What is Rape? - Page 44

On August 25 2012 05:26 Zahir wrote:
"Critics of the traditional evidentiary rules, however, point to the change that has occurred in sexual mores since those rules originally were fashioned. They argue that although a woman is more likely to engage in premarital or extramarital sexual activity today, she is not likely to do so indiscriminately; her decision to consent or not to consent to sexual relations on a particular occasion is discrete and unaffected by her past behavior, so that what she has done in the past has no bearing whatsoever on her future conduct." This argu- ment, however, is specious. An item of evidence, to be relevant, need not establish conclusively the desired inference; it need only make that inference more probable or less probable than it would be without the offered item of evidence. Regardless of the prevailing sexual mores"of society, it is still reasonable to conclude that a woman who never has engaged in sexual intercourse will be less likely to consent to intercourse on a particular occasion than a woman who is not a virgin. To state it another way, a woman who previously has engaged in consensual sexual intercourse will be more likely to consent to intercourse than one who has not. There- fore, it must be concluded that the fact of previous consensual sex- ual intercourse does have some probative value on the issue of con- sent."
Probative value depends upon the degree of similarity between the circumstances of the previous acts of sexual intercourse and the circumstances of the case in question. Various factors such as the time the previous acts occurred, the places they occurred, the per- sons involved, and the circumstances leading up to the acts will be of importance. For example, the fact that an unmarried complain- ant engaged in consensual sexual relations in her home with her boyfriend is not highly probative of the issue of consent in a case involving sexual intercourse with a stranger in his automobile. But the fact that an unmarried complainant engaged in consensual sex- ual relations in her home with a man she had met in a singles bar earlier the same evening may be highly probative of the issue of consent in a case involving sexual intercourse with a defendant whom she had met earlier the same evening at a singles bar."

http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=2418&context=wmlr

Again, i urge you to look through some of these sources, because they provide a multitude of examples and reasoning, some of which may be more convincing to you.

On August 25 2012 13:19 sunprince wrote:


I responded when DoubleReed first posted the link here. Of course, he never answered me and instead kept posting the link despite the fact that I've already pointed out why it's terrible.

Simply put, it's a radical feminist article which advocates functionally removing the presumption of innocence in rape trials. If you assume that consent was not given as your starting point, as the radfems argue for, then you are assuming that the defendant is guilty until they prove their innocence (i.e. that consent was given).

On August 25 2012 21:27 mcc wrote:

Or maybe the word in this context has nothing to do with philosophical "objectification".

http://plato.stanford.edu/entries/feminism-objectification/
instrumentality: the treatment of a person as a tool for the objectifier's purposes;
denial of autonomy: the treatment of a person as lacking in autonomy and self-determination;
inertness: the treatment of a person as lacking in agency, and perhaps also in activity;
fungibility: the treatment of a person as interchangeable with other objects;
violability: the treatment of a person as lacking in boundary-integrity;
ownership: the treatment of a person as something that is owned by another (can be bought or sold);
denial of subjectivity: the treatment of a person as something whose experiences and feelings (if any) need not be taken into account.

Rae Langton (2009, 228–229) has added three more features to Nussbaum's list:

reduction to body: the treatment of a person as identified with their body, or body parts;
reduction to appearance: the treatment of a person primarily in terms of how they look, or how they appear to the senses;
silencing: the treatment of a person as if they are silent, lacking the capacity to speak.

On August 25 2012 07:32 DoubleReed wrote:


Why would you bring up statistics from the UK? Their law system could be better with rape convictions than US. I have no idea. That's an awful data point considering we're both from the US. (Oh and btw, 55% is really low anyway).

Did you read that statistics report from soulful chemistry? It's not that the rape didn't occur (or was mistaken for consensual), it's that the rapist was misidentified:



You clearly did misunderstand that part of my post, because the fact is that right now the accuser has almost no rights whatsoever. Rather than any questions being posed at the rapist of how he could mistake consensual sex for rape, all the questions are leveled at the rape victim about what she wore, what her behavior was, and why she just had to be so ambiguous with her consent.

My article that I keep posting has like a bajillion footnotes at the bottom with all the statistics. I have no idea how you could miss them.

On August 26 2012 02:50 Scheme wrote:


55% is not actually low. I think the average conviction rate in the UK is 57%.

I got the figures from this btw: http://www.guardian.co.uk/commentisfree/2012/mar/19/myths-about-rape-conviction-rates
Its a pretty enlightening article in my opinion.

On August 26 2012 02:56 DoubleReed wrote:


Er... ok, fair enough. It still admits fully that it is under-prosecuted.

But again, for all I know, the UK system is far better than the US system for rape cases.

On August 26 2012 04:24 Evilmystic wrote:
1. A person voluntary consumes alcohol and drugs and then while being heavily intoxicated acts in a way that leads to participating in any sort of sexual activity (in that the person in question most likely wouldn't take part while being sober).

On August 26 2012 04:24 Evilmystic wrote:
2. A person has a sexual intercourse without anyhow stating her refusal but afterwards reports the intercourse as non-consensual.

On August 26 2012 04:24 Evilmystic wrote:
3. A person consents in advance to participate in sexual actions while being asleep/unconscious. Obviously no consent is given at the time of the intercourse itself.

On August 26 2012 04:24 Evilmystic wrote:
4. Somehow dependent person voluntary participates in a sexual intercourse with their superior in order to "buy" any sort of advantage (like work promotion or some sort permission paper, etc). That doesn't include the cases where the superior himself blackmails the dependent.

On August 26 2012 04:24 Evilmystic wrote:
5. There is a consensual sexual intercourse with a person who's legally unable to give consent for some reason (like being underage or mentally ill). But the fact of inability to consent isn't obvious and is unknown to the other participating side.

On August 25 2012 17:45 KwarK wrote:

My apologies. The chance of drawing at least one juror who believes a flirtatious woman is entirely to blame for her own rape is only 52.5%, based upon that 6%. So there is a better than even chance she'll be judged entirely to blame (and by definition the defendant not at all to blame) by at least one of the twelve people she requires to unanimously enforce the law. Clearly the system protects women who have flirted.

We're not talking about disagreement about his whether or not the rapist did it being resolved by jury deliberation. We're talking about a portion of the population which, at 6%, will be on represented in 52.5% of juries and at 8% will be on 72% of juries who literally do not recognise the crime. 8% of people think that a woman who has had many sexual partners in the past is exclusively to blame for her rape. In 72% of juries there will be at least one person who could listen to the rapist say "yes, I held a knife to her throat and told her I'd kill her if she didn't" and would still think the only guilty person in the room is the victim. Not that both did something wrong (believed by 14% of people), that the only guilty party is the victim. When the law defines an act as one thing and the people who it uses to enforce the law believe it is another then the system is fundamentally broken.

On August 26 2012 02:56 DoubleReed wrote:


Er... ok, fair enough. It still admits fully that it is under-prosecuted.

But again, for all I know, the UK system is far better than the US system for rape cases.

Edit: Actually it doesn't say that rape is under-prosecuted compared to the general rate, which is a bit confusing, honestly, because it claims that the general attrition rate is in the single digits. That's not exactly a good thing for their system in general, and it makes me a little confused about the information.

On August 26 2012 06:49 HULKAMANIA wrote:

I don't know that there is much more to discuss here. I just think you're very long on speculation.

First of all, you're conflating blaming the victim with exonerating the defendant. Explicity so, in fact: "by definition the defendant not at all to blame" "the only guilty person in the room" and all that. I live in a city where property crime is rampant, especially smash and grabs on vehicles. If my neighbor leaves an iPad in his passenger's seat at night, and he gets his car broken into, I would certainly consider him partially to totally responsible for the theft. It simply wouldn't have happened if he didn't put his property in that situation.

On August 26 2012 07:22 Crushinator wrote:


Deductive reasoning seems to be difficult for you. Do you understand the concept of exclusivity? YOU YOURSELF brought up an example where a study found that 8% (and for a different scenario 6%) thought the victim is EXCLUSIVELY to blame. This does indeed mean that those people BY DEFINITION, in the scenario, do NOT blame the defendant.

Yes it is possible for people to think the victim was to blame for being negligent, but also think the rapist was wrong to do what he did. But it is EXPLICITLY mentioned that this is NOT the case for this 8% group. I don't know why this isn't clear by now.

On August 26 2012 08:33 HULKAMANIA wrote:

I know, I know. I disagree with you so I must be stupid.

But a couple points:

1) I didn't bring up the study.

2) The study was actually a phone interview that had as a component where the researchers polled attitudes about whether or not a woman was "to blame" for being raped. These questions did not include legal terms, nor did they include inquiries about whether or not rapists ought to be exonerated. You're of course welcome to speculate about what might happen if one of those 8% respondents landed on the jury of a rape trial, but that's all that is—speculation. The poll didn't address it, nor was it meant to. It was just an investigation of public awareness of and attitudes toward rape.

In fact, we don't know whether or not "totally blame" (the study uses the word totally, not exclusively) means "find 100% legally culpable." I personally don't think so, for the reasons I've stated before in this thread. But the long and the short of it is that there are many instances where there is a disconnect between "blame" in the traditional sense and legal culpability.

Let's, for instance, go with the old hypothetical standby of a parent who robs a pharmacy at gunpoint because he or she cannot afford medication for his or her dying child. I don't think that parent is to blame at all but rather the system of healthcare that failed him or her. At worst, the parent is to blame for a lapse in judgement. As a jury member, however, would I vote to convict that parent for armed robbery? Of course

Or how about the example I mentioned before. It's a known fact that theft from vehicles is essentially a given in my city. Given that, would I blame myself if I left out something of value in my car and it got stolen? Yes, yes I would. The self-recriminations would be immense. It wouldn't be anyone's fault but my own. Does that mean that I think the culprit should be allowed to walk free? Absolutely not. Blameworthy =/= legally guilty.

3) My deductive reasoning skills have been called into question, admittedly. But I think the position that you and Kwark are arguing is logically self-destructive.

Let's assume for the sake of argument that you're right, that one's attitudes about a victim's blameworthiness always translates directly into the corresponding jury vote.

So, OK, you have the chance of drawing a jury member from the 5-8% of people who think that the woman in question is totally to blame for her rape. And that 1 member, in your view, will always vote to exonerate. Well fortunately you also have the other side of the coin. A majority of respondents to every single question affirmed that the woman is "not at all responsible" for being raped. These numbers ranged from 54% to 69% of the individuals polled. And of course since attitude reliably translates to action, these people will be equally instrasigent in their votes to support the woman. The probability of a woman facing a jury where even 10 people would consider her at all blameworthy is smaller than the probability of flipping a coin and having it land on heads 10 times, which is 1 in 1024. In other words, she has a smaller than 1 in 1024 chance to face a jury that would be capable (in the aforementioned 10-2 special circumstances) of exonerating her attacker.

Sounds like our women victims are in good hands.

On August 26 2012 08:57 Crushinator wrote:


For the record: On this specific point I do not actually agree with Kwark. I expressed earlier, that in my judgement it would not be likely that a person is falsely acquitted due to victim blaming, and that the discussion best focus on the other damaging effects of victim blaming. I think the rest of your argument is reasonable and on some points quite convincing. I did find it quite infuriating that the otherwise reasonable discussion was being confused because the different categories were not being seprated properly, but I dont think you are stupid.

I have already acknowledged that it is possible that some of the respondents did not understand the intent of the question properly, but i find it almost undeniable that the intent of the wording ''totally'' (or exclusively, only or whatever synonym you wish to use) was to establish whether or not they thought the rapist was to blame or not. I would also like to note that just by looking at this thread, it is intuitive that 6% or 8% is not an unreasonable number at all. It took just a couple of post for some of the most disgusting rape apologetics to come up. And it surely would have been more without moderation.

On August 26 2012 08:33 HULKAMANIA wrote:
Let's, for instance, go with the old hypothetical standby of a parent who robs a pharmacy at gunpoint because he or she cannot afford medication for his or her dying child. I don't think that parent is to blame at all but rather the system of healthcare that failed him or her. At worst, the parent is to blame for a lapse in judgement. As a jury member, however, would I vote to convict that parent for armed robbery? Of course

Or how about the example I mentioned before. It's a known fact that theft from vehicles is essentially a given in my city. Given that, would I blame myself if I left out something of value in my car and it got stolen? Yes, yes I would. The self-recriminations would be immense. It wouldn't be anyone's fault but my own. Does that mean that I think the culprit should be allowed to walk free? Absolutely not. Blameworthy =/= legally guilty.

On August 26 2012 09:31 HULKAMANIA wrote:
Well, I'm glad to say that I agree with you that blaming a woman, or any victim of sexual abuse, for what their attacker did to them is backwards and appalling. I think that such a conviction serves as an excellent common ground for any discussion about what improvements could be made to the way our courts and our societies deal with sexual predation in all its forms.

On August 26 2012 11:59 Reason wrote:
Why do you say this....

and then say this....

Very confusing.

Anyway,

Just because the crime is horrendous doesn't mean the victim is automatically immune to any blame, and it's also important to understand what that means.

You don't penalise the criminal less because the victim acted with poor judgement, and you don't penalise the victim at all just because they acted with poor judgement.

It's just acknowledging reality.

Honestly I think this absolute phobia of partially "blaming" a victim is going to do more harm than good, actions have consequences, the more serious the crime is the more important it is to understand that and act upon it.