I have been following the Assange case very closely and I am intrigued by the legal and political implication that arise out of the rape case hurled against him and how the case plays out depending on the country that has jurisdiction of the case.
British MP George Galloway sparked outrage when he declared that even if the allegations against Assange were true they "don't constitue rape", at least not under British laws.
Let me outline the legal definition of rape according to the following countries:
UK
Sexual Offences Act 2003 says defendant is guilty if he intentionally penetrates the vagina, anus or mouth of the complainant with his penis, the complainant does not consent and the defendant does not reasonably believe consent has been given. The separate offence of sexual assault by penetration, which carries the same maximum sentence, covers attacks involving other objects.
Sweden
Forced vaginal intercourse or a comparable sexual act, which is carried out by assault or threat of violence.
Germany
Forced sexual intercourse or any invasive sexual penetration. Penetration need not be carried out with a body part - it may be with an object.
US
Every state has its own statutes. In about half, the term rape has been replaced with the wider term sexual assault. Where rape is still used, it is reserved for forcible sexual intercourse.
This raises another issue, what is consent? Again, let us look at the differences per country
UK
Consent exists where someone "agrees by choice, and has the freedom and capacity to make that choice".
Sweden
Determined by whether force or threat of force was used. Unlike Germany, helplessness of the victim - where there is no force used - means it can still be rape.
Germany
Determined by whether victim was threatened. It is necessary to prove force was used, or sex carried out under threat of imminent danger to life or limb, or the accused exploited a situation in which victim was unprotected and at their mercy.
US
The federal nature of US makes this more complicated. The main difference between states is whether "forcible compulsion" is required to show rape has taken place. The evidence of victim resistance is critical in most states and some states do not distinguish between submission and genuine consent. The question for courts is whether the defendant could reasonably assume the victim has consented.
It is difficult to sift through the nuances of control, capacity, consent and other factors per country in the rape and sexual assault cases. Should there be a universal definition of rape? What would be a good definition of rape? Should the penalty be made universal as well?
Did you find those definitions from sources or are they just your interpretations?
You copied them from BBC News magazine. Verbatim legal definitions means directly from a law. They're others interpretations of the laws, not the laws themselves. V
Rape should be this: Forced vaginal intercourse or a comparable sexual act, which is carried out by assault or threat of violence.
If it don't specificly say "Forced" then any golddigger will be able to go in a bar, pick up a man or two, and then call it rape sometime later to get money, to have fun or just to settle an argument.
Men have been on the rough end of the dating game since forever. Please don't make it worse ;(
Every country makes their own laws. It is up to them how to define different terminology. A "universal definition" wouldn't serve any purpose because a country's own definition of the term is set to fit within their own legal system.
On August 23 2012 15:23 IceThorN wrote: Rape should be this: Forced vaginal intercourse or a comparable sexual act, which is carried out by assault or threat of violence.
If it don't specificly say "Forced" then any golddigger will be able to go in a bar, pick up a man or two, and then call it rape sometime later to get money, to have fun or just to settle an argument.
Men have been on the rough end of the dating game since forever. Please don't make it worse ;(
Rape has always been pro-women/victim, since most victims are women. In most states, if not all, rape does not even require witnesses or circumstancial evidence to go to court. All it needs to prosper is the victim filing charges. Though in some states, TX and NO (iirc, I might be wrong), rape punishments can be mitigated (made lesser) if in the act of intercourse it is proven that the victim/woman enjoyed it, or something like that. I have no idea how they'd prove it though.
Who even takes George Galloway seriously. That guy would suck off Assad (and any other middle-eastern dictator) if he was given the offer.
As for what defines rape, and what defines consent, that is difficult to say. Most rapes are not in fact the "drag-in-an-alley," kind of rapes, they are mostly done by people that the victim already knows. The women in questions gets alone with the person, the guy makes a move and disregards the feelings of the women.
I think what defines consent is being in a state-of-mind to make a decision, and being in a safe enough position to make a descision, without overt or covert threat being used to force your judgement.
Rape as such isn't just physical force. If a women doesn't feel safe and feels like she can't say no, that might still be a form of force.
I think if a women is exceptionally intoxicated, it might also consitute rape, because she can't in all seriousness make any real choices.
I don't think any single definition is ever going to properly cover all of it and satisfy everyone. Women will argue that there might be loopholes which make them likely to be raped, men might argue that the rules are so strict that a one-night stand might land them in jail.
As for a universal definition of rape, that won't work. For example, in a lot of countries it is impossible for a man to rape his wife, simply because the culture states that sex is a man's priviledge in marriage, and he can force it from the women if he wants it.
I simply try to respect the individuals right as much as possible. A women is her own person and has complete authority over her own body. I cannot violate another person's right to their own personhood in under any given situation, it just wouldn't be right. Neither by force, nor by threat of force.
A big problem though is that it doesn't take long before public opinion turns to blame a women. They once polled people to ask when something was still a rape in their eyes.
Being phyiscally forced was obviously a rape in the eyes of nearly everyone, but if a women gets naked, climbs into your bed, and then suddenly says she doesn't want to have sex, is it still a rape? Of course it is (imo anyway), but the majority of people seem to disagree on that notion.
But the boys of It's always sunny might have a different view.
On August 23 2012 15:23 IceThorN wrote: Rape should be this: Forced vaginal intercourse or a comparable sexual act, which is carried out by assault or threat of violence.
If it don't specificly say "Forced" then any golddigger will be able to go in a bar, pick up a man or two, and then call it rape sometime later to get money, to have fun or just to settle an argument.
Men have been on the rough end of the dating game since forever. Please don't make it worse ;(
Rape has always been pro-women/victim, since most victims are women. In most states, if not all, rape does not even require witnesses or circumstancial evidence to go to court. All it needs to prosper is the victim filing charges. Though in some states, TX and NO (iirc, I might be wrong), rape punishments can be mitigated (made lesser) if in the act of intercourse it is proven that the victim/woman enjoyed it, or something like that. I have no idea how they'd prove it though.
This might not be true in the United States. More men are raped annually than women here according to the Justice Department numbers. The reason is we incarcerate an insane amount of people and prison rape occurs at a higher rate than in the general population.
Why should we even take George Gallaway seriously anymore? He has abandoned all of his values and sold out to Islamic fundamentalism and Baathism. He is a shame, even to the Left.
On August 23 2012 15:27 Shatter wrote: Every country makes their own laws. It is up to them how to define different terminology. A "universal definition" wouldn't serve any purpose because a country's own definition of the term is set to fit within their own legal system.
not when its part of the universal declaration of human rights
In Canada, the crime of rape has been abolished and replaced with the crime of "Sexual assault" (sections 271-273 of the Criminal Code).
This was done in 1983, because parliament wanted to convey that sexual assault was a crime of violence as opposed to a crime of sex and thought this was a better way to describe it. In this same reform, a lot of sexist provisions (such as spousal immunity) were abolished.
The actus reus of sexual assault has three elements: (i) intentional touching that is of a (ii) sexual nature done (iii) without consent. Intentional in this context refers to "general intent" which refers to voluntariness and capacity. This is a requirement of practically all crimes. (...and is often the basis of insanity/intoxication defences. For reference, section 33.1 states that self induced intoxication is no defence).
Of a sexual nature is determined by the courts using a "totality of the circumstances" approach. It must be kept in mind that sexual assault is a crime of violence and not sex. Thus, sexual gratification is not required. Instead, the focus is on the sexual integrity and autonomy of the complainant. All of this is judged on an objective standard; the question is whether or not a reasonable person, as determined by the courts, would see the touching as sexual in nature.
The third element, without consent, is defined very precisely by the Canadian Criminal Code (273.1(1)). Consent is subjective, meaning the court must establish what was the internal state of mind of the complainant when the touching occured. Consent must be coninuous and apparent. You cannot consent in advance. Thus, in Canada, you cannot consent to anything while unconscious. Additionally, consent cannot be obtained through fraud/misrepresentation (i.e. lying about STDs).
The mens rea (fault requirement) involves the knowledge or willful blindness of the lack of consent of the complainant or recklessness in ascertaining that consent.
Rape as such isn't just physical force. If a women doesn't feel safe and feels like she can't say no, that might still be a form of force.
How the hell would the man no such a thing? Men can't read womans mind you know. If she don't communicate with her partner, how is he to be blamed for anything?
I think if a women is exceptionally intoxicated, it might also consitute rape, because she can't in all seriousness make any real choices.
Again, how is the man to blame for this? Men are genetically engineered to mate as many times as possible in his lifespan. If a woman, drunk or not) is pressing on for sex, then it's equally as hard to say no to it, as it is for a starved 3rd world person to say no to a BBQ. Also if the woman is drunk, then chances are that the male is also drunk.
As for a universal definition of rape, that won't work. For example, in a lot of countries it is impossible for a man to rape his wife, simply because the culture states that sex is a man's priviledge in marriage, and he can force it from the women if he wants it.
A big problem though is that it doesn't take long before public opinion turns to blame a women. They once polled people to ask when something was still a rape in their eyes.
AFAIK, in 90% of relationship problems is blamed on the man.
Being phyiscally forced was obviously a rape in the eyes of nearly everyone, but if a women gets naked, climbs into your bed, and then suddenly says she doesn't want to have sex, is it still a rape? Of course it is (imo anyway), but the majority of people seem to disagree on that notion.
We could make a good analog out of this. If i BBQ a boar in africa, and i promis this obviously starved individual some of it, and then deny it when it's finally done, most people would say that it's my own fault if he just steals it. Same thing goes for sex. It's a deep drive in men, it's way stronger than any drug. How can it be his fault, if the woman does some shit like that then?
On August 23 2012 15:27 Shatter wrote: Every country makes their own laws. It is up to them how to define different terminology. A "universal definition" wouldn't serve any purpose because a country's own definition of the term is set to fit within their own legal system.
not when its part of the universal declaration of human rights
For you to have to obey a universal law, you would have to be a member of a union, for example EU or the likes.
For example: USA can make as many universal laws as they wwant to, but if i am not a part of USA, then those laws have jack shit hold over me. Same goes for EU. If EU makes some universal human rights laws, and i live in the middle east, then those laws have no power over me.
I prefer Sweden's definition, however I do not see how Assange could be sued for that, he neither forced them nor threatened them.
edit: On second thought, the mentioning of "threat" might be redundant, since if you threaten somebody into doing something, you force them into doing it.
On August 23 2012 15:51 HawaiianPig wrote: In Canada, the crime of rape has been abolished and replaced with the crime of "Sexual assault" (sections 271-273 of the Criminal Code).
This was done in 1983, because parliament wanted to convey that sexual assault was a crime of violence as opposed to a crime of sex and thought this was a better way to describe it. In this same reform, a lot of sexist provisions (such as spousal immunity) were abolished.
The actus reus of sexual assault has three elements: (i) intentional touching that is of a (ii) sexual nature done (iii) without consent. Intentional in this context refers to "general intent" which refers to voluntariness and capacity. This is a requirement of practically all crimes. (...and is often the basis of insanity/intoxication defences. For reference, section 33.1 states that self induced intoxication is no defence).
Of a sexual nature is determined by the courts using a "totality of the circumstances" approach. It must be kept in mind that sexual assault is a crime of violence and not sex. Thus, sexual gratification is not required. Instead, the focus is on the sexual integrity and autonomy of the complainant. All of this is judged on an objective standard; the question is whether or not a reasonable person, as determined by the courts, would see the touching as sexual in nature.
The third element, without consent, is defined very precisely by the Canadian Criminal Code (273.1(1)). Consent is subjective, meaning the court must establish what was the internal state of mind of the complainant when the touching occured. Consent must be coninuous and apparent. You cannot consent in advance. Thus, in Canada, you cannot consent to anything while unconscious. Additionally, consent cannot be obtained through fraud/misrepresentation (i.e. lying about STDs).
The mens rea (fault requirement) involves the knowledge or willful blindness of the lack of consent of the complainant or recklessness in ascertaining that consent.
There you go.
Problem with this definition of consent is that according to it, I've been raped by my girlfriend several times. Since I can't give consent in advance, whenever she wakes me up in a sexual fashion, my unconscious, non consenting self has been raped. If I wanted to get back at her for some unrelated slight, I could press charges.
I would get laughed out of court, of course. If I was a woman my chances would be considerably better though. A guy in the other thread linked a case where a man got sued by his ex for rubbing his pee pee on her lips for a few seconds until she woke up and told him to knock it off.
Point is, in any judicial process some level of interpretation and filtering through societal Norms will take place. The exercise of law is far from scientific in most cases. Even a relatively straightforward crime like murder is hard to establish due to the difficulty in ascertaining the defendants motives, state of mind, etc. One battered spouse can get off for the same series of actions that result In a conviction for another.
So what do I think? I think we can narrow it down pretty far, but our definitions alone will never be enough. You need look no further than the inadequate description of "consent" which I just pointed out the flaws in to see that definitions alone do not suffice in this area.
We could make a good analog out of this. If i BBQ a boar in africa, and i promis this obviously starved individual some of it, and then deny it when it's finally done, most people would say that it's my own fault if he just steals it. Same thing goes for sex. It's a deep drive in men, it's way stronger than any drug. How can it be his fault, if the woman does some shit like that then?
Albeit it's a smart analogy, it's not completely valid because sex will never be as strong a drive as hunger. As far as I know, having sex is not necessary to live. Furthermore, if you happen to get too aroused while not wanting to indulge in a hug with the lady, we all know there's another way to relieve yourself ; which unfortunately isn't the case when one nears starvation.
EPT
