4 ms·

An example of a law written with the (gender neutral) victim's interest in mind is that of statutory rape - you can contain all the consent you like but if the

by cmdkeen 10y ago

An example of a law written with the (gender neutral) victim's interest in mind is that of statutory rape - you can contain all the consent you like but if the person is not viewed as being able to give it then an offence is committed. Attempts to move looking for consent towards it being "engaged and enthusiastic" rather than posing a Yes/No question have potential - though it really needs to become a societal thing before a legal expectation. We don't live in the 50s where a woman was expected to lie back and think of England - it shouldn't be for a single partner to take "reasonable steps to ascertain consent", it should be something you are certain of or you stop and make sure. Not just because it's the right thing to do, but also because you're likely to have much better sex...

cperciva 10y ago
An example of a law written with the (gender neutral) victim's interest in mind is that of statutory rape - you can contain all the consent you like but if the person is not viewed as being able to give it then an offence is committed. Almost. If they were not able to consent (due to age, inebriation, mental illness, etc.) then there was no consent. But if you had a well-founded belief in their ability to consent, then you are not culpable. In Canada it has been held to be unconstitutional for a criminal offence "where it is not open to the accused to exculpate himself by showing that he was free of fault" to have incarceration as a possible punishment; such absolute liability is valid for such things as parking tickets, however. Offences such as statutory rape are instead "strict liability" offences: The prosecution is not required to show intent, but an accused can raise the defence of due diligence. The situation is a bit murkier in the USA, but courts have accepted (see e.g., Kantor) a "good faith" defence even where the legislature has explicitly rejected the mens rea requirement.

by cmdkeen 10y ago

cperciva 10y ago

An example of a law written with the (gender neutral) victim's interest in mind is that of statutory rape - you can contain all the consent you like but if the person is not viewed as being able to give it then an offence is committed. Almost. If they were not able to consent (due to age, inebriation, mental illness, etc.) then there was no consent. But if you had a well-founded belief in their ability to consent, then you are not culpable. In Canada it has been held to be unconstitutional for a criminal offence "where it is not open to the accused to exculpate himself by showing that he was free of fault" to have incarceration as a possible punishment; such absolute liability is valid for such things as parking tickets, however. Offences such as statutory rape are instead "strict liability" offences: The prosecution is not required to show intent, but an accused can raise the defence of due diligence. The situation is a bit murkier in the USA, but courts have accepted (see e.g., Kantor) a "good faith" defence even where the legislature has explicitly rejected the mens rea requirement.