Non-consent by race..

[Tahar Joblis]

You asked for your faulty reasoning...I've already pointed a number of examples of it out to you.

You've claimed selectively that I'm wrong, providing neither evidence nor argumentation to that effect.

You've claimed that half the words I have used I do not know the meaning of. Find one word that I have used that I do not, in fact, know the meaning of.

[Zephie]

I have it on good authority that GoG secretly likes Rush.

*Crying Game shower scene*

I don't know why I did that. I actually *like* GoG. I'm just a mean-hearted bastard.

It's SEX. Why wouldn't it be a sexual assault? (which again is a better all-encompassing term than rape)

I think that the term sexual assault as we use it in Canada for example, works really well. It can include improper touching to full on gang-rape. Sentencing depends on the severity of the particular offense, but what unifies it is the sexual nature of the act.

Calling it something else doesn't seem to really do much, other than what...make people feel better about not having 'raped' someone?

I don't know. I think perhaps you come from a particular background on the 'what should we call it' issue considering the troubling way sexual offenders are dealt with in certain areas of the states.

Well, like all words, "rape" has a connotation. It's very similar how you object to the use of the term "baby" with reference to the unborn. Although technically accurate by a layman's dictionary definition, it carries a connotation that is very... dissimilar to reality. When you use the word "rape", the first thing a person is going to think of is the back-alley gun-in-your-face type of rape, or perhaps the pushed down, hands-bound, overwhelming power kind of rape. In using that term indiscriminately, it does two things: one, it carries a connotation that does not accurately fit the situation, and two, it weakens the term.

We could begin calling pneumonia cancer, for instance, to get people to take it more seriously, but that would weaken the term "cancer" in its seriousness. Of course, that's not the best analogy, but I think you get my idea.

It isn't rape if both parties consent to it. Babies don't consent to having their fetal limbs torn off and removed from the womb.

[Tahar Joblis]

That the ensuing charge is not 'rape' has nothing to do with the way consent was vitiated ab initio.

Except that in the example, there is no consent being vitiated. Not relevant to the criminal charge, in any event.

Let's make this perfectly clear. Here is the example:

Person A is aware s/he has HIV.
Person B is not aware of person A's infectious status due to deception by person B (via omission or commission may make a difference in some courts).
Person B as a result consents to have sex with person A.
Person A has sex with person B.
Person B as a result becomes infected with HIV.
Person A is therefore judged to be culpable for grievous bodily harm.

Your conclusion is that the consent in line 3 was negated ab inito, that is to say, from the start. However, this is simply not true, nor necessary to the prosecution. Person B indeed did consent to having sex with person A, but the consent offered is limited in scope to that singular sexual act. The scope of this consent did not include having sex with a donkey three weeks later, it did not include having their ass stuffed with red peppers while they slept, and it did not include being infected with HIV. The act for which person A was prosecuted - infecting person B with HIV - is not sex and was not consented to. The fact that person A was judged culpable has, therefore, absolutely nothing to do with consent being supposedly negated, whether ab inito or post facto, and therefore is totally irrelevant to the argument at hand.

It can only be relevant if you conclude that person A is guilty of rape. Pick one. Either your example was a totally irrelevant red herring, or your attempted use of it was totally illogical and wrong.

[Kiskaanak]

The issue was whether or not lack of consent had to be signaled before or during an act...when the fact is, consent can be canceled out at the time it is given.

Which is a wholly incorrect interpretation of the word "consent," as mentioned earlier.

Which? There are two standards being discussed.

If you're referring to the way that consent can be vitiated ab initio, I'm not sure how you manage to keep getting it wrong. (Edit: Actually, I think I'm starting to understand where you're going wrong...I want to see if you've noticed it yet first)

You can't consent to a medical procedure without full and informed consent either...even if you say yes, and sign a paper and everything possible in order to signal your agreement.

By the way, that example doesn't have anything to do with rape. I point this out because you get confused.

I gave a clear example of a situation where consent is canceled out in that fashion.

No, you did not. The example was that someone consented to sex, and was infected with HIV, which could then be prosecuted as grievous bodily harm. Your example was, as an example of the exercise of law, even less relevant than prior examples about spousal impersonation, because it wasn't even about rape law.

Wow, you really aren't able to follow along...I thought you were doing it on purpose.

No. In the UK, if you do not disclose your HIV status to your partner, and infect them, you have committed grievous bodily harm. (In Canada, it's aggravated sexual assault). Now, say the HIV positive partner wants to raise the issue of consent as a defence...he or she is prohibited from doing so because there was no consent. Consent was vitiated ab initio.

A person CAN consent to 'dangerous sex' that carries a possibility of STI infection. If you do not have an STI that you know of, you have no duty to inform your potential partner of the dangers of unprotected sex etc...but if you DO know you have an STI, (most consistently the duty is in regards to HIV) then you must disclose, or there can be no consent. The whole thing hinges on you knowing your own status and then no informing the other person.

Which is absolutely relevant to the entire discussion of fraud as it relates to sexual consent...because a major component of fraud is the knowledge of the falsity of a material fact (or in this case, an omission).

They did not at any point consent to infection with HIV. Nor was the sexual act performed without consent, and thus it was not rape in fact; nor, indeed, was your example about rape in law.

Read the above. Puzzle it out. Run it around in your head.
Figure out that the issue I have been addressing all along, once again (see, I predicted having to do this) is how fraud vitiates consent...what the 'charge' is after is legal semantics.

Your mistake in constructing this example was assuming that consent has a very broad scope. It in fact does not have a broad consent. At no point was explicit or implicit consent to infection given; thus, there was no consent to be infected to negate.

You might have inadvertently figured something out that may help you understand what vitiation ab initio actually means... let's see if you can catch it and tease out the rest of it.

[Kiskaanak]

Well, like all words, "rape" has a connotation. It's very similar how you object to the use of the term "baby" with reference to the unborn. Although technically accurate by a layman's dictionary definition, it carries a connotation that is very... dissimilar to reality. When you use the word "rape", the first thing a person is going to think of is the back-alley gun-in-your-face type of rape, or perhaps the pushed down, hands-bound, overwhelming power kind of rape. In using that term indiscriminately, it does two things: one, it carries a connotation that does not accurately fit the situation, and two, it weakens the term.

We could begin calling pneumonia cancer, for instance, to get people to take it more seriously, but that would weaken the term "cancer" in its seriousness. Of course, that's not the best analogy, but I think you get my idea.

This is problem I have with the term 'rape'. People keep getting caught up in the kind of alley rape scene you've described. Which is why I think that the shift to 'sexual assault' in various jurisdictions makes a heck of a lot more sense.

[Kiskaanak]

*snip pointless repetition*
It can only be relevant if you conclude that person A is guilty of rape. Pick one. Either your example was a totally irrelevant red herring, or your attempted use of it was totally illogical and wrong.

Alright, I'm pretty sure I know where you've gone astray.

Do you realise that 'consent' is a defence?

This is an important question, I'll wait for your answer.

[Tahar Joblis]

Which? There are two standards being discussed.

Which? That of reality in particular. As in what the word actually means. In reality. Consent is very simply an act of communication of willingness. It can't be canceled or rendered non-existent. It can be vitiated in reality in the literal sense of the word - corrupted, spoiled, et cetera - but vitiation a highly imprecise term outside of legal jargon, which is inappropriate for anything but the description of law itself. De facto is not at all de jure.

If you're referring to the way that consent can be vitiated ab initio, I'm not sure how you manapge to keep getting it wrong. (Edit: Actually, I think I'm starting to understand where you're going wrong...I want to see if you've noticed it yet first)

You can't consent to a medical procedure without full and informed consent either...even if you say yes, and sign a paper and everything possible in order to signal your agreement.

Sure you can. It's a terrible idea, but you can offer consent for anything.

We may choose to legally disrespect that consent or not for a variety of reasons. This is precisely the case with euthanasia laws, statutory rape laws, et cetera.

No. In the UK, if you do not disclose your HIV status to your partner, and infect them, you have committed grievous bodily harm. (In Canada, it's aggravated sexual assault). Now, say the HIV positive partner wants to raise the issue of consent...he or she is prohibited from doing so because there was no consent. Consent was vitiated ab initio.

Why would consent be relevant? Did you consent to infection? No? Then you were infected without your consent. Again, see above example. This is a plain example of how consent is narrow in scope.

A person CAN consent to 'dangerous sex' that carries a possibility of STI infection. If you do not have an STI that you know of, you have no duty to inform your potential partner of the dangers of unprotected sex etc...but if you DO know you have an STI, (most consistently the duty is in regards to HIV) then you must disclose, or there can be no consent. The whole thing hinges on you knowing your own status and then no informing the other person.

Which is absolutely relevant to the entire discussion of fraud as it relates to sexual consent...because a major component of fraud is the knowledge of the falsity of a material fact (or in this case, an omission).

Now, what makes the difference between not knowing you are infected and knowing you are infected in terms of determining responsibility?

It makes not one bit of difference in the amount of grievous bodily harm inflicted. What makes the difference is intention. As a general rule, ignorance is a defense. It does not mean that the victim has not been wronged; it means that the perpetrator is not wholly responsible for their actions. As an example directly relevant to rape, people have been known to go fuck people in their sleep. Imagine, for a moment, that person A awakes in terror to find that person B has wandered over, pulled down their pants, and is having sex with them, something that they did not consent to; they freeze in place, hyperventilating as they panic. Person A is experiencing rape. Person B, in the mean while, is sleepwalking. We would not, however, necessarily consider person B to be a rapist, because person B is wholly unaware of their actions.

In the event that the consent offered in your example, which is to have sex, were negated, we would class the matter as rape. The law, however, does not do so, and thus your appeal to law is incorrect as well as being bankrupt, as the law fails to class such a matter as rape.

what the 'charge' is after is legal semantics.

And? What the law should label things is very simply what they are. As I said earlier, the fact that an act of sex is involved in some criminal act does not mean the act was rape, in law or in reality.

If the law does not label it as rape, the law is not supporting your appeal to the law in defining rape.

[Kiskaanak]

Which? That of reality in particular. As in what the word actually means. In reality. Consent is very simply an act of communication of willingness. It can't be canceled or rendered non-existent. It can be vitiated in reality in the literal sense of the word - corrupted, spoiled, et cetera - but vitiation a highly imprecise term outside of legal jargon, which is inappropriate for anything but the description of law itself. De facto is not at all de jure.

Stop trying to have legal arguments then. Since you constantly shift the goalposts to 'well now I'm being legal but now I'm not'. I've been consistent in my legal use of the term consent. Don't have that conversation if you can't handle it. The following simply highlights the pointlessness of you continuing to attempt to address a legal argument with a philosophical one:

You can't consent to a medical procedure without full and informed consent either...even if you say yes, and sign a paper and everything possible in order to signal your agreement.

Sure you can. It's a terrible idea, but you can offer consent for anything.

No. You can't. Legally.

And legally is where I've been coming from on this from post one.

I'm not sure why you keep attempting to engage me when you apparently insist on having a philosophical discussion I have no interest in.

[Tahar Joblis]

Do you realise that 'consent' is a defence?

Whether or not consent is a legal defense depends entirely on the nature of the law in question. Whether it is a moral defense depends likewise on the underlying moral principles. It is, in other words, simply not that simple.

In general, we would tend to say that someone consenting means they cannot be considered a victim of the act they consented to. In general, most of us will also make exceptions. For example, you may consent to be killed, but we may consider that consent impossible to respect, because death is irrevocable and your future self might have disagreed with your present self on the matter. You may consent to have part of your brain eaten, but we may consider that a public health risk. You may consent to have your limbs amputated - and we might consider that putting an unjustifiable burden on the state's coffers.

An agreement not to sue might be included in a EULA. That agreement, however, might be considered null and void even if the customer fully read and understood the contract. Conversely, one party to a contract might fail to read it fully and thus be "trapped" by a penalty clause - and yet the court may consider the penalty clause perfectly fair and fault the party for their ignorance rather than allowing them to get out of the contract they had not read carefully.

In the case of rape, consent is a defense because consent is integral to the definition of rape. This is again why we have "statutory" rape; rape that exists within the law, but is commonly recognized not to meet the real definition of the word.

[Tahar Joblis]

Stop trying to have legal arguments then.

I'm having an argument about law. That entails talking about the law, and pointing out the numerous ways in which your descriptions are terribly incorrect helps invalidate your argument on additional levels.

Since you constantly shift the goalposts

No, I don't. You're trying to play kiddie ball on an adult-sized field and wondering why the ball keeps passing over your head.

I am talking about what the law ought to be and whether or not the law is an ass. I am talking about what rape is. You make quite a few broad statements that go well beyond the question of "what is the law," which is a question that always must be qualified to a legal tradition, indeed, a specific jurisdiction in this case; you keep dribbling the ball outside of your kiddie field and crying foul when I boot it into the adult-sized goal behind you.

[Kiskaanak]

I think Neo Art aptly summed up with it's pointless to bother engaging Tahar Joblis:

My statement about what you must prove to demonstrate fraud is absolutely true. But nothing in your quoted statement states in ANY way that it was meant to be an exhaustive list. I showed one thing that would have to be proven. Your entire, angry, foaming at the mount, feet stomping screed basically boils down to your....bizarre misapprehension that because I addressed one element of a crime that somehow the other elements somehow, magically, ceased to exist.


And since my "mistake" about "Incorrectly" defining a term basically boils down to me choosing to focus on one element, and not repeat myself yet. one. more. time. for people too lazy to actually read two whole pages worth of discussion. I didn't "make a mistake". I didn't "fail" to define it correctly. I chose to not repeat an argument, in its entirety, because I had enough respect for you to assume that you wouldn't speak before educating yourself.

You keep going 'but, but but...'

But nothing.

You keep claiming that things have been left out, or 'oh show me where you said that'...this thread is over 30 pages, and I'm not going to spoon feed it to you. I don't bother giving your 'arguments' anything but the barest attention because this ground has been covered already. In some cases, over and over again. In other cases, your gross ignorance of the law would require entirely more tutelage that you deserve, and frankly, you couldn't pay me to try to drum legal concepts into your head.

So sorry.

[Tahar Joblis]

Well, like all words, "rape" has a connotation. It's very similar how you object to the use of the term "baby" with reference to the unborn. Although technically accurate by a layman's dictionary definition, it carries a connotation that is very... dissimilar to reality. When you use the word "rape", the first thing a person is going to think of is the back-alley gun-in-your-face type of rape, or perhaps the pushed down, hands-bound, overwhelming power kind of rape. In using that term indiscriminately, it does two things: one, it carries a connotation that does not accurately fit the situation, and two, it weakens the term.

We could begin calling pneumonia cancer, for instance, to get people to take it more seriously, but that would weaken the term "cancer" in its seriousness. Of course, that's not the best analogy, but I think you get my idea.

At the same time, though, it is quite helpful to fully understanding what the underlying characteristic of rape is to determine how to enforce social standards, just as it is quite helpful to understand what the underlying characteristics of cancer are to treat it.

Treatments for different types of cancers might be related. What helps check melanoma may provide us with the understanding we need to cure prostate cancer. Similarly, when we look at the cases that are unambiguously rape, we find that there are a number of other traumatic events that share the same characteristics, and thus we discover that the frat boy who puts roofies in a girl's drink has employed coercion just as surely as the thug who jumps someone in an alleyway and wrestled them to the ground. We discover that women can be rapists, too.

To go from rape is coerced sex to rape is sex without consent is not a trivial step, but it's a justifiable one, and I do not think the extension is harmful. It's also a definition that nearly everybody can agree to, in the here and now - but we then have to deal with the thorny issue of what is the scope of consent. It's a thorny issue, because consent is all about communication, and out in the world, we humans often miscommunicate. We do a great deal of our communication explicitly, and since many of us think for whatever bizarre reason that it's impolite to talk about sex, a great deal of sexual consent is implicit in nature.

In the past, marriage has been interpreted as blanket consent, for example, making spousal rape an impossibility. I take consent to be highly specific. Unless there's a very good reason to believe otherwise, as might be the case where someone has given explicit consent, consent's scope is limited to a single person and a single act, under current circumstances, IMMHO - I would claim this is the best way to handle the question of what is and is not rape.

[Tahar Joblis]

You keep claiming that things have been left out,

Actually, I've been claiming that you're dead wrong.

or 'oh show me where you said that'

I've been asking you to back up your claims. This is normal operating procedure for debate.

your gross ignorance of the law

Is entirely an ad hominem fabrication of yours, offered in place of material arguments, usually in response to me showing your claims to be flat out wrong.

[Tahar Joblis]

Actually, I've been claiming that you're dead wrong.

Case in point, Kiskaanak: You constantly have made the very simple statement "fraud vitiates consent." Very clearly a universal statement, and everything you have stated indicates you have held that any fraud negates consent in toto. Since you claim to be speaking about law, this universal claim is logically a universal claim about law.

We need merely to go to the Boro case to demonstrate that it is a false claim about law - because in many cases, a distinction between fraud in the factum and fraud in the inducement has been made.

[Quelesh]

You know, when I learned and got my flight instructor permit, one of the things that we were constantly cautioned against was using terms in such a way that we would be familiar with, but which brand new students would not, and until these terms are defined and understood, all communication was impossible.

If, on the first day, the instructor started throwing out words like "coefficient of lift", "camber", "ATC", "ILS", etc, the student would be lost instantly and would get nothing from the discussion. Another pilot could follow him, but the brand new student may misunderstand what the terms mean if they're not clearly defined. A flight instructor who does so has failed to achieve communication, and has failed as a flight instructor. The student has not failed, because he had no chance.

[offtopic] You're a CFI? Awesome. I got a commercial certificate, but never my CFI 'cuz I'm too lazy. [/offtopic]

I would never, ever, EVER have sex with someone who likes the band Rush. Ever.

[Tahar Joblis]

As of the time of my starting to write this post, Kiskaanak has offered a total of ten posts which mention me. I have, by my count, offered about 15 addressed directly to Kiskaanak. The reason for the slight disparity in count will become apparent over time. I will proceed to offer a complete summary of our discussion in the pages immediately prior to our most recent exchange of fairly short posts, that the rest of you may be able to adequately judge the context leading up to Kiskaanak's stated refusal to continue replying to me.

I initially entered this thread here, among other things pointing out that Kiskaanak was failing to distinguish between "who" and "what," and had been using a terrible analogy to spousal impersonation, and that I was not primarily concerned with the question of what the law was, but what the law ought to be. Kiskaanak did not reply directly to this post.

In the first post, Kiskaanak makes the claim that the thread is about whether or not this case meets the law in question (1) and said that everything I had written was totally irrelevant to the discussion topic, and that it was a slippery slope argument.

I replied to point out several things (2). First, that the "simple" reduction of what distinguished rape by fraud offered by Kiskaanak was not in fact accurate; second, that Kiskaanak had not addressed an article that I had linked to which talked about how the precedent was dangerous; third, that talking about whether or not the conviction could be defended via Israeli law was a moot point; fourth, that Kiskaanak had better address my examples directly;] fifth, that Kiskaanak had better stop talking about "the law" as if there were one universal legal standard; and sixth, that the fact that getting someone to sleep with you dishonestly was wrong but not necessarily rape.

Kiskaanak then replied (3) by starting the litany of claims of ignorance and arm-chair lawyering, said that the list I criticized had been dumbed down and the distinctions I made irrelevant to discussion, that nobody could possibly know what precedent was being set by this case, that Kiskaanak really understands the law, and by the way, nobody on NationStates does. In general, Kiskaanak ignored most of my discussion of specifics.

I, naturally, disputed all of these claims in detail (4), providing evidence of where the distinction I highlighted had been the subject of several recent posts in the thread, that the precedent in question was dangerous (again citing the expert opinions I had brought up from the Haaretz article). I even provided sources when I said that Kiskaanak's claim that NSG was full of idiots who couldn't possibly understand any legal discussion was total bullshit.

Kiskaanak's next reply (5) claimed that Kiskaanak had earlier covered all that needed to be talked about regarding the distinction discussed in (3-5), and also the dumbed down criteria weren't incorrect, that I was wrong in all matters, and that it wasn't Kiskaanak's job to teach me about law, and, curiously, this declaration:

I have no problem discussing the social aspects of this case...from a non-legal perspective. A legally intricate conversation cannot happen here, because only two or three people on NSG are capable of that discussion.

Naturally, the post contained no actual argumentation, only unsourced claims wherein Kiskaanak appealed to the authority of Kiskaanak.

I again took issue with this (6), and took Kiskaanak to task for errors made in "simplifying," Kiskaanak's continued discussion of "the" law as if it was anything near universal on the topic at hand, and that I was not primarily concerned with the question of what the law was, but what the law ought to be, an assertion I had earlier made in my first post on the topic. Kiskaanak chose to ignore this post entirely.

I then took more issue with what Kiskaanak was saying to others in this thread (7), calling Kiskaanak out for making the universal statement that fraud vitiated consent, providing detailed quotes from this article in support, and then discussed how, whether Kiskaanak was strictly speaking legalese or talking about reality, was in any event terribly wrong.

Kiskaanak then replied (8) to claim that the quotes paraphrased what Kiskaanak had said, claimed repeatedly that I was ignorant of the law, again without providing any material support, rephrase the original case in a mocking manner, tell me to butt out, and then in apparent gross ignorance of several posts above, including (6) and my entry into the thread, asked me to make clear what "arena" I was debating this issue in.

I, naturally, continued to disagree with Kiskaanak (9), slowly stepping Kiskaanak line by line materially through the critical points of the quotes in hopes of leading Kiskaanak to understanding that far from being universal, case law in the US distinguished between fraud in the factum and fraud in the inducement. I then repeated again that I was concerned with questions of reality, and questions of whether the law was accurate or appropriate. Kiskaanak chose again, as in post (6), to ignore this post, lacking arguments.

When Kiskaanak persisted in making this universal claim to others, making incorrect material argument, I again took issue (10) with a post of Kiskaanak's which claimed that all the other people arguing in this thread were grossly ignorant, and used examples of non-rape crimes involving the granting of sexual consent under US and UK law to try to claim that consent could be negated. I demonstrated how this was a totally inept argument, legally or morally.

Kiskaanak stubbornly repeated Kiskaanak's universal claim to fraud always vitiating consent (11), accompanied as usual by claims of ignorance instead of any material arguments in support of Kiskaanak's claim. Newly, Kiskaanak suddenly claimed to not be talking about rape, an interesting claim for someone discussing in a rape thread, claimed I had taken Kiskaanak out of context, and then implied I was on drugs.

Since Kiskanaak had chosen to avoid addressing material argument about examples, I continued to dissect them (12), demonstrating that regardless of whichever of several points Kiskaanak might have been attempting to prove with them, they were useless to Kiskaanak, and not taken out of context.

Kiskaanak then (13]) claimed Kiskaanak's example was an example of consent being negated ab inito, claiming again that my reasoning was faulty but not actually providing either material arguments or details.

I had several things to say to this (14,15,16), namely that Kiskaanak was failing to understand the nature of consent, that Kiskaanak was making unjustified personal attacks, and finally, stepping Kiskaanak through Kiskaanak's example one more time.

Kiskaanak then replied by asking which standards of consent I was interested in (17), then made a claim about medical consent (with no source or material arguments attached), and then finally talked about their example beyond making a bald claim, providing merely inadequate argumentation instead of no argumentation at all, and then claimed Kiskaanak knew what I was getting wrong (18 - naturally, without actually being specific or material).

I reiterated yet again (19) that I was primarily interested in the question of what the law ought to be rather than what the law was, and in describing reality, something very evident in prior posts, especially ones that Kiskaanak had chosen to ignore (6,9). I then developed another example to talk about the relevant topic of rape without a criminally liable perpetrator and further developed the STD example, and talked about whether or not consent forgives crime in general (20).

Kiskaanak's reply to this was to accuse me of shifting the goalposts (21), and to butt out of discussion.

I replied (22) fairly disparagingly that I wasn't shifting the goalposts at all, as the scope of my discussion was clear from the start (initial, 6, 9), and pointed out that Kiskaanak had not, in fact, been strictly talking about law. (See particularly 5 for irony).

Kiskaanak (23) responded by griping and saying it was useless to talk to me.

I in my turn pointed out the gripes were inaccurate (24,25). And so here we are. If you wish to take issue with any of my characterizations, or if I have missed, or placed out of sequence, a post, please do feel free to pipe up, and I will be delighted to discuss the matter further. I will note, however, that in replying to me, Kiskaanak has remarkably avoided quoting or linking to anything resembling a source; that Kiskaanak seems to have willfully disregarded a number of material arguments; and that Kiskaanak's complaint about my going beyond the scope of the question of "what is the law?" is disingenuous given that I made my intention to do so a cornerstone of my first post in the thread and several of my earlier replies to Kiskaanak, not to mention to others.

[Waterlow]

A slightly silly aside: if you type in 'fraud vitiates consent' into Google, this topic is number three on the hit list. I'm not sure if we should be proud or not...

Perhaps more pertinently, number two is an interesting commentary on UK (though not Scottish, for the Democratic senators out there) legislation on sexual offences. It does, if I understand correctly, support Kiskaanak's assertion that the oft-repeated phrase is applicable (this is implicit in the commentary). It also highlights that definitions in legislation need to be watertight and, sadly, this is not the case in the UK (again, not sure about Scotland).

As to whether or not fraud should universally vitiate consent... well, I don't know. I'm still struggling with the potential conclusions one would draw in certain circumstances.

[Armacor]

http://www.bbc.co.uk/news/world-middle-east-10861904

Seems the appeal will go ahead...

He has appealed against the sentence, and it has now been delayed, pending a high court decision.

Kashur is being held under house arrest, but the conditions have now been eased.

Will be interesting to see what the Israeli High Court has to say...

[AnarchyeL]

I'm inclined to say that there is some worth to this kind of law, depending on its overall scope and application--details I don't have in this case, and which I'm too busy to track down. I'd be certainly grateful if someone has more time and interest.

I think our society has either too narrow or too broad (depending on how one frames is) conception of consent--and it would be worthwhile to push philosophically in the direction of "willingness," which has less of a "no means no, and everything else means yes" flavor to it.

In this case, I don't think it's worth much to throw accusations of racism at the victim. [Without looking any further into it], it's possible she was more concerned about sharing a religion than an ethnicity--and without worrying about "prejudice" against other religions, I think we should all admit that there's nothing particularly wrong with a person wanting to be involved (especially if the intention is "serious") with people who share their faith (or, for some of it, lack thereof). If I know someone is a devout believer, that's a hard hurdle to overcome in considering a relationship--I know we'll have major differences, especially if it came to settling down or having children.

If this woman thought she was initiating a romance that could become something serious, it's no surprise she'd feel deeply deceived to learn that she was not sleeping with the "good Jewish man" she'd hoped to pursue, but someone who was only fooling her to get laid.

And that's the problem with our construction of consent: if you can "get it" and she doesn't "resist," we consider that consensual. At the very least, it's useful to expand our notion to the point that we realize someone may consent conditionally, and that this conditionality may have a lot to do with the representations of the other party.

On a deeper level, the man's crime represents a profound disrespect for another person's willing participation in what is (for many of us, and for most people) activities premised on trust and respect. He knew (I think we can surmise) that she was not likely to have sex with a non-Jew; and he knew that by deceiving her he could take advantage of her desires to get what he wanted.

Having said all that, let me add this: I do not think the penalties for violent sexual assault and "rape by deception" should be anywhere near the same; and I think they should be regarded as very distinct and separate crimes. That being the case, it would probably tone down our visceral opposition to such an idea to decide to drop the "rape" word. We just have too intense a reaction. But what else to call it? "Sex fraud"?

I don't know. But I do think behaviors intended to "get" sex in blatant disregard for the will, the intentions, and the desires of one's partner should be treated very seriously. And such behaviors are, without question, very much a part of the larger "culture of rape"--a culture in which men in particular are encouraged to "get laid" against the will of (even when they have the consent of) their partners; in which men fail to understand, in every day circumstances, that "no" does actually mean no--we take it VERY seriously when it happens before/during sex, but all the OTHER times women try to resist a man's affections or advances we treat as nothing to be concerned about, as if there's this great sharp divide between respecting a woman's feelings, personal space, and boundaries on the one hand, and respecting her body on the other. But these are related cultural/ethical phenomena.

[Tahar Joblis]

A slightly silly aside: if you type in 'fraud vitiates consent' into Google, this topic is number three on the hit list. I'm not sure if we should be proud or not...

Perhaps more pertinently, number two is an interesting commentary on UK (though not Scottish, for the Democratic senators out there) legislation on sexual offences. It does, if I understand correctly, support Kiskaanak's assertion that the oft-repeated phrase is applicable (this is implicit in the commentary). It also highlights that definitions in legislation need to be watertight and, sadly, this is not the case in the UK (again, not sure about Scotland).

As to whether or not fraud should universally vitiate consent... well, I don't know. I'm still struggling with the potential conclusions one would draw in certain circumstances.

We only are ranking high on the exact phrase match because the exact phrase itself is fairly rare (the string fraud + vitiates + consent outnumbers the exact phrase by about 100:1), I suspect, and has been quite frequently used here.

The reason why the phrase is rare is simple: "Vitiate" is mainly used as legal jargon, and legal opinions are generally very carefully worded. To simply say "fraud vitiates consent" as a singular phrase, as a maxim, is to make an absolute and universal proposition, one quite broad in scope. It's trivially true in the 'common' sense of the word "vitiate," but in legal jargon, vitiation implies effective cancellation. The absolute universal leads us to precisely the scenarios I outlined earlier - one of which was mentioned in the article you linked to, in fact; it turns out there was a 1995 case in the UK precisely fitting one of my examples:

Person A visits a prostitute B, and then A stiffs B on payment. Consent was offered with the understanding that payment for services rendered was forthcoming. A wrong has been committed - but the wrong itself was not actually sexual in nature, but economic; it is precisely the same form of fraudulent crime if person A had engaged person B to re-shingle A's roof, which is to say failure to pay for services rendered; and both wrongs could easily be "righted" by some form of belated payment, perhaps with penalties attached to compensate for the inconvenience; it is a matter easily settled. Yet under some of the standards proffered (and as your link points out - I quote, "However, on one view the position may now be different under the 2003 Act. The deception as to payment may be viewed as coercive inducement, or in some circumstances as altering the nature or purpose of the act in question, consequently it could be argued that D should be classified as a rapist under the new provisions."), the prostitute could be considered raped, while the contractor merely cheated.

This is dangerously close to post facto consent because, should A have an attack of conscience five minutes later and return with apologies and a couple of hundred-pound notes in hand, all would be well in the world in either case. The builder and the prostitute offer their services willingly on the basis of an understood contingency: If I do this for you now, you will pay me later. Consent, however, is something that must be granted prior to, up to concurrently with, the act being consented to, and where consent can be taken to be contingent on future actions, the determination of whether or not that consent was obtained fraudulently is post facto - I really not only need to have lied to you, intended to lie to you, thought the lie would be helpful, have the lie be helpful, but then I have to add the lie to my actions. The determination, therefore, of rape becomes post facto in the type of argument outlined by your source as a possibility.

If I take money from you saying that I'm going to invest it for you in gold futures, intending full well to skip town with it, and then I have an attack of conscience and decide that I'm going to do the honest thing for a change and actually put that money into gold futures for you, was any wrong done? Think about it for a minute.

I'm inclined to say that there is some worth to this kind of law, depending on its overall scope and application--details I don't have in this case, and which I'm too busy to track down. I'd be certainly grateful if someone has more time and interest.

I think our society has either too narrow or too broad (depending on how one frames is) conception of consent--and it would be worthwhile to push philosophically in the direction of "willingness," which has less of a "no means no, and everything else means yes" flavor to it.

In this case, I don't think it's worth much to throw accusations of racism at the victim. [Without looking any further into it], it's possible she was more concerned about sharing a religion than an ethnicity--and without worrying about "prejudice" against other religions, I think we should all admit that there's nothing particularly wrong with a person wanting to be involved (especially if the intention is "serious") with people who share their faith (or, for some of it, lack thereof). If I know someone is a devout believer, that's a hard hurdle to overcome in considering a relationship--I know we'll have major differences, especially if it came to settling down or having children.

If this woman thought she was initiating a romance that could become something serious, it's no surprise she'd feel deeply deceived to learn that she was not sleeping with the "good Jewish man" she'd hoped to pursue, but someone who was only fooling her to get laid.

Reading article after article, I've come to the belief that it was all about the fact that "Dudu" is/was uncircumcised. Not being intimately familiar with the form of the adult male uncircumcised penis (since she only sleeps with Jews) but aware that penises vary greatly in shape/size/etc, the woman was perhaps only a little puzzled on the spot. Following the tryst, she curiously pulls up Wikipedia on her cell phone, or calls and asks a friend, and discovers that her newly found friend was not, in fact, Jewish, since he was uncircumcised, and pretty much all male Jews are circumcised, and then proceeds to flip out about having had sex with an Arab.

This is the only means by which I have been able to convince myself that this woman would have not the slightest clue as to this man's identity until he called her six weeks later, be totally suckered into thinking Kashur was Jewish by his dress and accent, and yet report the incident immediately afterwards to the police as forcible rape - immediately enough that medical examination could actually refute her claims to having been taken by literal physical force (her initial accusation). And so I have come to believe that the accusations of racism lying at the core of this are, in fact, true.

And that's the problem with our construction of consent: if you can "get it" and she doesn't "resist," we consider that consensual. At the very least, it's useful to expand our notion to the point that we realize someone may consent conditionally, and that this conditionality may have a lot to do with the representations of the other party.

On a deeper level, the man's crime represents a profound disrespect for another person's willing participation in what is (for many of us, and for most people) activities premised on trust and respect. He knew (I think we can surmise) that she was not likely to have sex with a non-Jew; and he knew that by deceiving her he could take advantage of her desires to get what he wanted.

Having said all that, let me add this: I do not think the penalties for violent sexual assault and "rape by deception" should be anywhere near the same; and I think they should be regarded as very distinct and separate crimes. That being the case, it would probably tone down our visceral opposition to such an idea to decide to drop the "rape" word. We just have too intense a reaction. But what else to call it? "Sex fraud"?

It's usually intimately tied with the other benefits of fraud - remember, in many of these sorts of cases, we're not talking about a single episode of sex. We're talking about constructing a long-term relationship on a foundation of lies, and usually the fraudster reaps an array of social and economic benefits from the deception before the house of cards falls apart. Calling it sexual fraud is as good a name as any. It's unquestionably wrong; the question is where, in a taxonomy of immorality, the act falls.

I have no qualms with the idea of classifying something as rape via an act of deception. There are clearly numerous cases in which deception means that an act that seemed OK at the time clearly falls outside of the scope of the consent offered. However, I don't think that all fraudulent behavior related to sex leads naturally to a conclusion of rape, and I'm not convinced that this is one of those cases. I'm fine with what is, by and large, the existing definition of rape as sex without consent, and I think that defining rape as sex without fully and correctly informed consent is a very large extension.

I don't know. But I do think behaviors intended to "get" sex in blatant disregard for the will, the intentions, and the desires of one's partner should be treated very seriously. And such behaviors are, without question, very much a part of the larger "culture of rape"--a culture in which men in particular are encouraged to "get laid" against the will of (even when they have the consent of) their partners; in which men fail to understand, in every day circumstances, that "no" does actually mean no--we take it VERY seriously when it happens before/during sex, but all the OTHER times women try to resist a man's affections or advances we treat as nothing to be concerned about, as if there's this great sharp divide between respecting a woman's feelings, personal space, and boundaries on the one hand, and respecting her body on the other. But these are related cultural/ethical phenomena.

I am paraphrasing a quotation from an article earlier posted when I say this, but when we're on a case like this one, we're asking the question of not whether no means no, or whether the lack of an answer is assent, but when and whether yes means yes.

Is there a cultural problem of men lying to women to get them into bed? Yes. There is also a problem of women lying to men to get them into bed. It's positively pandemic in the dating world. Cuts both ways. Men and women tend to lie about different things, but they're no less important. And yes, we also have a problem with the law not recognizing the possibility of female rapists in some jurisdictions, but I think the problem of a culture of deception isn't the same thing as the problem of a culture of rape. The described "culture of rape" you describe is a problem with the gendering of behavior; I think you'll find that if you rigorously enforce the proposed definition of rape, you'll find that there is no longer any significant difference between men and women committing rape, because men and women both tell seemingly necessary lies to each other all the time in much the same manner.

I may be six feet tall, have several degrees, and work out on a regular basis, but when a woman hears a man claim that, she on average should expect that he's 5'10", dropped out of college, and shows up at the gym about once or twice a month to do a couple sets of curls. And when she tells me that she's slim, likes to dance, and is 22 years old, I should expect her to have a BMI of 32, go out clubbing with her friends once every couple months to mill around to bad music hoping a drunk guy will grind on her, and just turned 30. And we live in a world where most of you have to tell these sorts of lies to get the kind of attention you want.

[Barringtonia]

I may be six feet tall, have several degrees, and work out on a regular basis, but when a woman hears a man claim that, she on average should expect that he's 5'10", dropped out of college, and shows up at the gym about once or twice a month to do a couple sets of curls. And when she tells me that she's slim, likes to dance, and is 22 years old, I should expect her to have a BMI of 32, go out clubbing with her friends once every couple months to mill around to bad music hoping a drunk guy will grind on her, and just turned 30. And we live in a world where most of you have to tell these sorts of lies to get the kind of attention you want.

Do you know what, I disagree with this, and I wonder how much it's truly the situation as a percentage. We keep saying it - oh men lie to get you into bed - but then I don't think I've ever particularly lied to get someone in bed myself - I don't think I've even said anything along the lines of 'I love you', let alone pretend to be an ethnicity, to get someone into bed. Certainly I've lied in relationships but, honestly, not specifically in order to get someone into bed in the first place.

I think, if I ask around my friends, that they'd also say they never particularly lied, certainly not to the extent of saying, say, I'm French when I'm actually English, or even that I believe in God when I don't.

..and I imagine you too would say you've not particularly lied, and so would most people - and so, really, I don't think I'd expect someone who'd described themselves one way to turn out another way - online dating maybe, slight exaggerations but then the intent is to 'be noticed' rather than 'get someone in bed' - it's a personal ego thing rather than intent to deceive as such.

It's certainly a good story hook, maybe for Hollywood, and I'm sure there's deceivers out there but I don't think we should expect people to lie.. ..and it's not to say women (or men) shouldn't be careful, it's just that, honestly, I don't think it's something we can accept because it happens all the time because, really, I just don't think it does.

[Tahar Joblis]

I may be six feet tall, have several degrees, and work out on a regular basis, but when a woman hears a man claim that, she on average should expect that he's 5'10", dropped out of college, and shows up at the gym about once or twice a month to do a couple sets of curls. And when she tells me that she's slim, likes to dance, and is 22 years old, I should expect her to have a BMI of 32, go out clubbing with her friends once every couple months to mill around to bad music hoping a drunk guy will grind on her, and just turned 30. And we live in a world where most of you have to tell these sorts of lies to get the kind of attention you want.

Do you know what, I disagree with this, and I wonder how much it's truly the situation as a percentage. We keep saying it - oh men lie to get you into bed - but then I don't think I've ever particularly lied to get someone in bed myself - I don't think I've even said anything along the lines of 'I love you', let alone pretend to be an ethnicity, to get someone into bed. Certainly I've lied in relationships but, honestly, not specifically in order to get someone into bed in the first place.

I think, if I ask around my friends, that they'd also say they never particularly lied, certainly not to the extent of saying, say, I'm French when I'm actually English, or even that I believe in God when I don't.

..and I imagine you too would say you've not particularly lied, and so would most people - and so, really, I don't think I'd expect someone who'd described themselves one way to turn out another way - online dating maybe, slight exaggerations but then the intent is to 'be noticed' rather than 'get someone in bed' - it's a personal ego thing rather than intent to deceive as such.

It's certainly a good story hook, maybe for Hollywood, and I'm sure there's deceivers out there but I don't think we should expect people to lie.. ..and it's not to say women (or men) shouldn't be careful, it's just that, honestly, I don't think it's something we can accept because it happens all the time because, really, I just don't think it does.

Well, age and weight can easily matter as much as ethnicity. If you're interested in starting a family in 5-10 years' time, you have a perfectly good reason for not wanting to date over a certain age. A 35 year old woman pretending to be 23 can cross the line as surely as Kashur crossed the line by pretending to be Jewish - and for precisely the same reason. Age, income, athleticism - these can be absolutely critical to whether or not someone is a viable long-term partner.

From the article I linked to in my last post, the average US male is two inches shorter than the average claimed height of male OKC users (who are almost all in the US). A lot of them are probably being honest. A significant fraction of users are probably deluding themselves by rounding upwards, measuring while wearing shoes, or holding the ruler wrong - and those overestimates are probably about an inch or so. Making up the gap are a number of men who are engaging in bald-faced lies about their height. I've read a lengthy thread on another forum (private) where female users were talking about how they kept meeting men who'd lied about their height by large amounts - four inches, six inches. The fact that men overstate their height (and penis size... and IQ...) is partially overestimation and partially deception. That both happen is pretty well statistically documented. Of course, once you meet someone in person, you'll realize that the 5'7" dude is not the 5'11" he told you he was, but it happens for the same reason.

I would say that I haven't lied about myself. Even so, I don't doubt that there are a couple women out there who would claim I deceived my way into their hearts (just this June I had one woman - who I didn't even date! - complain that my very appearance itself was a cruel deception as to my nature) - and unfortunately, I've known plenty of people who have lied their way into relationships. Up to and including years of marriage. The "hypothetical story" I told earlier in this thread about a man lying about being in/having been in the military? Not entirely hypothetical. I had a cousin who was married for some time to a man who'd invented most of his past, including a military service history. It's not the only story of that sort that I've heard, either - there are men out there lying about currently being in the service, and also men lying about having been in the service.

My first roommate in college had a bulletin board full of long-distance girlfriends (he also had, IIRC, a girlfriend over in the next building over). He was constantly on the phone - and constantly lying through his teeth to them about how they were his one and only. Every so often he would take a Greyhound out to see one of them. I knew guys who went to CRU meetings to find easy chicks who wouldn't blab. Behind-the-scenes chatter with the all-male a capella group was full of who'd lied to whom - a mix of boasting about what they'd gotten away with, confessing sins, asking advice, and complaining about who'd lied to them. In my undergraduate days, I knew some girls who went through boyfriends like toilet paper - and tended to leave them in the same condition. One lived across the hall from me, and her best friend from high school and I had some lengthy chats about the whole phenomenon.

Around the gaming table before starting the game, I recently was regaled with a story about some mutual acquaint of two guys at the table who is apparently lying to his fiancee about just about everything imaginable, from his hobby of hunting to his religious beliefs and practices - has been for a couple years now, and intends to keep doing so until after they tie the knot. Heck, even just going to summer camps as a kid (and working at a couple different camps as an adult), you get floored with the sort of lies teenagers tell to each other. Sure, most people are honest most of the time - but my experience in life is one that I've found pretty consistent with the idea that people lie to each other to get hooked up an awful lot. Most lies are small, some are big, and the majority of either are relevant.