Tuesday, February 14, 2006

Was That Rape? (or just regrettable sex)

In Crim class we've started talking about rape.

I'm a squeamish prude so class makes me very uncomfortable. My whole policy on the topic of s-e-x, is "Don't ask, don't tell, and PLEASE don't talk to me about it!"

But a law student doesn't have that luxury. I've had to read numerous cases so far with quite detailed and graphic descriptions and I've learned some new words describing some pretty crass acts (which I will spare you all from here).

Legally speaking however, rape is a very interesting and unique crime. It is the only crime where the alleged victim's words and conduct are scrutinized more than the defendant's. The focus is on what the victim said, did, etc. Did she lead him on? Did she say no? When she said no, did she really mean no?

In general, we read a lot of cases on the borderline between consent and non-consent. Those cases are full of passive girls who didn't verbally or physically object and willingly engaged in almost everything but sex. In my generation, it was called going to all the bases except for "home."

Girls like that shouldn't have the law on their side. I mean, come on, what did you THINK would happen? If you play with fire, are you surprised you got burned? Of course I have sympathy for misguided souls who exercise poor judgment (we all do from time to time). But my sympathy and "criminally charging an innocent hormone-driven guy" are two different things.

A guy shouldn't be punished for being...well, just a normal guy.

5 Comments:

Blogger Morris said...

Hello,

Interesting topic you mention there. I will be visiting again soon.

Mr. Morris
Ask Morris

9:59 PM  
Blogger Will said...

Ok sister. Bad idea. You can't make laws that run completely athwart human nature, but being on a date is one situation where guys probably respond quite well to the threat of punishment. Not to sanction bad behavior would result in two things: more rape, and fewer girls willing to date anyone, including me. Which is why I'm opposed to your proposal.

Also it is already hard enough to find a man guilty of rape. If it is just the girl's word against the guy's, nothing happens. There has to be evidence that more than rough sex is involved, and if the girl is not screaming at the top of her lungs, nobody may be the wiser. There is simply no need to introduce a subjective element that makes a rapist that much harder to convict.

3:05 AM  
Blogger Alice in Wonderland said...

But brother, that's just it. The current rule IS athwart human nature. I think you misunderstand what I'm proposing.

I'm talking about a very narrow set of cases that involve a very specific fact pattern.

In this situation I'm imagining, under the current law, if a guy and a girl are, um, "getting it on" and the girl doesn't object physically or verbally to "going all the way", the guy may still be charged with rape. How is that fair to the guy? How would a guy know if he was committing rape or not at the time of the act? If you can only know in retrospect, that isn't fair.

Now, if we disregard fairness and just look at social utility, allowing guys to be charged with rape when they had no way of knowing that the act would be construed as rape, will simply discourage guys from trying to get into a girl's pants. No harm done, in my opinion.

But I just don't think it's fair. It's like a rule of strict liability. It doesn't matter if you knew you were doing something wrong or not. If you are going to "do it" with a girl, you do so at your own peril.

5:49 PM  
Blogger Will said...

This comment has been removed by a blog administrator.

5:01 AM  
Blogger Will said...

Alright I don't get it. If the girl is alive and conscious, and neither speaks nor motions for the guy to stop whatever he is doing, how can anything that he does be rape? Quite possibly what the guy is doing is against the girl's will, but if there is no proof of that, how is the law to decide? Is the jury going to look at the guy and say, Nooo way, no one would ever voluntarily have sex with that guy. How about you post a specific fact pattern for me to gape at?

And by the way, if guys really can be found guilty of rape for no good reason, you can be sure that many girls will be quite disappointed when a date decides to take it easy in order to stay out of trouble.

5:08 AM  

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