I suppose a good place to start is with some background information about why I suggested this thread, and what I envision for it.
As many of you now know, I'm back in school, law school, and am struggling through my first year of classes. I've thoroughly enjoyed the experience, and, as I said to many, find the whole subject both interesting and challenging. While much of the material I'm learning doesn't lend itself to this sort of discussion forum (I think it might be boring to many), the issues I'm grappling with in criminal law seem more applicable to discussion within a general audience.
Now, in advance, I want to state that there are many people out there in Moteland who both understand and know more about the topics I've been dealing with than I do. I'm a novice, and I make no claims to greater understanding than most of this community, but I think the issues are quite fascinating, and, as I said in the Suggestions thread, touch on areas that matter to many people living in a modern, liberal society.
I also, quite unabashedly admit that I want to discuss some of the topics I propose simply because I am working them out in my own mind, and will benefit from debating/discussing them with many of you. I welcome both your ideas for general topics related to law, and to your support in the coming discussions.
MsIt
3. MsIvoryTower - 2/24/2000 9:37:46 AM
Here's an issue to get us started:
What is the appropriate mental state necessary to commit a 'crime'?
In the American legal system, evolved from English laws and traditions, a basic principle behind the state's right to punish is that only men (women) who are blameworthy (in some way) should be punished. This idea is captured in the phrase "guilty minds, guilty acts". That is, one should not be punished for a crime unless one had the intent to commit it. However, while this is the guiding principle, there are exceptions to the rule.
For instance, statutory rape laws require no intent or mental state to be punishable. If one has sex with an under age child, one is punishable, even if one didn't know the person was under age: even if one has been mislead to believe otherwise. Here the act carries a strict liability level of culpability: you do it, you're guilty, no matter what the circumstances.
Another exception is with laws designed to protect the public welfare. If you're a drug manufacturer, and you mistakenly label a shipment of drugs (say over the counter), and distribute them, there is no defense. You break the laws, you are guilty.
What do you think of these two principles? Do you find them contradictory?
If you don't, when do you think exceptions to the guilty mind, guilty acts principle are valid?
4. Dantheman - 2/24/2000 9:46:04 AM
MsIT,
I suspect traffic violations also fit into the types of laws where mental state is irrelevant (e.g., it doesn't matter whether you intended to run through a stop sign, or even if you knew whether the stop sign was there). This discussion will probably show many more such examples.
5. MsIvoryTower - 2/24/2000 9:48:08 AM
[If you're wondering what happened to #2, I plead guilty to ignorance wrt this moderator thing, and ended up double posting without knowing it.]
One final thing, my time is a bit limited, so if I don't respond to comments please be patient, I'll try not to ignor anyone's contributions.
6. MsIvoryTower - 2/24/2000 9:51:13 AM
Danteman,
I think you're correct. Of course, the theory behind strict liability for those transgresssions is that we don't punish by taking away a person's freedom, we fine them, or annoy them into compliance.
The issue of strict liability for acts with serious consequences (imprisonment for lengthy periods) is a bit more controversial, IMO.
7. ChristiPeters - 2/24/2000 10:10:52 AM
Well, I'll take a stab at the statutory rape one.
As I understand it I see the burden is on the adult -
1. To know what the heck they are doing before they have sex. Know your partner well enough to know their age, even if they lie. It's not all that hard to check out and you don't really have to have sex with that hottie you met an hour ago (or a day ago, or a week ago). Your hormones may be screaming at you, but an adult should be able to control themselves anyway.
2. Be the responsible one when faced with a child that is not controlling their screaming hormones. It doesn't matter that the kiddo wants sex - they are not going to get it. Yes, you can say "no" even if you really want it just as much as they do.
Now (1) and (2) have as an underlying assumption that sex is bad for kids when the relationship is uneven in regards to power. This is something that most people can agree on if the kid is 5 or 7 or 10, but gets fuzzier the closer the age gets to majority and the narrower the gap is between the "adult" and the "child".
Is sex with a 30 yr old bad for a 14 year old? How about a 22 year old and a 17 year old? This is a whole 'nother argument. Right now, our society defines child as less than 18 (in most states) and adult as 18 or 21 and older.
In light of the psychological evidence to date, I think it is a good law. Perhaps it can be tweaked a bit - say lower the "age of consent" or put in something to make age gap something to be considered - but I don't think there is an awful lot of injustice going on as a result of this law. Any grey area cases can be taken care of with prosecutorial adn judicial discretion. So I'd leave it alone.
(Of course I have had ZERO law classes, so throw your pound of salt in with my opinion &:oD)
8. bubbaette - 2/24/2000 2:39:44 PM
ignorance of the law is no excuse, or so they say.
Hi MsIt. Long time no see.
9. ChristinO - 2/24/2000 3:36:24 PM
Congratulations MsIT and great to see you!
I'm going strictly from memory here so please anyone with the facts correct me.
I believe the age of consent for sex in most states is 16. When I was in highschool that was mitigated by a five year age gap until the age of 18. IOW two 16-year-olds could have sex or a 16 and a 20-year-old but a 21-year-old would be busted for statuatory rape because of the five year age difference.
This seems pretty reasonable to me since an 18yo is legally an adult but certainly not so much older than a 16yo that undue advantage is an issue.
I don't know if the law has been changed but within the last 20 years it was legal for a 15yo girl in South Carolina to marry as long as she had parental consent. The implications behind this allowance are really kind of icky.
10. ChristiPeters - 2/24/2000 3:53:49 PM
Christin -
I'm sure the ages vary from state to state. I was just tossing out made-up examples. The age thing is different depending on what you're talking about. A state could allow driving at 16, first drink at 18, and age of consent for sex be 14. I'm not saying any states actually have those specific ages for those things, but there's nothing I know of to stop them.
11. ChristinO - 2/24/2000 4:04:20 PM
Christi,
I assumed you were making up ages to make a point I wasn't meaning to correct you or anything. I think I agree with you about the burden of responsibility as well but the gray areas are what intrigue me. It's why I like the five year clause because it allows for peer relationships and developmental flexibility.
12. ChristinO - 2/24/2000 4:08:23 PM
You're also correct on the states jurisdiction over the age limits I believe. Except for voting age the states can decide the age of eligibility for most anything I think. Remember when the Fed was trying to get all the states to comply with a 21yo drinking age and how Florida kept putting off raising the age because they didn't need Federal money for highways? The whole rest of the country was at 21 and Florida was still at 19.
13. MsIvoryTower - 2/24/2000 4:37:56 PM
Hey, Bubbaette
Correct, ignorance of the law is no excuse.....
So, ladies one and all, you would agree with the notion that strict liability is valid when the crime is statutory rape. Say, even if the man is 20 and the girl is 15 1/2. Even if she carried false ID, he asked her about her age and saw her ID, and her friends all said she was over age. In other words, no ambiguity. No worrying about the circumstances.....
What about other situations? What about rape generally?
As a note of interest, Canada no longer allows statutes (laws) to be interpreted as requiring no culpability level when the punishment is imprisonment, even under so called, public welfare statutes.
14. ChristinO - 2/24/2000 4:42:25 PM
MsIt,
No I'm not totally comfortable with it. I think if you've gone so far as to ask for someone's ID then it is obvious that you are attempting to comply with the law. I don't necessarily belive that you ought to be fubared because someone else commits fraud. Sorry if I wasn't clear (can I just use SIIWC from now on since I have to say it so often?)
Regarding rape in general how do you mean?
15. DaveM - 2/24/2000 4:44:05 PM
Wow. As a fellow one-L, I really look forward to contributing to this thread. I have to run right now, but I'll check back in later.
16. CalGal - 2/24/2000 4:51:07 PM
I think that the leeway that judges have in these cases makes a lot of sense. For example, there was that recent case where the 23 year old went to the house of an 11-year-old girl and was found in her room, hiding in the closet. The girl had come on to him in an Internet chat room, told him she was 17 (also looked it, apparently), and helped him sneak into the house through the window. The guy apparently nearly freaked when he found out how old she was.
The judge said that it takes two to tango and gave the guy 18 months--in effect, sentencing him for statutory rape rather than child molestation. I thought the comment was stupid and the sentence was sensible. Assuming he had reasonable grounds to believe she was 17, he got 18 months for being an idiot--23 is too old to be sneaking into a girl's house for sex.
The comment was stupid, however, because the girl's consent doesn't matter--certainly not at the age of 11. What matters is that she lied, and that the guy had a reasonable basis for believing her.
So I think the laws should make knowledge irrelevant in theory, and then the judges should be able to cut people slack in the event that they really had reason not to know.
17. CalGal - 2/24/2000 4:51:27 PM
I'm uncomfortable with the term "statutory rape". It's either sex with a child unable to consent (say, for purposes of discussion, 13 and under) or sex with a minor teen (13-18). The first should be considered pedophilia or child molestation. The second is what is generally (if not legally) referred to as statutory rape, and it's where the age gaps that Christin mentions comes into play. I think there should be a different term for this, but I also think that the current rules make a lot of sense. It is inappropriate for an adult who has more than five years on a teenager to engage in a sexual relationship. The potential power imbalance is too great, and the teens are a weird time.
But I don't think either of these should be called rape, unless there was physical force and the person didn't acquiesce.
There is a difference between "not giving consent" (rape) and "beneath the age of consent" (sex with a consenting minor). I wish the laws would start to recognize this, because there are far too many people who think it should be okay to have sex with an 8 year old because hell, there was no force involved.
18. MsIvoryTower - 2/24/2000 4:56:06 PM
DaveM
Welcome to the crowd of 1L's, 2L's and 3L's populating the Mote landscape. I think it'd be great if you chimed in with any thoughts or issues you find worthy of discussing, too. And I'm hoping that LadyChaos and TabouliJones will eventually find their way to this corner as well. LadyC is a 2L, Tabouli is either 2 or 3L.
Christin
Well, some people advocate rape laws that focus only on two elements (of the crime), that there have been sexual intercourse (duh), and that it occur without consent of the victim. Without consent is the trickster here, what is meant by consent?
Again, some reform proposals suggest consent should be "affirmative and freely-given agreement". Some states have actually adopted this standard, Wisconsin and New Jersey are two that I know of immediately.
The implications for this sort of definition are somewhat staggering, IMO.
Under the common law view of rape (that is, before states began passing statutes defining the crime) the elements were: intercourse, without consent, with physical force or threat of force. Btw, I should also note that it had to be a man acting against a woman. By definition men could not be raped, nor for that matter, could wives.
19. cmboyce - 2/24/2000 4:56:53 PM
In the instance offered by MsIT in #13, the injustice of the no-inculpability rule (how does one refer to this; and is it a rule and not a statute in all cases?) should, imo, render it impermissable. After all, while the purpose of having laws is social order, it is an ancient idea, a presumption perhaps (I, too, have no legal education), that social order ought to encompass justice (if only so those on the short end of injustice don't keep rebelling and thereby upsetting the social order that is desired). Therefore, any rule of law whose consequence is patently unjust should be modified, to eliminate this subversion of the purpose of law's existence.
20. MsIvoryTower - 2/24/2000 5:03:09 PM
Calgal
The interesting thing about statutory law as opposed to common law is that courts have much less leeway to "interpret" the meaning of the language used. Some courts take the specific language of the statute very seriously, some look to the legislative intent, and some will play fast and loose with it and impose their own vision.
In the last case they (courts) are very likely to incur legislative wrath that results in amended statutes aimed at correcting their interpretation. Then there is even less leeway for judges to "consider the circumstances", if their application of the statute is contrary to what the legislature wanted in the first place.
21. CalGal - 2/24/2000 5:06:07 PM
Ms,
Yes, that's true. But since legislators generally find that no matter what law they pass, judges and lawyers find some ways around it, I keep hoping they'll give up.
In any event, I find it quite upsetting that so many people--and quite a few laws--can't distinguish between pedophilia/molestation, an inappropriate sexual relationship with a teenager, and forcible rape.
22. ChristinO - 2/24/2000 5:07:36 PM
MsIt,
I may be jumping to conclusions here but are you worried about the difficulty of defining exactly what coersion is? IOW under the revised laws it appears that a person could claim rape if he or she had felt pressured in any way to have sex. Or maybe you are implying that it's a good thing since it will offer recourse to those who are coerced into giving their consent.
Or am I totally missing the point?
23. MsIvoryTower - 2/24/2000 5:11:49 PM
Christin
Coercion is not the same thing as physical force. Coercion is also a term used in some rape statutes, and its meaning (like that of consent and physical force) will depend on how the particular state or legislature had defined it.
To answer your question, I'm worried about the potential problems that surround rape laws that would exclude any element of force (or coercion, depending on how it's defined), and focus only on what the victim perceived as consent.
Let us just say, I'm uneasy about the consequences.
24. CalGal - 2/24/2000 5:13:00 PM
I've always thought that the only that matters after the age of consent is whether or not the sex was physically forced on the person. That's rape. Anything else is consensual sex.
25. CalGal - 2/24/2000 5:13:49 PM
In #24, I was talking about the Perfect World I'd Rule, not the current legal definition.
26. MsIvoryTower - 2/24/2000 5:14:50 PM
In addition, to get back to the issue of culpability (and strict liability), to what extent should an accused man have the "intention", or "knowledge" that there was no consent (however it is defined)? Or should we simply say, if she proves she didn't consent (actually, an issue of fact to put before the jury), then it doesn't matter what he believed at all?
27. alistairconnor - 2/24/2000 5:15:06 PM
Message # 3
Ms dear, I take issue with your premise, which seems to be that the purpose of a justice system is to punish wrong-doers.
In my view, the purpose of a justice system is to protect and/or indemnify the members of society against wrong-doing. Society has a right to protect its members; but has a duty to avoid injustice in doing so.
Punishment has a part in this, to the extent that the deterrent effect of it, and/or the protection of society by the incarceration of dangerous elements, outweigh the negative effects (in particular, the dehumanising effect of punishment which frequently renders the offender more dangerous to society). However, it certainly shouldn't be the primary focus of the justice system. This easily slides into revenge as the primary rationale for a justice system, which is not a civilised notion, not an appropriate unifying principle for any society.
28. MsIvoryTower - 2/24/2000 5:16:22 PM
Calgal
I've found so far in my studies, that the perfect world is rare in criminal law.
29. alistairconnor - 2/24/2000 5:19:01 PM
As for the mental state question, I don't believe it should be material with respect to finding someone guilty or not guilty (except in cases of mental incapacity). That proceeds from the principle that the justice system is there to protect society. However it is material with respect to sentencing. That proceeds from the principle that the justice system must avoid injustice.
30. TabouliJones - 2/24/2000 5:19:36 PM
MsIt,
I will try to chime in when I can, but this semester is a busy one for me.
Your reference to the Canadian requirement against strict liability offenses is quite interesting. As I recall, the reaasoning behind it is culled from British common law notions of natural justice. Basically, the idea is that the state must have a strong reason to deny a person's liberty and at the very minimum there must be a guilty mind (a mens rea) alongside an actus reus for there to be a criminal act; which is also at the heart of the not guilty by reason of insanity defense.
There is an interesting tension here with ongoing Canadian debates about rape shield laws -- i.e. rules restricting and/or eliminating the defendant's right to enter evidence about the victim's prior sexual history. As a matter of basic criminal law, these types of rules are contrary to the principles of natural justice, and therefore unconstitutional, because they tend to eliminate the defendant's ability to plead the defense of mistake as to consent.
In 1990, the Supreme Court threw out the rape shield laws as written. However, just before Christmas the Court upheld the rewritten version of the rape shield laws pursuant to section 1 of the Canadian Charter which allows reasonable limits on liberty "as can be demonstrably justified in a free and democratic society." But despite a strong majority decision, the Court is again revisiting the issue at this time.
P.S. The differences between the U.S. Bill of Rights and the Canadian Charter would probably be an interesting discussion. As I alluded above, Canada's Charter permits reasonable limits on liberty. Canada also has the controversial "notwithstanding clause" which can be invoked to allow the provincial and Federal governments to pass certain unconstitutional legislation. Obviously, a discussion along these lines would enage fundamental questions of liberalism and political philosophy in general.
31. MsIvoryTower - 2/24/2000 5:20:02 PM
Alistair!
What a perfectly wonderful position! Problem is that in American law, we have a competing hypothesis: people should be punished when they do something really, really bad, regardless of any value or benefit to society. Bad acts = punishment.
Btw, strict liability laws tend toward implementing the retribution aspect of punishment rather than the deterrence aspect.
32. CalGal - 2/24/2000 5:22:08 PM
Or should we simply say, if she proves she didn't consent (actually, an issue of fact to put before the jury), then it doesn't matter what he believed at all?
Why aren't women obligated to either a) fight physically or b) establish that they were unable to fight (a weapon was held to her throat, or she was physically restrained) in order to charge rape? Why would they ever be allowed to get away with a lower standard of proof?
I'm not challenging you, Ms, I'm just bothered by this notion that women aren't supposed to be grownups.
33. ChristinO - 2/24/2000 5:23:52 PM
Quickly:
CG if my landlord says he'll find a way to evict me unless I have sex with him I'd consider that rape. Coersion does not have to be by threat of physical violence.
MsIt,
I can see a host of problems if culpability is to hinge solely on whether or not the victim can prove a lack of consent. How do you prove that you didn't consent? How does the accused prove that you did?
34. MsIvoryTower - 2/24/2000 5:24:15 PM
Hey Tabouli, hello!
I'd be very interested in such a discussion as you propose.
And the opinion I read that set the Canadian position on strict liability was a brilliant piece, written in 1978. The case was Regina v. City of Sault Ste. Marie, and the opinion was by one Justice Dickson.
35. CalGal - 2/24/2000 5:29:16 PM
CG if my landlord says he'll find a way to evict me unless I have sex with him I'd consider that rape. Coersion does not have to be by threat of physical violence.
Legally, I think that all requests for sex in exchange for anything of value ought to be considered solicitation. That's what it is, after all.
If your landlord says he'll evict you if you have sex with him, then report him to the cops and the management. If you have sex with him, you've proffered sex for something of value, and you're a prostitute.
It ain't rape if he didn't use force, IMO. Women are adults; they can start acting like that and quit being helpless. Part of the problem lies in that women offer sex--even under duress--as something of value.
36. MsIvoryTower - 2/24/2000 5:30:16 PM
Calgal
Rape laws have been changing for the last 25 years. The most recent statutes have tended to interpret rape when the victim can show no consent even when there wasn't any overt "physical violence" or threat of violence involved.
And the issue of resistance is a minefield.
Btw, I tend to agree with you, but I'm coming to the conclusion that hard and fast rules in this area of the law are more unworkable than not. Each case is unique and has its own set of circumstances that stretch the hard and fast rules.
37. CalGal - 2/24/2000 5:31:53 PM
Ms,
Yes, I know the recent interpretations are getting very....generous.
I think there can be leeway, but we're a long way from a sensible center point right now.
38. MsIvoryTower - 2/24/2000 5:33:25 PM
Tabouli
Rape shield laws are also problematic here. The US Supremes have determined that where the character or previous actions of the victim are "relevant" to the accusations leveled at the accused, then the defendents 6th Amendment rights may prevail. As a result, many states have now amended their rape shield laws to take this into account.
The trick is to determine when it's relevant, of course.
39. TabouliJones - 2/24/2000 5:40:40 PM
MsIt,
Maybe after exams I could help moderate a discussion on the subject. Until then, though, I will try my humble best to answer any questions people might have about Canada's Charter, which many Americans are likely to find peculiar or even anathema in a liberal society.
Later tonight, I might try to dig up the Canadian Criminal Code provisions wrt the issue of consent in sexual assault cases. Basically, consent is required -- otherwise the law presumes sexual assault if consent cannot be proven by the defendant. There is a defense of honest but mistaken belief as to consent. However, as noted, there are rape shield laws which often make this defense impossible to plead. I recall the Canadian rules being a somewhat convoluted compromise b/w rights of the defendant issues and rights of the victim issues. Sorry, its been over two years since I studied the matter.
40. TabouliJones - 2/24/2000 5:50:12 PM
The Canadian Supreme Court case on rape shield laws is R. v. Mills.
You can read it here: http://www.droit.umontreal.ca/doc/csc-scc/en/rec/html/mills3.en.html (sorry, forgot how to link . . . I'll learn it again, promise).
For many reasons, R. v. Mills is considered a watershed case. Many see it as a harbinger of the approach that will be taken by the Court under new Chief Justice Barbara McLachlin. I will post a relevant newspaper article in a few minutes.
41. ChristinO - 2/24/2000 5:56:02 PM
I don't think physical force should be the only factor taken into consideration particularly when we have things like the date-rape drug and particularly when there are situations where non-physical coersion is as forceful as a gun to the head.
42. ChristinO - 2/24/2000 5:57:49 PM
could I please just say particularly a few more times?
43. MsIvoryTower - 2/24/2000 6:14:58 PM
Christin
Date rape is an issue alright. Many states have incorporated the concept of incapacitating the victim through the use of drugs or alcohol within their rape statutes now. I think, by definition, if the victim has been drugged, her participation is without consent.
I'm not sure how they deal with the force and or resistance element in those cases, however. I think the argument is that when drugs or alcohol are involved, the consent issue outweighs the force/resistance issue.
44. ChristinO - 2/24/2000 6:28:34 PM
MsIt,
That makes good sense to me. I dislike the subjectivity in the law that allows for harsher punishments for people of color but I appreciate it when the issues aren't just black and white about guilt and culpability.
45. CalGal - 2/24/2000 7:00:29 PM
I think if the person was involuntarily put under the influence, consent is impossible--in fact, I think it becomes forcible at that point. If you remove the person's ability to resist or consent, it's the same as if you'd used a gun.
If the drugs were consumed deliberately, then that's a different issue.
46. CalGal - 2/24/2000 7:01:27 PM
But that still falls under rape. Requesting that a person prostitute him or herself is a different issue.
47. TabouliJones - 2/24/2000 7:07:37 PM
With regard to sexual assualt the Canadian Criminal Code defines consent as "the voluntary agreement of the complainant to engage in the sexual activity in question." The Code further states that, no consent is obtained when: "a) the agreement is expressed by the words or the conduct of a person other than the complainant; b) the complainant is incapable of consenting to the activity; c) the accused induces the complainant to engage in the activity by abusing a position of trust, power, or authority; OR d) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity."
The issue of consent by someone who is intoxicated would be considered under c).
48. CalGal - 2/24/2000 7:11:37 PM
c)? Are you sure? I would have thought b)--incapable of consent.
49. CalGal - 2/24/2000 7:12:30 PM
And c) is the one that I think is silly. Why not just say, "Women are children!" and be done with it?
50. TabouliJones - 2/24/2000 7:18:45 PM
Actually, I meant b) would cover the issue of consent in cases where the complainant was intoxicated.
with, c) there is plenty of wiggle room afforded by the use of the term "abuse". I don't think the provision is there to treat women as children. I don't think it has been judically considered, so I am not sure how a Court would read it. But, I doubt that a Court would take the view that women are incapable of fending for themselves, so to speak, when it comes to fending off advances from men in authority, etc.
51. ChristinO - 2/24/2000 7:31:24 PM
I don't see that it is specific to women. True, women are more often the victims of sexual assault than men but this doesn't mean that men don't suffer as well.
52. CalGal - 2/24/2000 7:33:55 PM
Agreed, but the law was sourced in concern for women, not men.
53. TabouliJones - 2/24/2000 7:36:11 PM
True, it is a non-gendered definition. But, sexual assault is generally a crime committed by men against women, so it is natural to discuss the issue in terms of gender.
In the U.S. is there a distinction between rape and sexaul assault? The Canadian Code no longer speaks of rape to avoid confusion with old common law which made penetration a required element in the crime of rape.
54. CalGal - 2/24/2000 7:40:29 PM
As I said earlier--basically, if someone comes up to you and demands that you prostitute yourself (exchange sex for something of value), then it is solicitation, not rape. If the woman prostitutes herself, then why should she be able to come back later and say it was rape?
If a manager came up to an employee and says, "Have sex with me if you want to get promoted" or if the manager says, "I won't lay you off in the coming round if you have sex with me"--the employee engages in the transaction willingly and takes the benefit from it.
And if we're going to call it rape--which is ludicrous--then why not call the request attempted rape? Then the employee has the ability to run to the cops when such a request is made, report the manager, and not have to have sex in order to cry rape.
55. ChristinO - 2/24/2000 7:43:26 PM
So the law won't apply to men? "You're a man so obviously no one could take advantage of you sexually"
A good friend of mine in highschool did a really dumb thing. He cheated on his girlfriend with a friend of his mother's. He was 18 so he was legal but when he didn't want to continue the relationship the woman threatened to tell both his mother and his girlfriend about it unless he continued to service her.
Granted he had the choice to come clean and suffer the consequences of cheating on his girlfriend, but that does not make this woman any less a sexual predator. She blackmailed him into having sex with her. Why should that just be a case of "tough titty" for this guy?
56. CalGal - 2/24/2000 7:47:17 PM
Why on earth is she a sexual predator? He plays, he pays.
57. CalGal - 2/24/2000 7:47:59 PM
BTW, I agree that sexual assault laws should apply to both men and women equally. But the case you mention isn't rape. Although I'm sure that there are some 18 year old women who could make the case for it.
58. TabouliJones - 2/24/2000 7:48:26 PM
There was a case which arose in Ontario about thirty years ago which might help give context to the reasoning behind c) in the above posts re. the vitiation of consent. The case antedated the current Canadian approach to sexual assault. The woman's gynecologist told a woman that there was something medically interesting about her sexual parts, and asked her if it would be o.k. if one of his colleagues examined her. However, the colleague was not a doctor but simply a friend who wanted to check out the woman's genitals. Under the old law, there would have been no sexual assault because she ostensibly consented to the examination. Part c) would cover that situation today as an "abuse" of trust or authority. Most likely it was included to cover such previously uncovered situations.
59. CalGal - 2/24/2000 7:52:22 PM
It seems to me that'd be a violation of doctor/patient privilege. Who got tagged with sexual assault, both of them? Or just the doctor?
Surely there's another type of crime that falls under, other than sexual assault?
Mind you, I'd sue the motherfucker for every penny. But that's a civil courts issue. I'm just not seeing how that counts as rape or sexual assault.
60. jexster - 2/24/2000 7:57:20 PM
Cal - its the patient's privilege not the doctor's
61. MsIvoryTower - 2/24/2000 7:57:28 PM
In the U.S. is there a distinction between rape and sexaul assault?
Well, we're getting into my zone of "confusion" here, but I believe it depends on the state. Under the Model Penal Code (MPC) there is a distinction between rape and sexual assault. The MPC defines Rape and Related Offenses where the latter is termed 'Gross Sexual Imposition'.
Here's the MPC definition of Gross Sexual Imposition (it's a loaded gun [so to speak] as well):
A male who has sexual intercourse with a female not his wife commits a felony of the third degree if;
(a) he compels her to submit by any threat that would prevent resistance by a woman of ordinary resolution; or
(b) he knows that she suffers from a mental disease or defect which renders her incapable of appraising the nature of her conduct; or
(c) he knows that she is unaware that a sexual act is being committed upon her or that she submits because she mistakenly supposes that he is her husband.
Texas does not appear to distinguish between rape and sexual assault. In fact, its rape statute is not entitled 'Rape' but 'Sexual Assault'.
WRT the MPC definition above, I have a hard time not laughing over some of the language
- what is a woman of ordinary resolution?
- what about wives?
- what would constitute a mental defect? delusions? fantasies?
- and then there's the notion that a man seeks to sneak into a woman's bed pretending to be her husband and she wouldn't know......
62. TabouliJones - 2/24/2000 8:00:14 PM
CalGal,
In Canada, sexual assault now exists as a category of assault. There is no separate crime of rape per se. Assault is any unwanted, or offensive, touching, and it is a crime that admits of various degrees. If I poke someone in the shoulder, technically that is assault. Similarly, if I beat the crap out of someone that is an assault. In each case, it is the same criminal category that applies to impugn the conduct. The same holds for sexual assault. Any unwanted sexual touching is covered by the same set of laws. Of course, the closer the case comes to actual rape, the more serious the consequence.
63. TabouliJones - 2/24/2000 8:04:40 PM
MsIt,
Rape was removed as a category to avoid such confusion. Under the common law (where Canadain and American concepts of rape originated), it was a legal impossibility to rape your wife. the sexual assault category was created in the criminal code to get rid of many of the sexist anachronisms still clinging to the definition of rape.
Incidentally, criminal law falls under exclusive Federal jurisdiction in Canada. There is no variance between provinces.
64. jexster - 2/24/2000 8:04:57 PM
243.4. (a) Any person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person
touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery. A
violation of this subdivision is punishable by imprisonment in a county jail for not more than one year, and by a fine not exceeding
two thousand dollars ($2,000); or by imprisonment in the state prison
for two, three, or four years, and by a fine not exceeding ten
thousand dollars ($10,000).
(b) Any person who touches an intimate part of another person who
is institutionalized for medical treatment and who is seriously
disabled or medically incapacitated, if the touching is against the
will of the person touched, and if the touching is for the purpose of
sexual arousal, sexual gratification, or sexual abuse, is guilty of
sexual battery. A violation of this subdivision is punishable by
imprisonment in a county jail for not more than one year, and by a
fine not exceeding two thousand dollars ($2,000); or by imprisonment
in the state prison for two, three, or four years, and by a fine not
exceeding ten thousand dollars ($10,000).
(c) Any person who, for the purpose of sexual arousal, sexual
gratification, or sexual abuse, causes another, against that person's
will while that person is unlawfully restrained either by the accused or an accomplice, or is institutionalized for medical treatment and is seriously disabled or medically incapacitated, to masturbate or touch an intimate part of either of those persons or a third person, is guilty of sexual battery....
65. MsIvoryTower - 2/24/2000 8:05:09 PM
Tabouli
I'm laughing at your example in #58. I just read a case from the 1970's where a woman received a call from a "Dr. Stevens" who told her that recent tests of hers revealed a fatal disease. That she had two choices for treatment: one a painful, lengthy procedure costing around $10,000, the other, injection of some specially treated semen through intercourse with a donor. The latter procedure would only cost $4500.
The woman told the doctor she couldn't afford $4500, so he said he could arrange it for a $1000 deposit. She agreed. He arranged for her to arrive at one of his temporary offices in a hotel for the next day. She was to bring the money with her and give it to the man who arrived.
She goes, gives the guy the money and has sex with him.
Later, she seemed to have figured out that something fishy was up, and pressed rape charges. The dude was acquitted.
I was laughing really, really hard as I read that case. Sometimes it's difficult to muster the sympathy necessary for the victim.
66. TabouliJones - 2/24/2000 8:06:42 PM
In the doctor case referred to above, there was no crime whatsoever under the old law. The doctor didn't infringe the criminal law as it then stood.
67. jexster - 2/24/2000 8:07:39 PM
CA Penal Code 261. (a) Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances:
(1) Where a person is incapable, because of a mental disorder or
developmental or physical disability, of giving legal consent, and
this is known or reasonably should be known to the person committing
the act. Notwithstanding the existence of a conservatorship pursuant
to the provisions of the Lanterman-Petris-Short Act (Part 1 commencing with Section 5000) of Division 5 of the Welfare and Institutions Code), the prosecuting attorney shall prove, as an element of the crime, that a mental disorder or developmental or physical disability rendered the alleged victim incapable of giving consent.
(2) Where it is accomplished against a person's will by means of
force, violence, duress, menace, or fear of immediate and unlawful
bodily injury on the person or another.
(3) Where a person is prevented from resisting by any intoxicating
or anesthetic substance, or any controlled substance, and this
condition was known, or reasonably should have been known by the
accused.
(4) Where a person is at the time unconscious of the nature of the
act, and this is known to the accused. As used in this paragraph,
"unconscious of the nature of the act" means incapable of resisting
because the victim meets one of the following conditions:
68. MsIvoryTower - 2/24/2000 8:08:15 PM
I suppose I shouldn't be so irreverent.....
69. CalGal - 2/24/2000 8:08:41 PM
At what point are we going to remove the "other than the spouse" clause in rape/sexual assault law?
70. jexster - 2/24/2000 8:09:01 PM
(A) Was unconscious or asleep.
(B) Was not aware, knowing, perceiving, or cognizant that the act
occurred.
(C) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator's fraud
in fact.
(5) Where a person submits under the belief that the person committing the act is the victim's spouse, and this belief is induced
by any artifice, pretense, or concealment practiced by the accused,
with intent to induce the belief.
(6) Where the act is accomplished against the victim's will by
threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat. As used in this paragraph, "threatening to retaliate" means a threat to kidnap or falsely imprison, or to inflict extreme pain, serious bodily injury, or death.
(7) Where the act is accomplished against the victim's will by
threatening to use the authority of a public official to incarcerate,
arrest, or deport the victim or another, and the victim has a
reasonable belief that the perpetrator is a public official. As used
in this paragraph, "public official" means a person employed by a
governmental agency who has the authority, as part of that position,
to incarcerate, arrest, or deport another. The perpetrator does not
actually have to be a public official.
71. MsIvoryTower - 2/24/2000 8:09:24 PM
Tabouli
RE: Incidentally, criminal law falls under exclusive Federal jurisdiction in Canada. There is no variance between provinces.
That would make learning all this so much easier.....
72. CalGal - 2/24/2000 8:09:27 PM
Ms,
Hell, no. I laughed too. The guy shouldn't have been on trial for rape. Fraud, maybe.
I suppose these days, it would be rape.
73. TabouliJones - 2/24/2000 8:11:22 PM
MsIt,
Re. message 65. I read one case in which a music teacher convinced his student fellatio would make her a better singer. She bought it and later charged him under the old rape laws. The teacher was acquitted.
74. jexster - 2/24/2000 8:11:23 PM
CA Penal Code 262. (a) Rape of a person who is the spouse of the perpetrator is an act of sexual intercourse accomplished under any of the following circumstances:
(1) Where it is accomplished against a person's will by means of
force, violence, duress, menace, or fear of immediate and unlawful
bodily injury on the person or another.
(2) Where a person is prevented from resisting by any intoxicating
or anesthetic substance, or any controlled substance, and this
condition was known, or reasonably should have been known, by the
accused.
(3) Where a person is at the time unconscious of the nature of the
act, and this is known to the accused. As used in this paragraph,
"unconscious of the nature of the act" means incapable of resisting
because the victim meets one of the following conditions:
(A) Was unconscious or asleep.
(B) Was not aware, knowing, perceiving, or cognizant that the act
occurred.
(C) Was not aware, knowing, perceiving, or cognizant of the
essential characteristics of the act due to the perpetrator's fraud
in fact.
75. jexster - 2/24/2000 8:12:01 PM
(4) Where the act is accomplished against the victim's will by
threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat. As used in this paragraph, "threatening to retaliate" means a threat to kidnap or falsely imprison, or to inflict extreme pain, serious bodily injury, or death.
(5) Where the act is accomplished against the victim's will by
threatening to use the authority of a public official to incarcerate,
arrest, or deport the victim or another, and the victim has a
reasonable belief that the perpetrator is a public official. As used
in this paragraph, "public official" means a person employed by a
governmental agency who has the authority, as part of that position,
to incarcerate, arrest, or deport another. The perpetrator does not
actually have to be a public official.
76. MsIvoryTower - 2/24/2000 8:12:18 PM
Jexter
CA Penal Code goes much farther in liberalizing rape laws than Texas.
I see 6 and 7 above cover the hypo Christin offered earlier, and the possibility of a blackmail element to the scenario.
77. jexster - 2/24/2000 8:13:02 PM
Cal - you just have to keep it in your pants as it were. I can only cut and paste so fast.
78. CalGal - 2/24/2000 8:14:48 PM
Jex,
I wasn't blaming you for a slow cut and paste job. It's just that there is no reason for distinguishing between the two.
79. MsIvoryTower - 2/24/2000 8:17:20 PM
Tabouli,
re #73
Given that it was a student teacher relationship, I'd want to see some sort of sexual assault charge stick, although I'm not sure it'd be rape (as we've traditionally thought about it).
My case with the dumb woman and the fake doctor, however, came out according to how I see this thing. I don't see why the law should allow women an out for their incredible stupidity. As far as I know, stupidity isn't a defense in any other crimes.
80. CalGal - 2/24/2000 8:17:41 PM
And 6 and 7 are nothing more than solicitation. I can see making abuse of authority a crime, if someone is a public official.
If the landlord says I have to have sex with him or I get evicted, can I go to the cops and say that he's attempted to rape me?
If he could be charged with attempted rape and I don't go to the cops, wouldn't that technically be consent?
81. MsIvoryTower - 2/24/2000 8:23:58 PM
Btw, Calgal
The wife exemption is still alive and well in most states, although it's been modified from its old common law form. Used to be a wife could never be raped, by definition, because once she became a wife she gave irrevokable consent to any and all sex between her and her spouse...until death do they part.
Modern laws now have moved away from such an extreme form of the wife exemption, but most states still refuse to acknowledge that a woman can be raped by her husband if she is still co-habitating with him.
82. wonkers2 - 2/24/2000 8:24:41 PM
Two concepts underlying criminal law are free will and "ought implies can" if I remember correctly from my long-ago ethics class. That is, before it makes sense to say someone ought to do something, they must be
able to do it. Logically it makes no sense to say someone should do (or not) do something they are incapable of doing. For example, we generally don't punish or execute demonstrably mentally ill people. (We try unsuccessfully to treat them, release them, and they do it again!) And we don't generally punish mentally incompetent people whose intelligence is significantly below normal and who are incapable of understanding right from wrong or participating in their defense. And we treat children under the law differently from adults, or we used to at least.
83. MsIvoryTower - 2/24/2000 8:28:16 PM
To me this is a very tricky area, and frought with potential for abuse.
In addition, what if the partners have a rather physical (violent) sexual relationship to begin with? One that may even have an element of resistance as sexual foreplay? When would the husband (or wife) ever recognize non-consent, as in, "No, No, No, I really, really really do not want to have sex with you."
84. jexster - 2/24/2000 8:28:16 PM
Cal -
There are 2 code sections because the original statute was appopriately premised on the fact that "I do" means what it says. :)
85. ChristinO - 2/24/2000 8:31:21 PM
MsIt,
Re:83
That's what "safewords" are for.
86. Angel-Five - 2/24/2000 8:33:02 PM
83: For the wife? Well, the guy will be asleep.
87. MsIvoryTower - 2/24/2000 8:34:25 PM
Christin
Can you imagine a jury having to sift through the evidence?
"Did she say the safeword or not?"
"She said she did"
"He said she didn't, and then he proceeded to rough her up..."
I'm sorry, but my active imagination runs away from me sometimes, and I simply end up on the floor with laughter....
88. TabouliJones - 2/24/2000 8:35:07 PM
"In addition, what if the partners have a rather physical (violent) sexual relationship to begin with? One that may even have an element of resistance as sexual foreplay?"
That is the exact scenario that is currently being considered by the Supreme Court of Canada. As it stands now, if the complainant did not at any point say or gesture: "yes I want to have sex" then there is a sexual assault. However, the accused can claim honest but mistaken belief that consent was granted when it had not in fact been granted. The wrinkle, however, is the rape shield law which severely limits the accused's ability to enter evidence with respect to the complainant's sexual history, including her sexual history with the accused.
89. ChristinO - 2/24/2000 8:35:12 PM
Hell, forget this he-said/she-said I want VIDEO!!!
90. ChristinO - 2/24/2000 8:38:20 PM
Tabouli,
This is starting to sound like a U.S. campus where you have to ask before everything you do and recieve a yes answer to proceed.
"May I kiss you on the lips"
"Yes"
"May I place my hand on your chest"
"Yes"
"May I place my hand on your chest inside your shirt"
"You didn't say mother may I. Take five baby steps back, bucko!"
91. MsIvoryTower - 2/24/2000 8:39:44 PM
Tabouli
Despite my momentary lack of respect for the seriousness of the topic, I appreciate you hanging in there with me on this.
I think there is the same defense here, depending on the state, and the level of culpability attached to the consent element. The Supreme Court decision I referenced earlier has overruled any rape shield laws that would bar evidence that bears directly on the issue of the defendants "mistake of fact".
92. TabouliJones - 2/24/2000 8:42:11 PM
ChristinO,
It doesn't reach that level of absurdity. Realistically, consent can be, and usually is, inferred from activity or acquiescence (to use a clumsy word). However, the basic problem is that the complainant will be saying, no co there was no consent. The defendant will say, yes there was consent. Then it becomes a matter of who you believe.
93. Angel-Five - 2/24/2000 8:45:39 PM
Oh, christ, don't start about that place, I've been there. The nightlife sucks.
94. ChristinO - 2/24/2000 8:46:08 PM
Tabouli,
Sorry I was being silly. I do think it's a pretty good law. I can be kind of wishy washy about this topic since I see abuses on both sides. My wish is that people would grow up and take responsibility for their actions/lives and not abuse one another but you know what they say--"Wish in one sh@t in the other..."
95. Angel-Five - 2/24/2000 8:46:44 PM
TJ:
No, no, dude, I've been to Antioch. It can get pretty ridiculous sometimes.
96. ChristinO - 2/24/2000 8:47:23 PM
hahaha didn't realize I'd picked a symbol that actually spells a word in the wrong tense. Obviously time for me to go home.
Evening all!
97. TabouliJones - 2/24/2000 8:50:02 PM
MsIt, ChristinO,
No need to apologize. I didn't take offense to anything said, and I don't think that your levity was inappropriate.
98. MsIvoryTower - 2/24/2000 8:50:37 PM
Christin, A5
You do hit on the heart of the problem with focusing only on consent as "affirmative and freely-given agreement". At some point it completely blurs the line between seduction and rape. If women weren't so ambivalent about wanting to be "talked into" having sex, this wouldn't be such a potential problem for male-female relations.
99. TabouliJones - 2/24/2000 8:51:34 PM
MsIt, ChristinO,
No need to apologize. I didn't take offense to anything said, and I don't think that your levity was inappropriate.
100. TabouliJones - 2/24/2000 8:58:59 PM
"You do hit on the heart of the problem with focusing only on consent as "affirmative and freely-given agreement". At some point it completely blurs the line between seduction and rape."
This is where issues of prosecutorial discretion and basic common sense come into play. Vexatious claims are made all of the time, in most areas of law. That is why comparisons with assault in general may be helpful. Technically, if I deliberately bump someone with my shoulder while passing by them in the street, this is assault. However, a prosecutor would never pursue the case and I judge would make it damn near impossible to enforce the claim -- depsite its technical viability. Hopefully, the same sort of common sense approach will take hold in the area of sexual assault.
101. TabouliJones - 2/24/2000 9:00:13 PM
that is a judge, not I judge.
102. Angel-Five - 2/24/2000 9:00:27 PM
When foreplay consists of signing on the dotted line, well, that's tons worse than having to look for a condom.
Date rape isn't really common around here, although something that some people might call date rape is. I'm speaking of women feeling a bit uncomfortable about having sex but doing it anyway. (And yes, it happens to guys, too, but we usually call that 'generosity').
I have no problem in theory with institutionalizing something that lets women feel more secure about saying 'no' to their horny date, but the only place I've seen it in practice is Antioch and I don't think it works there very well. There's just really no substitute for being able to say 'no' all on your own.
103. Angel-Five - 2/24/2000 9:00:31 PM
When foreplay consists of signing on the dotted line, well, that's tons worse than having to look for a condom.
Date rape isn't really common around here, although something that some people might call date rape is. I'm speaking of women feeling a bit uncomfortable about having sex but doing it anyway. (And yes, it happens to guys, too, but we usually call that 'generosity').
I have no problem in theory with institutionalizing something that lets women feel more secure about saying 'no' to their horny date, but the only place I've seen it in practice is Antioch and I don't think it works there very well. There's just really no substitute for being able to say 'no' all on your own.
104. MsIvoryTower - 2/24/2000 10:40:46 PM
Tabouli
Something I was meaning to ask you earlier; given that Canada has eliminated any strict liability in criminal laws, I don't see how it would be possible to have the equivalent to statutory rape in the US. How does Canadian law deal with the issue of sexual intercourse with an underage child? Consensual or not? What level of culpability is required?
Jexter,
I looked for a level of mens rea (guilty mind) required in the CaPC for rape and didn't see one. Is there one identified, and if so, what is it? Knowledge? Recklessness? Intent?
105. TabouliJones - 2/24/2000 11:39:58 PM
MsIt,
You can still have statutory rape. The elimination of strict liability simply means that the defendant can plead that he or she thought the complainant was of legal age. In order to make this claim, however, the defendant must have taken "all resonable steps to ascertain the age of the complainant." What constitutes reasonable, is a question of fact to be determined at trial. If someone underage consents to sex with an adult, it is still statutory rape, or "sexual exploitation" according to the terminology of the Criminal Code.
106. Jonesy - 2/25/2000 12:13:25 AM
Once again, those ever reasonable Canadians are in the lead. I believe that there should be no strict liability for any crime that carries a penalty of imprisonment. If it isn't important enough for a jury, it isn't important enough for imprisonment. If a crime is serious enough to merit a serious punishment, it merits a full consideration of the mental state of the accused.
107. MsIvoryTower - 2/25/2000 8:24:43 AM
Jonesy
I'm in full agreement with your position except in cases of statutory rape where the age of the child is 12 or under. The MPC has the threshold at 10, but I think that too low. Most states put the threshold at 16 or 18, which I think, in this day and age, is too high.
Sexual offenses with children are the only category of crimes I'm willing to impose strict liability on, otherwise, I, too, think the Canadian position is the most appropriate one.
108. MsIvoryTower - 2/25/2000 8:58:02 AM
Tabouli
The elimination of strict liability simply means that the defendant can plead that he or she thought the complainant was of legal age.
But then this creates a culpability level for the "underage" element of the offense then. I thought strict liability allowed for no culpability level on the material elements. (That is, in the statutory rape situation.)
109. TabouliJones - 2/25/2000 11:57:54 AM
MsIt,
How I understand it, which may very well be wrong or misleading, is that the elimination of strict liability simply means that the accused must be able to plead some sort of defense akin to reasonable diligence. It is o.k. to deem a mens rea upon proof of the actus reus, but the defendant must be able to plead some sort of defense.
110. CalGal - 2/25/2000 12:02:30 PM
I still have a question: If Christin has sex with her landlord to prevent her from being evicted, is that rape?
111. TabouliJones - 2/25/2000 12:03:52 PM
Actually, let me amend that last sentence: It is o.k. (in certain circumstances)to deem a mens rea upon proof of the actus reus, but the defendant must be able to plead some sort of defense.
I wish I had a Canadian criminal law casebook handy, because then I could double check to see if I am on the right track. I don't thin that you can get the whole gist of the Canadian approach to the matter from the Dickson judgment in Regina v. Sault Ste. Marie. That decision has probably been reconsidered, nuance and qulaified to some degree, since 1978.
112. TabouliJones - 2/25/2000 12:07:26 PM
CalGal,
The way you frame the question is misleading in the Canadian context. There wouldn't be a rape per se, but, depending on the facts, it might be possible to pursue a charge of sexual assault. However, I am doubtful that a sexual assault charge would stick.
113. ChristiPeters - 2/25/2000 1:05:11 PM
Interesting discussion. I'm sorry I can't participate as I'd like.
Re CalGal's question about Christin's landlord example. I don't know what the law says, but my moral sense says that is not rape, it is sexual harrassment. That's why I like good, clear sexual harrassment laws on the books - to distinguish this type of situation form rape. I think coercion to have sex of the "I'll fire you/evict you if you don't" type is wrong and the victim should have legal recourse and the perpetrator some punishment.
I, personally, draw distinct lines between sexual assault, statutary rape, and sexual harrassment. I see them as separate, although related issues.
I really really really have a problem with the "it isn't rape if you are married to him" thing. I knew someone whose husband raped her at knifepoint, at gunpoint, and tied to their bed. Yes, of course, she divorced him, but that's not good enough for me. He should be in jail.
114. PsychProf - 2/25/2000 1:58:43 PM
115. ChristinO - 2/25/2000 1:59:36 PM
Christi,
I like your definition better. I was trying to think of a hypothetical where coersion exists but not physical force obviously my example wasn't very good.
MsIt
Re: Message # 98
"If women weren't so ambivalent about wanting to be 'talked into' having sex, this wouldn't be such a potential problem for male-female relations."
I both agree and disagree with this statement. I think it only fair to note that if men didn't feel challenged to talk women into sex we also would have less problems.
I don't intend to open up the whole "gender differences and sexual identity" discussion but it appears to me that we are trying to establish a sane and logical law that doesn't actually fit the reality of our society which has a pretty extreme double standard. The thing that I'm curious about is whether it is generally accepted that law is shaped by society or society is shaped by law.
It seems to me that when we attempt to shape society with law we mostly fail. I'm thinking especially of Prohibition and the current War on Drugs. Obviously people like to drink and do drugs. The law has never been effective in changing this and yet we continue to make laws in the obviously mistaken hope that they will curb drug and alcohol abuse.
To steer back to topic a bit: If we continue to socialize women so that they are victimized by sex and yet write our laws in such a way that we don't recognize it what have we accomplished? Are we going to teach women to "Grow up and deal with it" on a case by case basis? That seems ineffective at best.
116. TabouliJones - 2/25/2000 3:07:58 PM
ChristinO,
I sympathize with your concerns about what sexual assault laws say about society's general attitude towards women. The goal, I suppose, is to carve out sexual assault laws which avoid adopting a paternalistic attitude towards women while also avoiding the situation engendered by traditional rape laws: a situation in which much abhorrent behaviour was left uncensured by the law and it was very difficult to prosecute a man for rape, no matter how egregious his behaviour. IMO, the modern sexual assault laws have sufficient flexibility to achieve this goal -- in time, with sensible judicial application.
117. ChristinO - 2/25/2000 3:12:25 PM
Tabouli,
I tend to agree with you although I am concerned about the exceptions for spouses.
118. TabouliJones - 2/25/2000 3:14:47 PM
The exceptions for spouses are a vestige of the common law approach to rape. When I say modern sexual assault laws, I mean those which do not have a spousal exception.
119. Toenails - 2/25/2000 3:17:10 PM
"If Christin has sex with her landlord to prevent her
from being evicted, is that rape?"
CalGal: I've not been following this entire discussion, but taking your question (above) by itself, it sounds more like prostitution than rape.
120. ChristinO - 2/25/2000 3:20:34 PM
Toenails,
I've said that it was a bad example--- more harassment than rape---- but the sentence above is misleading since it implies that I'm already going to be evicted but I think that sexual favors will defray that. The original example was that the landlord says "if you don't put out then I'll evict you".
121. TabouliJones - 2/25/2000 3:21:26 PM
I think the prostitution analogy is inapt.
122. CalGal - 2/25/2000 3:24:07 PM
Toe, TJ:
I described it as prostitution myself, originally.
123. Angel-Five - 2/25/2000 3:30:15 PM
"If Christin has sex with her landlord to prevent her
from being evicted, is that rape?"
Oh, if only this weren't such a serious conversation.
It's coerced, I think. I don't believe it could be called prostitution under the original terms of the query.
124. ChristinO - 2/25/2000 3:32:21 PM
Angel,
It's okay, I'm laughing my ass off. My landlord is an 85 year old lady I've never spoken to.
125. Dantheman - 2/25/2000 3:32:53 PM
It may depend upon who is making the offer. If Christin makes the offer (as Annette Bening did in The Grifters), it should be prostitution. If the landlord does, it wouldn't be rape (since no force was being used), but probably would be some form of harassment.
126. Angel-Five - 2/25/2000 3:34:04 PM
Oh, good. Then I can say 'It isn't prostitution, it's Friday.'
127. CalGal - 2/25/2000 3:35:19 PM
I thought it was Christin who used the landlord question originally? Didn't mean to cast aspersions on her or her landlord.
The landlord is certainly offering something of value in exchange for sex. If the tenant accepts the value, what else is needed to make it prostitution?
128. CalGal - 2/25/2000 3:36:43 PM
It's harassment if Christin reports it before it happens, yes? But if she has sex with the landlord, I don't see how she can then claim harassment--she's accepted what he had to offer in exchange for sex.
129. Angel-Five - 2/25/2000 3:37:43 PM
The landlord as I understood it was saying 'put out or get out'. They may be offering compensation but so is a punk who pulls in a streetwalker and says 'I'll give you twenty bucks if you blow me, and I'll shoot you if you don't.' No one is going to call that prostitution.
130. Dantheman - 2/25/2000 3:38:41 PM
CalGal,
It's still harassment, even if she agreed to do it. Think of the boss telling you he'll fire you if you don't sleep with him. whether you do or don't, it's still harassment.
131. Angel-Five - 2/25/2000 3:39:21 PM
A woman who is pressured by an employer to have sex as a condition of getting the job she needs to feed her kids can successfully claim harassment after the fact.
132. Angel-Five - 2/25/2000 3:40:25 PM
Kross Post.
133. Angel-Five - 2/25/2000 3:41:42 PM
Now, if Annette Bening goes to the landlord... it's prostitution. I think.
134. Angel-Five - 2/25/2000 3:41:46 PM
Now, if Annette Bening goes to the landlord... it's prostitution. I think.
135. CalGal - 2/25/2000 3:42:06 PM
No, if you threaten to shoot someone it becomes rape--at least according to the laws Jex posted earlier.
But "put out or get out" means that she put out--and took the value. If she reported the landlord before having put out, then the landlord is guilty of harassment. But if she takes the value, it's prostitution.
For one thing--at least in this country--I don't think a landlord could just capriciously kick someone out. (at least, not in California). So presumably, the landlord has reason for eviction, and is willing to overlook it if Christin puts out. But even in the case where it was capricious, I don't see how it can be harassment if Christin doesn't report it before having sex with the landlord. Once she has sex, she's accepted the solicitation--and sex in exchange for something of value is prostitution, I believe. (unless it's marriage, of course)
136. Angel-Five - 2/25/2000 3:44:10 PM
But these conditions are never presumable if an empowered person exerts that power over a dependent person in order to extort sex from them. That's the way these things go.
137. Angel-Five - 2/25/2000 3:45:37 PM
And the before/after thing, as stated, is irrelevant. You can report it after the fact, even if you acquiesced, and still successfully press the charge and win compensation.
138. ChristinO - 2/25/2000 3:46:50 PM
CG,
Yes in California the law is on the side of the renter, but leaving rental laws out of this the point is that under threat of losing the roof over my head I consent to have sex with my landlord. The issue is coersion and abuse of power not actual tenant rights.
139. Angel-Five - 2/25/2000 3:47:03 PM
Christ, this place is usually thick with lawyers. Where's one when you need them? Stumping for McCain is where.
140. CalGal - 2/25/2000 3:47:52 PM
Think of the boss telling you he'll fire you if you don't sleep with him. whether you do or don't, it's still harassment.
I agree that this is what the laws state. However that goes back to what I was saying earlier--it assumes women are children. She can report him. If she chooses not to report him, but takes the value (continued job), then she has prostituted herself.
It's even more problematic if the boss says, "Have sex with me or you won't get a promotion". She has sex, gets the promotion. Well, who is to say that she was entitled to the promotion if she hadn't had sex?
If it's harassment after she has sex, it's harassment before she has sex, so she can report it then. If she doesn't report it, it was her choice to accept the value.
141. CalGal - 2/25/2000 3:51:51 PM
Your boss comes to you and said, you have to commit fraud or I'll fire you. So you commit fraud. Do you go to jail if you get caught?
142. Dantheman - 2/25/2000 3:52:05 PM
CalGal,
Harassment is a crime of power, not sex. It assumes that the harasser (the boss or landlord in our cases) has power over the victim, regardless of which sex each is. Therefore the employee is not being treated as a child because she's a woman, she's being treated as a powerless victim because it's her boss that's making threats.
A-5,
I'm a (real estate) lawyer. I am not flaunting it here because this isn't my area of expertise.
143. Dantheman - 2/25/2000 3:53:45 PM
CalGal 141,
Usually. You generally can go to the authorities to uncover the fraud afterwards, if necessary. Sex is treated differently here.
144. ChristinO - 2/25/2000 3:55:34 PM
Cal,
I think your view may be skewed since you have high demand skills and the idea that you couldn't find work if you wanted it is laughable. For a woman who barely has a highschool education the choices are limited. It is not always or maybe even usually easy to press a harassment suit nor is it assured that you won't suffer by bringing such a suit.
145. Angel-Five - 2/25/2000 3:58:08 PM
God, I hate ICQ. Is it goofy for everyone today or just me?
146. Angel-Five - 2/25/2000 4:00:02 PM
The important bit is that you can still press charges against your boss. If you do something illegal, in most cases, you get charged. Having sex isn't illegal.
147. ChristinO - 2/25/2000 4:00:34 PM
Mine has been sucky for three weeks but that's due to our firewall and some freaking hacker trying to get into the site.
148. Absensia - 2/25/2000 4:02:10 PM
My ICQ has been flaky since I installed W98.
149. ChristinO - 2/25/2000 4:02:22 PM
"Having sex isn't illegal."
That depends on what state you're in.
150. CalGal - 2/25/2000 4:02:29 PM
Dan,
You generally can go to the authorities to uncover the fraud afterwards, if necessary. Sex is treated differently here.
I agree it is treated differently. But my point is, it shouldn't be. It is treated differently because women are given a pass on taking responsibility for their choices. If exchanging sex for value is against the law (and it is) then it shouldn't be treated any differently from fraud. In both cases, the employee should be able to immediately report it to the authorities, and if they don't, they can pay the piper when they get caught. They accepted the benefit (continued employment) and committed a crime.
Christin,
I think your view may be skewed since you have high demand skills and the idea that you couldn't find work if you wanted it is laughable.
If the same employee would go to jail for committing fraud, then the bit about high demand skills has nothing to do with it. Besides, you know full well that sexual harassment claims are made by women in all professions--highly skilled or not. So why do so many women accept the exchange? Because the value of what the boss is offering is greater than the value of not accepting.
151. CalGal - 2/25/2000 4:04:05 PM
Having sex isn't illegal.
Having sex in exchange for something of value is most certainly illegal. In all of these cases, the person is having sex in exchange for something of value (keeping one's job, getting a promotion, and so on).
152. Toenails - 2/25/2000 4:04:35 PM
Just being "a lawyer" doesn't answer the question. The discussion here has been reasonably apt, whether or not the participants are lawyers. As in the case of most legal issues, the ifs/or/buts rule.
Circumstances alter cases (to not exactly coin a phrase).
Essentially, though, it boils down to who proposes the sex as consideration for the non-eviction. If it's the landlord, it's at least harassment; if it's the tenant, it's quid pro quo, and (I'm pretty sure) that's true whatever the legal merits of the threatened eviction action.
153. ChristinO - 2/25/2000 4:13:05 PM
So the adult thing to do is lose your job and thereby your housing and maybe custody of your children to their crack-head dad or social services so that you can claim you made a responsible choice about sex while you wait for litigation to come through which you may not be able to win?
154. ChristinO - 2/25/2000 4:13:59 PM
Sorry, forgot to address the last post. 153 is to CG.
155. Dantheman - 2/25/2000 4:14:40 PM
CalGal 150,
1. As previously noted, harassment is a gender blind crime. Therefore, the issue isn't that women are being given a free pass for having sex. It's that the law recognizes the powerless of a subordinate in this situation.
2. Having sex is something that cannot be undone and often has greater psychological complications on the victim and his/her family than committing fraud would.
3. Committing fraud generally takes time, during which the victim can contact the authorities to prevent it from occurring. Sex in such circumstances usually takes place immediately.
4. Sex has the complicating factor that the harasser may be promising (or the victim may perceive the harasser as promising) something different than just a one-shot deal (i.e., a long term relationship which the victim may be willing to enter into)
5. As previously pointed out, consensual sex isn't illegal; fraud is.
156. Angel-Five - 2/25/2000 4:17:39 PM
Having sex for something of value is illegal? Not in all cases it isn't.
157. ChristinO - 2/25/2000 4:19:20 PM
"Having sex in exchange for something of value is most certainly illegal.
Having sex for money is illegal except in parts of Nevada. I'm not sure what the law says exactly regarding prostitution but I doubt there is anything about shacking up with someone who provides for you otherwise 30% of the "actresses" in LA would be in jail. These are absolutely sex for benefit relationships and to my knowledge they are not considered prostitution.
158. CalGal - 2/25/2000 4:20:17 PM
So the adult thing to do is lose your job and thereby your housing and maybe custody of your children to their crack-head dad or social services so that you can claim you made a responsible choice about sex while you wait for litigation to come through which you may not be able to win?
You are saying your response to the woman would vary based on your perception of the value? Does this mean that women with salaries of $50K a year should quit, but those with fewer options should have sex?
If not, then what difference does it make wheher she loses housing or the same standard of living?
Besides, suppose a woman has no job and decides to go into prostitution. Why? Because she wants to spare herself the loss of housing, custody, etc. Do the police give a damn? No. It's a crime. So why should it matter if you commit a criminal act to keep a job, rather than instead of a job?
And you still haven't told me how the employee who commits fraud to avoid being fired--who will usually go to jail--has any better options than the woman who has sex to avoid being fired. They're both on the street in the doom and gloom scenario you paint. Why should one be exempt and the other not?
159. CalGal - 2/25/2000 4:23:29 PM
Having sex for money is illegal except in parts of Nevada.
If your boss says, "Have sex with me and I'll give you a promotion", you are having sex for money. If your boss says, "Have sex with me or you're fired", you are having sex for money. If your landlord says, "Have sex with me and I won't evict you for back rent due", then you are having sex for money.
In fact, if your boss says, "Commit fraud or I'll fire you", you are committing a crime for gain--the gain being that you can keep your job. But in any event, you're off to jail in most cases.
160. CalGal - 2/25/2000 4:25:50 PM
Dan,
Unless you wish to argue that harassment laws didn't originate as a way to protect women, you're not saying anything I don't know. Yes, the laws protect both genders. The idiocy of the laws is due to the double standard for women.
161. CalGal - 2/25/2000 4:30:14 PM
Dan,
Sex in such circumstances usually takes place immediately.
Not only doesn't the sex take place immediately in most cases, the firing or negative consequences don't result immediately, either.
Sex has the complicating factor that the harasser may be promising (or the victim may perceive the harasser as promising) something different than just a one-shot deal (i.e., a long term relationship which the victim may be willing to enter into)
Oh, I see. So if the "victim" has sex with the boss because the boss promised a promotion and a long-term relationship, it's different than just a one-time fuck for a partnership?
Having sex is something that cannot be undone and often has greater psychological complications on the victim and his/her family than committing fraud would.
Apart from the fact that this is nonsense (consider the terror of fraud, when you'll go to jail if caught or be fired if you don't do it)--the entire point is that the person doesn't have to have sex.
162. ChristinO - 2/25/2000 4:30:18 PM
CG,
Dan explained the difference between sex and fraud rather well I thought.
I have said nothing about sex for a promotion. We've been talking about sex as opposed to loss of employment or housing. I'm questioning your sense of the word "gain". No one is offering a job for sex they are simply saying that if you do not have sex they will take your job away.
If you have five dollars in your pocket when you leave the house and five dollars in your pocket when you return home in the evening should you be grateful to all the muggers who essentially "gave" you that five dollars by not taking it?
163. Angel-Five - 2/25/2000 4:30:52 PM
If your boss says,
"Have sex with me or you're fired", you are having sex for
money. If your landlord says, "Have sex with me and I
won't evict you for back rent due", then you are having sex
for money.
If your landlord says 'have sex with me and I'll let you slide on rent, and I won't kill you' then by that logic you're having sex for money, which is patently ridiculous. But, hey, it's your logic, not mine. If your boss says 'have sex with me or you're fired', and you have sex, you in the legal sense are having sex because you're coerced and not because you're after money. I mean, what's next, 'she shouldn't have worn the dress?'
If your boss offers you a promotion in exchange for a sloppy headshot there is still an implied abuse of power whether or not the threat is ever made explicit.
164. Dantheman - 2/25/2000 4:32:16 PM
CalGal,
Your post 150 said that sexual harassment is treated differently than the fraud example because women are "given a pass on taking responsibility for their choices", even though it shouldn't be. I've given you 5 reasons why it is treated differently, only 1 of which deals with the gender issue. You haven't responded to the remaining issues (except 5) and instead continue to insist it's a double standard for women when it's not. One of us is having trouble with reading comprehension here.
165. Dantheman - 2/25/2000 4:32:35 PM
Cross post.
166. CalGal - 2/25/2000 4:34:02 PM
If your landlord says 'have sex with me and I'll let you slide on rent, and I won't kill you'
At what point will you stop throwing in violence as a part of the deal? That moves it out of harassment/prostitution and into rape.
Leaving out violence, "Have sex with me and I'll let you slide on the rent" is pretty much straight prostitution.
167. ChristiPeters - 2/25/2000 4:34:14 PM
A minor point - not all states are like California. I had occaision to look up the law in NM when I had a dispute with my landlord there. In NM, a landlord can kick you out at any time with 30 days notice, no reason required. I was shocked to find out that this is true even if you have a lease which has not expired. IOW, if you are 2 months into a year lease in the state of NM and you decide you want to move, you are on the hook for the remaining 10 months rent unless you have an out built inot the lease. However, if you are 2 months into a year lease and the landlord wants to kick you out, all he/she has to do is give you 30 days notice and you are out in the street. The only exception was if the landlord wanted to kick you out because you had kids and they were going to a no-kids policy, they had to give you 6 months notice. Totally stinks, but there it is. Don't be surprised if the law varies wildly from state-to-state depending on whther landlords or tenants have the strongest lobby. (btw, this was in 1987, I hope the law has changed since then, but I don't know one way or the other)
168. ChristinO - 2/25/2000 4:37:22 PM
"You are saying your response to the woman would vary based on your perception of the value? Does this mean that women with salaries of $50K a year should quit, but those with fewer options should have sex?"
No. What I'm saying is that it isn't so easy or cut and dried as you wish to believe. yes any woman can pursue a sexual harassment suit, but most women do not have the option of walking immediately off their jobs, hiring a lawyer and then counting on being able to find work again in time not to become destitute. You are asking a woman not only to behave as "an adult" you are holding her to an unreasonable standard. This is equally true for a man in the same situation. If it were easy to fight harassment it wouldn't happen. That's the reason it's harassment because the harasser has the power and the victim has limited options.
169. ChristiPeters - 2/25/2000 4:37:30 PM
I disagree that the harrassment law assumes that women are children. First, it applies to men too. Second, I think it assumes that anyone in a position of power should not be allowed to use that power to harrass those subject to his/her power. It is about preventing abuse of power, not about the victim of the abuse. I don't care if the person being harassed has $1Mil in the bank or is destitute - the harassment is wrong and should be sanctioned.
170. ChristiPeters - 2/25/2000 4:38:20 PM
aaack - "NOT be sanctioned"
171. Dantheman - 2/25/2000 4:41:07 PM
CalGal,
1. What is your basis for believing the sex doesn't occur immediately? I've certainly seen the opposite.
2. Yes, it is very different if the superior says he'll get into a long term relationship with the subordinate.
3. The "terror of fraud"? If one has the chance to report it and prevent it from occurring (or undo the damage that's been done), the victim will almost certainly not face any prosecution. On the other hand, sex with a boss can (and frequently does) lead to a spouse feeling the subordinate was unfaithful and breaks up marriages.
172. Angel-Five - 2/25/2000 4:43:20 PM
At what point will you stop throwing in violence as a part
of the deal? That moves it out of harassment/prostitution
and into rape.
I'll do that as soon as you realize that a negative penalty, and not just an extension of the status quo, is what is entailed as possible outcomes of the landlord/ChristinO harassment. The degree of penalty seems to matter to you in this case, which shouldn't matter at all since you're talking about the principle of the thing. Doing something to avoid a greater penalty doesn't change the principle, it just makes it more understandable.
173. ChristiPeters - 2/25/2000 4:43:52 PM
Most women I have known who have actually experienced sexual harrassment and have not prosecuted the harrasser, made that decision based on the belief that if they went to court on this - win or lose, they would be unemployable in the future. I hope this changes, but my experience has been that they were right.
I happened to be sitting in on a meeting of the "bosses" during a co-op job where they were discussing various job applications. Two of them were rejected because the individuals had filed union complaints on the job. Since there were many many applications for very few jobs, they could get away with this. There would be no way for the rejected applicant to prove that this was the reason he was not hired.
This probably doesn't happen as much in a tight job market, but being treated fairly shouldn't depend on how tight the job market is.
174. Angel-Five - 2/25/2000 4:49:15 PM
You're also, for whatever peculiar reason motivates you, refusing to acknowledge what everyone else sees plainly as day -- there is an implied abuse of power in a landlord's entreaty to put out or get out. We aren't talking about two people who are searching each other out on a street corner, both equally empowered and choosing of their own free will to engage in a mutually beneficial act, and more importantly we can't assume that anything of the case is even remotely in the cards when the landlord comes knocking, because of that implied abuse, right from the start. It's coercion under the law, and whether or not you think that harassment laws are good for women and men is irrelevant to that fact.
175. CalGal - 2/25/2000 4:52:53 PM
Christin,
No one is offering a job for sex they are simply saying that if you do not have sex they will take your job away.
Yes. And anyone who makes that offer is guilty of an abuse of power. But anyone who takes up the offer is entering into the transaction, rather than refusing it--and they are taking the value offered. Besides, you know perfectly well that most sexual harassment law is a hell of a lot murkier than that.
The piece we're missing in this equation is this: why don't more people (particularly women) report harassment? Right away? Immediately, when it happens? Why do they instead submit to the offer?
I don't believe that it's desperation, since women in all income levels have been shown to submit to the offer--either for a promotion, or for a good review, or whatever.
I think it's because women in particular are used to the notion of using sex as a weapon--either defensive or offensive. As we all know, there are plenty of women who will use sex as a means of getting ahead--who will fuck the senior partner if it gets her that high-profile case--and there are also plenty of women who freeze like a deer in the headlights if someone challenges their security in any way--and fuck the lowlife boss if it keeps her job.
But really, what's the difference between the two? They are both using sex to keep ahead. Until we start expecting them to act like grownups--and expose them to the consequences of their behavior if they don't--I fail to see how things will change.
I certainly don't see any justification for laws that have to be explained in femspeak. Laws that can't stand on their own are certainly at least subject to question, and if the only excuse for them is "Well, performing sex as a way to keep one's job is more traumatic than committing fraud to keep one's job"--then I think we have a long way to go.
176. Toenails - 2/25/2000 4:54:09 PM
ChristiPeters (#167)
Landlord-tenant laws vary a great deal around the country, but even in New Mexico, a landlord can no longer evict because he wants to go to an all-adult operation. Discrimination against families with children is illegal now under Federal law. (Some exceptions for very small operations.)
And, in general, even in a landlord-friendly legal atmosphere like the New Mexico situation you describe, the Federal (and, sometimes, state) civil rights laws would often (but not always) serve as a brake on arbitrary evictions.
177. CalGal - 2/25/2000 4:54:21 PM
Christi,
I'm not arguing that harassment is just fine. I think it's wrong, and should be punished.
I am saying that if one accepts the offered exchange, why is that any different from committing any other crime in order to keep one's job?
178. PsychProf - 2/25/2000 4:57:04 PM
I was advised by the college lawyer that touching an undergraduate student(in this case a hug for a student whose mother was very ill) was inapprorpriate and open to harrassment litigation. How could I have proved myself innocent of a charge since clearly I touched the student...many of my male colleagues avoid female students whenever possible, keep their office door open at all times-privacy be damned, and are in fear of such claims whenever a female student challenges a grade. As for our workplace, clearly sexual in nature as all workplaces are, many are scared to act as men and women. I know of numerous cases in the corporate world of those who simply refuse to date within the work enviornment. I don't pretend to know about the law, but I sure as hell can see what goes on around me.
179. TabouliJones - 2/25/2000 5:00:06 PM
"I am saying that if one accepts the offered exchange, why is that any different from committing any other crime in order to keep one's job?"
If one accepts the exchange it is not necessarily prostitution. It is coerced sex. It is not a case of bargaining back and forth for an exchange of sexual services.
180. Angel-Five - 2/25/2000 5:01:13 PM
It isn't a crime. It's that simple. And you've done nothing at all to demonstrate that it's a crime except to reiterate that it is. Sex with the expectation of compensation does not constitute prostitution in and of itself in any lawbook I've ever heard of, and sex under coercion even less so.
181. TabouliJones - 2/25/2000 5:02:29 PM
PP,
"How could I have proved myself innocent of a charge since clearly I touched the student."
No sensible judge would find you culpable of any wrong doing in such a situation. If a woman brought such a charge, she would probably be politely laughed out of court. Your college lawyer was just exercising abundant caution, albeit it to a ridiculous extreme.
182. CalGal - 2/25/2000 5:04:03 PM
You're also, for whatever peculiar reason motivates you, refusing to acknowledge what everyone else sees plainly as day -- there is an implied abuse of power in a landlord's entreaty to put out or get out.
There's no question that the landlord is abusing power. I'm not arguing that he or she gets off scot-free. I'm just saying that the tenant who puts out has done so in order to get value for the sex. In many cases, it is a direct monetary value (not having to pay rent). That's prostitution.
BTW, I've already mentioned (and Toe has also said) that landlords can almost never just say, "Put out or you're out." In that case, the person could literally just pick up the phone and call the Fair Housing Bureau in their area and get the guy in serious trouble--all the while keeping their apartment. If they don't know that, well, since when do we allow ignorance of the law to excuse breaking it?
But if the tenant isn't reporting it because they know that they would be evicted if they report the landlord (e.g., back rent, too many people living in the apartment, whatever) then their actions are on them. In that case, they are submitting to blackmail, at the very least. And they are offering sex both as reason not to pay their rent (value) and as a means of paying for being able to break the terms of their tenancy.
183. TabouliJones - 2/25/2000 5:05:40 PM
Anyone here seen King Pin?
184. PsychProf - 2/25/2000 5:06:16 PM
Tabouli..Maybe...but the fear is there within all academic communities...many are afraid to tell a joke, no less make a pass. You haven't seen/experienced this?
185. Toenails - 2/25/2000 5:06:45 PM
If you're black and a cop asks you for your driver's license, looks like you'd better not reach for your wallet.
Actually, it's a hard case, and I certainly don't know that the verdict was wrong. Still, a complete free-pass walkaway is hard to take.
186. Angel-Five - 2/25/2000 5:07:04 PM
Yeh. I mean, what, you hugged her and her bra popped out her shirt-collar?
She was grieving in the sauna? What?
There's no doubt that harassment laws can be a wet blanket as far as flirting in the office, and even innocent actions as well, but I also think that's got a lot more to do with undue fear of harassment charges than the actual reality of how harassment works.
187. Dantheman - 2/25/2000 5:08:32 PM
CalGal 182,
"In that case, they are submitting to blackmail, at the very least. And they are offering sex..."
I will agree with you that they are submitting to blackmail. That isn't a crime. Moreover, as previously stated in post 125, the person doing the offering is important to determining whether it is prostitution. I'm glad you're coming around on this one.
188. PsychProf - 2/25/2000 5:10:23 PM
A-5...you have to know that such a charge alone will ruin one's career. By the time the judge throws it out it's too late.
189. TabouliJones - 2/25/2000 5:11:23 PM
PP,
I have seen similar instance of paranoia, but part of the problem is that people are mistakenly characterizing the applicable laws in an extreme (in terrorem) way. True, some people have abused the sexual harassment laws, but I am assuming that common sense will eventually prevail. In a few years, I trust that the lines will be more clearly and sensibly drawn --people's current paranoia aside.
190. Toenails - 2/25/2000 5:14:11 PM
Tabouli-Jones (189)
You're right. But transition periods are a bitch!
191. CalGal - 2/25/2000 5:14:12 PM
Dan,
They are also accepting monetary payment--usually in not having to pay the rent. That's the part that would make it prostitution.
192. TabouliJones - 2/25/2000 5:15:15 PM
PP,
Part of the issue also has to deal with the Institution's efforts to cover there ass. By implementing very strict harassment policies or convincing employees that any touching, however innocent, can be grounds for sexual harassment, they are shielding themselves from being found somehow culpable when one of their employees commits actual sexual harassment.
193. PsychProf - 2/25/2000 5:15:51 PM
Jones...the allegation is sufficient for public execution...
194. Angel-Five - 2/25/2000 5:15:52 PM
CalGal:
That's not prostitution, though -- you keep saying that it is, but you can't demonstrate why. It's not soliciting.
Here's your problem in a nutshell -- you are arguing from principle and then comparing the principle to the law. You are (unsuccessfully) trying to equate sex for value as prostitution, in principle, but then also amphibolizing your way into saying it's also prostitution in the legal sense when your definition of prostitution covers a lot of ground that doesn't match the legal definition. This is necessary for your argument 'if it's still fraud, then it's still prostitution' to fly but it's not a jump you can make.
So you retreat back to the principle, and then try and mount the argument again. But it won't work this time, either.
Forgetting for the moment that the coercion laws rule out prostitution in the case you're mentioning, you still have to make some sort of case that having sex for gain constitutes prostitution, legally (or for that matter in principle). And that's being generous, because the 'gain' in this example is merely to break even.
195. Dantheman - 2/25/2000 5:16:04 PM
CalGal,
No, that's the part that makes it submitting to blackmail.
196. TabouliJones - 2/25/2000 5:16:25 PM
"But transition periods are a bitch!"
Agreed. I do feel for those who have been subjected to vexatious claims.
197. TabouliJones - 2/25/2000 5:19:06 PM
The coercion negatives any notion that the woman has voluntarily agreed to have sex. No sex: no prostitution.
198. Angel-Five - 2/25/2000 5:19:38 PM
Prof:
I respectfully disagree that it will ruin one's career, because I know of many people who were convicted of sexual harassment (real harassment, not hugging a student) who had long and involved histories of sexual harassment complaints in prior jobs and communities, and even in current jobs and communities.
I'm not going to tell you that it's all good, or that it comes without a price, because I know that it does damage a career to a certain extent depending upon how believable the charges are and how bad they sound. But I think it's better than an environment where women have little protection against requests that they fuck to get and keep their jobs.
199. Dantheman - 2/25/2000 5:21:49 PM
TJ 197,
Your first sentence is right. The second isn't quite. More like no voluntary sex = no prostitution. No one is denying the sex took place.
200. TabouliJones - 2/25/2000 5:23:17 PM
Dantheman,
I meant to say no voluntary sex = no sex in the eyes of the law = no prostitution.
201. Angel-Five - 2/25/2000 5:23:40 PM
And you know? I can say that, because I have been sexually harassed by female superiors more than once, and I'm not just talking about someone asking me a sexually ambiguous question. I'm just sort of fortunate that my societal role allows me a lot more leeway in those positions than an unwed mother with no college education.
202. Indiana Jones - 2/25/2000 5:27:25 PM
A5: Cool! (High five)
203. ChristinO - 2/25/2000 5:31:00 PM
CG,
Quit changing the example. I'm not getting a break on the rent. I'm not behind on the rent. I haven't done anything wrong. I am a tenant in good standing with a nice pair and my landlord says he gets to touch them or I can find another place to live. The issue isn't rental laws. Let's assume I've got a three days before he puts my stuff in the street and changes the locks.
You're suggesting that if I submit to this and then file suit that not only should I be laughed out of court but I should be prosecuted for prostitution.
204. Angel-Five - 2/25/2000 5:31:16 PM
It really is a different for guys, I think, at least on average. You can still feel a little intimidated and worry a little bit about your job, but guys' experiences and reactions as the victim of sexual harassment usually sound a lot different from womens'.
(And, no, Indiana, it doesn't sound like a zipper opening.)
205. Angel-Five - 2/25/2000 5:33:07 PM
I just now saw, and got, the Kingpin reference.
206. Dantheman - 2/25/2000 5:33:37 PM
ChristinO,
"I'm a tenant in good standing with a nice pair..."
Care to demonstrate?
and since I'm not your landlord, boss or anyone else who has power over you, that's not harassment
207. TabouliJones - 2/25/2000 5:34:45 PM
A-5,
Its hard to keep the conversation in its proper perspective when you have that King Pin image in your head. Poor Woody.
208. Angel-Five - 2/25/2000 5:35:41 PM
Poor Woody, indeed.
209. Dantheman - 2/25/2000 5:38:22 PM
Sorry, but I need to head home. See you all next week.
210. ChristiPeters - 2/25/2000 5:39:13 PM
I think it's because women in particular are used to the notion of using sex as a weapon--either defensive or offensive. ...... and there are also plenty of women who freeze like a deer in the headlights if someone challenges their security in any way--and fuck the lowlife boss if it keeps her job.
While I don't deny such women exist, either I have led a very sheltered life (possible) or they aren't in the majority. Most women in my generation had real experiences that taught them you don't buck the boss. The old boy network would make sure you would never work again and the one most hurt if you refused and reported would be you.
I think (I hope) that this is changing. However, in spite of all the publicity and the paranoia, I don't think it has changed that much yet. It's not a woman/man thing, either. Whistle-blowers of either sex get screwed, no matter how many no-repercussion rules are out on paper.
211. ChristiPeters - 2/25/2000 5:42:17 PM
The old boy network would make sure you would never work again and the one most hurt if you refused and reported would be you.
I left out -Most of them also wouldn't put out. They accepted that if they refused their career/job there was over and hung tough until they could find another position. (Hard to build seniority that way, though)
212. CalGal - 2/25/2000 5:52:35 PM
Christin,
I am a tenant in good standing with a nice pair and my landlord says he gets to touch them or I can find another place to live.
As I said--report him to the FHB. No state I can think of gives a landlord that kind of power.
213. ChristinO - 2/25/2000 5:55:15 PM
Gaaah! KingPin! I nearly hurled during that scene. I saw this film almost back to back with Trainspotting another film with heave-inducing moments.
I have no idea what that actress's name is but I love her although she creeps me out big time. She's the suntanned lady in Something About Mary and the psycho-religious mom in Detroit Rock City.
214. CalGal - 2/25/2000 6:03:12 PM
BTW, since this is probably veering off of the legal aspect, let me try and bring it back into line:
The current situation is problematic because there are so many people who cheerfully provide sex for advancement or other advantages that directly translate to monetary gain. There is no way to know whether or not a person who doesn't report an offer is complicit (engaging in prostitution) or coerced. This makes burden of proof extremely murky, for both sides--especially since there are relatively few cases that are as clearcut as "Fuck me or I'll fire you."
So why not provide a way to distinguish between those who are complicit and those who are coerced?
Example: If Person A has decision making authority over any aspect of Person B's life (employment, education, residence, financial), then any direct offer to use that authority in exchange for sex is a crime/misdemeanor. Likewise, if anyone accepts such an offer without reporting it and also benefits from the transaction, they can be charged with prostitution.
This gives Person B a clear means of defense that doesn't involve having sex with the person: they can report it to the cops, right away. They will have to document the date, time, the words used, and preferably it should be reported within given time limit. Once the report is made, it will become extremely difficult for Person A to abuse his or her decision making authority to Person B's detriment. The report shouldn't be taken at face value, but investigated. If there is insufficient evidence to charge Person A, then it will still make it difficult for Person A to act out, if the report exists. And if Person B is just being malicious, that, too, will probably come out.
215. CalGal - 2/25/2000 6:03:45 PM
If Person B doesn't make a report of the offer, and instead has sex with Person A, then he or she is assumed to have willingly entered the agreement. In this case, if their activity is discovered, both A & B are charged--one with solicitation, the other with prostitution. If it is discovered and Person B has not clearly benefited, then only Person A is charged.
This would obviously create an entirely different set of problems--as would any new law. I'm just using it as an example, to demonstrate a way of handling these situations that does hold the "victim" responsible for their actions. Provide a clear course of action to anyone who receives an unwanted offer of sex from someone who has decision making power over them.
216. ChristinO - 2/25/2000 6:04:07 PM
So I should live in the street until the FHB takes action? I've never known a government agency that works all that fast.
The issue here is that there are means of force and coersion that don't require someone holding a gun to your head. What it seems to me that you are saying is that if you cave for any other reason than immediate and serious bodily harm then you're a sucker and you deserve what you get.
Do you apply this equally to all scenarios or only to women being propositioned for sex?
217. CalGal - 2/25/2000 6:16:11 PM
So I should live in the street until the FHB takes action? I've never known a government agency that works all that fast.
Christin, all you'd have to do is tell the landlord that you'll report him to the FHB, and you're halfway there. That doesn't work, find a lawyer, quick--and there are plenty of places to report abuses like this.
Generally, you can't be evicted in three days without cause (and there are required bulletins posted on this in every rental office I've ever seen). And if there's cause, then that is the problem, not the landlord. Your landlord has just complicated things by giving you an option other than the one you should be subject to--and that is where I submit that it becomes prostitution, or close to it.
Again, it is not that the landlord gets a walk.
What it seems to me that you are saying is that if you cave for any other reason than immediate and serious bodily harm then you're a sucker and you deserve what you get.
In most cases, yes. I don't know that I'd call them a sucker, but I would say that they have confused the matter considerably and have accepted something of value for sex--keeping in mind, again, that immediate terminations or evictions are not generally at issue. There has to be cause in most cases, and that is precisely what makes the matter so murky.
As I just mentioned, I do think that there needs to be a clear course of action for those who feel they are being coerced into sex. For one thing, I think it would cut down a great deal on the offers. For another, it creates a clear line between those who then have sex and accept the benefit and those who don't.
But if you had a lousy performance review, and you put out for your manager in order to keep from getting fired, why should that be substantially different from taking the termination and then accepting $2000 bucks for giving the guy a blowjob?
218. ChristiPeters - 2/25/2000 6:19:21 PM
CG - How would your law deal with Person B neither reports nor complies?
219. CalGal - 2/25/2000 6:33:10 PM
Christi,
I don't think it's against the law to fail to report a crime, is it? For example, I might do that as a consultant if my site manager came on to me. Say no thanks, and leave the contract as soon as my time is up--it's not to my advantage to report it.
But if Person B didn't report it and then later complained, that would be on Person B.
It would be nice, however, if there were a way for Person B to report it, document that it happened--but say, "Look, I've turned it down and I'm hoping nothing will come of it." Then if later, Person B was actually penalized for saying no, they'd have proof.
I don't see how that could be handled from a criminal perspective, though.
But again, it isn't just in the area of sexual relationships that an employer can make undue demands. Employers can demand that their employees engage in criminal activities--and let's face it, most of us would rather not report our managers to the cops then, either. So our lives can always get seriously fucked up if we happen to have a shitty manager--unfair sexual demands is just one way. But in this one area, we tend to give far too much leeway to the victim--they can accept the advantages and then complain later. (this is not to imply that most of them do, but it gets very murky). And it is for precisely this reason that the victim is so often looked at askance--because their silence can reasonably be construed as complicit (regardless of what the law says). This means, of course, that the victims are less likely to report because they don't like being doubted and they might not be believed--completing the cycle.
If you give the victim a reasonable means of identifying the behavior and an understandable consequence if they don't, then you have handed a lot more power to them--as well as a hell of a lot less opportunity for Person A to get away with his behavior.
220. ChristiPeters - 2/25/2000 6:40:00 PM
CG -
I think in some instances it is against the law to fail to report a crime (child abuse comes to mind) but I wasn't thinking in that direction.
Far from thinking there are all kinds of irresponsible women out there giving sexual favors to keep their jobs or get a promotion who then whine about it (not that this doesn't happen), my focus is on the asshole managers, etc who get away with this over and over and over and just keep on advancing and making more money leaving some wrecks behind. (some women go through this and are "I got what I wanted", some women shrug it off, some women are devastated)
I want to fry them.
I want some way to fry them even if the victim doesn't want to report it.
I realize this is unrealistic, but I feel that way anyway.
Well, I'm outta here. It's been interesting. Maybe I'll come back later tonight.
221. ChristinO - 2/25/2000 6:56:53 PM
have accepted something of value for sex
Nothing has been accepted. Nothing has been offered. The threat is to take something. If I am not robbed it doesn't mean what I own is a gift to me.
As I just mentioned, I do think that there needs to be a clear course of action for those who feel they are being coerced into sex. For one thing, I think it would cut down a great deal on the offers. For another, it creates a clear line between those who then have sex and accept the benefit and those who don't.
So then the law applies to you only if you believe it can protect you otherwise you're screwed. "Sorry ma'am but because you're not liberated enough to stand up for your rights we're running you in on prostitution charges. Your landlord only did something wrong if you didn't let him do it to you."
But if you had a lousy performance review, and you put out for your manager in order to keep from getting fired, why should that be substantially different from taking the termination and then accepting $2000 bucks for giving the guy a blowjob?
Why do you insist on discussing two separate issues as if they are the same thing? If you are a lousy employee you deserve to lose your job. If you are a good employee you deserve to keep your job. Sex has no place in the legitimate employer/employee relationship. Offering sex is sleazy but demanding sex is a crime.
I don't think it's against the law to fail to report a crime, is it?
It depends on the crime. If it's murder or involves a crime against a child there certainly are penalties. I have no idea what other crimes require witnesses to come forward but there may be some.
222. ChristinO - 2/25/2000 7:04:24 PM
"So why not provide a way to distinguish between those who are complicit and those who are coerced?"
By saying those who report immediately and do not submit are being coerced and those who submit or do not report immediately are complicit? This would require that every claim of harassment be treated immediately and publicly as a true claim until disproven otherwise what you are doing is penalizing the victims. Unfortunately this provides for penalizing those standing falsely accused. Additionally we need to immediately inform the populace that a person who accuses is not to be penalized for having stood up for him/herself and anyone accused is not to be penalized until proven guilty.
Which all brings me back to my original question: how effective is it to attempt to change the social consciousness by passing a law?
223. arkymalarky - 2/25/2000 8:08:09 PM
Man, this thread has taken off! Great lurking material.
My school is thinking of adopting random drug testing as a requirement for participating in any extracurricular activity. I'm interested in the status of that sort of thing legally.
224. MsIvoryTower - 2/26/2000 1:56:48 PM
Well, this has been an interesting take off on the problem of what constitutes "force or coercion". I think it captures the ambivalence in the law (across various states) nicely.
The problem is precisely how far we want to go (we meaning as a society generally, and as citizens of each state), in defining what a "threat" or "force" might be. The landlord "threatening" to throw the tenent out if sexual favors aren't given is smack dab in the gray area. Is it rape or is it some other form of harrassment?
My understanding is that there is no clear resolution of where the line is drawn. Some states have firmly come down on the side of Calgal's position, if it isn't some form of physical force or coercion, then it isn't rape. Other states have focused on the issue of consent, is it "freely given agreement", and what that actually means.
Then there are states that are completely undecided, and the language of their statutes is deliberately vague and open to interpretation, perhaps hoping to throw the problem of what is or is not rape in these sorts of cases to the courts and juries to decide.
I'm still interested in what level of culpability people think should attach to various crimes, however, and whether there is any justification for strict liability when the crime results in imprisonment.
As I said earlier, outside of statutory rape when the victim is 12 or under, I think there should always be some level of culpability required, even when the public welfare is involved.
225. MsIvoryTower - 2/26/2000 2:03:17 PM
arky
I'm not up to random drug testing yet in criminal law, so I have very little to say. I suspect this is a due process issue, however, and more related to constitutional protections. While I had a semester of constitutional law, I consider it basically useless in answering this sort of question since we didn't deal with any of the Bill of Rights.
Sigh.
226. MsIvoryTower - 2/26/2000 2:20:16 PM
Btw, Arky
My feeling is that schools shouldn't be allowed to impose a random drug testing requirement for participation in any outside activities, that it violates 4th amendment protections, but I'm without any solid legal basis for such a position.
I suspect the school wants to capture some element its not being forthright about, like the football or basketball teams, but would certainly not be able to selectively test only those groups without some due process violation.
Were I a parent in your school, I'd oppose it.
227. MsIvoryTower - 2/26/2000 2:36:35 PM
Jaysus
Those last two posts are a bit ditzy.....
I suppose I could delete them, since in now have
T h e P o w e r
but I've grown used to letting them stand as they are....
228. CalGal - 2/26/2000 2:52:51 PM
Ms,
Could you restate the whole "culpability" debate? I didn't understand it the first time from the conversation between you and TJ. Probably something simple I missed.
229. MsIvoryTower - 2/26/2000 4:40:26 PM
Calgal
I'm not sure we actually went into any depth on the issue of culpability levels. I eluded to the debate in my second post for the thread. However, I think it needs some expanding.
Culpability is simply the level of mental guilt someone has when committing a crime. There are four levels identified: intent, knowledge, recklessness and negligence.
Intent is simply intending to do the harm caused
Knowledge is knowing the result is most likely, even if one doesn't intend it, and disregarding the outcome.
Recklessness is knowing there's a high risk of the outcome but ignoring the risk and going ahead anyway.
Negligence is being too dumb to know, but that you should have known.
(and no, the texts don't actually say dumb, but that's the implication).
With respect to statutory rape, there is no level of culpability attached. You rape a child, you get punished. Thus, you didn't have to have knowledge of her/his age, or suspect it, or even have negligence with regard to their age. You break the law, you get punished. That's strict liability. It goes against the old notion that one should have a guilty mind before one can be held responsible for committing a crime. (guilty mind, guilty acts).
While statutory rape is almost easy to rationalize a strict liability standard, there are many other crimes that carry strict liability as well. Most often they're in the area of public welfare statutes, but some are also in the area of family law as well.
For instance, is a statute that makes it illegal for a man under a protective order to carry a weapon valid if it doesn't require any "intent" to break the law (like if he was never told about the law, and didn't have any chance to reasonably be put on notice about it)?
230. Absensia - 2/26/2000 5:42:42 PM
arkymalarky, re your post 223:
There is a 1995 US Supreme Court case, Vernonia School
District v. ActonSupp, where the court upheld randon drug testing for students involved in interscholastic athletics. From the language of the case, it would seem the court would have no problem extending it to other interscholastic athletics.
If found a quick summary of the case in findlaw.com and quote in the next post it:
231. Absensia - 2/26/2000 5:44:38 PM
"Emphasizing the ''special needs'' of the public school context, reflected in the ''custodial and tutelary'' power that schools exercise over students, and also noting schoolchildren's diminished expectation of privacy, the Court in Vernonia School District v. Acton upheld a school district's policy authorizing random urinalysis
drug testing of students who participate in interscholastic athletics. The Court redefined the term ''compelling'' governmental interest. The phrase does not describe a ''fixed, minimum quantum of governmental concern,'' the Court explained, but rather ''describes an interest which appears important enough to justify the particular search at hand.'' Applying this standard, the Court concluded that ''deterring
drug use by our Nation's schoolchildren is at least as important as enhancing efficient enforcement of the Nation's laws against the importation of drugs . .. or deterring drug use by engineers and trainmen.'' On the other hand, the interference with
privacy interests was not great, the Court decided, since schoolchildren are routinely required to submit to various physical examinations and vaccinations. Moreover, ''[l]egitimate privacy expectations are even less [for] student athletes, since they
normally suit up, shower, and dress in locker rooms that afford no privacy, and since they voluntarily subject themselves to physical exams and other regulations above and beyond those imposed on non-athletes. The Court ''caution[ed] against the assumption that suspicionless drug testing will readily pass muster in other contexts,'' identifying as ''the most significant element'' in Vernonia the fact that the policy was implemented under the government's responsibilities as guardian and tutor of
schoolchildren. "
School drug testing
232. Absensia - 2/26/2000 5:46:03 PM
I don't agree with the decison or the reasoning, but as always, they didn't ask me. I also just realized this may be a waste of space, since I don't know if you are in the U.S. I do think the court's reasoning is worthy of comment..or perhaps I mean lack of reasoning.
233. MsIvoryTower - 2/26/2000 6:01:49 PM
See? I told you I knew next to nothing about this area of the law....not even a due process issue, but a right to privacy issue.
FWIW, I strongly disagree with that decision.
234. Absensia - 2/26/2000 6:12:18 PM
I strongly disagree too! Considering the make up of the court, it's not surprising, though.
235. cigarlaw - 2/26/2000 9:51:20 PM
under the law infabts==yjose umder 18 have a lessened expectation of privacy and when in school the school -- in most instances--operate as a parent. besides, the kid doesn;y have to test--just don't participate in non-mandatory school activities.
236. cigarlaw - 2/26/2000 9:51:22 PM
under the law infabts==yjose umder 18 have a lessened expectation of privacy and when in school the school -- in most instances--operate as a parent. besides, the kid doesn;y have to test--just don't participate in non-mandatory school activities.
237. Absensia - 2/26/2000 10:03:01 PM
Cigarlaw,
Naw.."suiting up in a locker room" isn't the same as drug testing.
Physical exams for athletes are to make sure they are healthy enough for the sport and docs don't do drug tests for them. Shouldn't need to have a physical to participate in debate team, or the newspaper, etc., and why should a student have to choose between random drug testing and school activites when there is no probable cause? Missing
out on those activities is more than a small thing. Many colleges look at whether an applicant has been involved in such activities when deciding who to admit.
Sure more and more companies demand drug testing even to apply for a job. Boeing does...and not just for people who build their planes or are test pilots.
238. joezan - 2/26/2000 11:00:58 PM
What a sensible decision. I know very little of the law, but it has always been my argument that students participating in extra-curricular sports voluntarily submit to such a high degree of privacy invasion that the argument against drug testing on those grounds is specious.
239. Absensia - 2/26/2000 11:04:42 PM
Joezan:
And what about non-athletic actives?
240. Angel-Five - 2/26/2000 11:12:32 PM
The decision is nonsensical. High school athletes have to take physicals because of school liability. However, the schools are not liable for drug use among student athletes. Schools have the right to conduct locker searches based upon suspicion that a student is involved in something illegal -- but they don't have the right to invade privacy based upon nothing at all. In loco parentis has been abridged and weakened by a lot of recent rulings simply because we r