Apparently, Rape is not Rape

[Ifreann]

Quite. By passing out the situation had changed significantly. Did she consent to having sex while unconscious? If not, it was rape. If she did, it wasn't. So consent wasn't withdrawn, it was never given.

She consented to sex. Sex happened. Not rape.

She never consented to having sex while unconscious. Sex while unconscious happened. Rape.

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http://www.news.com.au/couriermail/story/0,23739,25823169-952,00.html

A judge refused to impose a jail sentence on a man who pled guilty to rape after continuing to perform a sex act AFTER the victim passed out. Apparently, it's unfair to mark him as a rapist.

I'm sorry, but if someone is PASSED OUT, how do you continue and not be a rapist?

While I am unsure of the appropriate sentence, I do think, if you KNOWINGLY continue to have sex with someone after they have passed out, then that makes you a rapist. Of course, she consented to an initial sex act before passing out, but we have no way of knowing what further sex acts were performed, or how far the victim was prepared to go. Because she didn't get the opportunity to consent to continuation or further sex acts.

I disagree.
If someone consents then doesn't say no, it ain't rape.

How exactly can someone say no when they are incapable of doing so?

Exactly. I wonder how many people would be arguing that it wasn't rape if her partner had knocked her out himself, or drugged her, after she had consented to sex.

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It seems simple don't it? But it is a long list, perhaps too many rules for the average male to follow?

If you consent to sex, and don't tell someone not to continue, don't be surprised if someone continues after you pass out. Perhaps that's too complicated for the average woman to understand?

If you keep going when someone is incapable of withdrawing consent, don't be surprised when it turns out that they want you prosecuted for rape. Is that too complicated for the average man to understand?

I would hope that there's a very limited overlap between average men and rapists

[Angleter]

Not reading this entire thread. A couple of points:

1. This was a fucking plea bargain. Of course the "facts" agreed to by the two sides place the defendant in the most favorable light. Taking further liberties or spin upon those facts is completely unjustified.

2. All rape is REAL rape. Period. End of discussion. If you are having sex with someone that isn't consenting, you are committing rape. One stupid judge in Australia doesn't change that. To the contrary, his attitude reflects an unfortunate trend among prosecutors and judges to collaborate with rapists.

So if a drunken man has sex with a drunken woman then the man is a malicious and dangerous rapist who must be removed from society for a number of years and placed permamently on the sex offenders' list?

[Dempublicents1]

2. All rape is REAL rape. Period. End of discussion. If you are having sex with someone that isn't consenting, you are committing rape.

Interesting. The two lawyers disagree.

Gladiatorial combat to commence?

[Angleter]

2. All rape is REAL rape. Period. End of discussion. If you are having sex with someone that isn't consenting, you are committing rape.

Interesting. The two lawyers disagree.

Gladiatorial combat to commence?

It's Rape Or No Rape with Noel Edmonds!

[Dempublicents1]

She never consented to having sex while unconscious. Sex while unconscious happened. Rape.

Precisely.

Exactly. I wonder how many people would be arguing that it wasn't rape if her partner had knocked her out himself, or drugged her, after she had consented to sex.

Or even if they finished, then fell asleep, and he decided to fuck her again in her sleep. (Given the response to that sort of situation in an earlier thread, I'm guessing the consensus would be quite different).

I suspect that the difficulty with this sort of situation comes from the mentality that it's cruel for a woman to let a man start, and then stop him in the middle. So obviously, if he wasn't done, it must be ok for him to keep going, even if she's no longer able to consent. Because that dirty tease never would have stopped him in the middle, right?

If you consent to sex, and don't tell someone not to continue, don't be surprised if someone continues after you pass out. Perhaps that's too complicated for the average woman to understand?

If you keep going when someone is incapable of withdrawing consent, don't be surprised when it turns out that they want you prosecuted for rape. Is that too complicated for the average man to understand?

I would hope that there's a very limited overlap between average men and rapists

So would I. But the general attitude towards things like this makes me wonder.

[The Cat-Tribe]

Not reading this entire thread. A couple of points:

1. This was a fucking plea bargain. Of course the "facts" agreed to by the two sides place the defendant in the most favorable light. Taking further liberties or spin upon those facts is completely unjustified.

2. All rape is REAL rape. Period. End of discussion. If you are having sex with someone that isn't consenting, you are committing rape. One stupid judge in Australia doesn't change that. To the contrary, his attitude reflects an unfortunate trend among prosecutors and judges to collaborate with rapists.

So if a drunken man has sex with a drunken woman then the man is a malicious and dangerous rapist who must be removed from society for a number of years and placed permamently on the sex offenders' list?

Yeah. That is (1) exactly what I said and (2) completely absurd -- how dare rapists be punished!

[Dempublicents1]

Not reading this entire thread. A couple of points:

1. This was a fucking plea bargain. Of course the "facts" agreed to by the two sides place the defendant in the most favorable light. Taking further liberties or spin upon those facts is completely unjustified.

2. All rape is REAL rape. Period. End of discussion. If you are having sex with someone that isn't consenting, you are committing rape. One stupid judge in Australia doesn't change that. To the contrary, his attitude reflects an unfortunate trend among prosecutors and judges to collaborate with rapists.

So if a drunken man has sex with a drunken woman then the man is a malicious and dangerous rapist who must be removed from society for a number of years and placed permamently on the sex offenders' list?

If they're both drunk, neither of them could really consent. So no.

If a sober woman, on the other hand, takes advantage of the fact that a man is falling-down drunk to have sex with him, yes, she is a rapist.

As for the sex offender's list, I think it is over-used and counter-productive, so I'm not a big fan of that in general.

[Galloism]

2. All rape is REAL rape. Period. End of discussion. If you are having sex with someone that isn't consenting, you are committing rape.

Interesting. The two lawyers disagree.

Gladiatorial combat to commence?

Thunderdome.

[The Cat-Tribe]

Actually, I can see where the judge was going with this. The woman greed to sex before passing out, and the article does not make it clear whether she though she was raped after passing out (It sounds like she made the complaint and then withdrew it), so it's rather hard to say it was rape or not.

She consented to sex while she was conscious. Once she became unconscious, there is no way to know what he did, or how much more she would have consented to. Whether she agreed in the beginning or would have agreed is irrelevant as we will never know what she may or may not have agreed to because she was not in a position to consent.

You're right, of course, that we can't particularly know IF she would have still consented which...well, that's part of the problem isn't it? In criminal law, ambiguity goes in favor of the defendant.

Doesn't matter whether she might have consented if conscious. Once she was unconcious, she wasn't consenting.

[Dempublicents1]

She consented to sex while she was conscious. Once she became unconscious, there is no way to know what he did, or how much more she would have consented to. Whether she agreed in the beginning or would have agreed is irrelevant as we will never know what she may or may not have agreed to because she was not in a position to consent.

You're right, of course, that we can't particularly know IF she would have still consented which...well, that's part of the problem isn't it? In criminal law, ambiguity goes in favor of the defendant.

Doesn't matter whether she might have consented if conscious. Once she was unconcious, she wasn't consenting.

In my mind, the fact that someone can withdraw consent during the sex act makes this type of situation pretty clear. It isn't, "You give consent and then it's all gravy until the other person is done." Instead, you must continue to give consent throughout the process, and can withdraw it at any time. If there is no ability to withdraw consent, it's pretty clear that you are not continuing to consent, since you are incapable of doing so.

[The_pantless_hero]

Not reading this entire thread. A couple of points:

1. This was a fucking plea bargain. Of course the "facts" agreed to by the two sides place the defendant in the most favorable light. Taking further liberties or spin upon those facts is completely unjustified.

2. All rape is REAL rape. Period. End of discussion. If you are having sex with someone that isn't consenting, you are committing rape. One stupid judge in Australia doesn't change that. To the contrary, his attitude reflects an unfortunate trend among prosecutors and judges to collaborate with rapists.

So if a drunken man has sex with a drunken woman then the man is a malicious and dangerous rapist who must be removed from society for a number of years and placed permamently on the sex offenders' list?

Yeah. That is (1) exactly what I said and (2) completely absurd -- how dare rapists be punished!

So they should both be thrown in jail and placed on the sex offender's list?

[The Cat-Tribe]

Not reading this entire thread. A couple of points:

1. This was a fucking plea bargain. Of course the "facts" agreed to by the two sides place the defendant in the most favorable light. Taking further liberties or spin upon those facts is completely unjustified.

2. All rape is REAL rape. Period. End of discussion. If you are having sex with someone that isn't consenting, you are committing rape. One stupid judge in Australia doesn't change that. To the contrary, his attitude reflects an unfortunate trend among prosecutors and judges to collaborate with rapists.

So if a drunken man has sex with a drunken woman then the man is a malicious and dangerous rapist who must be removed from society for a number of years and placed permamently on the sex offenders' list?

Yeah. That is (1) exactly what I said and (2) completely absurd -- how dare rapists be punished!

So they should both be thrown in jail and placed on the sex offender's list?

Work on your reading comprehension. Two drunk people having sex =/= rape.

Convicted rapist -- in fact, an admitted rapist -- deserves punishment which would usually include prison and the sex offender's list. (I'm not a great fan of the latter, so that is something of a red herring.) The surrounding circumstances obviously are relevant to the degree of punishment that should be applied.

[The_pantless_hero]

Work on your reading comprehension. Two drunk people having sex =/= rape.

Then perhaps you shouldn't be such a fucking smartass in replying to such a question in such way that it is pretty fucking obvious that you meant what you are currently saying you didn't mean.

[Glorious Freedonia]

So, once you consent to sex, the other person can perform any and all sexual acts on you without you having any ability to withdraw consent?

It would be one thing if she blacked out and he didn't know it. It is quite another thing to know that the person has lost the ability to withdraw consent and then to just make the assumption that you still have it. The latter is rape.

Yes. Sex is sex. Consent is consent. Maybe she should not have passed out? Changing positions or what have you with a gir who passed out during sex does not make you a rapist. If you already are having consensual sex and the girl passes out and you change from doggie style to missionary, this does not make you a rapist.

[Neo Art]

OK. Edited defintion of rape. If a woman denies consent to the sexual act, then it is rape. If she is incapacitated by somebody else, then it is rape. If she is unconscious throughout the sexual act, then it is rape.

no, actually, not necessarily.

So what is the actual definition of rape in the legal system of the USA?

It...varies. Rape is a state law issue. But I can say that as a general rule (there may be a handful of exceptions) rape is NOT a strict liability crime.

What do I mean by strict liability crime? I mean a crime for which guilt is irrespective of the knowledge, intent, or state of mind of the defendant. For instance, speeding. Speeding is a specific intent crime. It doesn't matter if you knew you were speeding. It doesn't matter if you intended to be speeding. It doesn't matter (for the most part) WHY you were speeding.

You were speeding. Thus you are guilty. State of mind is irrelevant.

So by saying rape is not a strict liability crime, I mean just this. If rape was strict liability crime it would mean that any sexual conduct with an unconsenting individual would be rape. It wouldn't matter if you intended to have sex with an unconsenting person, or if you knew you were having sex with an unconsenting person, or even if you in any way COULD have known you were having sex with an unconsenting person. If there wasn't valid consent, it was rape.

For example. Let's say I have sex with a woman. She seems receptive and willing. I ask her if she wants to, she says yes without hesitation or a trace of unwillingness. We have sex.

Except, it turns out, she was under the erronious impression that I was secretly a giant green space monkey from mars, and she feared that if I did not have sex with her, and thus impregnate her with human/giant green monkey hybrids, that I would eat her and take her family to be slaves the ammonia mines of Titan. Did she consent? No. She was under duress. She was afraid for her life. Duress negates consent. Her fear may have been utterly and totally unjustified, and totally wackjob crazy, but she WAS afraid, and thus WAS under duress, and thus DID NOT legally consent.

Did I rape her? No. Of course not. Why not? Because there was NO WAY I could have reasonably known that her consent was not freely given, and thus, invalid.

The line of what one must know, or should know, or reasonably could have known, between what turns "mistake" into "rape" varies by state, but in no state that I am aware of is "sex without consent" rape. It is, at minimum, sex without consent that you reasonably should have known you didn't have.

[Sdaeriji]

It...varies. Rape is a state law issue. But I can say that as a general rule (there may be a handful of exceptions) rape is NOT a strict liability crime.

What do I mean by strict liability crime? I mean a crime for which guilt is irrespective of the knowledge, intent, or state of mind of the defendant. For instance, speeding. Speeding is a specific intent crime. It doesn't matter if you knew you were speeding. It doesn't matter if you intended to be speeding. It doesn't matter (for the most part) WHY you were speeding.

You were speeding. Thus you are guilty. State of mind is irrelevant.

So by saying rape is not a strict liability crime, I mean just this. If rape was strict liability crime it would mean that any sexual conduct with an unconsenting individual would be rape. It wouldn't matter if you intended to have sex with an unconsenting person, or if you knew you were having sex with an unconsenting person, or even if you in any way COULD have known you were having sex with an unconsenting person. If there wasn't valid consent, it was rape.

For example. Let's say I have sex with a woman. She seems receptive and willing. I ask her if she wants to, she says yes without hesitation or a trace of unwillingness. We have sex.

Except, it turns out, she was under the erronious impression that I was secretly a giant green space monkey from mars, and she feared that if I did not have sex with her, and thus impregnate her with human/giant green monkey hybrids, that I would eat her and take her family to be slaves the ammonia mines of Titan. Did she consent? No. She was under duress. She was afraid for her life. Duress negates consent. Her fear may have been utterly and totally unjustified, and totally wackjob crazy, but she WAS afraid, and thus WAS under duress, and thus DID NOT legally consent.

Did I rape her? No. Of course not. Why not? Because there was NO WAY I could have reasonably known that her consent was not freely given, and thus, invalid.

The line of what one must know, or should know, or reasonably could have known, between what turns "mistake" into "rape" varies by state, but in no state that I am aware of is "sex without consent" rape. It is, at minimum, sex without consent that you reasonably should have known you didn't have.

Given that definition, could we say that the time between the girl passing out and the guy realizing she was passed out was not rape, but the time between the guy realizing she was passed out and the guy stopping was rape?

[Neo Art]

Given that definition, could we say that the time between the girl passing out and the guy realizing she was passed out was not rape, but the time between the guy realizing she was passed out and the guy stopping was rape?

It is certainly easier to see the first instance more firmly falling into the "not rape" catagory. The second part is...trickier. It depends on how you look at it. One could argue that if she consented to the act, was willingly going through with the act, made no indication that she was opposed to the act, that it was not thoroughly unreasonable to presume that she wouldn't have any problem with him continuing the act.

The broader question that I think is relevant is this. Does, or should, the knowledge that someone has been rendered incapable of clearly removing consent implictly invalidate that consent?

[Hydesland]

deserves punishment which would usually include prison and the sex offender's list.

I simply do not think this particular person deserves prison.

[Dempublicents1]

So, once you consent to sex, the other person can perform any and all sexual acts on you without you having any ability to withdraw consent?

It would be one thing if she blacked out and he didn't know it. It is quite another thing to know that the person has lost the ability to withdraw consent and then to just make the assumption that you still have it. The latter is rape.

Yes. Sex is sex. Consent is consent.

And consent is required. If someone cannot consent, they don't.

Maybe she should not have passed out?

Are you implying that she intentionally passed out?

Changing positions or what have you with a gir who passed out during sex does not make you a rapist.

If you know she is passed out, yes, it does.

If you already are having consensual sex and the girl passes out and you change from doggie style to missionary, this does not make you a rapist.

If you know she is passed out, yes, it does.

Given that definition, could we say that the time between the girl passing out and the guy realizing she was passed out was not rape, but the time between the guy realizing she was passed out and the guy stopping was rape?

I would agree with this. (I dunno about NA or the law itself).

[Neo Art]

And consent is required. If someone cannot consent, they don't.

The problem here is, what makes this situation a little trickier is...she did. She did give consent, and never removed that consent.

She was rendered, through no fault of the defendant, incapable of removing that consent. But perhaps "consenting then being made, through no fault of the defendant, unable to withdraw consent" is a somewhat different animal than "not consenting"

Again I think the overall question becomes "is it reasonable for someone to assume that if she had consented, she continued to consent, if she made no indication that she was withdrawing consent" or is merely being PLACED in the position (through no fault) where she couldn't withdraw consent function as a implicit revocation?

[Dempublicents1]

Given that definition, could we say that the time between the girl passing out and the guy realizing she was passed out was not rape, but the time between the guy realizing she was passed out and the guy stopping was rape?

It is certainly easier to see the first instance more firmly falling into the "not rape" catagory. The second part is...trickier. It depends on how you look at it. One could argue that if she consented to the act, was willingly going through with the act, made no indication that she was opposed to the act, that it was not thoroughly unreasonable to presume that she wouldn't have any problem with him continuing the act.

So inability to withdraw consent = consent? Personally, I think it's very unreasonable to assume that someone would want you to use her as a sex toy while she is unable to participate or enjoy it. I know some people are into that sort of thing, but assuming it without them telling you that is unreasonable. I don't see such an assumption as any different than, say, assuming that a woman who has given you no indication that she wants to be smacked around does and then going ahead and doing it without asking first. The latter would be assault, right?

The broader question that I think is relevant is this. Does, or should, the knowledge that someone has been rendered incapable of clearly removing consent implictly invalidate that consent?

Yes. If someone cannot withdraw consent, then they also cannot give consent. As such, they don't consent.

Note: I would say that if someone has given prior consent to continued sexual activity after they are rendered incapable of consent, that would still be valid. So, if they discussed it ahead of time and she agreed to be fucked while passed out, he could reasonably assume that she was still ok with it.

[Neo Art]

Given that definition, could we say that the time between the girl passing out and the guy realizing she was passed out was not rape, but the time between the guy realizing she was passed out and the guy stopping was rape?

It is certainly easier to see the first instance more firmly falling into the "not rape" catagory. The second part is...trickier. It depends on how you look at it. One could argue that if she consented to the act, was willingly going through with the act, made no indication that she was opposed to the act, that it was not thoroughly unreasonable to presume that she wouldn't have any problem with him continuing the act.

So inability to withdraw consent = consent? Personally, I think it's very unreasonable to assume that someone would want you to use her as a sex toy while she is unable to participate or enjoy it. I know some people are into that sort of thing, but assuming it without them telling you that is unreasonable. I don't see such an assumption as any different than, say, assuming that a woman who has given you no indication that she wants to be smacked around does and then going ahead and doing it without asking first. The latter would be assault, right?

The broader question that I think is relevant is this. Does, or should, the knowledge that someone has been rendered incapable of clearly removing consent implictly invalidate that consent?

Yes. If someone cannot withdraw consent, then they also cannot give consent. As such, they don't consent.

Note: I would say that if someone has given prior consent to continued sexual activity after they are rendered incapable of consent, that would still be valid. So, if they discussed it ahead of time and she agreed to be fucked while passed out, he could reasonably assume that she was still ok with it.

It does raise an interesting question of "how specific does consent have to be" and "how broad can one reasonable interpret consent"

Is it unreasonable to interpret consent of "I want you to do this to me" to be broader than "I want you to do this to me, but only if I don't pass out".

Now, don't get me wrong, I think his action was monumentally stupid. And I"m not necessarily falling on one side of the fence or the other. I'm merely posing the hypothetical.

[Angleter]

Not reading this entire thread. A couple of points:

1. This was a fucking plea bargain. Of course the "facts" agreed to by the two sides place the defendant in the most favorable light. Taking further liberties or spin upon those facts is completely unjustified.

2. All rape is REAL rape. Period. End of discussion. If you are having sex with someone that isn't consenting, you are committing rape. One stupid judge in Australia doesn't change that. To the contrary, his attitude reflects an unfortunate trend among prosecutors and judges to collaborate with rapists.

So if a drunken man has sex with a drunken woman then the man is a malicious and dangerous rapist who must be removed from society for a number of years and placed permamently on the sex offenders' list?

Yeah. That is (1) exactly what I said and (2) completely absurd -- how dare rapists be punished!

So the vast majority of men who have had one-night stands are malicious and dangerous rapists et al. The sex offenders' list would soon be like a male version of the census.

[Poliwanacraca]

It does raise an interesting question of "how specific does consent have to be" and "how broad can one reasonable interpret consent"

Is it unreasonable to interpret consent of "I want you to do this to me" to be broader than "I want you to do this to me, but only if I don't pass out".

I would say that yes, it is. I simply don't see how one can realistically argue that fucking a conscious person is the same act as fucking an unconscious body. As Dem said, some people are into that, and that's fine, but it's no more reasonable to assume "you were okay with actively participating in a sex act with me, so you'll be okay with me just using your passive body for similar sex acts" than "you were okay with kissing me, so you'll be okay with me sticking my cock in your mouth."

[Poliwanacraca]

So the vast majority of men who have had one-night stands are malicious and dangerous rapists et al. The sex offenders' list would soon be like a male version of the census.

How in the hell are you getting there from what TCT said?