[CthulhuOvermind]

"The legal verdict on whether sex is non consensual still often rests on the perspective of the alleged perpetrator rather than the experience of the victim."

I'm not sure I entirely understand this quote to its fullest. It is being argued that it is the experience of the victim that matters if sex is consensual. Isn't this quote logically wrong? Consensual by definitions means both parties agreed. But is the author arguing that it is the victim's opinion that makes it consensual only?

How would that work in a situation where both parties start having sex, then it stops being consensual half way (from the victim changing their mind). The victim changes their minds but says nothing, and continues as before during the act. From the authors opinion, the victim experienced rape, hence the perpetrator should be convicted. But from the perpetrator's perspective they have no knowledge the partner's consent was revoked.

As far as I understand, an accusation should examine a perpetrator's perspective more, since that person is being charged with a crime. Why is the author arguing that the victim's experience is what the trial should hinge upon? If the victim raised an accusation, that is enough! It is the perpetrator that is being tried and attempted to be found guilty, hence the trial focuses on the perpetrator's actions and perspective.

Can someone better weigh in? This seems like one of those thoughts that sounds profound, but does not stand up to scrutiny.

[mc32]

Those situations are more edge cases and they are quite difficult because knowing what we know about the mind, it can play tricks. For example, we may feel very happy at one moment, but something could transpire to change the feeling and that may cause us to retroactively view the initial consent (maybe they thought the person was initially someone else) in a different light --but at the same time, most people give the benefit of the doubt internally (that is, even if they are truly aggrieved, they are likely to interpret the violation as their own fault, rather than blame the perp) It can become murky.

To make the point less gender political, view this as something which happens to a same-sex couple, so that the dynamics are less obvious about sexual politics and more about either force, misinterpretation, misrepresentation or confusion or a mixture of all the above.

[CthulhuOvermind]

> To make the point less gender political, view this as something which happens to a same-sex couple, so that the dynamics are less obvious about sexual politics and more about either force, misinterpretation, or confusion or a mixture of all the above.

I like your suggestion about viewing this as same-sex couple situation. I wrote my post specifically gender-neutral so as to prepare for the inevitable accusation of sexism, and then reveal that in my example the female was the perpetrator. But I think your opinion is much better

[chris_wot]

Though it's much rarer, it is possible for a woman to rape a man.

[danieltillett]

It is not that rare when using the current standard of consent. If you include any man who has sex while drunk (and is hence incapable of giving consent) then rape of men by women is very common.

[ZeroGravitas]

Can you define drunk as you intend it in this sentence?

People seem to be very loose with this phrase recently and it's impossible to tell if they're doing so intentionally for political reasons, or if they're just not very good at communicating what they mean.

Drunk can mean someone has had 1 beer (e.g. drunk driving in many locations). It can also mean aggressively or flamboyantly out-of-character after several drinks, or it can mean basically incapacitated and in danger of choking on their own vomit.

Which part of this range were you ambigously referring to?

[danieltillett]

Thaumasiotes has already explained the situation on campus in regards what is considered drunk and consent, but even in the wider world you can only give consent when not intoxicated. The level of intoxication is not clear cut, but at least in Australia it needs to be “substantial” [1]. What exactly is substantial is up to the jury.

The US case law is much more murky as this article explains [2].

1. https://www.alrc.gov.au/publications/25.%20Sexual%20Offences...

2. http://edition.cnn.com/2015/07/08/opinions/cevallos-sex-cons...

[thaumasiotes]

As made explicit in the sexual assault policies of various US universities, a female is unable to consent if she's had any alcohol (the "1 beer" model of being drunk). It is not a defense, or grounds for a counterclaim, that the male might have been equally or more drunk. (I say made explicit; the "any alcohol" threshold is what's made explicit. The wording of formal policies is generally scrupulously gender-neutral, but their application isn't.)

In an actual US criminal court, I believe drunken consent is no different from any other consent.

[mirimir]

What if both parties are incapable of giving consent?

[bitwize]

Then each party is criminally liable for the rape of the other, under law. But, in practice, for heterosexual liaisons the male partner will be charged and prosecuted while the female goes free.

Disclaimer: ianal

[chris_wot]

I could be wrong about how rare it is, I don't know the statistics and I don't have any way of knowing how many men don't report the crime.

My point was that it can and does happen. I probably shouldn't have said anything about how often it occurs as I don't know.

[malandrew]

It actually occurs at a much higher rate than most think, but the strategy used by female perpetrators more often takes the form of emotional violence and coercion as opposed to physical violence.

http://link.springer.com/article/10.1007/BF01541620

I have personal experience with this with a former partner and the threats and coercive tactics can get really ugly, dark and traumatic.

[sambe]

Technically, under English law, I believe it isn't. The definition involves penetrative sex. It's normally something like sexual assault instead (arguably adding somewhat to gender politics).

[mc32]

It's still not entirely impossible for a person without a male reproductive organ to engage in active penetrative sex with the aid of well, sexual devices which mimic the shape or even cruder devices. That's to say, I don't believe, but could be wrong, they stipulate being naturally born or some such uneasy language.

[DanBC]

Under English law rape requires a penis.

A person could be found guilty of sexual assualt by penetration, which is equally severe. It's just not called rape.

This is in the Sexual Offences Act.

[sambe]

I believe it actually requires a penis too. Quick Google suggests this is still true.

[JadeNB]

> Though it's much rarer, it is possible for a woman to rape a man.

Given that it is in response to a poster who clearly knew that (as indicated by the intention of revealing the female to be the perpetrator), in a thread in which (as far as I can see) no doubt about the possibility had been expressed, is this remark adding anything?

[chris_wot]

I hope those who are disagreeing with me are doing so because I wasn't precise enough about where this can occur.

As has been pointed out, in England a woman cannot take a man, but can commit an act of penetration.

In the U.S. there is no such distinction.

[anu_gupta]

> n. I wrote my post specifically gender-neutral so as to prepare for the inevitable accusation of sexism, and then reveal that in my example the female was the perpetrator.

Not really interested in engaging with someone who merely wants to set traps for people.

[chris_wot]

I have to agree. Don't do that.

[techdragon]

Have you never used something surprising as a method to make someone think? Laying traps is implying malice that may be entirely absent.

[chris_wot]

I don't need to. I just state my position and hopefully then they consider it, which normally requires some level of thought.

[Kenji]

No, sorry. You cannot retroactively retract consent. If you said a genuine yes at the time of the intercourse and at no point you signalled you were not okay with it, you cannot just say it's rape all of a sudden. It is not. Otherwise, any person (usually female, even if you want it 'less gender political', which I personally find insincere since it plays a big role in the discussion) can screw over the person they had sex with (usually male). This is just another form of authoritarian feminism, designed to shift control even more into the hands of women. False rape allegations are not the exception, they are common, and the punishment for such false allegations is either nonexistent or very minor despite the the fact that they can destroy the accused person's life.

Where are we headed? Do men need to have the women sign a contract before sex to avoid the lies? Because that's what it's looking like to me. Kinda unromantic ;)

[SeanDav]

In the UK, there have been several examples of a woman getting drunk, having apparently consensual sex and then deciding the next day that she was raped. The male now has to prove that sex was consensual. The woman gets lifetime anonymity and the male has to undergo a public trial, almost always with commensurate loss of reputation and employment, even if later proven to be innocent.

There is a very recent example where a female barrister (senior lawyer) was involved in a public sex act with a male. She accepted a police caution for public lewdness the next day. She then discovered that the press were about to publish the story and very cynically, to stop her name from becoming public, she reported that in fact she had been raped. She was immediately given lifelong anonymity and the male was exposed to public trial.

[chris_wot]

Don't have sex with someone who is under the influence of drugs or alcohol?

Edit: I think you are referring to this:

http://www.thesun.co.uk/sol/homepage/news/6958799/City-lawye...

If no rape is found to have occurred, which seems likely given there were police witnesses, then that lady is going to be in a world of bother. Firstly, it will have meant that she has appealed against a sentence, which means if it didn't occur she has perjured herself. Secondly, it's pretty clear that a false accusation like this is slanderous and the offended party would be well within their rights to sue. And thirdly, if a criminal conviction for perjury is recorded against the barrister, then I'd say it's likely she won't he able to practice law again.

[mirimir]

Pretty much.

But damn, if I were a young male today, I would probably require proof of consent from prospective partners. Maybe a signed affidavit, blood sample and affidavits of competent witnesses. Or maybe just forget the whole premarital sex thing. Too dangerous anymore, in so many ways.

[chris_wot]

It's a great pity that some people falsely accuse others of rape, because all those who have been raped are automatically disbelieved by a significant portion of the population.

[wccrawford]

While I agree that it's shame that people falsely accuse other of rape, and that it makes the situation worse, I don't think that's the root cause of people disbelieving claims of rape.

I would be that most instances of disbelief stem from knowing the accused and thinking they'd never do it, or having some personal interest in the person not being found guilty of it. For others who aren't acquainted with the accused, I've seen a lot of it come from misogyny in general, and a general belief that men are superior, so the man must be the one telling the truth.

Obviously, that's a bunch of crap. But personal beliefs and feelings don't really require logic, so they continue.

On the other hand, I personally know someone who believes that no woman will ever falsely claim rape because it's such a horrifying thing (and causes such strong feelings in women who were raped), and so she believes every woman who claims it to the extreme, despite any evidence I've ever seen presented to her, and any court findings to the contrary. She appears to be completely able to understand that some people will lie about anything if it gets them what they want at that moment.

[maaku]

You think marriage makes any legal difference?

[mirimir]

OK, forget that too.

Maybe stick to VR, I guess.

[morgante]

In practice, there are basically no repercussions for falsely reporting rape. The "victim" isn't charged with anything and retains their anonymity while the (innocent) "perpetrator" has their life ruined.

[chris_wot]

What do you think should be occurring though? Many women won't report being raped due to being shamed, mocked and threatened and their livelihoods ruined.

Perhaps those being convicted should also be given the same anonymity until after they are found guilty?

[morgante]

I think women who falsely reported rape should be charged with slander and pay substantial damages, at least.

> Perhaps those being convicted should also be given the same anonymity until after they are found guilty?

Yes, this would be a huge step forward (especially if both sides respected it). A big problem with rape cases is that both sides have social and professional repercussions regardless of the outcome. If rape cases were entirely sealed for both parties, that would be very helpful.

[chris_wot]

That would only occur in cases where it can be positively proven that rape did not occur. To avoid conviction the accused must demonstrate that there is reasonable doubt they raped the other party. That means that it is still possible it occurred, but in order to reduce the risk of convicting an innocent person they get to go free. I guess that's the lesser of two evils.

In terms of identifying the accused, Australia has sub judice rules that generally prohibit identifying the accused. I'm surprised that the UK doesn't either, given how closely our systems of law are related!

[Lazare]

Essentially yes. Rape is not a "strict liability" crime, which means that intent is an element of the crime. By definition, "the perspective of the alleged perpetrator" is a key element of the crime, just as it is with murder, assault, robbery, and a host of other crimes. You can't just say "Alice killed Bob, Alice is a murderer!", you have to stop and ask what Alice was thinking or intending. It might not even be a crime, it might be negligence, manslaughter, etc.

(Well, sort of. Technically it's the perspective of "reasonable person" in the alleged perpetrator's position, which is a well-defined legal fiction. As Wikipedia notes correctly but unhelpfully, "the 'reasonable person' is not an average person or a typical person".)

The author is correct: Rape cases, by their nature, do tend to revolve around discussions of what the accused reasonably believed about the other parties consent. The mistake is in suggesting that there's anything we could (or should) do to change it.

[gozur88]

>As far as I understand, an accusation should examine a perpetrator's perspective more, since that person is being charged with a crime.

It depends on the way the law is written. You can certainly be guilty of criminal offenses absent any understanding or intent.

[CthulhuOvermind]

In the case of sex, it is an action that is legal(or not) depending on consent.

In the example I gave earlier, the female has obtained consent from her partner. The male changes his mind half-way through but does not stop or act in any different way.

In cases such as these, my understanding(and gut feeling really) is that since knowledge of consent is what makes an action legal, the person had no knowledge consent was revoked, and cannot be charged for something that is impossible to avoid being guilty of?

[chris_wot]

In that case, consent was mutually given and if the other party then changes their mind and asks the other to stop, then consent ceases, right?

If the other party is not signalled that consent was withdrawn, then it is, in my mind, a bit tricky. It means that consent was no longer there, but the other party didn't have any way of knowing. I think it's fair to say that no assault occurred, but it's still damaging to the one no longer wanting to have sex. In that case it's really unfortunate for both parties :-(

[taneq]

How is this in any way tricky? Consent is something the giving of which involves clear communication, not just something that exists in the mind of one of the parties. Likewise, consent can't just 'cease', it has to be withdrawn, which involves communicating the withdrawal to all parties concerned.

It's like signing up for a phone contract, then deciding you don't want it any more and stopping using the phone. If you don't tell the provider then they're completely within their rights to keep billing you.

[chris_wot]

Fair point.

[cauterized]

But it's also worth mentioning that consent does have to be renewed between each act. Just because he consented last night doesn't mean she can assume consent tonight without a fresh affirmative indication of consent. (Which doesn't have to be verbal, necessarily, but should be enthusiastic participation rather than simply submission to a partner's overtures.)

[reso]

No other comments have directly addressed the quote you referenced. My interpretation is it is saying that rape cases are prosecuted about the intent of the perpetrator. Aka, they are convicted if it can be shown that they intended to commit rape, or knowingly committed rape, and acquited otherwise.

This puts the standard of conviction much higher than other crimes, because lots of crimes can be committed unknowingly (theft, embezzlement, even homicide), the intent of the criminal having no bearing on their guilt or not. In these cases the experience of the victim bears strongly on the case: the person who's car was stolen, the company who's funds were embezzled or the (deceased) victim of negligent homicide. The speaker is saying that courts do not weight victims' experiences appropriately, if at all, in rape cases.

[DanBC]

You can't "unknowingly" commit theft (intent to dishonestly permanently deprive), emezzlement (intent to deceive) or murder (intent to unlawfully kill someone).

[reso]

As a clear counterexample: you can certainly commit negligent homicide without intending to.

[anu_gupta]

Negligent homicide is not murder.

[reso]

The language my top comment used was "homocide" and "negligent homocide" while the responder changed it to "murder". The point is that in the view of the justice system, sometimes it doesn't matter if you meant to kill someone or not--you still killed someone.

[anu_gupta]

It does matter. The charges are different, the sentencing is different.

[DanBC]

Yes, only one of your three examples was correct.

Homicide is so broad it's meaningless.

[TheCoelacanth]

Even with negligent homicide the perpetrator's mindset is still taken into account. It is only negligent homicide if they should reasonably have known that their actions could cause the death.

[fleitz]

The guilty mind (mens rea) does have bearing on sentencing and the types of charge. For instance if you intend to kill someone it's a different charge than if you accidentally killed someone, and if it couldn't have been foreseen that the actions would kill someone then there is generally no crime at all.

[reso]

This is very true. Many activists actually want to open up less-harsh sentencing or charge options in sexual assault cases to give prosecutors and juries more ways to treat the specifics of each case.

[tomp]

It's perfectly possible for someone to be raped without their partner being the rapist.

For example, imagine two people enjoy rape roleplay, but don't decide on a safe-word. In the middle of the act, the receiving partner changes their mind and starts screaming "no" and "stop". The giving partner interprets this as part of the roleplay, which makes perfect sense, and continues.

Who's guilty/victim here? (Hint: it's a trick question - both are guilty of stupidity for not choosing a safe word.)

[tedks]

Nope, it's still the "giving partner's" (i.e. rapists) fault. If you're applying coercive force to someone, it's your responsibility to make sure that your actions are consensual. In this case, it's the dominant's responsibility to check in regularly.

[oconnore]

I think the discrepancy comes from advocacy thought vs. legal thought [1]. When advocating for rape victims, who are severely disadvantaged in these situations, you might make a statement like "we need to listen to the woman's perspective". As has been pointed out, that statement is a heuristic on several levels: the woman is often, but not always, the victim; and from a legal standpoint, there are of course other things to consider. It's still a useful and generally true statement.

When you're listening to "megaphone speech", you have to understand the context to understand the message. That can be difficult, because in most cases if you already understood the context, you wouldn't need to listen to the message. Try.

The flip side is also true, when activists win, and are given real institutional power, they must stop relying on context and start being precise ("gavel speech") with their intentions.

1: http://harvardlawreview.org/2015/02/trading-the-megaphone-fo...

[fsaneq2]

> "When advocating for rape victims, who are severely disadvantaged in these situations"

Curious if you have a way to back up the claim the accusers are severely disadvantaged? Based on how it is at Stanford and many universities in the US, the system is certainly stacked in the accuser's favor. See, for example: https://www.thefire.org/stanford-trains-student-jurors-that-.... This leads to terrible mistakes, Joe Lonsdale comes to mind (it was since reversed, but the damage is likely done by then).

Edit: to downvoters, care to explain why..?

[tomp]

The accusers (victims) are disadvantaged in court (i.e. where facts matter and where there is a very high standard of proof), whereas the accused are disadvantaged outside of courts (and in college "kangaroo" courts), where the standards of proof are much lower and and perceptions matter more than facts.

"Rape culture" advocates claim that courts should become more like kangaroo courts.

[reso]

There are several well regarded sources that show that the crime -> conviction rate for rape is shockingly low, the main bottlenecks being: reporting (because the victims are heavily disincentivized from reporting for a variety of reasons), decision to bring charges or not by prosecutors, and conviction rates once in trial. I don't have them handy but I'll try to come back to this tomorrow.

[tehwebguy]

Because no one should have to explain to you that universities and incredibly famous cases like this are the exception. I shouldn't have to back up climate change every time I down vote someone "just asking" about clean coal or some shit every time that conversation happens either.

These are horror stories - they hit home IMO because so many men would never dream of assaulting anyone so it's scary to feel lumped into that group, because of the shame that comes with the crime and because the idea of being stuck in a criminal system you don't belong in is infuriating. But much like terrorism, home invasion murders, car jackings and shark attacks the likelihood of being accused of a sexual crime you didn't commit is basically zero.

It's okay guys, we can admit there is a problem without having to get grouped in as a rapist. It's not like any of this changes the fact that 90.5% of the murders in the US are apparently committed by men[0] (which also does not make us all murderers)

[0] Google it yourself.

[fsaneq2]

We are talking about universities here, presumably, since the title is "college sex-assault trials belong in court". So, dismissing them as an "exception" is neither helpful nor relevant.

I have no idea about how fair the system is out of college. My point was about how unfair it is _in_ college.

[nailer]

Could you elaborate how 'we need to understand context' means reducing issues to 'you need to listen to one side' is acceptable? Saying we need to 'try and understand' seems like you're saying that unless we consider things from one side we don't have any empathy at all.

[vehementi]

I don't think they literally mean experience as in "they secretly felt non-consensual after a while and kept it to themselves", but rather the emphasis that the system is unfair and weighs the perpetrator's opinion more heavily than the victim's

[cmdkeen]

The justice system is unfair in that it requires "proof beyond reasonable doubt" or similar. Two wrongs don't make a right - if rape has occurred then it cannot be undone, but the potential miscarriage of justice has yet to occur so it is right that the system protects against that.

In the UK I've been on a jury for two sexual offence trials. The awesome (in the biblical sense) sense of responsibility we had was keenly felt and plenty of deliberation was had to double and triple check that we were, in the judge's words "sure" in finding a guilty verdict.

For its faults, and it has many, the Scottish system of three verdicts with "not proven" as another option makes some sense in these cases. In many instances there just isn't enough evidence and a plausible witness on each side of the case.

[chris_wot]

That's not the argument, I'm not sure how you got that from the article. In fact, all it is doing is criticising verdicts that clear perpetrators of rape if they think or say that they thought the other party was consenting.

In this regard, though the article doesn't actually say this, I think it's fairly logical that if the one making the claim they were raped wasn't consenting. Thus in all claims of rape there was one party who wasn't consenting to have sex, ergo there is no "two consenting adults"!

Let me put it this way: your own statement is that "Consensual by definitions (sic) means both parties agreed". If you agree this is the correct definition, then if the victim did not agree, even though the other party claims they did, then that isn't consensus.

Your idea is not about consensual sex - your idea is that consensus was percieved by one party, when in fact it wasn't. And again, that's not consensus because actual consensus to have sex needs to made by both parties in the act.