SciFi Chick wrote:Did you watch the video? She was clearly enjoying herself. And the cops have not, nor do they intend to, bring any charges.
See, that doesn't matter. It's related to what matters, but it doesn't matter. What matters is two things: 1) whether the woman, in her own mind, actually formed consent, and 2) whether the person having sex with the woman, on a "reasonable person standard," had an "honest but mistaken belief" that she consented.
Now, you may call that splitting hairs, but they're important hairs to split. It's important to keep the elements of the offence and defences against that offence separate in legal analysis. Doing so means that 1) the crime of sexual assault (or rape, or whatever you call it) is based entirely on consent. No consent? Rape. Done. And that 2) there is a defence against that crime for individuals accused of rape who (again, on a reasonable person standard) honestly believed that their actions were being consented to.
It seems complicated, but I assure you that it
vastly simplifies things and ensures that victim-blaming and "well, she wanted it" thinking are far less likely to enter into the courtroom. Which is why I disagree with FZ's reductive "she's enjoying it" analysis. It's too simplistic and leaves out too much important context and categorization. It asks the wrong question. It asks "Does she, to outward appearances, seem to be enjoying this? If yes, that is conclusive evidence of consent and there has therefore been no crime committed."
Bad. Incorrect. Why? Because outward appearances have
nothing to do with subjective mental state. There have been cases where this is exactly the issue. Say a woman doesn't consent to intercourse, but she says she does and acts like she does because she's afraid of being harmed if she says no. Is that rape? Asking FZ's question, the answer is no.
Even though someone had sex with her without her informed consent. So now rape
doesn't mean "sex without informed consent."
Okay. So what are the
right questions to ask? Well, 1) "Did this woman, at the time of the intercourse, actually consent to that intercourse?" and 2) "Would a reasonable person, in the same position as the accused rapist, have honestly thought that the woman
did consent?" Consider the same example as I just gave above. What you end up with is two answers: 1) because there was sex without consent, this was a rape, and 2) because there was no reason for the accused to think there was no consent, he has made out a defence to the offence and is therefore not guilty.
Why's that better? Because it preserves
what the offence of sexual assault is (sex without actual consent)
and it takes real-world practicalities (like honestly but wrongly believing that your partner is consenting) into account in determining guilt.
So I
get what FZ's saying. Really, I do. But it's too problematic for me not to disagree with it.
Edit:
FZ: I'll add this to what I said above to answer your question about responsibility while inebriated. The
only question that matters is my first one: was there, at the time of the intercourse, informed consent? If yes, no rape; if no, rape. Period.
When alcohol comes into it, there are three possibilities:
1) The woman is not drunk enough to be unable to form consent, and she in fact consents. This is not rape.
2) The woman is not drunk enough to be unable to form consent, and she in fact does not consent. Keep in mind this is her subjective mental state,
not whether she appears to be enjoying herself or not. This is rape (and is subject to defences - my second question).
3) The woman is drunk enough to be unable to form consent. This is rape (again, subject to defences), since there can be no consent.
Edit 2:
Also, I do realize that this is me being kind of a dick by saying "here's why you're wrong." Not my intent, but it comes across that way. Ugh.