Rape

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There is currently a great discussion in Sweden about rape and how the law views it and how the courts apply it.

The public outrage is because people have not been sentenced for rape when the woman/victim have been intoxicated. The consenus among the populace seems to be that if a woman reports a rape then the man (or as have been the case in a few instances, men) should more or less automatically be sentenced for rape.

The problem as the courts have seen it is that if there are not any phyisical evidence (bruises, cuts, wounds etc) it is a matter of word against word and according to the law it is extremely difficult to sentence someone in such cases. At times there isnt even a word against word but the woman has woken up beside someone she does not know, remembering nothing but having a distinct feel that sex have been had, and then reporting the man/men to the police for rape.

In the case where it is word vs word the courts try to gouge the character of the people involved but then there is a public outrage that a rape victim has to suffer to be questioned by a court and have her behaviour scrutinized. Yes, that is insensitive and callous but in my opinion it might be the only way to get the man sentenced if he is guilty and a way to get him off if the woman is lying.

The court system is buckling under the public outrage and it seems like parliment is about to change the law to make it easier to sentence people for rape. I think this is outrageous, people have a gut reaction towards rape and dont think, if they get their will through all it would take to get a man sentenced for rape is an accusation. Sex while intoxicated would also be more or less illegal unless the woman decides to not press charges, there is pressure to automatically sentence a man having sex with a drunk woman if she claims she didnt know what she was doing.

For me this entire debate is scornful and disrespectful towards women as it completely bereaves women from any responsibility and treat them as people unable to take care of themselves. The way it treats every single man as a ticking rape bomb is just too much to even think about.

What I really want to know is how you think rape cases where it is word against word should be handled?

 

It all has to do with circumstances. A woman waking up with a "feeling" something happened could be the victim of a date-rape drug -- it doesn't stay in the system long and unless she gets an immediate blood test there may never be any proof. Should the man be let go? Once again, it's "he said, she said" but in this case you have a sexual predator who needs to be put away for a long time.

The woman is also on trial in a rape case for just the reasons you addressed -- I don't know if it's right or wrong, but it does provide that safety valve to find those false accusations. Most rape victims are not willing to put themselves through such scrutiny, let alone those women who are being dishonest.

It's a terrible system, too bad sodium pentothal can't be used.

For the record -- when a woman says no it's rape. If she's said yes before, if she's nude, if she's married to you, if you've even started to go at it -- none of those things matter, when she says no it's rape.

 

Yes, but how to prove the daterap drug? Sure the man needs to be behind bars but what if he just picked up a drunk chick who was very keen on it at the time?

As for the last instance, how to prove it is rape unless there are wounds? A man who happens to lack sensitivity and is your normal male pig might live in the illusion that a whispered "no" can be discounted but if he gets a slap across the face and screamed "NO!" he would need to be rapist to continue. Sadly some people still lack the communicative abilities to take hints and until then I am afraid that with some men it might need a bit more than a silent no to get them off. It isnt right but I still wouldnt want to sentence the man in such a case for rape.

The saddest thing is that I have heard as many if not more stories about women making up that one guy or another raped them, could be for various reasons everything from jealousy to vengeance to whatever, than cases where it really was rape. Cases where the woman afterwards have told the truth. It is these cases which sadly makes it nescessary to doubt the word of a woman who may have been subjected to the worst moment in her life.

 

A huge part of the problem is that generally, women are raped by men who they know, and typically there are no witnesses. Courtesy of persistent "rape myths", a disproportionate amount of suspected rapists either never go to trial or are acquitted, and that's not even counting the so-called "dark figure" of rape, which are those rapes that are not reported.

EDIT: Thankfully in Victoria, if a person is severely intoxicated, they cannot be ruled to have consented to sex, since they do not have the ability to form rational consent, and thus, excessive consumption of alcohol is not a stand-alone defence to rape.

There seems to be an (unfair) assumption that a woman who claims rape should meet certain criteria in order to be taken and treated seriously:

1. physical evidence of resistance, such as cuts or bruising - the standard used to be almost "struggle unto death", which has officially been relaxed, but continues to exist;

2. she should report it immediately - despite the fact that she's probably been raped by a boyfriend, husband, friend or relative and is almost certainly in shock and the investigation and examination will not improve matters;

3. she should be a "good" woman; that is, she really shouldn't have been wearing that skirt, or drinking that much, or smoking that joint - which for the majority of women under 30 means that they need to be wearing jeans, not drinking or using drugs, and either staying home or walking the dog on a Saturday night.

Since these three alone (there are more, will post some links when I next see the girl who did her thesis on rape) disqualify just about anybody, the problem is clear. (Un)fortunately, depending on how you view it, the justice system doesn't work on the balance of probabilities - which means that, in the absence of other evidence, it's impossible to convict on the word of the victim, whether you believe it or not. I'm sure there are some women who make false accusations, but I would suggest that the majority of these would be seen for what they are before a case went to court. A lot of rapes are not viewed as rapes by the offender OR the victim, so plenty of cases that could go to trial and probably succeed will never be reported.

I don't have a better, fairer solution to offer. It isn't fair to treat rape victims so viciously, but neither is it fair to discard a basic principle of justice and risk imprisoning innocents. I think that the defences to rape are too inclusive and hopefully they can remove the "mistaken belief of consent" defence, since awareness of rape is changing (slowly). In the words of Ric Flair, "whether you like it, or whether you don't like it, it's the best thing going today." If we can change people's understandings, then tomorrow will be a lot better.

 

OK, guys. Now you will probably be somewhat surprised by what you hear from me, but I'll give you the reason in the end.

Depending on the conditions, it may be rape or not. If the party were a group activity and a guy went to a passed out girl, then that would be rape. If he drank her into having sex with him, same. At any rate, if the woman is not responding, it's not OK to have sex with her and it is rape. One could come up with mitigating circumstances, but this is rape.

That's outrageous and people who think that way have probably never faced a false accusation. It would cure them quickly of their bad ideas.

One needs to examine the past of the guy and the girl, especially conflicts with sex laws and matters of credibility. No such case should be dismissed, but no one should ever be sentenced on words alone, unless it were his own words and he revealed himself in a stupid fashion. But nothing like his word against her word.

If she had drunk lots and there's no evidence of date-rape tablet, then obviously there's no evidence of rape and there's a strong hint to the contrary. To sentence someone for rape in such circumstances is a very whimsical kind of "justice", to say the least.

There's a bet: he's facing jail, she's getting some scrutiny. Sorry, but it's not right to put a guy in jail just because the woman would suffer from having to answer questions.

Where's audiatur et altera pars? Eh, it looks like punishing someone, no matter really whom, just because a crime has happened or even might have potentially happened. Need a scapegoat, right? Reverting to prehistory.

Someone should accuse the MPs. Maybe the wife or daughter or sister of a guy sentenced for rape he didn't commit?

How about the principle that if someone makes a claim he needs to prove it? Why believe her words and disbelieve his? Punishing people just in case they had done something?

Agreed.

Agreed.

Lie detector, compulsory. Truth serum, if need be. If she refuses, throw her case out of the court. If he refuses, he has something to hide. Means the sex was hardly consensual, so even if he hadn't raped her per se, abuse did happen.

DNA samples, blood samples, whatever. If she refuses, throw her case out of the court. If he refuses, he has something to hide (see above).

Perhaps they could focus on developing some test for date rape pill and other such drugs.

I believe the word of a man previously sentenced for a sex assault or a woman previously sentenced for a false rape accusation should carry lesser worth, but not be altogether discredited (such persons are still under the protection of the law).

That's why I believe that the woman who falsely accused the guy should face the same penalty as there is for rape. She should also pay him for every day spent in prison, reimburse all fines (with sufficient interest rate), apologise publicly and profoundly and not just once, and so on. It's not just what she did to the guy, but also a huge display of contempt of court and abuse of legal process. Plus the thing she did to women who really were raped but weren't believed in the court because of false accusers.

Some examples I gave above, like lie detector, truth serum, blood analysis etc. But it's quite hard to prove, anyway.

There wasn't much resistance in the former case. Granted, I wouldn't proceed and I don't see it as normal for a guy to proceed in such circumstances, but it makes me question the girl's motives then and now (now as in the court).

She didn't have the audacity to say a real no, but she has the audacy to accuse and sue and all? Yeah, tell me more of it...

There hardly is rape without physical resistance if things go so far as for sex to come into question with the woman's willing participation.

Alas, yes. To be blunt: there needs to me more than just a silent whispered "no" to make resistance.

Imagine a situation where a woman pretends to be passed out and sleeping. She lets a drunken guy do what he will and then accuses him before a court. Did he do something wrong? Yeah. Was it rape? Morally yes, legally I have doubts. First of all, it makes us question her motives.

Nor would I.

Of course, castration for real rapists is a very good idea, if you ask me. But they have to be real. It looks like what we need is a society-wide sensitivity training and some adjustments in the sex ed curriculum.

 

Chev, I know we see eye-to-eye on a lot of moral issues, but I have to differ with you on some of this.

More often than not, cases such as this involve women who did not see the event as rape at the time or chose not to report it at the time. After an experience of rape, it is not unreasonable to expect that someone would be more focused on pulling themselves back together and trying to get over the experience than worrying about going to the legal system. Given that generally, less than 5% of rapes are committed by strangers, there is generally the consideration of "do I want to go through this?" as well. It is not as simple a decision as "I was raped, I want justice", because there are almost invariably complicating factors in the decision to proceed with a claim, testify or appear in court.

Sadly, this is all too common a perception. I think the setting you are providing is a little too fantastical to be common; the "deceptive woman" is much more frequent as a stereotype than as a reality and lends credence to claims of patriarchal values prevailing in criminal justice*. What is more frequent is that a woman is subdued through the use or threat of force by an aggressive man, and will "consent" to the act under duress. Of course, since two defences to rape are "consent" and "mistaken belief of consent", this muddies the waters even further.

To put it bluntly: if the choice is between struggling briefly (physically or verbally), submitting and being raped, or resisting physically, being beaten up and very probably raped more violently, what do you think most people would choose? While I do not doubt that some rape claims are wholesale fabrications, the majority are not, and a justice system that dissuades women from reporting rape through its actions only strengthens rape myths and intensifies the problem.

* - I have more verbal fights than conversations with feminists in my area of criminological study, but on this point, I support tham wholeheartedly.

 

"Lie detector, compulsory. Truth serum, if need be. If she refuses, throw her case out of the court. If he refuses, he has something to hide. Means the sex was hardly consensual, so even if he hadn't raped her per se, abuse did happen."

Chev, normally I agree with your point of view; however, taking a lie detector test is worse than foolish if you are innocent. Anyone familiar with this type of test will tell you likewise. The rate of false positive may not be very high, but it does exist and would more than likely get you imprisoned for something you didn't do (Begin rant:for some reason many people believe that these silly things cannot be wrong simply because the test is conducted with a machine even though its results must be interpreted subjectively by a human being and the conditions being monitored have only tenuous relationships at best with the act of lying. End rant). It's easy for us to say in this hypothetical situation that if the accused refuses that he has something to hide, but even if the fasle positive rate was as low as 1% (and I believe it is actually higher), I would refuse. I would not roll the dice and hope against a one percent chance that would change the course of my life in such a dramatic manner. Long and the short of the matter is that with a lie detector you have nothing to gain and everything to lose (because even if the test comes out negative the plaintiff's lawyer will attempt to have the results thrown out, ignored, whatever).

"DNA samples, blood samples, whatever. If she refuses, throw her case out of the court. If he refuses, he has something to hide (see above)."

These are pretty good ideas that have had many implementation problems here in the states. First, the collection of samples has to occur in a fairly timely, well documented manner, which is definitely a problem if the woman in question waits a few days or immediately showers, which I've heard is pretty common among rape victims. Secondly, the facilities must exist for analysis, and in many cases here in the USA, each state has a central lab that is responsible for such things (and is usually underfunded and understaffed). It's not just a matter of walking down the hall or up a flight of stairs and handing said sample to the appropriate technician. It could be days to weeks to months before you even know if the sample was suitable for analysis let alone matched the accused. There is also what I like to refer to as the "Lewinsky factor." God only knows why she didn't wash that dress, but with it she could have charged Bill Clinton with rape had she been so inclined. Just goes to show that if a female were revenge-minded and had proof of sexual activity (even though it was consensual at the time) the man in question would have to provide some very convincing evidence to the contrary.

In summary, I agree with you guys that accusation alone ought not be enough to jail a man in a rape case. On a side note, if the woman can't remember what happened how does she know that she did not consent while drunk, and if the guy is still there in the morning, he was probably under the impression that what happened was agreed to by both parties.

 

Any Sex without consent is rape and should be punished severely. If consent is acquired through co-ersion (threat of violence against them or a loved one) then there is no consent. Unfortunately, this may be hard to prove in some cases. The court needs to do it's job to the best of it's abilities, and hope that the right answer is reached...

 

@NonSequitur, archbishop: Well, guys. I realise they are weak points in that, sure. Especially when it comes to the accused. Then again, if the accuser has something to hide and refuses to go into details which might be helpful in the case, he/she shouldn't be surprised if the judge throws the case out of the court. What I want to avoid is someone going into jail just because his accuser would be too stressed answering a couple of questions. No one should have it his way without proof.

And the Lewinsky factor is tough indeed. Proving sex having taken place shouldn't be enough. Lack of consent needs to be proved as well.

@Gnarfflinger: I agree, but sometimes the lack of consent is not adequately expressed. Sometimes the victim may be looking for an excuse to have sex to which he/she would otherwise feel bad about consenting. Just an unconvincing whispered opposition that no one knows if is serious or playful coupled with disappointment and remorse in the morning and you have a rape charge ready.

But we're talking about putting someone to jail. The resistance needs to be something concrete, which can't be interpreted as playful opposition, teasing or overcoming inhibitions.

If the woman consents to all sorts of sexual behaviour and then wants to stop short of intercourse and just whispers something, it can be interpreted as actually teasing by the guy. And if she doesn't even step back, you know, it doesn't look convincing.

Next, what if it hadn't been her first contact of that kind with the guy? What if a lover played coy on a guy and liked it rough etc and suddenly used one of those whispered no's to put him into jail claiming that this specific "no" was a serious one?

Of course, if a stranger bumps into a girl and offers sex, any kind of a "no" should be enough, anyway.

We can have it her way without proof if it comes to obtaining costly professional aid for free (which should be tax-paid for rape victims), but we can't have it her way without proof when it comes to putting someone behind bars. There's always the benefit of the doubt and it works for the accused. Otherwise, we have no justice but people going to jail on accusation.

 

Well, she won't get the same sentence as there is for rape, but there is a law called perjury, which carries a sentence of up to 10 years in prison. I'm sure Chev knows this already, but for others, perjury is willfully giving a false statement while under oath.

Here's the problem though: It's often difficult to prove the "willful" part. Consider such an instance where two people have sex while drunk. The woman passes out after sex, forgets having consented initially. She wakes up and accuses the man of raping her, or slipping her a date rape drug, or having sex with her without consent after she passed out. She isn't willfully lying, as she truly believes that happened.

Somewhat unrelated, if the accused is familiar to the defendant, it is almost always necessary to show some signs of physical resistance. That is because in such cases the defense is almost always to deny that the sex was unconsensual. Similarly, it is almost impossible to accuse a husband or boyfriend of rape and have it stand up in court if there is no physical resistance, as in is usual in these cases that there was consensual sex within the relationship.

 

Unless you have some evidence to the contrary, it's safe to assume that this sort of occurance is extremely rare.

 

Agreed. But the probability rises when the woman engages in some sort of foreplay with the guy and then doesn't voice a real objection but something more like a serious doubt and then stops doing even that. In that case, it really looks as if she were reconciling with the idea of having sex with the guy then and there. When scruples come to her in the following morning, it's not enough honestly to claim there was no consent. He did violate her in a way, because what man would want to have sex with a woman who has doubts about it? But it's still not enough to claim rape, I think.

Some women think that if they come to the conclusion that they didn't really want it in the morning, it's enough to report rape.

 

A buddy of mine was on jury duty for a rape case. In his opinion a woman who files charges of rape without witnesses and without any physical damage to herself is wasting her time. He said the trial took around an hour. The woman, the man, and a police officer took the stand. The jury deliberated for about thirty minutes and there wasn't a single person in the jury room who felt that they could send the defendant to prison for nobody could say without a reasonable doubt he was guilty. It was a classic case, they both had been drinking and they both agreed that they had sex.

What on earth is a jury supposed to do? It has been drummed into everyone's head that rape is about violence not sex. Well, if there isn't any violence how could it have been rape?

I feel for the women, as I'm sure that rapists probably do get away with it. However, who wouldn't prefer to let a guilty person be free than an innocent person incarcerated?

 

Well, it's violence, but a specific kind of it and we can't remove it from sex. Otherwise, we would have good old beating.

Yeah, some of those "righteous" people forget that.

 

My father is one of those wimps who would 'rather let ten guilty people free rather than convict one innocent.' What a load of garbage. When it come to violent crimes (especially rape and those crimes where children are the victims) I would rather raise the bar and risk convicting an innocent person.

There are real monsters out there (and not balors, rakshasas, or gnolls). I don't think we do enough to protect women and children from deviants. Of course, I could just be biased here -- my sister was raped when she was eight.

Edit: spelling...

 

I may be biased because I was declared guilty and publicly decried for beating up (or rather kicking up, as she put it) a girl when I was eleven. She told her mother, they both came to school to tell the teacher. My word versus their word. Couldn't do a thing. Needless to say, I hadn't even touched her. The stigma remained until I finished that school four years later. Now imagine if she had said I molested her sexually. Especially in highschool rather than elementary. On the other hand, I've talked to women who have been raped or intimidated or tricked into sex and I hate rape more than I do murder and I believe shey should be castrated or infertilised and forcibly fed with antilibidiants because rapists don't deserve any sort of sex life. So I guess I'm pretty even on this one.

I agree that we have to protect the innocent from deviants, but we can't make deviants of people just because they are accused. In doing that, we would become deviants in our own right.

 

I too have been falsely accused via the bad end of a my-word-versus-another scenario. It really sucks. But even being down that road didn't soften my beliefs about this issue.

 

Let's take it to an extreme. Would you like to go to prison for some 8 years and be registered as a sex offender for life over an unproved accusation for the sake of your beliefs about this issue?

 

I was on a jury that heard a murder trial. In fact I was foreperson. It is a very serious thing to be a juror. We were all convinced that the defendant had killed the person. What was in question was the degree. Unfortunately the prosecutor did not prove beyond a reasonable doubt that he intended to kill the person he killed.
The point to this is that it is easy to sit back and make general statements. I don't like to see quilty people go free but to punish an innocent only ruins his/her life without solving anything.

 

Rape is such a complicated issue. I've read that only 1 in 7 rapes is reported -- and very few of these get to trial, even fewer convictions. I don't think date rape and aquaintance rape are accounted for very well in any statistics I've seen.

Fear is a great tool in preventing some crime, but it's basically meaningless in rape. If we toughen the laws and make it easier for rapist to be convicted, the fear factor may work to some extent. Unfortunately, the punishment for rape is the basically the same as murder -- if we tighten the laws to convict more rapist, we may end up lessening the chances for a woman or child to survive the rape (the rapist would have nothing to lose by killing his victim, except a witness). As I said, very complicated.

I understand the extreme presented is for the sake of arguement, but it's really too easy to say I'd do the noble thing and go down with the ship (and, very rightly, no one would believe me). However, not being willing to take that rap makes it seem like I don't have the convictions to support my belief.

But I saw the effects of rape in my sister, and still see it years later -- and I think I would do anything to prevent it from happening again, even if it meant me going to prison. Do I like the scenario you've given? No, I'd fight it with all I had, and I also realize that may be the price for my beliefs.

I've never seen a difference between date-rape and rape. I've always believed intimacy was a consensual thing. If you don't have EXPLICIT permission, you just don't go there. I was like that when I was dating and I'm like that with my wife. It doesn't matter if there's been prior intimacy -- every time requires a 'yes.' Maybe that's foolish and some will laugh because I didn't 'get as much' in college as I could have -- but it's the way I've chosen to live.