Letters to the Editor
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@ Bilbo
You said: A much more likely scenario though is one in which a man honestly thinks a woman has consented to have sex with him, but in her mind that's not what she meant to communicate to him.
I would not choose the word accidental to describe this situation. Rather I would describe it as one of miscommunication. I am not at all saying that communication is sexual matters is unimportant. I am saying that it is paramount.
Yes, such a situation could happen. In which case it would not actually be rape because intent matters in law. Such a man could be charged, but if each witness -- the woman and the accused -- told their stories honestly, I doubt any jury would ever convict. In fact, I doubt that it would even be pursued as a matter of law.
We cannot preven all miscarriages of justice, but it is also a miscarriage of justice when a woman who has actually been raped cannot have her legal redress.
I know that culturally, we are entering a new world. We are entering a world where women will have sexual equality to men. Codifying that equality is what the Scotland law is attempting.
However, let us not forget that it does not only protect women. It also protects incoherent and unconscious men from rape. Men are also raped. For too long there have been attacks upon homosexual men by so-called straight men which are really hate crimes.
To me, the ideal future society will protect people who have not previously been protected from sexual exploitation.
Every man reading this should ask himself how he would feel if, when out with a male acquaintance, he passed out from drinking and awoke to find himself being anally raped.
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@ TheSelfishGene
You must have cultural references that I don't. No, I am not angry; I just don't think that anything a woman wears gives a man a "green" light to assume she wants sex. For one thing, what my daughter or my friend or my mother might choose to look sexy might be very different from what I would wear. It is naive and dangerous to assume that a woman might want to get laid by what she wears. It is even more absurd to assume that she is thereby communicating to all men rather than just one man in particular -- or maybe she is even communicating to another woman. We think we are reading things by people's clothing, but because this language is cultural, class driven, and quite detailed, we can easily be wrong.
A male friend once asked me if a woman who had answered her door in what appeared to be velour pajamas wanted him to make a move on her. She had told him that she had been up late the night before because she had a part in a play and she just hadn't bothered to get dressed yet. Her hair was rumpled too. Because he had quite a crush on her, he very much wanted to be reading some sort of go ahead signal. I told him she should pay attention to her words and ignore the clothing.
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To Robert Franklin
You wrote:
"As I pointed out, in the Mary Kay Letourneau case and many others like it, she was not indicted, tried and convicted of penetrating his body in any way."
You're right, she (and the many cases like it) was convicted of having sex with an underage minor, which I see as statutory rape regardless of whether or not the minor is male or female. However, if he had forced his penis into her against her will, then the minor would be guilty of rape.
"As to consent generally, I think juries should decide the issue based on all the facts."
No, because it is possible to rape someone without injuring them, say if they raped at gun point. Also to require injury for a conviction would open up the doors to rape through intoxication, whether it be with alcohol, the date rape pill, or some other intoxicating agent. If the woman (or man) was under the influence of an intoxicating agent at the time she (or he) was entered, then she (or he) was raped.
"In the case of statutory rape, some boys and girls are more advanced emotionally and psychologically than others and therefore may well be able to give informed consent to sex at the age of 17 or 16."
It's the principle of the matter that is important. You have to set some age limit to establish a principle, otherwise the principle will get violated by opportunistic adults that want to take advance of very impressionable minors. I'm in favor of 18, but some states have set the age as low as 16.
"The same should be true if the person claiming to have been raped had previously drunk alcohol."
It is easy to prove someone's intoxication level hours after they have been raped, as long as the rape victim is given help quickly. A rape victim should never, ever be blamed for her (or his) intoxication level. A person's intoxication level should never, ever be seen as justification to rape her (or him).
"I mean honestly, if the person is passing-out drunk, what are the chances he/she is going to go find a cop and get a breath test?"
Urinalysis, blood test, and stomach contents will also give an indication of person's intoxication level, if they are taken less than 12 hours after the rape. But, yeah 911 should have a team ready within minutes of a rape call to go to the scene and collect as much evidence as possible as quickly as possible. In any case, a bar tender, cab driver, or some other witness saying she (or he) had had more than 5 drinks in an hour, would be enough to convince me that she (or he) was raped via intoxication).
"there should be no tests in the law which automatically result in a finding of lack of consent."
Perhaps not automatic, but it should be treated as legitimate evidence that could support a conviction.