Letters to the Editor
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AKA Smith
You're welcome, and thanks.
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@ blunderdog
You said: The "gray rape" case is where it's NOT CLEAR that a rape occurred. (That's why they call it "gray." You know, like neither black nor white, but something in-between.)
It is never criminally TRUE whether or not rape has occurred until a judge or jury has spoken. That is what criminal court is for. To decide. That is why as a victim advocate I could "know" rape occurred and take the side of the victim and still recognize that there might not be enough admissible evidence to achieve a conviction.
I keep saying in these various threads -- and people keep missing or misunderstanding -- that the prosecutor has almost absolute discretion about which cases he/she will try and which he/she will not. Prosecutors like cases that they can win. Prosecutors don't give a damn about misogyny or misandry or the battle of the sexes or the culture wars. They only care about winning.
You mentioned evidence. A victim's testimony IS admissable evidence in a rape case. (On occasion, the victim's testimoney ALONE is sufficient.) It always has been and television shows like CSI can't change that. The assumption that there must be physical evidence of rape to bring a case is just not true. No semen: The accused might have used a condom. No vaginal trauma. There isn't always where the refusal to have sex is verbal. There is no requirement that a victim fight back. NONE. There are also forms of sexual assault without penile penetration.
A "victim" could feel like she is raped. The "perpetrator" can believe it is consensual. However she cannot demand the case be tried to any effect any more than he can demand that it not be tried. Even if the case goes to trial, it is a matter of evidence admitted and what the jury is allowed to hear (and not what the jury is not allowed to hear). It is a matter of what the judge is allowed to consider. Good judges mind the rules of evidence.
As a former victim advocate, I can tell you that far more guilty rapists and child molesters go free than ever see the inside of any courtroom. When people bring up the Duke case, they need to understand that it was ONE high-profile case in which an fairly overreaching and ambitious and some would say media hungry (but not media savvy) prosecuting attorney fucked up.
The whole he said/she said part of it? Not really relevant.
However, what is wise social behavior? Don't get drunk on an early "date." Neither party is too smart if they do. (However, having taught at a college, I can tell you that half the missed deadlines on essay papers have more to do with partying than they do with inadequacy. People often go to college to waste their parents money.) Don't just think of scoring but pay attention to your potential partners signals of agreement or disagreement. Sexual relations are not supposed to be some sort of contest where one person wins and another loses. If either party is uncertain of their own willingness or the other person's willingness, they should stop.
As to the anonymous who said drunken couples who disagree on whether or not rape occurred should go to mediation? Mediation is a civil matter. It is not (as far as I know) a criminal matter. For better or worse, we have an adversarial court system. I don't expect that to change for maybe the next 300 years.
So when you say a "gray rape" is when people are not sure that rape occurred, I would have to say that if both parties are unsure, maybe they shouldn't go out again, maybe they should both go to counseling, maybe they should stop drinking -- but if one of them wants to report the encounter as rape and press charges, it then becomes the business of the system. To the legal system there is no such thing as "gray rape." For many years now the law is clear: Rape is when one person has sex with another person against that person's will. Thinking about it any other way is just plain dangerous. Rich people walk -- almost anyone else risks prison.
If some people in this thread think the power to say no is too much power for women to have, they are living in the wrong century.