Jurisprudence

Re: What's wrong with non-consensual sex?

Thomas Paine — Thu, 12 Jul 2007 16:18:26 GMT

I an not a lawyer and am not familiar with the specifics here, but I would make a general observation that regardless of whether or not the word "rape" in too prejudicial or inflammatory to use in testimony, it probably is too imprecise to be of much benefit in determining guilt or innocence.

Re: What's wrong with non-consensual sex?

morphicresident — Thu, 12 Jul 2007 15:14:41 GMT

Frankly, if your not sure about whether it was rape or not, it was probably rape.

Let me put it this way: I'm pretty sure most women can figure out if they have been raped or not.

Re: What's wrong with non-consensual sex?

TR_Populist — Thu, 12 Jul 2007 10:57:09 GMT

Here's the problem with using non-consensual sex instead of rape.

He raped me.

He had non-consentual sex with me.

The first clearly shows the accused is responsible for the action. The second suggests that the victim was somehow complicit in the acts which took place. The defense and judge in this case are clearly and deliberately attempting to make the language of the prosecution unclear. What's next, forcing the defense to use passive case?

Re: What's wrong with non-consensual sex?

josie810 — Thu, 12 Jul 2007 00:33:40 GMT

You don't have to be beaten, bound or physically brutalized to be raped...non-consensual sex is RAPE and you are brutalized emotionally. The definition of rape is sexual intercourse forced upon a person.

Re: What's wrong with non-consensual sex?

Joe_JP — Sun, 24 Jun 2007 14:51:39 GMT

I'm sure one of the reasons 5 of them had "reasonable doubt" was that she wasn't allowed to say she was raped. And as I said in another post, the judge also banned the word "forced."

I'm not "sure" of anything. I read an article, linked by Dahlia's article, discussing the jury's deliberations. A core issue here was proof and reasonable doubt. It was quite honestly a closer case than many. It is dubious to me that all five were so seriously influenced by the ban that the matter would have went the other way w/o it. For instance, a reference was made to a friend who noted she didn't seem too drunk. Some wondered why she didn't leave right away. etc. There were many questions in their mind.

The reason this is a problem is that the defense attorney asked her, "Did you have sex with my client" and she had to either say "yes," which to her meant that she consented or "no," for which she could be called a liar. If someone raped me and then their defense attorney asked if we had had sex, I would say, "No." If I said I "had sex" that would mean "willingly" in my understanding.

The fact you can't say "forced" or "rape" doesn't mean you have to lie. Some have noted that rape is not a sex act but a act of force. "Sex" to them connotates consent.* Fine enough. Say you didn't have 'sex.' Or, rather, you did not have sex "with" him, since that implies a two party act.

The defense might challenge and you then might say "he did enter me, but I did not consent to it. It isn't sex if I don't consent." The defense all the time uses carefully phrased questions to catch people. It is not somehow limited to this context. The prosecutor, judge, and witness can address abuses of this discretion.

[Let me say that I can accept that the ban was too broad, though I'm not sure. This is why I repeatedly have noted that it did not just include "rape," though many focus on that one word.]

Some are annoyed at the somewhat complicated and arguably artificial nature of this. But, in court, we often have to go through with this sort of thing. The possibilities of abuse are legion. Some think abortion is "murder." Some think various sorts of non-legally liable pressures are "rape." Some quite honestly think things like blow jobs or some sorts of petting is not sex, while others quite honestly do.

They can so choose. They might be called liars. Let them explain themselves and the jury or judge acting as jury can decide.

-j

Re: What's wrong with non-consensual sex?

clemdane — Sun, 24 Jun 2007 06:39:26 GMT

I'm sure one of the reasons 5 of them had "reasonable doubt" was that she wasn't allowed to say she was raped. And as I said in another post, the judge also banned the word "forced."

Re: What's wrong with non-consensual sex?

Joe_JP — Sat, 23 Jun 2007 16:51:38 GMT

At the criminal trial, the "victim" does not have the same rights as the accused. Wendy Kaminer, for instance, has written about this in her writings:

Victims have moral claims to be treated fairly, with sympathy and respect, but they don't have rights, exactly, because they're not being prosecuted: the state isn't threatening their liberty."

[Clearly, victims can be treated with respect -- more shown by the lead post -- and the state can supply them various rights, by statute at the very least, so this is a bit misleading. But, there is a big difference here, and it does cause problems esp. when rights of defendants are denounced as harming innocents. Sometimes, yes, they do. It's how the system is set up. You need evidence to convict and still might not. This can hurt people. Just one example.]

The "victim" does not even have the same rights at a civil trial, where the defendant has no immunity and there is a lower standard of proof. The defendant still is presumptively innocent, and a higher than 50+1 burden has to be met to get a victory. Thus, the defendant has more rights than the accuser. Since a defendant in a criminal case might be liable to up to the death penalty, this makes sense.

I put the quotes in on purpose. The purpose of the trial is to determine if the person is a victim, in particular victimized by the defendant (in various cases it might be accepted the person is a victim, but in this case there was debate ... the jury itself split 7-5 as to reasonable doubt).

Stating for a fact that the person is a "victim" is misleading, since the jury has to decide the question. At the very least, the victims don't have the same rights as defendants. For one thing, defendants have immunity rights. The defendant also has the right to confront their accusers, even minors. The defendant can stand mute and may not even show up. The assumed victim has to relive their victimhood on the stand, in a few rare cases being asked questions by the person who victimized them!

-j

Re: What's wrong with non-consensual sex?

TruettCollins — Sat, 23 Jun 2007 02:41:31 GMT

But then these same lawyers tie the hands of the VICTIM to the point they can not even submit the evedence that would prove they are telling the truth.

Re: Here's what's wrong with non-consensual sex

Eigenvector — Fri, 22 Jun 2007 22:13:32 GMT

Your experiences don't mean squat to me. The fact of the matter is that in this case the defendant believes she had non-consensual sex. She can call him a rapist, sadist, bully, whatever all she wants AFTER a conviction is made - not before.

Re: What's wrong with non-consensual sex?

Eigenvector — Fri, 22 Jun 2007 22:09:41 GMT

I suggest you speak at length with JohnLex, I believe he would disagree with you and educate you far better than myself. I'm not a lawyer, don't like them, and have no interest in being around a courtroom. However I still know enough to know that the defendant has more rights in a court of law than the accuser. The burden of proof is on the accuser and the accuser must demonstrate that his/her/it's story is factual.

Re: What's wrong with non-consensual sex?

TruettCollins — Fri, 22 Jun 2007 17:27:10 GMT

No, but I am one of those THE VICTIM HAS AS MANY RIGHTS AS THE ACCUSED.

Here's what's wrong with non-consensual sex

Tina Trent — Fri, 22 Jun 2007 16:38:50 GMT

Gee, this conversation brings me back to sitting in a police station after being raped repeatedly by a serial rapist. Or maybe I should say, "having frequent non-consensual sex with a seasoned practitioner of non-consensual sex." Fascinatingly, this very subject emerged in the first police interview: I was trying (through a badly bruised throat, hours after escaping) to provide the details of the n-c-s. At one point, I said something like: "then he made me give him a blow job." The detective turned off the tape recorder. He told me that I couldn't use words like "blow job" because the defense attorney would use my language to make me look like a slut (presumably, a slut whose modus operandi for picking up men involves going to sleep in her own bed -- too sexy!). We then haggled a little over the term "suck it," which, as a direct quote (and also as I was an English Major with an affectation for precision in language), I felt should be included in the original. After all, wouldn't the n-c-s'ers own language make him look like a slut, too? The police felt that the mere act of accurately reporting the n-c-s'ers own words would reflect badly on me. So the tape recorder went back on, and I said something idiotic and grotesquely untrue, like: "then he asked me to perform fellatio on him." And then, for the first time, I felt dirty. Non-clean, as you would say.

Re: What's wrong with non-consensual sex?

Eigenvector — Fri, 22 Jun 2007 15:07:19 GMT

Let me guess, you're one of those guilty until proven innocent types?

Re: What's wrong with non-consensual sex?

TruettCollins — Fri, 22 Jun 2007 07:52:14 GMT

“she wasn't beaten, bound, and brutalized - which is what the term "rape" conjures up in the mind of many”

Only those who don’t understand that if the woman does not say yes, or can not say yes because of drugs, inebriation, etc….it is still RAPE……

But then in today’s court systems the “suspect” has the right to object to anything that might go against him but the victim do not have any rights.

What's wrong with non-consensual sex?

Eigenvector — Fri, 22 Jun 2007 03:25:15 GMT

I guess I'm not totally sure why this is some huge problem. Can't the lady use the term "non-consensual sex"? Doesn't that in fact encompass exactly what she experienced? Is the word "rape", which the defence has banned as being too loaded, needed by the prosecution precisely because it is loaded? She had non-consensual sex, she wasn't beaten, bound, and brutalized - which is what the term "rape" conjures up in the mind of many. If her accusations are true, she still suffered a terrible crime, but why the need for vengence by the prosecution?