"Teaching men not to rape"

[Opshinz]

I been noticing more and more people spitting rhetoric like this. I love freedom of speech and surely they should be allowed to say this, but.. rather then describe my feelings perhaps I can give an example.

Imagine I was giving a lecture and said "We really need to teach women to stop killing children", or "We really need to teach black people not to eat so much fried chicken".

Anyone have any thoughts?

[confuddledDOTcom]

I was told something like only 10% of women take it to the police and only 10% of those are taken to court. So any theoretical argument really is theoretical.

[Beatrixparty]

Buffy

The legal definition ought to follow any social definition. Society is asking the question, has this man done something for which he should be punished by the state. If you are saying that any sexual intercourse that takes place after the woman responds by saying "Oh go on then but be quick", is then rape, then I think you are incorrect.

If you are saying (and you are) that he trampled boundaries and (for whatever reason) she did not stop him, this sounds like rape. Nobody is arguing against this, are they ?

[confuddledDOTcom]

I think there is what the law would call rape and what a woman feels is rape. So maybe she wouldn't get a prosecution if she went to the police but she knows it happened. Someone on MN once told me I couldn't say I'd been raped because I hadn't been to court...

[CaptChaos]

The legal definition ought to follow any social definition

Fair point.

How long after it became apparent the raping your wife was actual rape, rather than just being a bit of a dick as a husband, did it become illegal to do so?

Surely then, making 'enthusiastic participation' the yardstick for men who might need that for say, 50 odd years before it's legislated for would seem reasonable? That way, there is a clear line in the sand for those who need it.

[Beatrixparty]

Buffy

The definition of rape goes back to 2003. Might I recommend you looking at this pdf file. Book for Judges - that's what it is essentially - for helping them when directing juries as to the law. There is much there about sexual offences amongst other things. It will I hope give you a feel for the way the Courts are run / criminal law works

Capt

The book I've to which I have referred Buffy contains definitions of words as it helps to narrow down argument. Maybe we can help each other here to understanding our differences. what is your definition of 'enthusiasm' ?

I've just asked google for a definition and it has returned, :- intense and eager enjoyment, interest, or approval. So presumably anything less than 'intense and eager', would be offence-type territory ? In the above book, there will be mention of a concept in law known as mens rea - the guilty mind. So it's not just the 'act' which needs to be proved, its the mind of the man too.

[SandorCleganeIsInnocent]

Yes, Beatrix, doesn't part of securing a conviction come down to whether the accused knew they were doing something wrong. Whether they reasonably believed they had consent or not.

I don't know how that gets examined or proved but surely compulsory education on this, such a widespread, important and potentially very damaging issue, would be wise, though I'm not aware what is currently covered in schools.

Everyone knows it's wrong and illegal to kill, drink drive, drag a stranger down an alley and rape them but it appears not everyone know that coercing someone into sex is. It comes down to the myth that a rape without violence and injuries isn't a 'real' rape. I think a lot of work can be done, similar to the drink drive and non-smoking campaigns.

I also think a lot of disingenuous rapists use the defense of 'grey area' even when they know they crossed the line. Makes victims doubt themselves and third parties side with the rapist. It needs clarifying in public conscious as it is in law.

[confuddledDOTcom]

The problem with did they genuinely believe they had consent is they will always say yes they did believe it. Ignorance isn't usually a defence in law, is it?

[Beatrixparty]

Sandor & Confuddled

If the defendant raises that defence, then he has to show that his belief was reasonable - and not just reasonable to him but objectively 'reasonable' - its up to the jury as to whether to decide if that is so.

I would not have thought it is much of a defence. If a man is lying about it, I'd have thought he would simply say she was consenting at the time, rather than be saying, that he accepts now she was not at any material time consenting but he had a reasonably held belief that she was.

[confuddledDOTcom]

Yeah but it doesn't get to a jury, he says that and the CPS say OK fine he's obviously not guilty because he believed it. How would a man prove in court that he genuinely believed it anyway (there could actually be men getting to court who genuinely believed it)? Unless they had a witness who was there the whole way through.

[FloraFox]

Beatrix If the defendant raises that defence, then he has to show that his belief was reasonable

I don't think it is correct that he has to show his belief was reasonable. The prosecution must show he had no reasonable belief. The defence can raise the doubt around reasonableness and any steps he might have taken when cross-examining the victim. The only time I think the onus shifts to the defence is in relation to the evidential presumptions set out in s. 75 where some evidence needs to be adduced to the rebut the presumptions.

This is an area where the law could be improved. If the defence claims that the woman consented, I think the accused person should be required to give evidence to explain why he thought she consented and what steps he took to determine consent. Currently, it's too easy for victims to be torn apart on the stand but the accused does not give evidence at all. He could raise other defences without giving evidence (mistaken identity, no sex occurred) but he should be required to testify if he claims consent.

This would be a change in the general approach to the justice system but we have had more fundamental changes in the relatively recent future (particularly changes in the right to remain silent).

Also, I agree with Buffy that objective reasonableness is a deeply rooted myth in legal analysis.

[confuddledDOTcom]

Buffy, I wasn't the one bringing court up, I was just replying to Beatrix.

If the defendant raises that defence, then he has to show that his belief was reasonable

My point was if he's saying to the police he genuinely believed that she consented then it's not often getting to court. And if he sticks to it, how does he prove his belief was reasonable without a witness? I'm thinking more of cases like mine where it wasn't my partner and not a violent beating in the street. He said I had consented, how would he prove that he genuinely believed that? How would I disprove it other than having to go through my (then!) very innocent/ sheltered sex life?

[CaptChaos]

My apologies Beatrix, I obviously wasn't being clear.

You said: The legal definition ought to follow any social definition

I answered: Fair point.

How long after it became apparent that raping your wife was actual rape, rather than just being a bit of a dick as a husband, did it become illegal to do so?

My point being that, as it took a fair while between the social definition of rape within marriage to tally with anything legislative, perhaps if we start educating young men and boys now that anything less than enthusiastic participation in sex probably suggests a lack of real consent now, in a similar fair while it will enter the legal canon.

If you are still unclear as to what I mean by enthusiastic, here are some synonyms: ardent, avid, eager, exuberant, fervent, keen, passionate, willing.

And here are some antonyms: apathetic, cold, cool, disinterested, frigid, indifferent, lethargic, unexcited, uninterested, unwilling.

[Beatrixparty]

Florafox

I don't think it is correct that he has to show his belief was reasonable.

Yes you're right. I knew there was an area where the defendant had to adduce the evidence as to his reasonable belief - yes it's s.75(1) - I got confused and thought it was s.1(c).

[Beatrixparty]

CaptChaos

Well, which ones do you want. One can be willing for sex but not eager. On the other hand, one can be also be unexcited about having sex but not unwilling.

Its just as well to get these questions sorted out from the start, eh ?