Is this rape?

Carrot he isn't thinking "is it illegal but i can be acquitted through lack of evidence", he's thinking whether it's legal or not. You say a crime is committed regardless of conviction but that is blatantly wrong, because the implication of his wording is very clearly that he'll only go ahead with it if it's legal, meaning no crime is committed and it isn't rape. Say what you like about the ethics of it, and you can write a book about his lack of respect for others if he said things like that, it would be clear to me that he wasn't thinking like a rapist.

"I would think that a man who says that is quite unethical but is actually trying to avoid being a rapist. He's thinking about the legality, the wording suggests that he wouldn't be willing to put it in her if it wasn't legal, exactly the opposite of what a rapist would do."

And it suggests that he would be willing to put it in her if he could be convinced that legally he would be acquitted of rape, even if his victim knew that she had not consented and it was unequivocally rape.

He is thinking about the legality. About what is the probability of being convicted of rape. If he was thinking "this drunken woman cannot feasibly consent, she may wake up tomorrow and realise she has been raped, but I doubt a jury would convict me, and I bet I could present a legal argument against it being rape"
Then he would probably rape her, and be a rapist. Just not a convicted one. He is thinking like a rapist.

A crime is committed whether a conviction happens or not.
Just because a perpetrator is not convicted does not mean the rape didn't happen.

VestelVirgin I would think that a man who says that is quite unethical but is actually trying to avoid being a rapist. He's thinking about the legality, the wording suggests that he wouldn't be willing to put it in her if it wasn't legal, exactly the opposite of what a rapist would do. A man who wanted to be a rapist but avoid being convicted of one would instead be thinking "Can I put my penis into her vagino right now and get away with it"

And yeah freezing doesn't mean they are also participating, the mugging example was good as an example of where you might freeze during something even though you aren't consenting to it.

A man who wants to avoid being a rapist never has to think that - because the woman or man he's with is too busy helping him get undressed and actively participating in what they're doing.

JAPAB: Sounds to me like the mindset of one who wants to BE a rapist but avoid being convicted of one.

VestalVirgin
If a man looks at a drunk woman and thinks "Is it legal to put my penis into her vagina right now" ... that's the mindset of a rapist.

Sounds more to me like the mindset of a person who wants to avoid being a rapist. Although it also sounds like the mindset of a sexually unethical person, since as I've already said before, sexual ethics requires a higher standard than simply doing the bare minimum to not cross the line into illegality.

I can't help but wonder how many women JAPAB has raped.

That implies that he even thinks about it....

QueenStromba, yeah, if someone considers a level of enthusiasm alike to that one would display when cleaning up cat sick as equaling consent, that's not very reassuring, is it?

If a man looks at a drunk woman and thinks "Is it legal to put my penis into her vagina right now" ... that's the mindset of a rapist.

I can't help but wonder how many women JAPAB has raped.

'If someone not only does not say no or make any attempt to move away or stop things, they also participate, I can envisage how a person can reasonably think that they are consenting, ie agreeing, to do it.'

Not saying no does not mean that a person is willingly participating in an act.

If a mugger comes and takes my wallet, and I freeze, and let him do it - or possibly even hand it over, I am not participating, I am not consenting to giving him my wallet and he is stealing it - no-one would contest this, no-one would disbelieve the wallet-giver or think that the mugger could reasonably assume that the person wanted them to have it

The person with the penis is a person. A reasonable person would not put it where it is not wanted, and would not assume just because someone hasn't said no (when they are tired, drunk, and probably scared) that they have consent.

Not wanting a penis put inside you is not even slightly equivalent to not wanting to clean up cat sick BTW - the cat sick for example has no ability to stop being cat sick, it's not a person - unlike the person attached to the penis who can stop putting that penis anywhere, any time they like, and the person that penis is being put in who may be in very little position to stop.

I feel that this is going no-where - we have a complete disconnect on what is reasonable. I think it's reasonable to have active consent, you think that just by being there, consent has been given. I hope society starts seeing women as people and coming round to my definition of reasonable.

Flora..... Option B

Japab... I do apologise.

I often suggest that others should stop feeding the troll, and yet, there was I serving you a banquet. You'll be on short rations from now on!

Vestal... great corrections! I shall be using you as my post editor from now on!

ChunkyPickle
Correct me if I am wrong, because if I am then the following may be the key point. To my mind, to consent to something means simply to agree to it (free from threats or being paralytic etc). I do not want to clean up cat-sick, I am not enthusiastic about cleaning up cat-sick, I would not enjoy cleaning up cat-sick. None of this means that I can not consent, ie agree, to clean up cat-sick. Or to get back to sex, a sex worker might think all the former about a particular client, or maybe all clients, but is still legally consenting to have sex with them.

If someone not only does not say no or make any attempt to move away or stop things, they also participate, I can envisage how a person can reasonably think that they are consenting, ie agreeing, to do it.

At the same time I agree with you that a person in the lad's position could not reasonably think that she was positively enthusiastically into it.

It may be sexually unethical, it may in some sense be abusive to continue on in such circumstances, but in an illegal sense?

BuffytheScaryFeministBOO, I wasn't going down that route, nor am I trying to stop you starting whatever new strands of discussion you like. Just saying that this one has not been about what you suggested that it should gave occured to me that it was already about.

PlaysWellWithOthers, fair enough if I was incorrect in thinking that a particular poster had not been legally trained. I stand corrected on that. Although I like the fact that you say

you showed yourself up to be completely unable to read a post and then respond to what was actually said about or to you

then go onto say

Quite where you got your little mind wander about the posters on this thread being on some sort of jury, or that you could effectively lie and suggest that, in order to get out of jury service in some fictitious trail, you could pretend you're a lawyer I have no clue.

Maybe from the same pit you drag your opinions about women's ability to decide if they feel intimidated by cat calling or their ability to say no to any kind of sex a man wishes to involve her with....

You have tried to dismiss my opinions as I am not legally trained, and what I non-seriously suggested was that perhaps I could use the fact that I am not legally trained to get out of jury duty. Then that this wouldn't actually work in practise and offered reasons why.

Also where does that second paragraph come from? What opinions have I offered on cat-calling or someone being able to say no to sexual activity? In the first case I repeatedly said it should not be done, and don't actually remember commenting on how a woman ought or ought not feel when it happens. In the second case, well, no idea what opinions I have offered about ability to say no, either. Though I will say now that she should have every ability, and it should be listened to.

An unkindness ?

plays I think you are forgetting that JAPAB possesses the testicles of objectivity and the powers of mansplaining that bestows upon him.

or... he hasn't got a clue.

PlaysWellWithOthers, I totally agree, but would word this differently:

"Maybe from the same pit you drag your opinions about women's ability to decide if they feel intimidated by cat calling or their ability to say no to any kind of sex rape a man wishes to involve her with subject her to...."

Japab, I realise that you have a great deal of trouble with difficult concepts like women's bodily autonomy, but really, you showed yourself up to be completely unable to read a post and then respond to what was actually said about or to you.

You stated that Flora's opinion wasn't a legal one.... I know that her opinion is based on her training as a LAWYER, other women may also be lawyers and therefore actually qualified to give a legal opinion. Quite where you got your little mind wander about the posters on this thread being on some sort of jury, or that you could effectively lie and suggest that, in order to get out of jury service in some fictitious trail, you could pretend you're a lawyer I have no clue.

Maybe from the same pit you drag your opinions about women's ability to decide if they feel intimidated by cat calling or their ability to say no to any kind of sex a man wishes to involve her with....

ChunkyPickle
He wasn't on trial for his sexual ethics, or whether what he did was "not right". The issue is only in whether he could reasonably think she was consenting to it. Or at least whether a jury is satisfied beyond reasonable doubt that he could not have reasonably believed this.

Yes, and I'm saying that as (I would hope to think) a reasonable person, I fail to see how he could ever think he had consent.

If I did that, I know that I would know she didn't want to be doing it, I know that I would know that she therefore hadn't consented. That is what I mean by 'not right' - I would know that what I was doing was abusing that girl.

People really need to get the idea out of their heads that rape is something that happens to women when strangers drag them into dark alleyways. This is exactly what most rape looks like and most rapists probably don't even realise they are rapists.

I was raped after a night out with a woman I'd met on a previous night out. She got chatting to two guys and was insisting on going back with them for more drinks. I had a bad feeling about them so went with her for safety in numbers. All was fine until I got up to go to the loo. When I came out one of the men was outside. He pushed me back in and up against the sink and started trying to put his hands up my skirt. I tried to push him away but he was a lot stronger than me. At this point I knew he was putting his penis is me no matter what I did so 'consented' in the hope that I could at least get him to put a condom on and not beat me up.

For a long time after that I pretended to myself that I hadn't been raped but after about four years it started to really get to me. In the end I reported it to the police almost five years after the fact. I was expecting to be fobbed off since I had 'consented' but they took it very seriously. I said as much after I gave my video interview and they told me that most rapes are like my rape - even as a specialist rape unit they rarely see the stranger in a dark alley sort of rape. They haven't found the bastard yet but I would be surprised if he even realises that he is a rapist.

Has it occurred to you at all JAPAB that these discussions are about preventing rape from occurring in the first place?

This one hasn't been. This one has been about the program "Is This Rape?" about a specific (fictional) case of which this question was asked.

PlaysWellWithOthers, the teenagers on the program, most posters who have concluded that it was rape, are not legally trained. Odd how that is not an issue when they arrive at the "right" answer.

Most, if not all, jurors in a jury are not "legally trained". What does that matter if the questions they are deliberating on are more factual ones, such as, say, "do you believe beyond reasonable doubt that penetration of a mouth, vagina, or anus occurred" or "do you believe beyond reasonable doubt that he could not reasonably have believed her to be consenting to it", which are more about assessing facts and evidence than applying legal knowledge as such.

But maybe that would be one way to get out of jury service if I am ever asked. I'll just point out that I am not legally trained. Except that that doesn't actually matter if the matters I'm to be forming opinions on are more factual ones, such as the above.