How do we fix the way rape is handled legally?

The Something Awful Forums > Discussion > Debate & Discussion > How do we fix the way rape is handled legally?

Discendo Vox: Mar 21, 2013; We don't need to have that dialogue because it's obvious, trivial, and has already been had a thousand times.

mastershakeman posted:

Prohibition would solve 99% of rape/rape culture.

# ¿ Mar 2, 2016 21:04

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# ¿ May 14, 2024 23:03

Discendo Vox: Mar 21, 2013; We don't need to have that dialogue because it's obvious, trivial, and has already been had a thousand times.

PT6A posted:

The issues relating to intoxication and consent are a smokescreen to distract from the issues around rape culture which are more difficult to address.

# ¿ Mar 3, 2016 19:13

Discendo Vox: Mar 21, 2013; We don't need to have that dialogue because it's obvious, trivial, and has already been had a thousand times.

Jethro posted:

it doesn't require putting together an 11 page fornication contract.

But we can have the 11 page document, right? I mean, for some people, vetting the document, going through mediated revisions and getting fiduciary signatures is the only way to get going. I mean, not me. Some friends of mine. Yeah.

# ¿ Mar 4, 2016 00:42

Discendo Vox: Mar 21, 2013; We don't need to have that dialogue because it's obvious, trivial, and has already been had a thousand times.

Extreme0 posted:

http://www.independent.co.uk/news/uk/crime/eton-pupil-andrew-picard-convicted-of-creating-and-sharing-child-abuse-images-a6896966.html

Basically If you're rich and a pedo/rapist in England. You can get away with it.

The root source is the daily mail, so it's likely that 100% of the article is fake.

# ¿ Mar 4, 2016 00:44

Discendo Vox: Mar 21, 2013; We don't need to have that dialogue because it's obvious, trivial, and has already been had a thousand times.

Disinterested posted:

If everyone's favourite poster Discendo Vox was here he'd observe that it's nothing like morally preferable to allow 100 guilty people to go free to secure one innocent person from incarceration. The modern point of origin is from Blackstone:

There has to be a balance, and the law makes an rear end of itself at a ratio of 100-1.

I'm here, but I'm mostly just eating popcorn and watching the shitshow as goons, of all people, relitigate this age-old series of arguments. I already proposed my solution: multipage precoital consent documents subject to postcoital secondary confirmation, requiring witnesses and signoff by an independent fiduciary monitoring panel.

the trump tutelage posted:

Off topic, but can anyone here recommend a good source that explains the sociology and/or history of the honor killing of rape victims, particularly in a Western context?

Are you looking for something book-length? It's not my area, but I can ask around at my university. Just to be clear, when you say "western context", are you looking for historic practices? A quick look around suggests that modern honor killing of rape victims in the West is pretty exclusively coming out of immigrant enclaves from societies where the practice still persists. I know, it sounds terrible, but that's what the case appears to be.

Discendo Vox fucked around with this message at 00:09 on Mar 5, 2016

# ¿ Mar 5, 2016 00:06

Discendo Vox: Mar 21, 2013; We don't need to have that dialogue because it's obvious, trivial, and has already been had a thousand times.

SedanChair posted:

You look very wise trotting out this old joke. You don't look guilty of reductio ad absurdum, and hence minimizing rape, at all.

I'm, um, really not taking a stance on any of this- I was actually trying to give you or others the opportunity to crack one of a couple immediately available jokes about my wanting witnesses.

# ¿ Mar 5, 2016 00:26

Discendo Vox: Mar 21, 2013; We don't need to have that dialogue because it's obvious, trivial, and has already been had a thousand times.

Who What Now posted:

Try doing better than stealing the unfunniest jokes from South Park.

I don't watch South Park. My unfunny jokes are heirloom and locally sourced :colbert:

I guess I'll weigh in, then, so as not to just make light of the subject.

Rape (and sexual assault, which I'll fold in as others have done) is a really difficult subject to study, litigate (criminally or otherwise) or address with policy, because the act is a) traumatic to victims, b) based on actions that frequently occur in private, and thus difficult to collect evidence on, c) incorporates mental states as a part of its conditions, which are completely unobservable, and d) morally reprehensible in society, such that people who have done it don't believe that they've done it and discussion of the complications of problems b and c carry a horrible moral weight.

It's a recipe for low accuracy in factfinding and false positives and negatives- wrongful convictions and wrongful failures to arrest, charge, or convict. At the same time, this difficulty of proof is almost fully analogous to a number of other legal situations where it's just really hard to prove or address the elements of the underlying activity- harassment and discrimination laws have many of the same problems. The difference here is that the underlying monstrosity of the act means that failures of the legal system on either side are really hard to bear. I don't think there's a clear way to make that situation better. The most I think we as a society can do, as SedanChair said on page one, may be targeting social behaviors and cultural norms that make rape seem permissible, or that create situations where it's more likely to occur.

Of course, all of this is assuming that we're talking about the same legal system- and the reality is that rape, sexual abuse and sexual harassment laws vary considerably, and some of them are pretty terrible. The thread's gone on for this long without, as far as I can tell, discussing any laws. Would it be helpful to discussion if we had some rape or sexual assault statutes to discuss or contrast, rather than just each other's opinions?

# ¿ Mar 5, 2016 00:48

Discendo Vox: Mar 21, 2013; We don't need to have that dialogue because it's obvious, trivial, and has already been had a thousand times.

the trump tutelage posted:

A book would probably be best since I doubt I have access to online journals any more through my old school. But historic practices, yeah -- it's easy enough to find discussion of the practice happening in modern immigrant enclaves, but the reason it sparked my interest is because I am re-reading Titus Andronicus and Shakespeare includes it in the play. Even if he's borrowing from Roman mythology, it made me curious about the practice as it occurred in Europe.

I forgot that spring break just started, but I found a perfectly targeted academic book that's free online: Men and Violence: Gender, Honor, and Rituals in Modern Europe and America. This doesn't focus on rape as a triggering event, but it's the best I can do in the short term. The index says that there is discussion of the "rape-lynch complex" at pages 20-21 and 218-221. I think I may have a couple others that will cover the subject less directly, but I can't get you direct access to them, and I'm not going to be able to go check them manually. All of them are held by my university's collections, so they're probably reliable.

'Honour': Crimes, Paradigms, and Violence Against Women
This one mostly focuses on the Eastern current context of honor killings, but does so specifically to debunk the islamophobic narrative framing of such practices. Probably not quite what you're looking for.
Why we kill: understanding violence across cultures and disciplines
This one appears to use a cultural constructivist account. "oh, you don't think this one counts? That's because your upbringing in country X with value Y makes you discount Z"
Unto the daughters: the legacy of an honor killing in a Sicilian-American family
No detailed info on this one.
American honor killings: desire and rage among men
This one is actually focused on men who murdered other gay men, usually in the context of some sexual act or advance (real or perceived).
Honor and violence in Golden Age Spain

quote:

Early modern Spain has long been viewed as having a culture obsessed with honour, where a man resorted to violence when his or his wife's honour was threatened, especially through sexual disgrace. This book, the first to closely examine honour and interpersonal violence in the era, overturns this idea, arguing that the way Spanish men and women actually behaved was very different from the behaviour depicted in dueling manuals, law books, and 'honour plays' of the period[emphasis mine].Drawing on criminal and other records to assess the character of violence among non-elite Spaniards, historian Scott Taylor finds that appealing to honour was a rhetorical strategy, and that insults, gestures, and violence were all part of a varied repertoire that allowed both men and women to decide how to dispute issues of truth and reputation.

Discendo Vox fucked around with this message at 01:45 on Mar 5, 2016

# ¿ Mar 5, 2016 01:27

Discendo Vox: Mar 21, 2013; We don't need to have that dialogue because it's obvious, trivial, and has already been had a thousand times.

The CA criminal code rape provisions are available at this address.
Let's talk about them!

Here's the general provision for nonspousal rape. I'll discuss the spousal rape section separately if there's interest. I've provided bookmark notes in [bolded brackets].:
Work area:
[ ]

quote:

(a) Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances:
[ Physical or mental disability preventing consent ] (1) Where a person is incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act. Notwithstanding the existence of a conservatorship pursuant to the provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code), the prosecuting attorney shall prove, as an element of the crime, that a mental disorder or developmental or physical disability rendered the alleged victim incapable of giving consent.
[ Coercion-"duress" and "menace", defined below, are pretty uncontroversial. ] (2) Where it is accomplished against a person�s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.
[ Intoxication ] (3) Where a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused.
[ Unconscious-note the broad set of definitions includes fraud and misrepresentation ] (4) Where a person is at the time unconscious of the nature of the act, and this is known to the accused. As used in this paragraph, �unconscious of the nature of the act� means incapable of resisting because the victim meets any one of the following conditions:
(A) Was unconscious or asleep.
(B) Was not aware, knowing, perceiving, or cognizant that the act occurred.
(C) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator�s fraud in fact.
(D) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator�s fraudulent representation that the sexual penetration served a professional purpose when it served no professional purpose.
[ Intentional impersonation ] (5) Where a person submits under the belief that the person committing the act is someone known to the victim other than the accused, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief.
[ Retaliatory threat ] (6) Where the act is accomplished against the victim�s will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat. As used in this paragraph, �threatening to retaliate� means a threat to kidnap or falsely imprison, or to inflict extreme pain, serious bodily injury, or death.
[ Legal retaliation threat-probably in response to illegal immigration scenarios ] (7) Where the act is accomplished against the victim�s will by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another, and the victim has a reasonable belief that the perpetrator is a public official. As used in this paragraph, �public official� means a person employed by a governmental agency who has the authority, as part of that position, to incarcerate, arrest, or deport another. The perpetrator does not actually have to be a public official.
(b) As used in this section, �duress� means a direct or implied threat of force, violence, danger, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise would not have been performed, or acquiesce in an act to which one otherwise would not have submitted. The total circumstances, including the age of the victim, and his or her relationship to the defendant, are factors to consider in appraising the existence of duress.
(c) As used in this section, �menace� means any threat, declaration, or act which shows an intention to inflict an injury upon another.

I'm currently looking to see if there's a sexual intercourse definition-and not finding it. Normal application of textual rules suggests that the term refers to vaginal penetration by a penis due to its use in that sense in some other parts of the state code, but I can practically guarantee it's enforced using a broad definition. ~~I'm 99% certain it's not defined, and is applied as any multi-party sex act.~~ Ah, here it is:

quote:

The essential guilt of rape consists in the outrage to the person and feelings of the victim of the rape. Any sexual penetration, however slight, is sufficient to complete the crime.
(Amended by Stats. 1979, Ch. 994.)

Note the year. Very progressive.

Consent under CA law:

quote:

261.6. In prosecutions under Section 261, 262, 286, 288a, or 289, in which consent is at issue, �consent� shall be defined to mean positive cooperation in act or attitude pursuant to an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved.
A current or previous dating or marital relationship shall not be sufficient to constitute consent where consent is at issue in a prosecution under Section 261, 262, 286, 288a, or 289.
Nothing in this section shall affect the admissibility of evidence or the burden of proof on the issue of consent.
(Amended by Stats. 1994, Ch. 1188, Sec. 1. Effective January 1, 1995.)

261.7. In prosecutions under Section 261, 262, 286, 288a, or 289, in which consent is at issue, evidence that the victim suggested, requested, or otherwise communicated to the defendant that the defendant use a condom or other birth control device, without additional evidence of consent, is not sufficient to constitute consent.
(Amended by Stats. 1995, Ch. 177, Sec. 1. Effective January 1, 1996.)

-Troika- posted:

There is literally a law in California right now that requires consent for each individual act during sex. Also there is no actual provision for how a guy (or a girl) can prove they aquired affirmative consent. When someone asked the bill writer how exactly one could do so, they basically shrugged and said "I dunno".

The law you're referring to is a provision recently covered in the media that is actually part of the education code. It is as follows:

quote:

[ This law is tied to school funding to make the school do it. This is normal. ] (a) In order to receive state funds for student financial assistance, the governing board of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing boards of independent postsecondary institutions shall adopt a policy concerning sexual assault, domestic violence, dating violence, and stalking, as defined in the federal Higher Education Act of 1965 (20 U.S.C. Sec. 1092(f)) involving a student, both on and off campus. The policy shall include all of the following:
[ The affirmative consent provision. ] (1) An affirmative consent standard in the determination of whether consent was given by both parties to sexual activity. �Affirmative consent� means affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.
[ Specific fact patterns that the school cannot accept as exculpatory- each of these will have a case as its background. ] (2) A policy that, in the evaluation of complaints in any disciplinary process, it shall not be a valid excuse to alleged lack of affirmative consent that the accused believed that the complainant consented to the sexual activity under either of the following circumstances:
(A) The accused�s belief in affirmative consent arose from the intoxication or recklessness of the accused.
(B) The accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain whether the complainant affirmatively consented.
[ Proof standard- this is the lower standard, requiring only more than 50/50 likelihood, in essence. ] (3) A policy that the standard used in determining whether the elements of the complaint against the accused have been demonstrated is the preponderance of the evidence.
[ More non-exceptions that have a sordid story to tell ] (4) A policy that, in the evaluation of complaints in the disciplinary process, it shall not be a valid excuse that the accused believed that the complainant affirmatively consented to the sexual activity if the accused knew or reasonably should have known that the complainant was unable to consent to the sexual activity under any of the following circumstances:
(A) The complainant was asleep or unconscious.
(B) The complainant was incapacitated due to the influence of drugs, alcohol, or medication, so that the complainant could not understand the fact, nature, or extent of the sexual activity.
(C) The complainant was unable to communicate due to a mental or physical condition.

Discendo Vox fucked around with this message at 09:41 on Mar 5, 2016

# ¿ Mar 5, 2016 09:25

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Discendo Vox: Mar 21, 2013; We don't need to have that dialogue because it's obvious, trivial, and has already been had a thousand times.

rudatron posted:

The rest is fine, but there are two problems, which I'll hope you'll either go into or show how they're misplaced/wrong:

1. What standard is being applied to determine whether or not the consent was affirmative, and what are the acceptable 'languages' that this can be expressed in? It makes some pretty obvious statements of what is not affirmative, which seem reasonable, but that distinction isn't defined here. Does it appear somewhere else?
2. Does requiring a lower standard for Campus discpline mean that those disciplinary measures are still applied, even if they're acquitted in a criminal case, and that if a Uni doesn't do this, they lose their funding? Or am I misreading that?

Again, I am not a lawyer. That said, here goes. Note that I'm abstracting from spending some time looking at how policies tend to work at universities, but I haven't looked at CA colleges in doing so.

1. The affirmative consent or lack thereof is an element of the complaint, so the same preponderance standard applies.

What does this mean in practice? In a situation where it's one person's word against the other, the university will likely look to other sources of indirect evidence, such as complainant and complainee conduct prior and post. This may sound bad, but it's the same exact way that an adjudicator would have to look at evidence in this sort of situation under other circumstances. The net effect of these provisions is to exclude an array of really horrible scenarios that have happened from exculpating complainees- the first and foremost, I suspect, being the complainant passing out or otherwise going unresponsive sometime during or prior to the process. I can't pull the surveys atm (I really need to sleep), but a fairly horrific amount of sex going on at universities occurs when one or both participants are way past the intoxication threshold. Some female students are socialized to think that being penetrated after they pass out is unpleasant, but permissible. So are some of the male students, except they're doing the penetrating. I will never forget getting sorted into an undergradate freshman orientation seminar with a room of male athletes who were confused and horrified to realize that intoxication could prevent meaningful consent...

If by "language" you mean scope of conduct, the answer is there's no limit on it. It can be nonverbal, etc., but it'll be governed by typical "reasonable person knowing what they did under the circumstances" logic.

2. I don't know- the provision is silent on the enforcement side of the equation, and doesn't specify penalties. My guess is the answer is no, but it depends on how university disciplinary procedures interact with state law enforcement more generally, which I can't speak to.

Here's my general take on the campus provision: It's good, and the main target/goal/audiences of the provision probably aren't who folks are expecting! My belief is that the law's purpose is to force all universities to have the same basic standards for rape investigations and practices, especially in excluding the excuses that the law specifies. The reason "forcing" universities is so important is because it provides the universities (which are generally down with these restrictions) with a backstop so that they cannot be directly sued, threatened, pressured or bribed by, in CA's case, fraternities or fraternity-related trustees or alumni or donors. This gives the universities something to point to and removes tremendous pressure from them in the development and application of their own laws.

The things to be worried about here involve the broader existence of a pair of parallel conduct processes, the state and university operating semi-independently. But that's a larger systemic problem that it's unrealistic to expect the university to address. The use of a preponderance standard seems troubling, but note that it's not actually a criminal statute-the student doesn't go to College Jail for it.

Discendo Vox fucked around with this message at 10:48 on Mar 5, 2016

# ¿ Mar 5, 2016 10:33

The Something Awful Forums > Discussion > Debate & Discussion > How do we fix the way rape is handled legally?