Apparently, Rape is not Rape

[New Chalcedon]

Starting: Consent given, no problem.

After she passed out: no consent given. Rape. The telling point is that he knew that she was unconscious, and continued. If he had been under the impression (for whatever reason) that she had been conscious and her previously-given consent still applied, then it's a gray area. But not as the facts apply here.

[The Cat-Tribe]

*snip*

*snip*

Perhaps later I will wade into the blow-by-blow and/or write a lengthy treatise on the relevant points, but not now.

Let me make a few observations:

1. Rape statutes differ between jurisdictions and continue to evolve. Most jurisdictions recognize various degrees of sexual assault and vary punishment according to circumstances. To say that rape statutes are more complex than some opined is either to state a trivial truth or to be deliberately obtuse. That neither helps address the case presented in the OP nor particularly helps with hypotheticals.

2. Although nuances exist, there is a very good reason to emphasize the simple rule that sex without consent is RAPE. Period. Although one can imagine unfair hypotheticals, the bright line that one shouldn't penetrate (etc) someone that isn't actively consenting to said activity is ethically defensible and PRACTICALLY useful. We should start any discuss of rape with the assumption that all rape is "real" rape AND all sex without consent is rape.

3. Over time the law has recognized variations of "implied consent" in rape laws AND THOSE VARIATIONS SHOULD TEACH US THE NOTION IS A BAD IDEA. Some jurisdictions have held that one cannot rape a spouse. That is obscene. Some jurisdictions have allowed a defense against rape on the grounds that the victim was a "voluntary social companion" of the defendant -- excusing or reducing rape charges on the grounds that the victim had "induced" the performance of the rape by (1) being voluntarily present and (2) having permitted some form of sexual contact to occur between the victim and defendant (or had allowed the defendant to engage in sexual contact in the past). These laws -- which I believe still exist-- are ethically repugnant and reinforce the worst kind of myths about sexuality, gender roles, and rape.

4. Looking at the specific case (or close hypotheticals), among the copious problems with an "implied consent" exception would be very basic: (1) consent implied from what and (2) consent implied to what? Without getting too graphic, let me illustrate the bizarre lines that you are asking be drawn. If I agree to kiss someone, does that consent to anal sex if I pass out? Or if I consent to oral sex and pass out, is the consent limited to use of that orifice?

5. Also looking at the specific case raised in the OP, I would note I find TJ's refusal to accept the defendant's admission against his own interest that he knew the woman was unconcious rather bizarre. I can think of no reason for this that doesn't reek of making excuses for the defendant.

[Tahar Joblis]

5. Also looking at the specific case raised in the OP, I would note I find TJ's refusal to accept the defendant's admission against his own interest that he knew the woman was unconcious rather bizarre. I can think of no reason for this that doesn't reek of making excuses for the defendant.

Admissions do not always err in the favor of interest, although it is generally more common than not; false confessions are generally an anomaly, but not nonexistent.

Is it likelier that he did worse, rather than better? Not knowing any of the supporting evidence, I can't even begin to guess how likely it is that he used roofies or something similar to obtain "cooperation," but from what little we know, I do think it likelier that he crossed at least one of the other two lines I indicated rather than failed to cross the two that we are largely assuming that he did.

Over time the law has recognized variations of "implied consent" in rape laws AND THOSE VARIATIONS SHOULD TEACH US THE NOTION IS A BAD IDEA.

In a quite literal (if not necessarily legal, therein may lie a distinction) sense, everything which is not put sharply into words is implicit. There is therefore more implicit consent remaining than not in even the strictest forms of rape laws. If my partner strips naked, yanks my pants off, and rolls a condom onto me, it very strongly implies s/he wants me to engage in some kind of sexual activity, and even if s/he says not a single coherent word but simply remains conscious throughout without trying to get away from me or push me away, nobody here would say I raped her/him, but neither do I have explicit consent (e.g., the words "Please f*** me now" would be explicit).

And I agree that implicit consent is something that must be treated extremely carefully... meaning considering its scope to have very sharp limits, especially with respect to time... but the solution of attempting to eliminate all forms of implicit consent from rape law is one I have not seen attempted, and will not see in the foreseeable future.

The most dangerous part of handling implicit consent in law is not the question of nonverbal or nonliteral communication; the dangerous part is legally recognizing implied consent via social scenario. E.g., you two were on a date => it wasn't rape, you two were married => it wasn't rape, both of which are outdated legal standards (still present in a handful of jurisdictions) that at the core of them, have nothing to do with the nature of rape, and everything to do with the notion of people as property.

Some jurisdictions have held that one cannot rape a spouse.

Correction: A few jurisdiction still hold that one cannot rape a spouse, and a number relegate it to a lesser offense.

That is obscene.

Very much so.

But I would also like to see the use of date rape drugs, for example, a highly premeditated act, stamped on hard. You are right, I can see, about many jurisdictions already making a number of distinctions, but then, that fact makes the hypothesis a little easier to test. If the distinctions being made are appropriate distinctions to make (e.g., not "social companion" distinctions or spousal rape exemptions), does it improve the law as a rape prevention mechanism and/or as a means of dispensing justice?

My home state, North Carolina, has a first and second degree rape offense; the distinction does not have a thing to do with premeditation, though, which I find puzzling. I would think that would be one of the conditions elevating an offense from second to first degree.