Club PA 2.0 has arrived! If you'd like to access some extra PA content and help support the forums, check it out at patreon.com/ClubPA
The image size limit has been raised to 1mb! Anything larger than that should be linked to. This is a HARD limit, please do not abuse it.
Our new Indie Games subforum is now open for business in G&T. Go and check it out, you might land a code for a free game. If you're developing an indie game and want to post about it, follow these directions. If you don't, he'll break your legs! Hahaha! Seriously though.
Our rules have been updated and given their own forum. Go and look at them! They are nice, and there may be new ones that you didn't know about! Hooray for rules! Hooray for The System! Hooray for Conforming!

Rape, Consent, and the Presumption of Innocence

1101112131416»

Posts

  • _J__J_ Pedant Registered User, __BANNED USERS regular
    inlemur wrote: »
    2) I simply mean that she is not at fault for her own feelings. She has a legitimate right to feel the way she does, in spite of the fact that the other person in the scenario who had an identical, symmetric experience does not feel that way. She has the right, but she is not, in any universal sense, right.

    This was the first thing that popped into my head:


    It's what he says from :16 to :57

    If she was raped, she should think she was raped.
    If she wasn't raped, she shouldn't think she was raped.

    I'm not sure why you maintain that she has a right to be incorrect. If she feels that X occurred, but X did not, in fact, occur, then whence her "right" to maintain a belief that X occurred?

    As The Lord Bertrand Russell says, "Well, there can't be a practical reason for believing what isn't true. That's quite, at least I rule it out as impossible. Either the thing is true or it isn't. If it is true you should believe it. And if it isn't you shouldn't. And if you can't find out whether it's true or whether it isn't you should withold judgement."

    Either she was raped or she was not raped.

    Believing she was raped when she wasn't raped seems...well...what Berty said.

    inlemur wrote: »
    4) This question I think has been addressed many times in the discussion. Putting rape solely into the mind of the victim is incredibly problematic from a legal perspective and also IMO from a moral one.

    Sure. But with your previous statements, you were playing up the victim's...or not "victim" but....one participants "right" to maintain that X was rape even if, factually, X was not rape. And so, etc.
    inlemur wrote: »
    How do I know that it is possible for humans to not be misogynistic in their treatment of sex? I suppose I don't. I would like the world better if that were the case though, so I'm willing to do my part.

    Yeah. My question was "How can you know that things can be other than the way they are?" You answered correct: You can't know that it's possible, but you can hope.

    That's all I was hoping for.
    inlemur wrote: »
    They are different things for the purpose of this discussion, at least. They seem trivial to distinguish and categorize. Natural factors are things like anatomy and pregnancy. Social factors are anything else. Social factors can of course be based on biological considerations, as I elaborated upon earlier. For example, historically polygyny (social custom) is much more common than polyandry (social custom), likely due to the fact that in a polygamous relationship and without modern tools, it is possible to know whose children are whose (biological issue), and in a polyandrous one it is not.

    I was curious because you talk about natural states, or social states, and then talk about socially changing these natural / social states. And I was confused as to what you took to be changeable.

  • jothkijothki Registered User regular
    _J_ wrote: »
    As The Lord Bertrand Russell says, "Well, there can't be a practical reason for believing what isn't true. That's quite, at least I rule it out as impossible. Either the thing is true or it isn't. If it is true you should believe it. And if it isn't you shouldn't. And if you can't find out whether it's true or whether it isn't you should withold judgement."

    In other words, he knows absolutely nothing about human psychology.

  • inlemurinlemur Registered User
    _J_ wrote: »
    inlemur wrote: »
    2) I simply mean that she is not at fault for her own feelings. She has a legitimate right to feel the way she does, in spite of the fact that the other person in the scenario who had an identical, symmetric experience does not feel that way. She has the right, but she is not, in any universal sense, right.

    This was the first thing that popped into my head:

    It's what he says from :16 to :57

    If she was raped, she should think she was raped.
    If she wasn't raped, she shouldn't think she was raped.

    I'm not sure why you maintain that she has a right to be incorrect. If she feels that X occurred, but X did not, in fact, occur, then whence her "right" to maintain a belief that X occurred?

    As The Lord Bertrand Russell says, "Well, there can't be a practical reason for believing what isn't true. That's quite, at least I rule it out as impossible. Either the thing is true or it isn't. If it is true you should believe it. And if it isn't you shouldn't. And if you can't find out whether it's true or whether it isn't you should withold judgement."

    Either she was raped or she was not raped.

    Believing she was raped when she wasn't raped seems...well...what Berty said.

    I'm not saying that she has a right to believe she was raped, I'm saying that her emotions are not illegitimate somehow even if they are misdirected or preventable.

    I'll draw an analogy; it will be flawed. Some religious dogmas assert that we are born sinful; that we are broken, guilty beings just for existing. In fact, I had a friend in middle school who attended a somewhat strict church who came to take certain verses quite seriously. He was so concerned with his sinful nature that he refused to speak for a period of several months for fear that his tongue might offend him. His emotional state, while seemingly absurd to those of us who are not of such conviction, was not worthy of ridicule in spite of this. He was a real tormented person whose feelings did not deserve dismissal. I am advocating social change to prevent this sort of preventable anguish. I went into detail about a particular symmetric scenario and the feelings associated with it in order to preemptively refute a point I am often accused of (and in fact was accused of in the very next post): that I am telling these people who feel real anguish that they should suck it up and deal with it. That is not the case that I am making. I am making the case that we can change society for the better by removing the inherent assumption that having sex in anything but the most traditional of situations is damaging to women. This applies to our notions of consent, it applies to the idea of the slut versus the stud, and it applies in countless other areas where double standards are applied. Thinking that women's sex is special is bad for women, and consequently bad for men. In the intoxicated boy/girl hypothetical I described, the villain is not the boy, but society.
    inlemur wrote: »
    They are different things for the purpose of this discussion, at least. They seem trivial to distinguish and categorize. Natural factors are things like anatomy and pregnancy. Social factors are anything else. Social factors can of course be based on biological considerations, as I elaborated upon earlier. For example, historically polygyny (social custom) is much more common than polyandry (social custom), likely due to the fact that in a polygamous relationship and without modern tools, it is possible to know whose children are whose (biological issue), and in a polyandrous one it is not.

    I was curious because you talk about natural states, or social states, and then talk about socially changing these natural / social states. And I was confused as to what you took to be changeable.

    The difference is not in their immutability or lack thereof, but perhaps in the mechanism that can affect change. Natural factors can only be changed by science and technology, whereas social factors may also be changed by other things. The only relevant changes to natural factors that I can think of are the previously mentioned female birth control and paternity testing. Other reproductive science would qualify as well.

    XBL - remura
  • bowenbowen How you doin'? Registered User regular
    jothki wrote: »
    _J_ wrote: »
    As The Lord Bertrand Russell says, "Well, there can't be a practical reason for believing what isn't true. That's quite, at least I rule it out as impossible. Either the thing is true or it isn't. If it is true you should believe it. And if it isn't you shouldn't. And if you can't find out whether it's true or whether it isn't you should withold judgement."

    In other words, he knows absolutely nothing about human psychology.

    Pretty much. Humans are a bit more complex than on/off switches.

    Kind of like how emotions make someone claim rape just because they were pissed off at someone, like maybe their dad divorcing their mother.

    Ladies.
  • AstaerethAstaereth In the belly of the beastRegistered User regular
    Having finally caught up with the entire thread, I feel that there's been a weird shift here. Y'all began by discussing legalities, and there appeared to be some agreement on the notion that having sex with someone who is intoxicated (or otherwise incapacitated), even if they appear to consent, ranges from morally questionable to morally wrong. The argument was whether said morally discomforting actions should be criminalized or not.

    In the past few pages, however, legality has largely left the discussion and now there seems to be some agreement on the notion that sex with someone who is intoxicated (or otherwise incapacitated), even if they appear to consent, doesn't actually harm them beyond "feelings" engendered by certain social cues which we'd all be better off without.

    Have I mischaracterized the discussion? Or is it that the actions were morally problematic despite the absence of real harm? Or is it that in the social cue-less future, sans these bad feelings, the actions will no longer be morally problematic?

    I personally feel that people shouldn't have sex with people who are intoxicated (or otherwise incapacitated), even if the latter consent, and that criminalizing this may be one way to discourage the practice. That form of sex has more consequences than simply the feeling that one has been taken advantage of, since sex carries with it certain risks (pregnancy, STDs) and I feel it's ill-advised to expose someone to those risks when their judgment may not be sufficient to weigh the risks. The same way I would hesitate to have sex with someone who drunkenly tells me, "I'm ovulating, have sex with me so I can have a baby" or "You've got HIV? Hop on, no need for protection!" Would any of you consider prosecuting somebody with HIV who deliberately has sex with people hovering in the sweet spot of "too drunk to ask for protection" and "not drunk enough to pass out"?

    ACsTqqK.jpg
  • Apothe0sisApothe0sis Have you ever questioned the nature of your reality? Registered User regular
    I think that misconstrues the morality and conclusions of the thread.

    Tide goes in. Tide goes out.
    Es-annon NEVA 4GET
  • bowenbowen How you doin'? Registered User regular
    edited April 2012
    If the person with the HIV was the drunk one, absolutely, that's malicious. I'd still prosecute the person with HIV if they weren't the drunk one, that's still malicious. We do this all the time with people who aren't drunk, why would it change then?

    Would I let two consenting adults attack each other with felonious assault charges because they were drunk and really regret their actions? No. Just like I wouldn't let someone who drinks and drives get away with that and injuring someone because they weren't aware of their actions, or really, the consequences and couldn't weigh it properly.

    bowen on
    Ladies.
  • SticksSticks Registered User regular
    edited April 2012
    The "feelings" argument is really tangential to consent unless you take the somewhat awkward position that consent can be revoked after the fact. With regard to consent, the consensus is (or should be) that shouldn't take advantage of people that are incoherent. If they've had a few drinks but are willing and eager to participate, then personally I have no moral objection to having sex in that situation. The difficulty, as always, is in the details. That determination would have to be made on a case by case basis and involves good judgement. This is very difficult to carry over into a legal framework for prosecuting rapists that take advantage of people that aren't willing or able to engage in sex at that particular time.

    Sticks on
  • mcdermottmcdermott Registered User regular
    Astaereth wrote: »
    Having finally caught up with the entire thread, I feel that there's been a weird shift here. Y'all began by discussing legalities, and there appeared to be some agreement on the notion that having sex with someone who is intoxicated (or otherwise incapacitated), even if they appear to consent, ranges from morally questionable to morally wrong. The argument was whether said morally discomforting actions should be criminalized or not.

    In the past few pages, however, legality has largely left the discussion and now there seems to be some agreement on the notion that sex with someone who is intoxicated (or otherwise incapacitated), even if they appear to consent, doesn't actually harm them beyond "feelings" engendered by certain social cues which we'd all be better off without.

    Have I mischaracterized the discussion? Or is it that the actions were morally problematic despite the absence of real harm? Or is it that in the social cue-less future, sans these bad feelings, the actions will no longer be morally problematic?

    I personally feel that people shouldn't have sex with people who are intoxicated (or otherwise incapacitated), even if the latter consent, and that criminalizing this may be one way to discourage the practice. That form of sex has more consequences than simply the feeling that one has been taken advantage of, since sex carries with it certain risks (pregnancy, STDs) and I feel it's ill-advised to expose someone to those risks when their judgment may not be sufficient to weigh the risks. The same way I would hesitate to have sex with someone who drunkenly tells me, "I'm ovulating, have sex with me so I can have a baby" or "You've got HIV? Hop on, no need for protection!" Would any of you consider prosecuting somebody with HIV who deliberately has sex with people hovering in the sweet spot of "too drunk to ask for protection" and "not drunk enough to pass out"?

    Well, I've tried to keep legality in the discussion because the only thing I'm really talking about here is what should legally be called "rape" in our criminal justice system. While I find it problematic to refer to things in conversation as "rape" that the law does not, from a social standpoint, that is theoretically your right. Well, I suppose slander might come into play, if you're unclear as to the actions you're defining as "rape" (but which aren't legally).

    And yes, if indeed the negative psychological impact is largely rooted in social norms and if those norms were removed (theoretically removing the psychological impact or at least most of it), I don't see how taking advantage of somebody who is intoxicated (but willing) would necessarily be immoral. I mean, it's largely immoral because you've hurt the other person. Aside from that, what's the issue? I guess it'd still be a bit selfish, depending on your own state of mind at the time.

    I'm also leery of using the criminal code, let alone felony charges, to discourage behavior that is merely "immoral." You should be too. Lots of people think lots of things are "immoral."

    As far as risks go, they're really not that much worse than the risks of other poor drunken choices people make. Pregnancy, in particular...I mean, assuming feminism is playing any role in the argument, I don't see how you can treat pregnancy as, simultaneously, a condition that women should have the absolute and unilateral right to control (and end) and some grave risk of harm. It can't really be both. It can be harm, mind you, but not a harm that's any more grave than any other stupid drunken decisions.

  • zakkielzakkiel Registered User regular
    Since the last post on this thread, there have been a lot of new developments regarding rape, consent, and standards of proof.
    1. Using Title IX, the Obama administration has directed that schools use a preponderance of evidence standard to evaluate rape accusations
    2. Many states are considering making affirmative consent the law
    3. Affirmative consent statutes are drawing some opposition within the American Law Institute:
      In a memo that has now been signed by about 70 institute members and advisers, including Judge Gertner, readers have been asked to consider the following scenario: “Person A and Person B are on a date and walking down the street. Person A, feeling romantically and sexually attracted, timidly reaches out to hold B’s hand and feels a thrill as their hands touch. Person B does nothing, but six months later files a criminal complaint. Person A is guilty of ‘Criminal Sexual Contact’ under proposed Section 213.6(3)(a).”... The hypothetical crime cobbles together two of the draft’s key concepts. The first is affirmative consent. The second is an enlarged definition of criminal sexual contact that would include the touching of any body part, clothed or unclothed, with sexual gratification in mind. As the authors of the model law explain: “Any kind of contact may qualify. There are no limits on either the body part touched or the manner in which it is touched.” So if Person B neither invites nor rebukes a sexual advance, then anything that happens afterward is illegal. “With passivity expressly disallowed as consent,” the memo says, “the initiator quickly runs up a string of offenses with increasingly more severe penalties to be listed touch by touch and kiss by kiss in the criminal complaint.”
    4. A considerable number of accused men are suing their schools, claiming their due process rights were violated. The most newsworthy are probably the University of Michigan case, the Occidental college case, and the Columbia case (the mattress case). That last one is about harassment rather than due process.
    5. The Rolling Stone article - doubt a link is necessary for that one.
    6. Related: a Northwestern professor who wrote an opinion article about "sexual paranoia" on campuses. She received two Title IX complaints in response, which the university investigated (they were ultimately dismissed). Funny thing though. During the process, she wasn't allowed to have a lawyer but was allowed to have a colleague speak as a character witness. Said colleague promptly received his own Title IX complaint.

    The general national trend is clearly in the direction the OP wanted to go, and at a rapid rate: a diminished burden of proof for rape accusations, an expanding definition of rape (and all sexual misconduct), and reduced due process protections for the accused.

    Account not recoverable. So long.
  • ElJeffeElJeffe Moderator, ClubPA mod
    Hello! Since this thread is three years old, I would prefer you make a new thread instead of necroposting. Feel free to c&p that post into a new OP.

    Maddie: "I named my feet. The left one is flip and the right one is flop. Oh, and also I named my flip-flops."

    I make tweet.
This discussion has been closed.