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Maybe they want to call it "assault with a friendly weapon?"

This morning, while poking through the online newspapers, I saw a headline that I figured would be good for a posting. "Victims' advocates irate as SJC rules sex through deceit not rape." This, I figured, was a great opportunity to rip the militant feminists, the PC whackos, the "men are always responsible for their actions, and women almost never are" jerks who put all the blame on the guy when two people get plastered and boink -- then, later, one of them regrets their drunken tryst. So some guy conned a woman into bed. Big deal. It's reprehensible, but shouldn't rise to the level of rape.

Then I read the actual story.

The article cited two cases that had been prosecuted as rape. In one, a guy impersonated his brother in the dark to have sex with the brother's girlfriend -- waking her from a sound sleep. In the other, a physiotherapist told an ignorant young woman that sex with him was an essential part of the abortion she was seeking.

In one case, we have a clear-cut case of fraud and deception, as well as exploiting the woman's lack of full consciousness. In the other, we have the abuse of power and authority.

I have no problem with either of them being classified as rape. Hell, if I'd been on either jury, I'd have asked the judge if there were any more charges we could pile on.

Hell, by the "drunken tryst" standard, they were rape. In neither case did the woman give fully informed consent. In one case, she was deceived as to the identity of her partner. In the other, she trusted an authority figure who abused that trust in the most heinous way.

Every time I think that Massachusetts can't disappoint me any more, they find a new way. I never saw this one coming. If anything, I figured Massachusetts would be tougher on "rape" than most states -- it plays into so many of their biases: the oppressive masculine hierarchy, the women-as-victims theme, the womens' rights movement, and so on.

But they did decide to decriminalize this form of sexual assault.

Way to go, Bay State.


Comments (34)

Maybe they want to... (Below threshold)
Maybe they want to call it "assault with a friendly weapon?"

Please don't give the Criminal Defense attorneys any ideas. The might try to use your sentiment (lacking in any awareness of the irony, of course ... or perhaps that's just our tolls) in their client 'advocacy'!

If you tell a women you'll ... (Below threshold)
Mac Lorry:

If you tell a women you'll still respect her in the morning, and you were just saying that to get her in bed with you, then under a deceit is rape law you would be guilty of rape. If you even made a promise that you had no intention of keeping, then it would also be rape.

No thanks Jay, we don't need to be locking up half the male population to prevent the two cases in the past 50 years that you feel were a miscarriage of justice.

If you want to get outraged about something how about a system where a third of those convicted of rape have been subsequently proven innocent by DNA evidence.

If anything, I fig... (Below threshold)
kbiel:
If anything, I figured Massachusetts would be tougher on "rape" than most states

What would give you the idea that the home state of the Kennedy clan would be tougher on rape instead of softer?

Ring Lardner Junior, when a... (Below threshold)
kim:

Ring Lardner Junior, when asked to give up the names of fellow travelers to the HUAC said that he could do so but wouldn't respect himself in the morning.

What eveh Nona wants.
================

Ring Lardner Junior, whe... (Below threshold)
ijosha:

Ring Lardner Junior, when asked to give up the names of fellow travelers to the HUAC said that he could do so but wouldn't respect himself in the morning.
What eveh Nona wants.
================
by: kim 20070511 15:56


Too obscure for me, kim. Are you trying to say that what the blacklisted journalists and screenwriters went through was akin to rape?

ijosha,You have to... (Below threshold)
Jeff Blogworthy:

ijosha,

You have to speak kim's language.

Animal activist Alan Cooper had been accused of sexually stimulating a male dolphin, to the disgust, and so on, of members of the public. It was said in Cooper's defense that the dolphin, Freddie used his penis as a 'finger of friendship'.

Nona gets.

How is convincing a woman t... (Below threshold)

How is convincing a woman that you are your brother and having sex different from a rape drug? Or using your position as a therapist to get sex different from a rape drug?

I don't think it's the same as *deception* anyhow. It's not the same as misrepresenting yourself as rich or faithful or in love.

I don't think that morning after regrets should get even close to being called "rape" or even lies for the purpose of seduction be called "rape". If the law sees the two cases cited as the same as lying about your income in order to get sex then the law is written extremely poorly.

The cases cited are much more similar to a rape drug or sex with someone passed out from drinking.

(If someone snuck into my bed in the dark and pretended to be my husband I would be hysterical... and then homicidal and then they'd have to lock *me* up.)

It is indeed fascinating th... (Below threshold)
kim:

It is indeed fascinating the motive of the girding of the weapon; so often friendly, how so when malign? Are the demands of nature such?
================

I'm sorry, Jay Tea, but I d... (Below threshold)
pennywit:

I'm sorry, Jay Tea, but I don't think that you're in the right here. From a common-sense standpoint, I think that both situations you laid out certainly constitute some form of sexual assault. However, I think that for the Supreme Judicial Court to call those cases rape would have been (dare I say it) a form a judicial activism.

I offer for your consideration two bits of evidence.

First, the very first sentence from the Boston Herald article you cite:

Tricking a person into having sex is not rape, the Supreme Judicial Court ruled yesterday, reaffirming an opinion it has held since 1959 and putting the onus on the Legislature to rewrite history.

Additionally, I give you, from the Boston Globe article on the same subject:

The Supreme Judicial Court unanimously ruled that a judge should have dismissed the rape charge against Alvin Suliveres , 44, of Westfield, because Massachusetts law has for centuries defined rape as sexual intercourse by force and against one's will, and that it is not rape when consent is obtained through fraud.

My second piece of evidence, from the Massachusetts General Laws:

Whoever has sexual intercourse or unnatural sexual intercourse with a person, and compels such person to submit by force and against his will, or compels such person to submit by threat of bodily injury ...

The following paragraph uses similar language.

Observer very carefully what we have. We have state law that explicitly defines the crime of "rape" as including an element of force, not fraud. And in both of the cases here, the defendants engaged in reprehensible, fraudelent, deceptive behavior -- but they are not alleged to have committed violence against the victims. That key distinction, as you see, bound the Massachusetts Supreme Court to rule as it did.

See what you are asking here? You ask that the Massachusetts Supreme Judicial Court forsake decades of precedent and centuries of state law as it unilaterally rewrites Massachusetts' general laws to suit your beliefs. Wouldn't you deplore this sort of judicial activism in any other setting? Or to the ends of rewriting rape law 'correctly" supersede your beliefs in the realm of law and justice?

--|PW|--

I think there is a differen... (Below threshold)

I think there is a difference between "against his will" and fraud and I think that the two examples given are "against his will" examples and not fraud examples. I think that they more closely resemble sex with someone passed out drunk (which doesn't need to be at all violent) or a rape drug that makes the victim "willing."

I mean... suppose a woman goes in for a pelvic and the Doctor commits "fraud" by letting her think he's performing a pelvic when he's not? If she's not resisting is it somehow not against her will?

The law may need to be rewritten but, morally, I think that those things are rape while convincing someone to have sex by lying to them isn't.

Synova: To address your co... (Below threshold)
pennywit:

Synova: To address your comment and an earlier.

I should probably point out that the distinguishing factor between a date-rape drug and a physician using his position of resopnsibility to trick a patient is the act or threat of violence in the commission of the act.

A date-rape drug is a form of poison -- and I think astrong argument can be made that poisoning somebody is a form of violence.

--|PW|--

How is convincing ... (Below threshold)
Mac Lorry:
How is convincing a woman that you are your brother and having sex different from a rape drug? Or using your position as a therapist to get sex different from a rape drug?

In the way that using deception is different then using an incapacitating drug.

I don't think that morning after regrets should get even close to being called "rape" or even lies for the purpose of seduction be called "rape"

The problem is that the law is a blunt instrument employed sometimes by over zealous prosecutors. Just look at how many different words there are with meaning similar to deceit and you should start to see why a law that makes sex through deceit equivalent to rape a frightening prospect and not just for men. Here are some deceit-like words I found. Fraud, cheating, concealment, craftiness, deception, trick, sham, chicanery, duplicity, perfidy, dishonest, falseness, wheedled, beguile, cajole, inveigle, hoax, delude, mislead, swindle, seduce, entrap, ruse, subterfuge and decoy.

It seems the man who tricked his brother's girlfriend into having sex with him used darkness to conceal his identity. He used subterfuge to delude his brother's girlfriend into having sex with him. Well at least that's what she says. The physiotherapist was dishonest with his patient and used craftiness to beguile and seduce her into having sex with him. Well at least that's what she says.

Do you really want the law to try to parse the meaning of such words where one person goes to jail for rape depending on how good of a lawyer they can afford?

With incapacitating drugs there is often physical evidence of there use, a trail of procurement, and often the fact of possession. With deception it's not even forced sex, it's what each party believed to be true at the time. What if the deceived party doesn't realize they have been mislead for a week, or a month, or even a year? What if some woman falsely claimed she didn't have some non-life-threatening STD and then when the guy comes down with it and finds the woman had seen a doctor for that STD before they had sex, can he then press rape charges against her on grounds he was deceived?

I think laws that try to solve the two cases cited would cause far more harm than good.

First, both men are scum wh... (Below threshold)
Dave:

First, both men are scum who I would not cry for if they had their balls chopped off.

But, given that, I think the SJC had a point:
"Because the Goldenberg case has been the law for nearly one half century, during which the Legislature has had ample opportunity to change the rape statute and has not done so, we decline to overrule our decision."

They ruled this wasn't rape 50 years ago. If the people of Mass. find this so abhorrent, why _hasn't_ the legislature included fraud in the rape statute?

So would you consider a "it... (Below threshold)

So would you consider a "it's his pecker not his fingers" for the doctor doing the pelvic to be *not* rape because it didn't include violence?

I'll agree that not all rapes are created equal and it's not helpful to define every last thing as rape.

Honestly, the closest I've ever been to a sexual assault was an obscene phone call and while the other girls in the room thought it was the funniest thing ever in the whole world I know how violated I felt. Being lied into agreeing to let someone talk dirty to me would not be even be remotely the same. The caller included me in his sexual experience against my will.

That's how I'd view the lady who thought she was having sex with her boyfriend and it was his brother. The one thing she agreed to, the other thing she did not even remotely agree to. He did not obtain consent at all.

Maybe it's because I've never gotten drunk and had sex I regretted, or been lied to and had sex I regretted, or been talked into sex I regretted, but I can't see that kind of regret as a difference only in quantity. Maybe it was only an obscene phone call but *violation* isn't *regret*.

I'm willing to accept that the law is badly written and that the law needs to be followed until it can be changed rather than just ignored because it is flawed.

Mac Lorry, I'd be pleased i... (Below threshold)

Mac Lorry, I'd be pleased if consent for sex required prior recorded consent. If that consent was recorded and someone changed their mind at the last minute then proving rape would take more than one person's word against the other. So it would also protect men. Fraud could be prosecuted under a "non-rape" category.

I've wondered if a privately provided "don't be accused of rape" service would find any customers.

So would you consi... (Below threshold)
Mac Lorry:
So would you consider a "it's his pecker not his fingers" for the doctor doing the pelvic to be *not* rape because it didn't include violence?

There's no consent for "sex" in this situation and so it's sexual assault even if the doctor uses his fingers, but for sexual rather than medical purposes. That's different then using deception to gain consent for sex. That deception might be in the form of a promise of marriage, a better job, or even love. Do you really want to criminalize that?

The caller included me in his sexual experience against my will.

Did you know that you can hang up at any time?

That's how I'd view the lady who thought she was having sex with her boyfriend and it was his brother. The one thing she agreed to, the other thing she did not even remotely agree to. He did not obtain consent at all.

Of course he could claim she knew who he was and claim she only says she thought he was his brother when his brother found out. That's the problem with bringing the force of law into the intrigue surrounding sexual relations.

I'm willing to accept that the law is badly written and that the law needs to be followed until it can be changed rather than just ignored because it is flawed.

I would oppose any law that tries to define deception used to gain consensual sex as rape. Competent adults need to be responsible for giving consent and seeing though deception. If someone is not competent to give such consent then they need a guardian to watch over them. I don't want the state to be my guardian.

I'd be pleased if ... (Below threshold)
Mac Lorry:
I'd be pleased if consent for sex required prior recorded consent.

Well that was the case for a long time. A man and a woman would sign a document and even stand up in front of their family and friends and give such consent publicly. It was known as marriage. However, I expect you're talking about just something in writing.

So you have some ignorant girl who falls for the old "you need to have sex with me to make sure the abortion works" trick and you think it would be difficult for the physiotherapist to get written consent for sex? Here, just sign this form so that I can complete the procedure. Being deceived into consenting to sex in writing is hardly difficult in such cases. The only way to protect such women would be a law requiring them to get a judge's permission to have sex. Otherwise, some crafty fellow will find a way to trick them into signing a consent form. Are Muslims right that women need men to decide such things for them?

Mac Lorry, I hung up. But ... (Below threshold)

Mac Lorry, I hung up. But since I answered the phone unknowing I still had to hear, react, and then hang up.

You know, I use this example because logically it shouldn't have bothered me. Logically a phone call couldn't hurt me in any way. If I hadn't answered the phone I'd have been laughing with the rest of the girls. And sure, it's not like it did lasting damage.

I use the example because my *reason* said one thing and my *reaction* said something else. I've talked to people who've been "flashed" who were not made to watch, they *did* avert their eyes, and besides, who wouldn't laugh at some loser exposing himself? But it is *unreasonably* upsetting in an entirely visceral way.

Anyhow, I don't disagree with you about deception to gain consent. I'm disagreeing about consent. I'm not disagreeing with you about the demonstrated ability of the government to make a mess of whatever they try to fix.

I also recognize that criminal law is as much about preventing vigilantism as anything else. If the only option is personal vengence, then that's what it is.

The therapist thing, I had ... (Below threshold)

The therapist thing, I had previously thought, came under "patient isn't capable of giving consent/abuse of authority" right up there with "under age" and "mentally incompetent." So it *ought* to be statutory rape in any case. I had thought that there were laws that applied that weren't rape laws to cases where certain sorts of professionals had sex with their patients.

I suppose laws aren't the same everywhere about that.

I don't suppose that someone pretending to be someone else in the dark happens that often and while my little idea about signing a consent form is probably not workable it *would* also solve problems of sex while drunk and claiming not to have consented the next morning.

I didn't mean to imply it was a cure-all.

It is, after all, more than possible for a husband to rape his wife.

I use the example ... (Below threshold)
Mac Lorry:
I use the example because my *reason* said one thing and my *reaction* said something else. I've talked to people who've been "flashed" who were not made to watch, they *did* avert their eyes, and besides, who wouldn't laugh at some loser exposing himself? But it is *unreasonably* upsetting in an entirely visceral way.

Over the year's I have watched the changes brought about by the sexual revolution. Women are now free to wear almost nothing in public knowing full well that it effects many men in an entirely visceral way. Society's response is to laugh at any man who complains, yet if men look at what has been freely exposed they are accused of ogling. When rape laws were put into place sex outside marriage was a social taboo, but now it's the norm, yet the penalties for rape haven't been likewise adjusted. Once being married meant standing consent for sex with your spouse, but now men must get their wife's permission for every event.

Men walk a tightrope anytime they are involved with women. Now we have this idea that getting consent for sex is not good enough anymore. Men also have to prove the women was fully informed of their intentions and motivations, and maybe get it in writing.

I really can't imagine sex ... (Below threshold)

I really can't imagine sex *without* consent, Mac, ever *ever* being something other than rape. Married or not, in the good old days or not.

The fact that at one time it was entirely legal for a man to throw his wife across a room, rip her clothes off and force penetration and put her in the hospital does not make it the "good old days."

That the neighbors all shook their heads in pity makes no difference to what they were allowing to happen.

This has nothing to do with social norms or skimpy clothes or men being accused of ogling.

It's true that men get a bum deal in a lot of ways these days but marriage *never* gave men the moral right to force sex even if it gave them the legal right. Does a man need to *ask* his wife if she wants sex? Yes. Every. Time. Is she a b*tch from h*ll if she uses sex as a control, reward and punishment? Yes. Every. Time.

You don't want to treat a wife like a human being get a g*d d**m sheep.

I'd be pleased if consen... (Below threshold)
James Cloninger:

I'd be pleased if consent for sex required prior recorded consent.

Give Antioch a shout...

http://www.antioch-college.edu/Campus/sopp/index.html

Synova:I</... (Below threshold)
pennywit:

Synova:

I would consider intercourse induced by fraud to be a form of sexual assault, but, unfortunately, the applicable statute requires violence in order for the act to be considered rape. Regardless of whatever personal definitions a factfinder has, he's rather bound by the law as it is written.

--|PW|--

The fact that at o... (Below threshold)
Mac Lorry:
The fact that at one time it was entirely legal for a man to throw his wife across a room, rip her clothes off and force penetration and put her in the hospital does not make it the "good old days."

Don't try to confuse the issue by injecting physical violence. That has nothing to do with anything on this thread and you know it. Physical violence is wrong unless it's used in self-defense and there are laws against it that should be used in equal measure when there's domestic violence.

What I'm talking about is consent and marriage is an agreement of consent, at least it once was, both legal and moral. When two people publicly commit to "have and to hold" each other until death there is no just cause for charging a man with rape for having sex with his wife. If there's violence involved that's an entirely different issue, but it's not rape.

This has nothing to do with social norms or skimpy clothes or men being accused of ogling.

What it has to do with is that women want greater freedom for themselves and yet they also want to hold men to a higher and higher standard. The idea being floated based on two extreme cases is that having consent for sex is no longer enough, now a man must prove the women was fully informed before giving consent. Once again no responsibility for women and men under threat of long imprisonment.

With DNA testing proving the innocence of that a large percentage of men convicted for rape prior to 2000 it's time men started demanding changes in the law. Shield laws should also cover the accused and women must be held accountable for false accusations. The women in the Duke case should face the same penalty the victims of her false accusations faced.

On an episode of COPS officers answering a domestic disturbance call found a man bound from head to foot with rope and duct tape. The woman was twice the guy's size but the police thought it all so funny as they worked to free the man so they could handcuff him and haul him to jail. So much for equal justice.

You don't want to treat a husband like a human being get a g*d d**m donkey.

I think pennywit and Mac Lo... (Below threshold)
Ken:

I think pennywit and Mac Lorry are trying too hard to miss the point.

There is actually a very simple provision in the law that would have handled this well. The case of the woman fooled by the brother should be statutory rape the same way as when a man has sex with an underage woman. The underage woman is presumed to be unable to give consent; the half asleep woman fooled by the brother also did not give consent.

However, maybe Mass. isn't civilized enough to have a statutory rape law.

the half asleep wo... (Below threshold)
Mac Lorry:
the half asleep woman fooled by the brother also did not give consent.

Did the guy know she didn't know who he was? Both brother's were bald, but you mean to tell me she didn't know who she was having sex with? That's absurd, so absurd that even if true the guy may have figured she knew who he was from the start and she was a willing partner. Maybe she was in fact a willing partner, but only claimed she didn't know who she was having sex with AFTER her boyfriend found out. You don't think women lie or use sex to manipulate men; what are you still in grade school?

My complaint on this thread is that many folks seem to be asking for even more laws surrounding sexual relations based on rare and extreme cases. Yet many of these same folks are oblivious to the plight of the falsely accused and convicted men who have subsequently been proven innocent through DNA testing. Currently 25% of prime suspects in such cases are cleared by DNA evidence. From statistics gathered by the Innocence project it's estimated that 30% of men convicted of rape prior to 1990 are innocent. Most of these are poor black men, so who cares, right. Well until society addresses this issue I have no sympathy for women who take no responsibility for their own actions when engaging in sexual relations where there's any question that it was consensual.

One of the daytime talk shows had a program about date rape on college campus and this young women was telling her story about how she was raped, but the university wouldn't do anything about it. Seems terrible, but then she started filling in the details. She went out on a date with a young man and then went back to his room with him. She then willingly got naked and crawled into bed with this guy. Well after some foreplay he got on top of her and started doing it for real. She didn't say anything, not yes and not no. After that they got dressed and went to breakfast together. Then she went her way and only then did she say she had been raped. Her point is that she's young and inexperienced in such matters and she didn't know she should have at least said NO at some point and that going to a public place to have breakfast with the guy kind of took the wind out of the rape case. The mostly female audience was completely sympathetic with the young women with one notable exception, the young man's mother. The mother's point was that her son was equally inexperienced and that he had been getting all the signals for consensual sex from the girl. The mother was openly hostel to those who think a young man's life should be ruined because some girl is too ignorant to say NO.

Women want to be free to pursue sexual relations whenever they want and with whoever they want. I support that, but only so long as women are held responsible for giving consent verbally and by their actions. If a woman willingly has sex without checking who the man is (in a situation where it could be the wrong man) then she didn't exercise her responsibility as a competent adult and there's no rape. If a women gives her consent for sex then it's not rape even if she was deceived (and this is different than being drugged or threatened with violence). As a competent adult women have to take responsibility for giving consent. If a women is incompetent to make such decisions then a guardian needs to be appointed over her. Muslims seem to think all women are incompetent to make such decisions and that's why they need a male relative with them whenever they are in public. Are Muslims correct?

Mac, you're so pathetic you... (Below threshold)
Ken:

Mac, you're so pathetic you must be a defense attorney.

Ken,If you have a ... (Below threshold)
Mac Lorry:

Ken,

If you have a point about the topic make it rather than resorting to personal insults, or is that beyond your ability?.

OK, Mac.Your posti... (Below threshold)
Ken:

OK, Mac.

Your posting was such a pile of manure, but you must think there's a pony in there somewhere.

So maybe I need to do a Fisking.

The ruling was made by the Supreme Judicial Court, before a verdict had been rendered on the charges. Thus the court was ruling on the applicability of the law, not whether there was a case of mistaken identity, or whether they were having an affair, or any other disputed fact. The court clearly stated the basis for the ruling saying the problem was inherent with the application of the law, not any dispute over the facts.

By ruling before a verdict, the court was saying that even if everything claimed by the prosecution were true, the facts would not support a conviction, due to the reasoning of no force, no rape.

Therefore, your posting, which was exclusively about "what if this fact were true, or what if it was a space alien impersonating the brother, or maybe some other fact" was completely irrelevant, even if it were a space alien.

Further, instead of creating scenarios similar to the case at hand, you presented ridiculous comparisons to a case that in no way resembles this one.

So it comes down to: how ridiculous is this court, or does Massachusetts not have a statutory rape law?

Your argument was so sleazy in light of the case at hand that I went to the first place that has a significant number of scumbags: defense attorneys. Of course I could have thought of Nifong and said prosecutors, but your argument doesn't sound like a prosecutor.

Ken,The r... (Below threshold)
Mac Lorry:

Ken,

The ruling was made by the Supreme Judicial Court, before a verdict had been rendered on the charges.

You're right that there was no verdict in the case, but there had been a trial as shown by this quote from the linked story. "When the trial ended with a hung jury last year, Hampden County District Attorney William Bennett beseeched the SJC to overrule a nearly half-century-old decision, Commonwealth V. Goldenberg."

The prosecutor charged the man with rape, went to trial and both sides rested their case. The only reason there was no verdict was because at least one person on the jury wasn't buying it and hung the jury.

Therefore, your posting, which was exclusively about "what if this fact were true, or what if it was a space alien impersonating the brother, or maybe some other fact" was completely irrelevant, even if it were a space alien.

I wasn't posting about whether or not the SJC ruled correctly or not. All my posts on this thread are about attempting to change the law in order to make the use of deceit in gaining consent for sex grounds for rape. I used the two cases cited in the story as well as other publicized cases. That should have been a clue, but apparently your reading comprehension is not sufficient to pick up that distinction. Maybe that will improve by the time you get out of grade school, and then after you have had some actual experience in the world of romance you'll understand what I have been talking about.

Your argument about using statutory rape in such cases says that women are not capable of detecting deceit when consenting to sex. That because of women's childlike nature, they have to be protected from crafty men. Muslims agree with you on that point and require men to make such decisions for women. I think most women in America will find your argument demeaning. Of course this might be too fine a point for someone who thinks space aliens are involved to grasp.

Mac,Yes, normally ... (Below threshold)
Ken:

Mac,

Yes, normally it is presumed that an adult woman is capable of detecting deceit, so she would not be fooled into having sex. However, it is unreasonable to say it can never legitimately happen.

The whole idea of statutory rape is that a person is not in a position to make the properly informed decision to have sex.

If this case at hand has facts as presented by the prosecutor, the woman was indeed purposely deceived into having sex when she was in a vulnerable situation (almost asleep), which is addressed perfectly by the statutory rape law.

You may be skeptical of the story, but that is a matter for the trier of fact to determine, not the Appellate court.

My complaint is that it is ridiculous for a court to declare that a case like this would NEVER qualify as statutory rape.

Ken,Howev... (Below threshold)
Mac Lorry:

Ken,

However, it is unreasonable to say it can never legitimately happen.

Yes such crazy things can and do happen. The problem is in crafting a law to address only those crazy cases without unintended consequences that do far more harm than good.

The whole idea of statutory rape is that a person is not in a position to make the properly informed decision to have sex.

I disagree. It's not that a person is in no position to properly consent to sex, it's that they have no ability to consent to sex regardless of how much information they have. The law makes the assumption that some individuals are incapable of consenting to sex due to their youth or mental handicap. To use statutory rape to protect competent adult women you are really doing them more harm than good because it calls into question their ability to make such decisions on their own.

Here's a quote from the story I linked to in my last post. "The woman said her boyfriend's brother climbed into bed with her while she was asleep and pretended to be her boyfriend. She said she would not have consented to sex if she had known who it was."

Parsing that down to it's essence I get "The party would not have consented to sex if they had known some material fact". In the specific case the material fact was that it was not her boyfriend. If a law was crafted saying that "a crime of rape has been committed if either party would not have consented to sex if they had known some material fact that was known by the other party" then there would be a law that would cover both cases cited in the story. A material fact wouldn't likely be something like the person's politics or favorite color, but it would be any sexually transmittable decease, or something that violated the other person's moral sensibilities.

Using that hypothetical law someone could be charged with rape for having consensual sex if they knew they had any STD and didn't inform the other party. Of course, if someone says "I have HPV but I'm taking medication to suppress it" is the other party properly informed? If not, does the infected person need to carry a government approved brochure about the disease with them and get a signed consent form? What if the women has been drinking when the guy informs her about his STD, does it still count? How drunk does the women need to be to invalidate the disclosure?

Then there's the moral category of material fact. If some guy hides the fact that he's married and has consensual sex, then he could be charged with rape if the women finds that out after the fact and claims she would not have consented to sex if she had known the guy was married. What happens if the man then says he wouldn't have consented to sex if he had known the women was such a prude? Is the women now guilty of rape?

The law is a blunt instrument and it will take the courts years to figure out just what material facts need to be disclosed and what constitutes proper disclosure. In the meantime many men will be convicted and sent to jail for being sick and not knowing how to properly inform the women about their disease. Or having an affair and not properly informing their mistress of their marital status.

Here's another quote from the story I linked to before "State Rep. Peter Koutoujian, (D-Waltham), and Sen. Stephen Buoniconti, (D-West Springfield), both former prosecutors, said yesterday they are working with the victims advocate group Jane Doe Inc. to draft an amendment to the state's rape law."

You can see who the lawmakers are pandering to by who they are working with to draft new legislation. The Jane Doe group could also be characterized as the She-myn Man Hater's club. Even if the law is somehow written in gender neutral language, our so-called enlightened society simply doesn't hold women to the same standard as men. You only need to review existing cases to see that. Open wide the cell doors because lots of men are going to jail. Too bad so many men are either too stupid or too complacent to stop pandering politicians from stacking the deck against them.

Mac,"Yes such craz... (Below threshold)
Ken:

Mac,

"Yes such crazy things can and do happen. The problem is in crafting a law to address only those crazy cases without unintended consequences that do far more harm than good."

This seems to be the crux of your argument. This principle must be addressed in almost every situation, and I contend that that is the jury's job to consider the facts of the case and decide whether they indicate a person broke the law. The judge is also involved to ensure that the law is properly applied.

The claim that a law might be misapplied is not a very good argument to eliminate or prevent such a law. Any law might be misapplied.

This has been an interesting discussion after our initial fireworks.

Ken,This ... (Below threshold)
Mac Lorry:

Ken,

This seems to be the crux of your argument. This principle must be addressed in almost every situation, and I contend that that is the jury's job to consider the facts of the case and decide whether they indicate a person broke the law. The judge is also involved to ensure that the law is properly applied.

I agree, but if the law says withholding of some material fact retroactively nullifies the consent to engage in sex, and that's what we're talking about, then not telling some women you're married could send you to jail for rape. Yes, a smart and informed jury could use jury nullification to acquit, but few jurors know they have that power. Even then the accused man will pay $40,000 and up for his defense. Poor men just go to jail as the Innocence Project has shown to be the case.

The claim that a law might be misapplied is not a very good argument to eliminate or prevent such a law. Any law might be misapplied.

Actually this is one of the primary tests for new laws. That is, what are the unintended consequences. The other is, will it do more harm than good. Any law that would make deceit in obtaining consensual sex grounds for rape charges fails both tests.

There's already major gender bias against men in rape law. The case just decided by the SJC is just days old and already lawmakers are working to change the law. Yet the Innocence Project has proven the wrongful conviction of 7 men in Massachusetts, some spending more than 19 years behind bars, yet nothing is being done to address this far more serious crime. Why is that? I can tell you what I think. It's because "rape" is a call to action among women and politicians wanting their votes pander to them. Apparently being falsely accused, convicted and spending 19 years in prison doesn't concern men all that much. It's a safe bet that many more men are going to find out how stacked the deck is against them if Massachusetts lawmakers add deceit to the rape laws.




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