Age of consent?

In days of olde, Married at 14 yrs was common place -> Times move on - The Swinging Sixties showed that; to a degree, Free Loving was 'enjoyed' in it's purity and - with the usage of condoms/Pill showing that Sex could be Safe - Aids then came to the fore and showed that people took a degree of liberty with safety and this overtook the % danger of STDs - Then there is the recent public scandals(uk) putting an emphasis on child protection.
The information on Sexual activities and possibilities is now a lot more available and accessible with Sex ED in school a lot more open.
- Seems to me Education should be the key issue - for children will always 'experiment' and the question of Rape between 2 x 2013 "consenting "17yr olds is always subjective = Food for thought

 

You do realize I wasn't being serious, right?

 

I'm not sure I follow. Are you saying that for the crime of rape the burden of proof should be reversed and the defendant should have to prove his innocence?

 

I'm saying that right now, the presumption is that victims are in a default state of "wanting it" or that the answer is "yes" unless they can demonstrate that there was a definitive "no." That means when a girl is passed out on the couch, there is an assumption that she's consenting to being penetrated unless she can demonstrate that she does not consent. That's fucking asinine. The default assumption should not be that a girl is automatically available for sex; it should be the other way around - it should be presumed that she's not consenting UNLESS there is an affirmative "yes." So, yes, the burden of proof ought to be on the accused to demonstrate that there was consent, not the other way around.

There was a case a few years ago, in Chicago I believe it was, where several guys videotaped themselves raping a passed out girl on a couch. They spit on her, pissed on her, penetrated her with some kind of stick, wrote epithets on her, etc. At some point during the rape, she moved and made a noise, and a fucking jury determined that to be "consent" to the attack and the guys were all found not guilty of rape. Had the presumption been that she was not open to being violated rather than the other way around, those assholes would be in jail right now.

 

Honestly no, I did not because up until that post the context of the thread was serious.

 

If I were her lawyer I would've appealed that verdict so fast.

Technically, the law does require the girl to utter "yes" to sex, otherwise it's always rape. This is not realistic though, since people communicate with body language and whatnot.

But America is an "innocent until proven guilty" country. At least the Steubenville high school and how that legal rape case turned out gave me hope that rapists don't get off scott-free.

 

You can't appeal someone else's not guilty verdict.

Actually, no, it most certainly does not, and therein lies the problem (I'm not ever sure where you get the idea it requires this). The law requires "consent" (generally) but doesn't speak to how that consent needs to be articulated. It specifically does NOT require affirmative consent, and that is the root of the problem I'm speaking of. The law assumes consent unless proven otherwise. It needs to be reversed.

The problem is with how that innocence is framed. Let me demonstrate by way of a couple of analogies.

With my house, if you're in my house, and I've given you permission to be there (i.e., "consent"), then you're not breaking the law. But if you're in my house without my consent, you're guilty of at least one crime (burglary or trespassing, generally, depending no how you entered). In a court of law, you have to demonstrate I've given you consent to be in my house. If you can't do that, then you're found guilty of a crime. The presumption under the law is that, if you're in my house, you don't have my permission to be there unless you can demonstrate that I've given you that permission.

And let's say I love cookies. I eat them all the time, and you know this. If you walk up to me and shove a cookie in my mouth without my consent, however, you can easily be charged with and convicted of an assault. You'd have to prove that I'd given you consent for shoving a cookie in my mouth in order to support a claim of innocence. It's not automatically assumed that I give you permission to shove a cookie in my mouth unless I specifically tell you that you cannot.

In both of the above cases, the presumptions are exactly the reverse of that which exists with a rape in our culture. The victim is always presumed to have consented unless S/HE can prove that there was no consent. Rape is the only crime where this is the case. And that needs to change.

 

So let's say we are talking about a he said/she said case that was not videotaped. He says she consented to sex, she says she didn't. Is your position that the burden lies with the accused to prove that the sex was consensual? How would he do that?

 

That's his problem, just as would be the case if he'd been found in my house. How would he prove he had my consent if I said he didn't have my permission to be there? It'd be incumbent upon him to figure out how to prove he was there with my consent.

This is why I say it'd go a long way towards solving the rape culture problem we have. If people were forced to consider affirmative consent a bit more seriously on the front end before they became engaged in sex play, then there'd be a lot fewer rapes I suspect.

 

I agree to a point but the quote "That's his problem" is not a satisfactory answer for that potential can of worms that'll be unleashed.

Also the cookie being shoved into your mouth, despite you liking cookies, is actually a good analogy. But I think even here there'd have to be witnesses and physical evidence of the said cookie being shoved into the mouth.

As for the legal aspect, I guess my high school and college health classes lied to me then. (About the verbal yes requirement meaning consent or not, this might be different from state to state, I'm in CA)

Also you'll got issues with roleplay that revolves around "rape play" I guess you could call it, which from a physical evidence standpoint can look pretty damning, but in those cases there was consent.

 

Why should it be different for rape than any other crime?

Sure, but as I pointed out in my initial post, even videotaped evidence of the crime has resulted in a not guilty verdict on multiple occasions, simply because the default presumption is one of implied consent rather than there being a requirement that there be affirmative consent like there would be with the cookie scenario.

I guess it did, because I'm not aware of any law in any state that requires there be an "utterance" of any kind. The laws merely require consent. If you can find one that states an utterance is required, please point me to it. Such a law could be used as a model for other states, and I can't imagine that if such a law existed it wouldn't be used in promotional materials from those advocacy groups working to improve rape legislation.

Absolutely, but those can easily be resolved at the outset with the appropriate documentation or recording of consent (e.g., e-mails arranging the scenario). Additionally, the "victim" in such a circumstance would testify that she consented to the role play.

 

I agree.~ You make a good point!~ ^_^

 

Pull n Pray ~ "So let's say we are talking about a he said/she said case that was not videotaped. He says she consented to sex, she says she didn't. Is your position that the burden lies with the accused to prove that the sex was consensual? How would he do that?"

I agree with both of you in parts.~ The proving of the case and bringing forth of evidence should never lie with either the accuser or the defendant alone.~ If the accuser claims rape, first a sexual activity must be proven to have taken place by either the accuser or the defendant, then issue of consent must be taken into consideration: the accuser must prove that they didn't consent before or during the activity or they DID consent but RETRACTED that consent during or before the activity or was unable to give consent due to the circumstances, in order to counter this claim the defendant must prove the accuser DID consent at anytime during or before the activity AND DID NOT RETRACT that consent at any time during and before the activity.~

As you can tell this can become very complicated with the number of ways a case can take form.~ With no proof a case can not be determined either way.~ With circumstantial evidence, it can go anywhere.~ Nothing should ever be assumed, example: "he raped her, because she said so" or "she wanted it because he said so".~

 

This is the way it is now, and I've already explained why that is wrong, so I'm not going to go through all of that again.

 

In your previous statement you said, "That's his problem." Actually the case is BOTH their problems, the accuser to prove they were raped and the defendant to prove they are innocent.~

I think what Pull n Pray was trying to say, although they did not say it in a clear way and they were rather vague, was that the 'burden' of a case cannot be simply left up to the accused, otherwise we would have a lot more "rich white blond girl claims poor ugly black man raped her, case closed".~

 

Of course there'd have to supporting evidence, just as is the case with all other crimes. The difference would be that the victim no longer has to prove that s/he did not consent as has been the case. The default presumption becomes, as is the case with every other crime, that a crime has occurred, and the accused has to demonstrate that consent was given.

 

So tough shit for the guy who is falsely accused of rape when he doesn't call his hookup like he said he would and she feels used. Tough shit for the cheating boyfriend who's angry girlfriend discovers his infidelity and decides that he deserves to spend a few years in prison. Tough shit for the guy falsely accused of rape because he had a one night stand with a girl who had a boyfriend and she decides to cry rape when her indiscretion is discovered. Even if there is no evidence that force was used in any of these cases, you think the accusation of the "victim" should be enough to convict?

I think your proposition might very well put an end to condomless rape (I presume the onus would still be on the prosecution to prove that intercourse took place at all between the alleged rapist and victim?), but it would also end spontaneous consensual sex as we know it. A lot of guys would not be willing to have sex with a woman if by doing so he was granting her the power to imprison him for 10 years should she choose to. Unless he trusted the woman absolutely, a cautious man would insist that either the sexual encounter be recorded or a written contract be signed.

But maybe it would be worth it. I'm a guy and so I don't have to worry about the threat of rape. So if the majority of women wanted to change the laws regarding consent, I'd be OK with it. So I'm curious if the women would be willing to accept having some legal bureaucracy injected into their sex lives if it would decrease their chances of being a victim of rape.

 

Interesting point you make there, but the issue seems to grow incredibly complicated when it comes to sex.~

Example: "The accused was found in the accuser's vagina while the accuser was asleep." I see your reasoning on this and I'm pointing it out to you to Pull n Pray.~ The accused is automatically charged with a crime, because they were found within the accuser's vagina while the accuser was sleeping (sort of like 'breaking and entering'). The case may or may not have even been brought up by the one with the vagina, but by a family member, still it's the 'tresspasser's' duty to either plead guilty or prove that consent was given prior to 'enter' at anytime with or without notice.~

This works with cases like the above example, but as Pull n Pray did so eloquently put it a crime should not ALWAYS be automatically assumed to be have been committed as many people do not go with the "yes I consent to having sex with you, let it be put on record for any possible court issues" approach but many are like "let's do it" or they just jump each other. But of course every person has the right to withdraw that consent at any time. It becomes increasingly complicated when two are having sex and one informs the other that they no longer wish to continue, and the other having completely understood the information continues to do so anyways.~ Rape has occurred, but it is could or could not be really difficult to convince the court.~ Another case that might very well happen is that two have sex, agree that it was satisfactory, and later when one has crossed the other the other says that they told the one not to continue during the sex but they did so anyways.~ In this case, rape has not occurred, but it could or could not be really difficult to convince the court.~

The problem has been in the past that courts have often favored the victim whether they are one or not, simply because they are a woman.~ In the opisote end of the spectrum such courts may have found a claim of rape by a man from a woman to have been hard to believe. But the increasing number of cases where women have lied to achieve their own goals in cases like this and have been caught, and the actual proving of a man being raped by a woman have forchantly lead the courts to now be more neutral on such cases.~

Perhaps the system should be automatically a crime is considered to have been committed when the victim could not have given consent due to circumstances (such as when sleeping), but when it comes to something not fitting that description then both must prove the guilt or innocence or counter prove, etc.~

Actually, Pull n Pray you can still be raped by anyone woman or man or any kind of Human.~ What kind of genitalia you have does not automatically cancel rape.~

 

A big hell no! to that. Changing the burden of proof regarding consent would I think only marginally reduce my risk of being raped. Like you implied, if my rapist wears a condom he could just claim that he didn't have sex with me at all.

GBBlondie: Your argument seems to largely rest on the notion that a woman is a lot like a house. Well that analogy only goes so far. One difference is that while a woman can be entered by a penis, she also has the ability to envelope a penis. A house can't do this since it is immobile and nonliving. Further, the laws concerning trespassing and permission to entry vary from state to state and are a lot more nuanced than you make them out to be.

Rape is a very difficult crime to prosecute in a judicial system based on the principle that it is better to let 10 guilty men go than to convict 1 innocent. But I don't think it is worth sacrificing this principle when it would only make women marginally safer. Also, having to sign paperwork every time I had sex would be a real buzzkill.

 

Even if we entertained the notion of some kind of legal document that implies both parties gave consent for sex act(s), it still wouldn't suffice and in fact could backfire if say the document is signed, and the act(s) take place and then one of the parties wants to stop; the document is signed how do you prove rape in that case. It's gonna make it harder for the prosecution if it's taken to court.

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I will disclose that I personally know people who have been a victim of rape and I am very torn on this issue and want to get a bad person (statistically rape is a crime perpetrated by males) and bring them to justice just as much as anybody else.

Let's also acknowledge the reality that I don't think most women are out to vindictively ruin men's lives with accusing them of rape.

But I think that the nuances of evidence are important:

1. Has the accused been accused of rape in the past?
2. Is there evidence of penetration, pubic hair, semen?
3. Were either or both parties drunk? If so, how drunk and to what degree did that impair their ability to give consent?


As for the example that was provided where the video evidence was dismissed, that is pathetic, but then again I wasn't on the jury so perhaps I'm not getting the full story. But from what was told on this thread, if what happened was as GBBlondie emphasized then I am disgusted.

But I think to take this conversation in a more macro direction, we need to hear about more than just one legal case where the accused walked off scott-free when it seems the evidence was obviously pointing to a different conclusion.