Letters to the Editor
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A few more flies in the ointment
Continuing from my last post:
8) The proposed reforms define a lack of consent when the alleged victim is "deceived by the accused about the nature or purpose of the activity." Does anyone have any idea what the hell that means? I've racked my brains and can't quite figure it out. If people are naked in a bed and the man starts to insert his penis into the woman's vagina, how could there be any deception as to the "nature or purpose of the activity" that he has planned?!
9) In the same vein, the other scenario defined as nonconsensual sex in the reform proposal that consists of the accused "impersonating someone who is known" to the alleged victim...what the hell does that mean? Are we talking accusers who are blind, deaf, and dumb here? If we're talking about accusers who are in possession of their faculties, how could an attacker plausibly impersonate someone who is known to the accuser in the course of committing a sexual assault, short of wearing a mask and not disrobing? Perhaps my imagination is limited but I'm having a hard time with this one too.
10) The article says that standards for corroborative evidence in Scotland's courts are "extremely high". I disagree, and find Robert Franklin's post on this from earlier in this thread to be a good retort. The standards aren't extremely high--as he points out, anything lower would amount to imprisoning a man for many years based on the say-so of a woman and nothing more. This opens the door to all sorts of abuse, to many more miscarriages of justice if applied too rigorously. In many jurisdictions it is already possible to convict a man of rape based on nothing more than the testimony of a woman. Although I can see this being legitimate in a few limited cases (like if the defendant is an incredible witness, has a bad alibi, etc.) as a general rule I'd find it hard to consider a plausible story told by an accuser, in the absence of any other evidence, to be proof of guilt beyond a reasonable doubt, especially in a typical date or acquaintance rape scenario where you have he said-she said stories surrounding consent. As Robert Franklin pointed out, the corroborative evidence standard requires only one piece of evidence to support the accuser's account--it could be a hair, semen, bruises, genital trauma, a witness to some part of the incident, past accusations against the same defendant, or other things that would tend to corroborate her story. Absent anything of that nature, and with a reasonably credible defendant, it's hard to imagine voting to convict. Beyond a reasonable doubt doesn't mean beyond any shadow of a doubt, but it IS a very high standard of proof, and it should not be diluted in a well-intentioned effort to convict more criminals, because it would simultaneously cause more wrongful prosecutions and convictions.
12) It's important to note that in spite of the intoxication level of the people involved, if force or coercion or intimidation is used to get sex, then it is rape. Also, if someone is deliberately drugged or made drunk for the sole purpose of securing sexual "consent" that would not be granted otherwise, or to completely incapacitate them to the point of unconsciousness (i.e. Roofies or GHB) so that they can then be assaulted, or to initiate sexual activity with an unconscious, sleeping, or thoroughly incapacitated person on the verge of unconsciousness, then it is rape. Only Neanderthals would dispute these points. The ONLY thing being debated around the issue of drunken consent is the question of whether or not intoxication of any kind and at any level by definition voids any sexual consent, expressed or implied, that may have been obtained. The proposal in Scotland comes dangerously close to a de facto criminalization of all intoxicated sex, by seemingly making sexual consent impossible when drugs or alcohol are involved. The proposal needs to be worded very carefully so as not to open a door to any injustice. It also fails to truly clarify the issue because it simply opens a new avenue of debate: How drunk is TOO drunk to consent? Are we talking buzzed? Tipsy? Slurring speech? Stumbling? Falling down and/or puking? Or only incoherent and on the verge of passing out? Who gets to judge? How can this be proven after the fact, especially with no witnesses and no testing available? How can the man be held accountable for rape if he was approximately as intoxicated as the woman and both have foggy memories of what transpired but no actual force was used? How can a woman who claims to have no memory of events or hazy memories of events or conflicting memories of events be considered a credible accuser for a rape accusation? Isn't it pretty obvious that a woman, to make a credible claim of rape, needs to KNOW that she didn't consent, or otherwise have been completely passed out at the time? This is a tricky area as it's quite possible to blackout but still be ambulatory and mobile and somewhat conversant (I know this because I've been this way in bars before and I've been told about it by friends afterwards--I was walking and talking in the clubs and managed to get back to my place in a taxi and woke up on my bed with no memory of what happened after the first few drinks at the bar. What if I'd woken up next to someone and he/she said we'd had sex that I'd consented to? What then?) This "drunken consent" issue is fraught with problems and would seem to open the door to accusations based on day-after foggy memories and regrets.
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People have been convicted of murder
Based only upon eyewitness testimony. Should we let those people go. People have been convicted of lots of crimes based upon eyewitness testimony?
What is wrong with eyewitness testimony?
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To Anonymous on December 21, 2007 01:26 PM
"Certain improbable circumstances just killed my sex drive."
So sad to hear that.
You said you were in your 20s when you had a relationship with two men, in my case the married women in my life were in their 40s and 50s, and often twice my age. They took great thrill in the secrecy of the affair/relationship, and loved to put me in situations where I would meet their clueless husbands (and the sex after I kept my mouth shut around their clueless husbands was extremely hot). One of them liked to have me "work for her" while she was on the phone with her husband.
A couple of them wanted me to carry out a "rape fantasy" for them, involving dark alleyways (I won't say whether I obliged them, but the possibility of getting arrested had scared the hell out of me). But it wasn't that they wanted to be raped, it was that they wanted a man they fully trusted to take the sexual initiative with them in a romantically dramatic way. If they had not fully trusted me (and these were woman who told me about their suspicious lumps before they told their husbands), they never would have told me about their "being raped" fantasies. More correctly their fantasy was to be raped by me, something I would never do, unless I had in my possession a hand written note that they wanted to be raped by me (did I get such a note? I'll never tell.)