Can you be perverted behind the door?

For those who blow my sex law concerns off as the evil vomit of a misogynist I give you:

Quote:

Rape-Law Reform circa June 2002


Has the Pendulum Swung Too Far?
STEPHEN SCHULHOFER

Robert B. McKay Professor of Law, New York University Law School, New York, New York 10012, USA

Address for correspondence: Stephen Schulhofer, Robert B. McKay, Professor of Law, New York University Law School, 40 Washington Square South, New York, NY 10012. Voice: 212-998-6260; fax: 212-995-4692.
[email protected]
Ann. N.Y. Acad. Sci. 989: 276-287 (2003).


This paper reviews court decisions determining the scope of liability for rape over the period 1998-2002. It finds many troubling signs that some courts, under some circumstances, are still wedded to the traditional (very strict) view of the kind of force necessary to support a charge of rape. There are, however, signs of encouraging progress: convictions in circumstances where even a decision to prosecute would have been unthinkable 20 years ago, and holdings that accept power, authority, or indirect intimidation as sufficient "force." Is it possible to go too far in this direction? And is there any reason to worry that this could actually happen in reality? The research identifies several areas in which this surprising possibility may be about to materialize, for example on the normatively and practically difficult question of the degree of intoxication or alcohol-induced willingness sufficient to invalidate consent.

http://www.annalsnyas.org/cgi/content/abstract/989/1/276

POnce again...where is your proof that in American law the presumption of innocence has been reversed.


Laws please.


I don't know what things are like in America...but you have made a big claim.

Back it.


Law reversing presumption of innocence for sexual assault.

dlowan wrote:

POnce again...where is your proof that in American law the presumption of innocence has been reversed.


Laws please.


I don't know what things are like in America...but you have made a big claim.

Back it.


Law reversing presumption of innocence for sexual assault.

http://www.jstor.org/pss/1341652

Only the New Jersey Supreme Court has greatly deviated from its state's statutory force requirement. The court interpreted the victim's non-consent as satisfying the statute's force requirement. New Jersey ex rel. M.T.S., 609 A.2d 1266, 1276 (N.J. 1992) (stating that because the victim is not required to resist, she does not need to say or do anything for the sexual penetration to be unlawful). In a narrower way, three other states may be limiting their statutory force requirements as well. see People v. Iniguez, 872 P.2d 1183, 1189 (Cal. 1994) (establishing that resistance is not required to prove sexual assault); State v. Borthwick, 880 P.2d 1261, 1271 (Kan. 1994) (stating that the relevant statute requires a finding that the victim did not give her consent and that she was overcome by force or fear to facilitate intercourse but not that the victim was overcome by force in the form of a beating or physical restraint); State v. Gamez, 494 N.W.2d 84, 87 (Minn. Ct. App. 1992) (holding that evidence of coercion through creation of fear is sufficient to affirm a conviction for criminal sexual conduct). Nevertheless, there are few reported cases in New Jersey in which the defendant did not employ extrinsic force or a threat of such force. Likewise, in the seven states in which the criminal law statute does not require force, the case law is not markedly different from that in states in which there is a statutory force requirement

Quote:

The Government has more clearly defined consent in the proposed laws and Mr Atkinson said a person would not need to tell an alleged offender to stop if they decided not to continue engaging in sexual activity.

"I think a scream would be sufficient," Mr Atkinson said.

"We don't want to punish men for being inadvertent or negligent but we do want to punish them for reckless indifference to whether a woman was consenting to their sexual advances," he said.

But over all the laws have changed, the default was the presumption of consent, today in almost all courts the default is the presumption of lack of consent. The accused now must prove that consent was given. Given the hazy nature of sexual consent between normally sexual humans this a big change. For those who practice abnormal sexuality the swing in presumption is even more of a slam against men.

Let me get this straight... do you think it should legal for a man to continue to have sex with a woman, even if she starts screaming and obviously doesn't want the sex to continue?

agrote wrote:

Let me get this straight... do you think it should legal for a man to continue to have sex with a woman, even if she starts screaming and obviously doesn't want the sex to continue?

No, I think that women have a point that the old laws that said that a woman is assumed to have consented unless it is proven that she has not were unfair to women. I also think that the current laws that say that a woman is assumed to have not consented unless it is proven that she has are unfair to men. The correct starting assumption is that it is not known what the state of consent was unless one state or the other can be proven.

That sounds like a return to the first option: assuming innocence until guilt is proved. In theory we can assume that we don't know what the state of consent was, but in practice we either lock up the defendant or we don't. You are trying to avoid locking people up if guilt has not been proven, which I can understand. But this amounts to behaving as if we assume that the woman consented and that the man is not guilty. I don't see how you can avoid both of the two options that you reject.

agrote wrote:

That sounds like a return to the first option: assuming innocence until guilt is proved. In theory we can assume that we don't know what the state of consent was, but in practice we either lock up the defendant or we don't. You are trying to avoid locking people up if guilt has not been proven, which I can understand. But this amounts to behaving as if we assume that the woman consented and that the man is not guilty. I don't see how you can avoid both of the two options that you reject.

In the way that I have already explained; you take almost all of these relationship disputes out of the legal establishment and you put them in the public/private health establishment. Just about every person who has gone in for relationship counseling has been told I am sure that putting energy into figuring out who is to blame for problems and past events is a poor use of energy, that the correct thing to do it to figure out how not to get into those situations, and to build a better life. We choose to blame and punish rather than teach, because we are stupid that way.

Rape is a relationship problem.


Not a crime.


I see.



You really are something. Something very scary, especially because I reckon there a re a lot of you out there.


I wonder how you would frame rape if you had experienced it, or if you had the sense and empathy of an amoeba.

We're talking about rape here. I imagine that in many cases the rape victim will not want to continue a relationship with the rapist. Building a better life may mean building a life that does not involve the abusive partner. What if the abusive partner continues to pose a threat? The law intervenes and locks him up for the crime of rape. Not to punish him, and not because he is to blame for anything, but because he is a danger to other people. If he can be rehabilitated, tgreat. But I'm not sure that relationship counselling will do the trick, in many cases at least.

Your suggestion - to take disputes over rape within relationships out of the legal establishment - amounts to legalising rape. It amounts to behaving as if consent is assumed, which is something which I thought you wanted to avoid. You said it was unfair to women.

Anyway, what about being raped by a stranger? Would you keep that in the legal establishment?

There is no need for both people in treatment to continue in their relationship for them to be helped by health professionals.

Legalization in the sense that if there is not criminal punishment then there is not illegality...I suppose. But the society through the institution of government has other ways to reach out and touch those who need corrective action other than by way of the criminal courts. In any public health action their must be way to force individuals into treatment if they will not go willingly, however criminal proceedings are usually not needed to get what is needed from the wayward individual. The threat of legal sanctions for not following the treatment program most often does the trick.

I never denied that. I said that relationship counselling would be inappropriate if the relationship ended, and that legal action would be useful for the protection of the abused partner.

Why confine this idea to rape? Why not treat all current crimes as public health issues?

Restraining orders can always be had, even if the original violation is handled in a health setting rather than a criminal justice setting.

Only some of individual behaviour is driven by passions which can not be corrected by criminal sanctions. Problems related to sex, drugs and alcohol are more often better handled outside of the courts except for the most extreme situations. Rape not tied up with relationship dynamics, major drug dealing, and drunk driving do belong in the courts, those who do those things should be locked up, but they are a small fraction of the deviant sexual practitioners, drug users, and alcohol users.

What evidence do you base these claims on? How do you know that rapists can't be corrected by criminal sanctions? And how do you know that, say, murder is not driven by passions that cannot be corrected by criminal sanctions? Why not make murder a public health issue?

True. I'd be worried that people who have raped their partners might be prone to do the same thing to future partners. In which case a restraining order from normal society would be in order (i.e. jail). But it's an empirical question whether men who rape their wives do it out of a tendency to rape wives in general, or whether it usually arises due to issues which are specific to particular relationships (so that the man would be no more likely than the average man to rape future partners). I don't know the answer to this question, but I think it needs answering before you presume that the rapists in question pose a danger only to the rape victim and not to women in general