Speaking as someone who actually knows what all that Latin means, the issue is a hell of a lot more complicated than you're making it sound.evilthecat said:
Solving the dilemma of rape; consent
- Thread starter DevilWithaHalo
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Perhaps it was poor wording on my part. Not so much their character, but more along the lines of the basis for their motivations. Establishing the intent of someone begs the question regarding their motivation to do so. It may be on a case by case basis, but someone?s beliefs would indeed impact criminal proceedings to one degree or another. As an example; assaulting a doctor who performs abortions because you?re anti-abortion.Dijkstra said:
In the case of rape, sexual history may or not may not come into question regarding the specifics of the case. As an example, previous accusations of sexual crimes or encounters that someone would otherwise demy; such as adultery.
Do we not allow for someone?s past criminal history to influence proceedings in other cases? Someone?s history regarding mental health issues? I just find it highly questionable we are not allowed to explore the ?possibility? of sexual history or even the person?s sexuality when dealing with a case that directly represents an affront to their sexual consent.
Potentially depending on the circumstance (evidence, jury perception, your perceived benefit, etc). I?m not suggesting that it would immediately exonerate you; I?m simply suggesting that it creates the possibility for alternative explanations. This is how we proceed ?beyond a reasonable doubt?.Dijkstra said:
I would agree, so how do you suggest to determine the difference of past encounters and the current encounter?Dijkstra said:
The problem isn?t so much that there are differences; the problem is being able to prove the difference to an impartial party, like a judge, jury or police officer. If the only thing we have is one person saying; ?I didn?t consent? and another person saying; ?It was consensual?; how can we determine the accuracy of said statements without inquiring into things such as their sexual history, their motivations, etc? That?s the crux of the matter.Dijkstra said:
Would you like me to point toward the plethora of discussions regarding the intricacies of consent we have on the Escapist? Would you like me to link to multiple articles and/or blogs from various politically, socially, and legally minded people having the discussion? Those who discuss consent, those who changing the laws, those who discuss educating the public. It?s quite complex. What I seek is a solution to the complexity.Katatori-kun said:
That?s not what I?m asking; I?m asking on how we can move beyond the need for the discussion. How can we demonstrate consent, which would eliminate the discussion regarding false convictions and provide victims the conclusive support they need to insure justice is done.Katatori-kun said:
Shit's getting real pretty fast in here, so I'm just gonna say my piece then pull the ripcord.
Here's what I've always wondered about the situation someone touched upon here: If a woman is drunk and says she wants to have sex you shouldn't do it because her consent might not be valid because she is incapable of rational decisions, correct? But what if the man is also so drunk that he is incapable of making rational decisions?
Aren't both parties equally at fault? Couldn't the man also claim he was taken advantage of when feelings change in the cold light of morning?
The way the argument is always put forward, (so far as I've seen) is that in every scenario the woman is falling around drunk while the men are all sober as an incident room and eagerly circling around her, waiting to pounce as soon as she gives a perceivable greenlight, but I'd be amazed if the majority of us haven't had at least one drunken/regrettable one night stand in our lives.
This, to me, is the grey area of rape and what makes it trickier than other crimes to prove guilt, because you're far more likely to think sex is a good idea when you're hammered than stealing a car or killing someone.
Here's what I've always wondered about the situation someone touched upon here: If a woman is drunk and says she wants to have sex you shouldn't do it because her consent might not be valid because she is incapable of rational decisions, correct? But what if the man is also so drunk that he is incapable of making rational decisions?
Aren't both parties equally at fault? Couldn't the man also claim he was taken advantage of when feelings change in the cold light of morning?
The way the argument is always put forward, (so far as I've seen) is that in every scenario the woman is falling around drunk while the men are all sober as an incident room and eagerly circling around her, waiting to pounce as soon as she gives a perceivable greenlight, but I'd be amazed if the majority of us haven't had at least one drunken/regrettable one night stand in our lives.
This, to me, is the grey area of rape and what makes it trickier than other crimes to prove guilt, because you're far more likely to think sex is a good idea when you're hammered than stealing a car or killing someone.
Lie detectors are notoriously unreliable, they measure blood pressure meaning that contracting a muscle will give a false positive, and they have failed to detect lies in the past. Trained psychologists, maybe, as long as they're part of the small portion of people who can tell when they're being lied to, but it's an inherently inexact method to work with. Bascially what it comes down to is whether or not the people are lying, which can't be determined in any definitive way yet.
As far as consent goes, if the perpetrator believed that consent was given, and acted thinking that was the case, not rape. If the perpetrator was given unconsent (derp), rape. But there's a little grey area where if one person acts like they've been given explicit consent but haven't, and the other person is just okay with it, they can still say it was rape afterwards. Not that any of it matters seeing as you can't tell who's lying. In cases where the perpetrator is not known to the victim, or wasn't in a relationship with them, or there are marks of restraint of wrists or something, that's a bit more clear-cut, but when they're in a relationship, or it was solicited or something...the only way to solve that would be to have cameras in every room.
As far as consent goes, if the perpetrator believed that consent was given, and acted thinking that was the case, not rape. If the perpetrator was given unconsent (derp), rape. But there's a little grey area where if one person acts like they've been given explicit consent but haven't, and the other person is just okay with it, they can still say it was rape afterwards. Not that any of it matters seeing as you can't tell who's lying. In cases where the perpetrator is not known to the victim, or wasn't in a relationship with them, or there are marks of restraint of wrists or something, that's a bit more clear-cut, but when they're in a relationship, or it was solicited or something...the only way to solve that would be to have cameras in every room.
I suggest a simply method of determining consent.
Recordings.
Before any sex act, both parties must state on a recording they are consenting to sex. If the recording does not exist (or is lost etc) and one party claims the act was rape, it is considered rape by the law. This could of course be gotten around, and they might need to have tweak the idea a bit. Also, a party could make a recording stating they are in a sexual relationship with another party and that any sex in the future is consentual, unless the recording is removed/replaced.
Both parties should always have some form of recording device on them if they have any intentions (or even the possibility) of having sexual relations.
Women especially should have such recordings and even state on the device they have no intentions of having sex with anyone initially...so any future recordings would then show that they changed their minds.
Destroying the tape/device would not protect a rapist since they need it to prove they did not rape the victim.
Forcing the victim to give consent could be a problem, but is easily avoided with a pre-determined consent word that the victim plans for in advance (and has proof of doings so), that way if that word is not used when giving consent...there is evidence of coercion.
It's not a perfect solution. If someone is drunk enough they might give consent and not remember to make a tape etc, which could cause some problems. There would certainly need to be other protections etc, but it would certainly help define rape and ensure that at least sober people where not raped without any proof afterwards.
Recordings.
Before any sex act, both parties must state on a recording they are consenting to sex. If the recording does not exist (or is lost etc) and one party claims the act was rape, it is considered rape by the law. This could of course be gotten around, and they might need to have tweak the idea a bit. Also, a party could make a recording stating they are in a sexual relationship with another party and that any sex in the future is consentual, unless the recording is removed/replaced.
Both parties should always have some form of recording device on them if they have any intentions (or even the possibility) of having sexual relations.
Women especially should have such recordings and even state on the device they have no intentions of having sex with anyone initially...so any future recordings would then show that they changed their minds.
Destroying the tape/device would not protect a rapist since they need it to prove they did not rape the victim.
Forcing the victim to give consent could be a problem, but is easily avoided with a pre-determined consent word that the victim plans for in advance (and has proof of doings so), that way if that word is not used when giving consent...there is evidence of coercion.
It's not a perfect solution. If someone is drunk enough they might give consent and not remember to make a tape etc, which could cause some problems. There would certainly need to be other protections etc, but it would certainly help define rape and ensure that at least sober people where not raped without any proof afterwards.
How about having to record the entire intercourse this would solve the changing one mind problem,also status must be updated regularly in order to ensure future consent has been given.Dijkstra said:
This however still leaves the problem of loosing the tape or one party purposely destroying copies so that they can accuse the other of rape......
I want to add couple of things to this thread, mainly on the issue of psychologists and lie detector tests.
Lie detector aren't so accurate what they seem. And the results can become distorted just by being too nervous.
When you are on a rape trial, you must be nervous. (Doesn't matter if you did it or not.)
Personally I don't trust lie detectors because they can cause so much harm to an innocent person.
And a guilty person can trick them, if they know what they are doing.
There is more scientific studies about this issue all over the internet, (and there is some books)
but if you want a fun way to learn:
Penn & Teller: Bullshit! - Lie Detectors
youtube.com/watch?v=8NLf7XwLpyQ
They make fairly good points, even thou not the most "scientific" way.
With psychologists I have personal encounters and trained as they may be. They are still people.
You can stil lie to them and make them believe you.
Being trained to "reveal lying people" is many times just trying to see patterns, what most people do as they lie.
As every person is differend, sometimes those "patterns" can go wrong.
An innocent person might be jailed, because someone thought "They had a tell." Or just didn't like the persons attitude.
To conclusion there is no way to know if someone is lying or not.
All the lie tests and psychologists will not guarantee anything.
Lie detector aren't so accurate what they seem. And the results can become distorted just by being too nervous.
When you are on a rape trial, you must be nervous. (Doesn't matter if you did it or not.)
Personally I don't trust lie detectors because they can cause so much harm to an innocent person.
And a guilty person can trick them, if they know what they are doing.
There is more scientific studies about this issue all over the internet, (and there is some books)
but if you want a fun way to learn:
Penn & Teller: Bullshit! - Lie Detectors
youtube.com/watch?v=8NLf7XwLpyQ
They make fairly good points, even thou not the most "scientific" way.
With psychologists I have personal encounters and trained as they may be. They are still people.
You can stil lie to them and make them believe you.
Being trained to "reveal lying people" is many times just trying to see patterns, what most people do as they lie.
As every person is differend, sometimes those "patterns" can go wrong.
An innocent person might be jailed, because someone thought "They had a tell." Or just didn't like the persons attitude.
To conclusion there is no way to know if someone is lying or not.
All the lie tests and psychologists will not guarantee anything.
The same as any other thing is proved, by providing evidence which convinces the judge or jury to a very high standard that the defendant is guilty of the crime they have been accused of. A particular type of evidence is not required, neither does it have to be more than testimony, it just has to be very convincing to the point that whoever is making the judgement is nearly certain that the defendant committed the crime.DevilWithaHalo said:
Theoretically, at least, the same process already is applied to rape trials and pretty much always has. The problem is actually that judges and juries in rape trials have historically been far more difficult to convince of guilt in any case other than a few incredibly rare forms of stranger rape which fit a popular narrative (such as when the defendant is black).
The only gender specific terminology, really, is the requirement that the object doing the penetrating be a penis, and there is a functionally identical crime with exactly the same sentencing guidelines called "Assault By Penetration" which doesn't have this specification. It's the next one down from rape on the Sexual Offenses act.DevilWithaHalo said:
I'm unsure how I feel about that. On one hand, I can see the logic because, as any radiologist will tell you, assault by penetration is generally not a sexual crime. It's a horrible crime and its only right that it is treated equally, but I think it can be sufficiently different that maybe we do need a separate offence.
Long term, I think we will need gender neutral language, but I worry that at this point in time it could actually be detrimental because actually.. a lot of people who commit these kinds of crimes see it as gendered. They see their actions as part of a natural order of relations between men and women, or they see resistance as just a part of female psychology. I think it risks divorcing court language from the real language in which the people involved in the case are going to want to talk about it, making the process arcane and incomprehensible to the very people involved in it.
We already have a good example (Canada) of a country which wholesale adopted gender neutral language. I think we should watch Canada very closely and see what happens there, if it turns out to be a huge success which leads to positive changes in the legal procedure, then I think the rest of the world should move towards adopting it. For now, I don't think it's a very big issue. I don't think it lowers reporting rates, I don't think it causes misinformation and I don't really see any evidence that it legitimately effects the chances of securing a conviction either positively or negatively. I could be wrong, and if I am I'll change my mind, but until then it's not that big a deal for me.
You can have a huge amount of evidence in rape cases. None of it is likely to be definitive, but then again unless your defendant shot someone execution style in the head at point blank range in a crowded street you may well not find any definitive evidence in a murder case, either. If there is so much circumstantial evidence as to make an alternative account extremely unlikely, it can result in you being found guilty. There doesn't need to be a single smoking gun.DevilWithaHalo said:
Actually, their sexual history is far more likely to be relevant because it may go some way towards establishing their state of mind, which if you'll remember is what is actually in question here. If it doesn't though, then yeah, it shouldn't be admitted.DevilWithaHalo said:
The point is that "this woman has consented to sex with other men. She had sex with this man. Therefore she must have consented to sex with this man" is not an acceptable argument to defend someone from a rape allegation. It would still be perfectly acceptable to ask the defendant if he thought his alleged victim was promiscuous, because that might be relevant to his intent, but you can't use this kind of propensity evidence to suggest that someone must have consented because they have done so in the past.. it's insane, and it needs to stop if it's still happening anywhere.
Well, as far as I'm aware that's pretty much what happened over here. However, if you have a country where it isn't happening and where laws are seen to be interpreted in an unfair way, then a democratically elected legislature has every right to amend them, update them or add to them specifically to correct the perceived problems with the court's interpretation. After all, the judiciary has limited powers too.DevilWithaHalo said:
That's potentially quite a long answer and I need to not spend too much of my life on forums.DevilWithaHalo said:
I might look at answering tomorrow.
How could we possibly have stastistics on which accusations were false, unless they are on people who were either judged to be innocent, or people who were later released after evidence showed them to be innocent (see: Scotsboro boys)? If someone was falsely accused, then convicted, how would we determine that the accusation is false? Also, couldn't we justify making tighter standards for rape convictions, on the same argument that accused rapists who were guilty but were not convicted are not shown to be common by data?Katatori-kun said:
I said BOTH parties would have recordings...which means the men would have recordings of the consent as well. As far as mid-act change of minds...yeah it's not perfect but it would sure make proving rape in the case where one partner never wanted to have sex with the other occurs much easier.Blablahb said:
In the age of the internet we could even have recordings automatically uploaded to home computers etc for backup (so it couldn't be stolen destroyed etc.
The recordings are not only to protect those that are raped, but also to protect those that are accused of it. Basically, if you have a recording of every partner you ever have sex with saying they consent first...it's going to be hard for anyone to charge you with rape.
Don't have sex without documented verbal consent.
If everyone agreed to do this, then rape would be far easier to prove...and it doesn't seem like a huge sacrifice considering the result.
Nope.Blablahb said:
http://www.awolau.org/2010/04/05/myth-busters-false-rape-reports/
http://en.wikipedia.org/wiki/False_accusation_of_rape
Step one: Obtain verbal consent
Step two: Obtain written consent
Step three: Attach mind probes to both parties
Step four: attach small buzzer like object to sensitive non sexual area of both parties
Step five: program mind probe to wirelessly activate the others buzzer upon removing consent either verbally or mentally
Step six: Ask technician to stop you every 30 seconds to make sure all devices are working correctly and also judge to see if there is an issue
There we go! A completely hassle free way to make sure everyone gets the message!
Step two: Obtain written consent
Step three: Attach mind probes to both parties
Step four: attach small buzzer like object to sensitive non sexual area of both parties
Step five: program mind probe to wirelessly activate the others buzzer upon removing consent either verbally or mentally
Step six: Ask technician to stop you every 30 seconds to make sure all devices are working correctly and also judge to see if there is an issue
There we go! A completely hassle free way to make sure everyone gets the message!
Okay, coming back to this.DevilWithaHalo said:
Reform of the Police System.
We've focused a lot in this thread on court process, but actually the majority of reported rapes never proceed to trial at all. The police remain the first point of contact for anyone making a report and are responsible for producing the evidence which will potentially lead to conviction, and yet attitudes and levels of information about rape among police officers are pretty universally dreadful.
This is almost certainly impacting negatively on case handling in the exactly the same way institutional racism was a couple of decades ago. In the UK at least we've gone a very long way towards combating institutional racism (it's not perfect, but it's much better), I see absolutely no reason why we couldn't use the same measures to combat misinformation about rape.
Training and Specialization in the Judiciary
I think, in general, the age in which one person is seen as capable of presiding over a huge range of very different cases while being assumed to have sufficient knowledge and integrity to make impartial judgement is probably nearing its end. Judges are people, they have different skills and levels of knowledge which suit different kinds of trials. In order to navigate complex cases like a rape trial, judges need to be trained. They need to understand exactly what is and isn't admissible, they need to know how to get good evidence under difficult circumstances, and they need to know how to take an informed and unbiased stance in the face of what may be an extremely tense and emotional situation for both parties.
A judge working sexual offenses needs a different skill set to a judge dealing with tax evasion. They need specialist knowledge, such as knowledge of the likely psychological impact of sexual assault, and they need the practical skill to be able to handle vulnerable witnesses in a way which gets the best possible evidence out of them. They need to be able to appear understanding and empathetic while also retaining sufficient detachment to make unbiased judgement. They need to know exactly what is and isn't a relevant or appropriate line of questioning or argument. If a judge doesn't have these skills, bias aside they still won't secure good or honest evidence and the trial itself is often a waste of time.
In England, we now have a ticketing system which a judge has to go through before they're allowed to preside over sexual offenses. While the system is still very broad and quite easy to get through (in fact, the majority of judges here are ticketed) it's certainly helped to eliminate some of the more revolting examples of openly unsympathetic behavior in the judiciary.
And this isn't just something I advocate just for sexual offenses cases, I think more and more crimes are going to require specialist judges in future.
More Comprehensive Support
This is probably the most important thing for me.
Like I said, we are never going to get to a stage where all rapists are convicted and all victims walk away completely satisfied that their attacker will be put in prison far away. It doesn't happen in any crime, it isn't going to happen here.
I think we need to recognize that the "victim" of an alleged sexual offense is likely to require support irrespective of conviction. We should not just be assuming that everything will okay now because we couldn't get the evidence to convict or because no-one was found to be guilty. We should not be cutting off the provision of care or support to someone because they could not secure conviction, the chances of them being able to do so were always fairly slim.
Right now, many women do not trust the legal system to protect them and they are entirely right to do so. Pressing charges is currently a really stupid thing to do in most cases, all it's likely to do is drag you through a deeply traumatic process only to dump you straight back into the same situation, potentially quite a risky situation. Pressing charges needs to be seen not as something you do if you're stupidly brave, but as the first step on a road to recovery and personally safety, irrespective of whether you can convict or not.
Just because we can't send someone to prison doesn't mean we have to deny any form of support to someone else. If we're going to accept (and we do) that "not guilty" doesn't mean "nothing happened" or "noone was really harmed", we need to start taking the implications of that seriously.