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"The legal verdict on whether sex is non consensual still often rests on the perspective of the alleged perpetrator rather than the experience of the victim."

"The legal verdict on whether sex is non consensual still often rests on the perspective of the alleged perpetrator rather than the experience of the victim." I'm not sure I entirely understand this quote to its fullest. It is being argued that it is the experience of the victim that matters if sex is consensual. Isn't this quote logically wrong? Consensual by definitions means both parties agreed. But is the author arguing that it is the victim's opinion that makes it consensual only? How would that work in a situation where both parties start having sex, then it stops being consensual half way (from the victim changing their mind). The victim changes their minds but says nothing, and continues as before during the act. From the authors opinion, the victim experienced rape, hence the perpetrator should be convicted. But from the perpetrator's perspective they have no knowledge the partner's consent was revoked. As far as I understand, an accusation should examine a perpetrator's perspective more, since that person is being charged with a crime. Why is the author arguing that the victim's experience is what the trial should hinge upon? If the victim raised an accusation, that is enough! It is the perpetrator that is being tried and attempted to be found guilty, hence the trial focuses on the perpetrator's actions and perspective. Can someone better weigh in? This seems like one of those thoughts that sounds profound, but does not stand up to scrutiny.

gozur88 10y ago
>As far as I understand, an accusation should examine a perpetrator's perspective more, since that person is being charged with a crime. It depends on the way the law is written. You can certainly be guilty of criminal offenses absent any understanding or intent.
- CthulhuOvermind 10y ago
  In the case of sex, it is an action that is legal(or not) depending on consent. In the example I gave earlier, the female has obtained consent from her partner. The male changes his mind half-way through but does not stop or act in any different way. In cases such as these, my understanding(and gut feeling really) is that since knowledge of consent is what makes an action legal, the person had no knowledge consent was revoked, and cannot be charged for something that is impossible to avoid being guilty of?
  - chris_wot 10y ago
    In that case, consent was mutually given and if the other party then changes their mind and asks the other to stop, then consent ceases, right? If the other party is not signalled that consent was withdrawn, then it is, in my mind, a bit tricky. It means that consent was no longer there, but the other party didn't have any way of knowing. I think it's fair to say that no assault occurred, but it's still damaging to the one no longer wanting to have sex. In that case it's really unfortunate for both parties :-(
    - taneq 10y ago
      How is this in any way tricky? Consent is something the giving of which involves clear communication, not just something that exists in the mind of one of the parties. Likewise, consent can't just 'cease', it has to be withdrawn, which involves communicating the withdrawal to all parties concerned. It's like signing up for a phone contract, then deciding you don't want it any more and stopping using the phone. If you don't tell the provider then they're completely within their rights to keep billing you.
      - chris_wot 10y ago
        Fair point.
  - cauterized 10y ago
    But it's also worth mentioning that consent does have to be renewed between each act. Just because he consented last night doesn't mean she can assume consent tonight without a fresh affirmative indication of consent. (Which doesn't have to be verbal, necessarily, but should be enthusiastic participation rather than simply submission to a partner's overtures.)
mc32 10y ago
Those situations are more edge cases and they are quite difficult because knowing what we know about the mind, it can play tricks. For example, we may feel very happy at one moment, but something could transpire to change the feeling and that may cause us to retroactively view the initial consent (maybe they thought the person was initially someone else) in a different light --but at the same time, most people give the benefit of the doubt internally (that is, even if they are truly aggrieved, they are likely to interpret the violation as their own fault, rather than blame the perp) It can become murky. To make the point less gender political, view this as something which happens to a same-sex couple, so that the dynamics are less obvious about sexual politics and more about either force, misinterpretation, misrepresentation or confusion or a mixture of all the above.
- CthulhuOvermind 10y ago
  > To make the point less gender political, view this as something which happens to a same-sex couple, so that the dynamics are less obvious about sexual politics and more about either force, misinterpretation, or confusion or a mixture of all the above. I like your suggestion about viewing this as same-sex couple situation. I wrote my post specifically gender-neutral so as to prepare for the inevitable accusation of sexism, and then reveal that in my example the female was the perpetrator. But I think your opinion is much better
  - chris_wot 10y ago
    Though it's much rarer, it is possible for a woman to rape a man.
    - danieltillett 10y ago
      It is not that rare when using the current standard of consent. If you include any man who has sex while drunk (and is hence incapable of giving consent) then rape of men by women is very common.
      - chris_wot 10y ago
chris_wot 10y ago
That's not the argument, I'm not sure how you got that from the article. In fact, all it is doing is criticising verdicts that clear perpetrators of rape if they think or say that they thought the other party was consenting. In this regard, though the article doesn't actually say this, I think it's fairly logical that if the one making the claim they were raped wasn't consenting. Thus in all claims of rape there was one party who wasn't consenting to have sex, ergo there is no "two consenting adults"! Let me put it this way: your own statement is that "Consensual by definitions (sic) means both parties agreed". If you agree this is the correct definition, then if the victim did not agree, even though the other party claims they did, then that isn't consensus. Your idea is not about consensual sex - your idea is that consensus was percieved by one party, when in fact it wasn't. And again, that's not consensus because actual consensus to have sex needs to made by both parties in the act.
vehementi 10y ago
I don't think they literally mean experience as in "they secretly felt non-consensual after a while and kept it to themselves", but rather the emphasis that the system is unfair and weighs the perpetrator's opinion more heavily than the victim's
- cmdkeen 10y ago
  The justice system is unfair in that it requires "proof beyond reasonable doubt" or similar. Two wrongs don't make a right - if rape has occurred then it cannot be undone, but the potential miscarriage of justice has yet to occur so it is right that the system protects against that. In the UK I've been on a jury for two sexual offence trials. The awesome (in the biblical sense) sense of responsibility we had was keenly felt and plenty of deliberation was had to double and triple check that we were, in the judge's words "sure" in finding a guilty verdict. For its faults, and it has many, the Scottish system of three verdicts with "not proven" as another option makes some sense in these cases. In many instances there just isn't enough evidence and a plausible witness on each side of the case.
oconnore 10y ago
I think the discrepancy comes from advocacy thought vs. legal thought [1]. When advocating for rape victims, who are severely disadvantaged in these situations, you might make a statement like "we need to listen to the woman's perspective". As has been pointed out, that statement is a heuristic on several levels: the woman is often, but not always, the victim; and from a legal standpoint, there are of course other things to consider. It's still a useful and generally true statement. When you're listening to "megaphone speech", you have to understand the context to understand the message. That can be difficult, because in most cases if you already understood the context, you wouldn't need to listen to the message. Try. The flip side is also true, when activists win, and are given real institutional power, they must stop relying on context and start being precise ("gavel speech") with their intentions. 1: http://harvardlawreview.org/2015/02/trading-the-megaphone-for-the-gavel-in-title-ix-enforcement-2/ http://harvardlawreview.org/2015/02/trading-the-megaphone-fo...
- fsaneq2 10y ago
  > "When advocating for rape victims, who are severely disadvantaged in these situations" Curious if you have a way to back up the claim the accusers are severely disadvantaged? Based on how it is at Stanford and many universities in the US, the system is certainly stacked in the accuser's favor. See, for example: https://www.thefire.org/stanford-trains-student-jurors-that-acting-persuasive-and-logical-is-sign-of-guilt-story-of-student-judicial-nightmare-in-todays-new-york-post-2/ https://www.thefire.org/stanford-trains-student-jurors-that-.... This leads to terrible mistakes, Joe Lonsdale comes to mind (it was since reversed, but the damage is likely done by then). Edit: to downvoters, care to explain why..?
  - tomp 10y ago
    The accusers (victims) are disadvantaged in court (i.e. where facts matter and where there is a very high standard of proof), whereas the accused are disadvantaged outside of courts (and in college "kangaroo" courts), where the standards of proof are much lower and and perceptions matter more than facts. "Rape culture" advocates claim that courts should become more like kangaroo courts.
  - 10y ago
SeanDav 10y ago
In the UK, there have been several examples of a woman getting drunk, having apparently consensual sex and then deciding the next day that she was raped. The male now has to prove that sex was consensual. The woman gets lifetime anonymity and the male has to undergo a public trial, almost always with commensurate loss of reputation and employment, even if later proven to be innocent. There is a very recent example where a female barrister (senior lawyer) was involved in a public sex act with a male. She accepted a police caution for public lewdness the next day. She then discovered that the press were about to publish the story and very cynically, to stop her name from becoming public, she reported that in fact she had been raped. She was immediately given lifelong anonymity and the male was exposed to public trial.
- chris_wot 10y ago
  Don't have sex with someone who is under the influence of drugs or alcohol? Edit: I think you are referring to this: http://www.thesun.co.uk/sol/homepage/news/6958799/City-lawyer-romped-with-leading-barrister-outside-London-Waterloo-station-during-rush-hour.html http://www.thesun.co.uk/sol/homepage/news/6958799/City-lawye... If no rape is found to have occurred, which seems likely given there were police witnesses, then that lady is going to be in a world of bother. Firstly, it will have meant that she has appealed against a sentence, which means if it didn't occur she has perjured herself. Secondly, it's pretty clear that a false accusation like this is slanderous and the offended party would be well within their rights to sue. And thirdly, if a criminal conviction for perjury is recorded against the barrister, then I'd say it's likely she won't he able to practice law again.
  - mirimir 10y ago
    Pretty much. But damn, if I were a young male today, I would probably require proof of consent from prospective partners. Maybe a signed affidavit, blood sample and affidavits of competent witnesses. Or maybe just forget the whole premarital sex thing. Too dangerous anymore, in so many ways.
    - maaku 10y ago
reso 10y ago
No other comments have directly addressed the quote you referenced. My interpretation is it is saying that rape cases are prosecuted about the intent of the perpetrator. Aka, they are convicted if it can be shown that they intended to commit rape, or knowingly committed rape, and acquited otherwise. This puts the standard of conviction much higher than other crimes, because lots of crimes can be committed unknowingly (theft, embezzlement, even homicide), the intent of the criminal having no bearing on their guilt or not. In these cases the experience of the victim bears strongly on the case: the person who's car was stolen, the company who's funds were embezzled or the (deceased) victim of negligent homicide. The speaker is saying that courts do not weight victims' experiences appropriately, if at all, in rape cases.
- DanBC 10y ago
  You can't "unknowingly" commit theft (intent to dishonestly permanently deprive), emezzlement (intent to deceive) or murder (intent to unlawfully kill someone).
  - reso 10y ago
    As a clear counterexample: you can certainly commit negligent homicide without intending to.
    - anu_gupta 10y ago
      Negligent homicide is not murder.
      - reso 10y ago
        The language my top comment used was "homocide" and "negligent homocide" while the responder changed it to "murder". The point is that in the view of the justice system, sometimes it doesn't matter if you meant to kill someone or not--you still killed someone.
        anu_gupta 10y ago
Lazare 10y ago
Essentially yes. Rape is not a "strict liability" crime, which means that intent is an element of the crime. By definition, "the perspective of the alleged perpetrator" is a key element of the crime, just as it is with murder, assault, robbery, and a host of other crimes. You can't just say "Alice killed Bob, Alice is a murderer!", you have to stop and ask what Alice was thinking or intending. It might not even be a crime, it might be negligence, manslaughter, etc. (Well, sort of. Technically it's the perspective of "reasonable person" in the alleged perpetrator's position, which is a well-defined legal fiction. As Wikipedia notes correctly but unhelpfully, "the 'reasonable person' is not an average person or a typical person".) The author is correct: Rape cases, by their nature, do tend to revolve around discussions of what the accused reasonably believed about the other parties consent. The mistake is in suggesting that there's anything we could (or should) do to change it.

gozur88 10y ago

>As far as I understand, an accusation should examine a perpetrator's perspective more, since that person is being charged with a crime. It depends on the way the law is written. You can certainly be guilty of criminal offenses absent any understanding or intent.

CthulhuOvermind 10y ago
In the case of sex, it is an action that is legal(or not) depending on consent. In the example I gave earlier, the female has obtained consent from her partner. The male changes his mind half-way through but does not stop or act in any different way. In cases such as these, my understanding(and gut feeling really) is that since knowledge of consent is what makes an action legal, the person had no knowledge consent was revoked, and cannot be charged for something that is impossible to avoid being guilty of?
- chris_wot 10y ago
  In that case, consent was mutually given and if the other party then changes their mind and asks the other to stop, then consent ceases, right? If the other party is not signalled that consent was withdrawn, then it is, in my mind, a bit tricky. It means that consent was no longer there, but the other party didn't have any way of knowing. I think it's fair to say that no assault occurred, but it's still damaging to the one no longer wanting to have sex. In that case it's really unfortunate for both parties :-(
  - taneq 10y ago
    How is this in any way tricky? Consent is something the giving of which involves clear communication, not just something that exists in the mind of one of the parties. Likewise, consent can't just 'cease', it has to be withdrawn, which involves communicating the withdrawal to all parties concerned. It's like signing up for a phone contract, then deciding you don't want it any more and stopping using the phone. If you don't tell the provider then they're completely within their rights to keep billing you.
    - chris_wot 10y ago
      Fair point.
- cauterized 10y ago
  But it's also worth mentioning that consent does have to be renewed between each act. Just because he consented last night doesn't mean she can assume consent tonight without a fresh affirmative indication of consent. (Which doesn't have to be verbal, necessarily, but should be enthusiastic participation rather than simply submission to a partner's overtures.)

mc32 10y ago

Those situations are more edge cases and they are quite difficult because knowing what we know about the mind, it can play tricks. For example, we may feel very happy at one moment, but something could transpire to change the feeling and that may cause us to retroactively view the initial consent (maybe they thought the person was initially someone else) in a different light --but at the same time, most people give the benefit of the doubt internally (that is, even if they are truly aggrieved, they are likely to interpret the violation as their own fault, rather than blame the perp) It can become murky. To make the point less gender political, view this as something which happens to a same-sex couple, so that the dynamics are less obvious about sexual politics and more about either force, misinterpretation, misrepresentation or confusion or a mixture of all the above.

CthulhuOvermind 10y ago
> To make the point less gender political, view this as something which happens to a same-sex couple, so that the dynamics are less obvious about sexual politics and more about either force, misinterpretation, or confusion or a mixture of all the above. I like your suggestion about viewing this as same-sex couple situation. I wrote my post specifically gender-neutral so as to prepare for the inevitable accusation of sexism, and then reveal that in my example the female was the perpetrator. But I think your opinion is much better
- chris_wot 10y ago
  Though it's much rarer, it is possible for a woman to rape a man.
  - danieltillett 10y ago
    It is not that rare when using the current standard of consent. If you include any man who has sex while drunk (and is hence incapable of giving consent) then rape of men by women is very common.
    - chris_wot 10y ago

chris_wot 10y ago

That's not the argument, I'm not sure how you got that from the article. In fact, all it is doing is criticising verdicts that clear perpetrators of rape if they think or say that they thought the other party was consenting. In this regard, though the article doesn't actually say this, I think it's fairly logical that if the one making the claim they were raped wasn't consenting. Thus in all claims of rape there was one party who wasn't consenting to have sex, ergo there is no "two consenting adults"! Let me put it this way: your own statement is that "Consensual by definitions (sic) means both parties agreed". If you agree this is the correct definition, then if the victim did not agree, even though the other party claims they did, then that isn't consensus. Your idea is not about consensual sex - your idea is that consensus was percieved by one party, when in fact it wasn't. And again, that's not consensus because actual consensus to have sex needs to made by both parties in the act.

vehementi 10y ago

I don't think they literally mean experience as in "they secretly felt non-consensual after a while and kept it to themselves", but rather the emphasis that the system is unfair and weighs the perpetrator's opinion more heavily than the victim's

cmdkeen 10y ago
The justice system is unfair in that it requires "proof beyond reasonable doubt" or similar. Two wrongs don't make a right - if rape has occurred then it cannot be undone, but the potential miscarriage of justice has yet to occur so it is right that the system protects against that. In the UK I've been on a jury for two sexual offence trials. The awesome (in the biblical sense) sense of responsibility we had was keenly felt and plenty of deliberation was had to double and triple check that we were, in the judge's words "sure" in finding a guilty verdict. For its faults, and it has many, the Scottish system of three verdicts with "not proven" as another option makes some sense in these cases. In many instances there just isn't enough evidence and a plausible witness on each side of the case.

oconnore 10y ago

I think the discrepancy comes from advocacy thought vs. legal thought [1]. When advocating for rape victims, who are severely disadvantaged in these situations, you might make a statement like "we need to listen to the woman's perspective". As has been pointed out, that statement is a heuristic on several levels: the woman is often, but not always, the victim; and from a legal standpoint, there are of course other things to consider. It's still a useful and generally true statement. When you're listening to "megaphone speech", you have to understand the context to understand the message. That can be difficult, because in most cases if you already understood the context, you wouldn't need to listen to the message. Try. The flip side is also true, when activists win, and are given real institutional power, they must stop relying on context and start being precise ("gavel speech") with their intentions. 1: http://harvardlawreview.org/2015/02/trading-the-megaphone-for-the-gavel-in-title-ix-enforcement-2/ http://harvardlawreview.org/2015/02/trading-the-megaphone-fo...

fsaneq2 10y ago
> "When advocating for rape victims, who are severely disadvantaged in these situations" Curious if you have a way to back up the claim the accusers are severely disadvantaged? Based on how it is at Stanford and many universities in the US, the system is certainly stacked in the accuser's favor. See, for example: https://www.thefire.org/stanford-trains-student-jurors-that-acting-persuasive-and-logical-is-sign-of-guilt-story-of-student-judicial-nightmare-in-todays-new-york-post-2/ https://www.thefire.org/stanford-trains-student-jurors-that-.... This leads to terrible mistakes, Joe Lonsdale comes to mind (it was since reversed, but the damage is likely done by then). Edit: to downvoters, care to explain why..?
- tomp 10y ago
  The accusers (victims) are disadvantaged in court (i.e. where facts matter and where there is a very high standard of proof), whereas the accused are disadvantaged outside of courts (and in college "kangaroo" courts), where the standards of proof are much lower and and perceptions matter more than facts. "Rape culture" advocates claim that courts should become more like kangaroo courts.
- 10y ago

SeanDav 10y ago

In the UK, there have been several examples of a woman getting drunk, having apparently consensual sex and then deciding the next day that she was raped. The male now has to prove that sex was consensual. The woman gets lifetime anonymity and the male has to undergo a public trial, almost always with commensurate loss of reputation and employment, even if later proven to be innocent. There is a very recent example where a female barrister (senior lawyer) was involved in a public sex act with a male. She accepted a police caution for public lewdness the next day. She then discovered that the press were about to publish the story and very cynically, to stop her name from becoming public, she reported that in fact she had been raped. She was immediately given lifelong anonymity and the male was exposed to public trial.

chris_wot 10y ago
Don't have sex with someone who is under the influence of drugs or alcohol? Edit: I think you are referring to this: http://www.thesun.co.uk/sol/homepage/news/6958799/City-lawyer-romped-with-leading-barrister-outside-London-Waterloo-station-during-rush-hour.html http://www.thesun.co.uk/sol/homepage/news/6958799/City-lawye... If no rape is found to have occurred, which seems likely given there were police witnesses, then that lady is going to be in a world of bother. Firstly, it will have meant that she has appealed against a sentence, which means if it didn't occur she has perjured herself. Secondly, it's pretty clear that a false accusation like this is slanderous and the offended party would be well within their rights to sue. And thirdly, if a criminal conviction for perjury is recorded against the barrister, then I'd say it's likely she won't he able to practice law again.
- mirimir 10y ago
  Pretty much. But damn, if I were a young male today, I would probably require proof of consent from prospective partners. Maybe a signed affidavit, blood sample and affidavits of competent witnesses. Or maybe just forget the whole premarital sex thing. Too dangerous anymore, in so many ways.
  - maaku 10y ago

reso 10y ago

No other comments have directly addressed the quote you referenced. My interpretation is it is saying that rape cases are prosecuted about the intent of the perpetrator. Aka, they are convicted if it can be shown that they intended to commit rape, or knowingly committed rape, and acquited otherwise. This puts the standard of conviction much higher than other crimes, because lots of crimes can be committed unknowingly (theft, embezzlement, even homicide), the intent of the criminal having no bearing on their guilt or not. In these cases the experience of the victim bears strongly on the case: the person who's car was stolen, the company who's funds were embezzled or the (deceased) victim of negligent homicide. The speaker is saying that courts do not weight victims' experiences appropriately, if at all, in rape cases.

DanBC 10y ago
You can't "unknowingly" commit theft (intent to dishonestly permanently deprive), emezzlement (intent to deceive) or murder (intent to unlawfully kill someone).
- reso 10y ago
  As a clear counterexample: you can certainly commit negligent homicide without intending to.
  - anu_gupta 10y ago
    Negligent homicide is not murder.
    - reso 10y ago
      The language my top comment used was "homocide" and "negligent homocide" while the responder changed it to "murder". The point is that in the view of the justice system, sometimes it doesn't matter if you meant to kill someone or not--you still killed someone.
      - anu_gupta 10y ago

Lazare 10y ago

Essentially yes. Rape is not a "strict liability" crime, which means that intent is an element of the crime. By definition, "the perspective of the alleged perpetrator" is a key element of the crime, just as it is with murder, assault, robbery, and a host of other crimes. You can't just say "Alice killed Bob, Alice is a murderer!", you have to stop and ask what Alice was thinking or intending. It might not even be a crime, it might be negligence, manslaughter, etc. (Well, sort of. Technically it's the perspective of "reasonable person" in the alleged perpetrator's position, which is a well-defined legal fiction. As Wikipedia notes correctly but unhelpfully, "the 'reasonable person' is not an average person or a typical person".) The author is correct: Rape cases, by their nature, do tend to revolve around discussions of what the accused reasonably believed about the other parties consent. The mistake is in suggesting that there's anything we could (or should) do to change it.