it not really rape--any situation that someone could construe as being a "clueless rapist" case. That's a much larger spread than cases which actually are clueless rapist cases.
Regarding intoxication, if someone is so drunk that they say "yes, let's have sex" when they meant to say "no, you're gross", I'm not sure what to say. Other intoxication-related scenarios aren't addressed by this, but aren't hindered by it either.
To poke holes in my own idea, one of the pitfalls, here, is language, regardless of intoxication. If I ask someone "do you want to have sex" and they say "yes", is that explicit consent? You'd think so, but what if they thought I said "did you ever see that episode of Fringe with the bugs?"
Another possible pitfall is the issue of continuing consent. If you say "yes" now, that doesn't necessarily mean "yes" for the entirety of the intercourse. This would make withdrawal of consent harder in that it would have to be as explicit as the original offering of consent. Though, frankly, I doubt there are many courts that would view a wordless withdrawal of consent as being valid unless it were really, really physical, regardless of this proposal. So, realistically, probably not a plus or minus.
I'm really glad you wrote this article. Just went to Slutwalk London. It was brilliant.
a Canadian judge gave a convicted rapist zero jail-time because he thought the victim had given a "perceived invitation" because her revealing clothing indicated "sex was in the air," and dismissed the rape as "inconsiderate."
Ugh. That's really disgusting. People put into positions like the police and the courts really ought to be proud to be doing everything they can to support and protect their society. I don't think this guy deserves to be called a judge.
I'm really surprised dudes in this thread are arguing about this. Being all picky about the law. Guilty? Confused? Come onnnnn. If a girl says a guy raped her, and there is sufficient evidence that it happened (e.g. bruises, friends saw him take her to a room, spunk evidence) then I believe that's enough. What are you worried about? That a man will misread the signals and go to jail? If a man says, shall we do it, and the girl says yes, that's simple enough. I don't see why you need to spend hours discussing stupid non-existant scenarios like, "ooh, what if they don't speak the same language" or "ooh, now we're all going to have to sign contracts before we bone each other". What else are you worried about? That women will accuse men of something they haven't done simply because they're feeling mean? After years of men getting away with atrocities, and from my limited understanding of how difficult it is to get a rape case through court, I don't really think that's a huge worry. Stop worrying about 'the confused rapist' (yeah right) and start worrying about raped women, who have to deal with what happened to them every day of their lives.
TheFuckOffKid
NEWSWIRE
Australia
APR 07, 2011 06:49 AM