I would define rape as the nonconsensual penetration of any orifice. And I think that is a common understanding of the word. It is the state statutes that have tortured the word.
No i don’t think the states tortured the word, I actually have expressed as have others that the word is tossed around in an attempt to cover all sorts of thing that don’t fit people’s conception of the "word’ rape. That is a greater problem in my opinion than a state that can put someone away for 100 years for something that state calls sexual assault…as long as the prosecutors understand the legal terminology, the judge understands the legal terminology and the jury understands the legal terminology the masses are less of a concern in my opinion.
I must have missed those posts. What are people “tossing around” as rape that you do not think “fit people’s conception of the word?” I only recall that you were reluctant to give your definition of the word in another thread months back.
If you kill someone, you are a killer. If you kill someone, you might be a murderer.
Rape needs to be broken down in to subcategories with well-defined bounds if convictions are desired.
The only issue relevant in rape cases is the issue of consent. So either there was consent or there wasn’t. So what would those sub-categories be?
With murder there is a lot to be considered. Pre-meditation? Intent? Self defense? Malice aforethought? I just do not see all that coming into play when considering whether someone consented to sexual activity. Or are you saying that there should be other considerations in addition to the issue of consent?
Harvest it would be an impossible task to go back through the countless threads and find that snippet of conversation. It’s really irrelevant since it’s my opinion and that can stand by itself as an opinion. If you are really interested in why people think this it’s much easier for you to google rape + overused word and read the opinions even from feminists who tend to use the word, well, alot.
And yes Niquii, that is a simpler way to put it and it is probably why states have different degrees of criminal sexual behavior.
Here’s an interesting little clip about consent, relating it to having a cup of tea:
I am not following you @momof three boys. People use the word “rape” because it has meaning and they are trying to communicate something. How is it overused in your opinion? In what circumstances in your opinion is the word used where it does not apply?
Yes, I think there should be more considerations, such as how murder has its considerations.
And I am not contending that all state statutes define the word as I do or as others might. But NY is working on it.
Oh, I saw a different tea video and tipped my hat to it. ~O)
If you’re going to define “rape” by using the term “nonconsensual,” you also have to define “nonconsensual,” and that’s not as easy as it might seem.
Indeed, different states define “nonconsensual” differently. It seems simple until you look at actual cases.
In Montana, in order to convict someone of rape (whatever the crime is named there; I forget right now) the jury must conclude that the rapist believed the victim was not consenting. That’s why that one accused guy in the book was acquitted; the jury believed that she did not agree to the sex, but they couldn’t convince themselves that he knew it.
To me, that opens the door wide to abuse. Some guys have a deranged belief that, basically, anything is consent. She said hello to him? Consent. She smiled at him? Consent. She didn’t shoot him with an AK47? Consent. She said, “No! Stop!” She was just being coy; consent. He bought her dinner? Consent. That toddler looked at him? Consent. (Obviously Montana has other laws to convict child-rapists, but chances are, whatever a toddler did that some loony interpreted as consent wouldn’t be consent if an adult did it, either.)
In California, the standard is that to raise a consent defense, the accused has to convince the jury that he thought she consented, and a reasonable (sober!) person would have thought she consented.
Whenever the question of what somebody “knew” is involved, there are many difficulties. Typically, the standard will be something like the person “knew or should have known” or that a “reasonable person” would have known. This is relevant to lots of legal issues, and not just consent cases.
We all know that toddlers can’t consent to sex, but things get harder when a person who appears to be above the age of consent, and who claims to be above the age of consent, actually isn’t above the age of consent. And in the intoxication cases, I don’t know how you can get away from trying to figure out what the accused person knew (or what a reasonable person would have known), because in many of those cases there is evidence of behavior that, in a sober person, would constitute consent.
Here’s a far-fetched example: A blackmails B into having sex with C. C doesn’t know about the blackmail. Did B “consent” to sex with C? Well, in a way, yes, and in a way, no. Did C commit a wrongful act? Did C intend to commit a wrongful act? I give this far-fetched example simply to illuminate the idea that it is not just C’s actions matter, but also C’s intentions. And when intentions matter, cases get harder.
I guess when you don’t think that, you wouldn’t use the term " rape".
You aren’t committing a crime, you are just " expressing yourself"?
http://thinkprogress.org/health/2015/01/11/3610327/college-men-forcible-sex-study/
My point is, seemingly that is not the standard in Montana, for rape. In Montana (unlike other states) the standard is that the person knew. Not that he should have known, not that a reasonable person would have known, but that he knew she didn’t consent.
This is what a juror said in the Jordan Johnson case, which was describe in Missoula:
Here’s a scholarly article on non-consent laws and case law in different states:
http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=7410&context=jclc
I don’t expect anyone to read it-- I just skimmed it-- but the takeaway is, state laws about consent are all over the map. There is no consistency about what it takes to legally demonstrate lack of consent. Horribly, though, the article cites a 1994 Pennsylvania case where the victim repeatedly said no, the aggressor locked her in the dorm room and penetrated her, and the Pennsylvania Supreme Court unanimously declared it wasn’t rape because she didn’t fight back physically.
The point is, as @Hunt says, the definition of “nonconsensual” is far from obvious, far from agreed-upon.
OR, victims notice a lower conviction rate and decide it isn’t worth it to chance a less certain outcome. So 200 fewer rapes are reported, resulting in far fewer rapists being put behind bars.
I’m, not advocating one protocol or the other. I am simply saying that your premise could have exactly the opposite effect.
I don’t get it. How can this be? If the initial situation is 100 rapes being reported, then there will never be a case where 200 fewer rapes than that are being reported. There is no such thing as a negative rape report.
Do you mean that initially 100 rapes per year are reported, but then after the policy of aggressive investigation 200 more rapes per year are reported, but then the victims notice that the conviction rate has gone down, and it goes back to 100 rapes per year being reported? Well, then, you’re no worse off than before the aggressive investigation protocol was initiated. In fact, you’re better off, because of those 100 rapes, instead of 9 resulting in conviction, 14 result in conviction because you’re now investigating aggressively.
This is why I wonder if there are figures from different jurisdictions that take different approaches. Because this might be the outcome, or the following could happen:
In Case B, the aggressive investigation and prosecution doesn’t produce very many strong cases, and although they now take 20 cases to trial, they only get 12 convictions. And the encouragement of reporting generates a lower percentage of strong cases, so although they now have 300 reported cases, and are taking 50 of them to trial, they are only getting 22 convictions. There’s a hue and cry about why the conviction rate for these cases has declined from 90% to below 50%, even though a huge additional amount of money and resources are being spent on these cases. Defenders of the change will point out that we are incarcerating more than twice as many offenders. But will the ordinary person see this approach as a success?
Let me add an additional thought to this: no matter how much reporting you have, and how aggressive the investigation is, prosecutors are still only going to proceed to trial with cases they think they can win. So, I think, the real question is how many more winnable cases will these enhanced procedures yield, and how will that compare to the cost in resources of yielding them? I think that’s very hard to answer.