Sexual violence and the law - Page 2 - Politics Forum.org | PoFo

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Crime and prevention thereof. Loopholes, grey areas and the letter of the law.
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#14718052
Let's be clear: neither of us approves of rape, and we think it's wrong. So, too, do the overwhelming majority of people. We aren't going to rape people because it's wrong.

People who end up violently raping other people don't care whether it's wrong or not. Two people who are too drunk to make informed decisions and want to have sex are going to have sex with each other.
#14718054
Oh quite the opposite I am the world's laziest person if someone isn't interested in me it is her loss. I do no chasing fuck that. :lol:
#14718056
Bulaba Jones wrote:People who end up violently raping other people don't care whether it's wrong or not.

Unfortunately, convicted rapists espouse sexist values that are prevalent in most cultures. We can't deny that changing our culture to one that automatically believes victims of rape in the same way one automatically believes the victim of an assault would make a huge impact. That's why there is a huge cultural movement against victim blaming and promoting affirmative consent (yes means yes).

Bulaba Jones wrote:Two people who are too drunk to make informed decisions and want to have sex are going to have sex with each other.

And neither will have a defence if the other accuses them of rape. If you are too drunk to drive, you are too drunk to have sex. Unfortunately, many young men are so desperate to get their fill that consent is irrelevant.
#14718057
Syph wrote:And neither will have a defence if the other accuses them of rape. If you are too drunk to drive, you are too drunk to have sex. Unfortunately, many young men are so desperate to get their fill that consent is irrelevant.


:lol:

Decky wrote:Oh noes some drunk sex occurred at a university? Jesus Christ if people like you had their way 99% of men and women would be in prison.


Decky wrote:men and women


Aren't you too drunk to drive after three pints? Jesus Christ I know people who drink that every single night. Have they been raped every single time they had sex? :lol:
#14718137
The following arguments should be unnacceptable defence against a charge of sexual violence:
1. Commentary of victim's clothing, reputation or behaviour prior to the initiation of the sexual act.
2. The perpetrator and/or victim was intoxicated with drugs or alcohol.
3. The victim didn't verbalise a "no" at any point.


1. Already rape laws implemented, though don't have insight to what extent they're followed.
https://en.wikipedia.org/wiki/Rape_shield_law
Though I have seen it argued that in sexual harassment cases, information about clothing for example is introduced by the victim and not allowed when defendant might press it if mentioned at all.
http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1109&context=djglp
Yet, as I explain below, very few cases discuss this issue. Instead, target dress is being used in a variety of ways and often is introduced by the plaintiff in sexual harassment cases.



2. There does need to be some changes of how things are done but not sure whether in terms of law.
The problem is that being severely drunk or drugged is not approached in terms of diminished consent as much as it's framed as making one an unreliable witness to damage credibility. I think there is a fear of setting precedents of convicting someone in a scenario with alcohol intoxication resulting in prosecuting ALL alcohol related sex.
[url]http://www.trinitinture.com/documents/wallerstein.pdf[url]
Admittedly, this does not completely resolve the concern that some women get drunk in order to have sex, because in many cases the preintoxication consent is not with regard to a specific person, but more general in nature (that ‘they will have sex later on that evening with whoever they fancy’).64 The fear is that recognising such consent as sufficient consent could undermine the requirement that the consent required has to be specific (person and event). However, protecting the positive dimension of the sexual autonomy of these women comes at the price of not protecting the negative dimension of other women who chose to get drunk without such intention—just because the wanted to

enjoy themselves or because they had a bad day at the office. These women suffer because society does not recognise the (grievous) harm of rape that was caused to them, and continues to legitimise the behaviour of preying men who take advantage of their drunken condition. Wertheimer argues that because the disinhibiting effects of alcohol are widely understood, a permissive approach should not be regarded as introducing predatory behaviour in which ‘A takes advantage of B’s ignorance’. 65 But this is a misrepresentation. The issue is not one of ignorance, but of vulnerability. Predatory behaviour is a behaviour of taking advantage of a person found in a vulnerable position. Women who get drunk become vulnerable even if they get into this position consciously. When men take advantage of such a situation, they act in a predatory manner, and, therefore, when the law is willing to legitimise such behaviour (by acknowledging a drunken consent as valid consent), the law legitimises predatory behaviour. This is a question of getting the balance between the positive and negative aspect of sexual autonomy right. As a sole public policy consideration, it is not weighty enough to tilt the balance and overcome the problem of lack of capacity to consent, especially when accepting a less restrictive approach (which does not require pre-intoxication consent) comes at the expense of women who are being harmed and view themselves as victims of rape (and are recognised as such as a matter of normative fact).

...
Yet, this difference in the level of intoxication required to negate the capacity to consent is a reflection of a deeper disagreement as to the underlying assumptions and beliefs about the effects of alcohol and of various values connected with the idea of sexual autonomy. These are summarised by the default position set out in the shorthand summary of the law according to which ‘a drunken consent is still consent’. Whereas the court in Bree held that ‘a drunken consent is consent’, it is proposed that the default position should hold that ‘a drunken consent is not consent’.
When discussing this suggestion with colleagues, I encountered some who were concerned with the implications of the position advanced in this article on the mens rea requirements, fearing that it would result with unfair convictions of defendants who did not possess the relevant mens rea for rape. In this section, I will respond to these concerns and put them to rest. Once it is accepted that ‘a drunken consent is not consent’ then the defendant’s state of mind should not create any special difficulties. The law requires proof that the defendant did not reasonably believe that the victim consented. According to s. 1(2) of the 2003 Act, in making this decision we have to ‘regard all the circumstances, including any steps [the defendant] has taken to ascertain whether B consents’. If the defendant is aware that the woman had ‘a lot to drink’ and is drunk (as was the case in both Dougal and Bree), it would no longer be reasonable to believe that she can give a valid consent. This is true, even if the woman has consented while being drunk. It should be clear to the defendant that a drunken woman is incapable of making a valid consent given her drunken condition. This is obviously true where the defendant encourages the woman to drink more alcoholic drinks in the hope that it would increase the likelihood of having sex with her, but it is similarly true if the defendant is not encouraging the woman to get drunk. Many people admit that they have ‘taken advantage’ of the drunken condition of women.78 The fact that they admit that there is an element of ‘taking advantage’ is a proof that they are aware of the effects of alcohol on the ability to consent or, more accurately, the diminishing ability to reject, sexual intercourse.79

In this, to help prove that a scenario was rape or a sexual assault, one would emphasize the predatory nature of the behaviour to discern that the accused was aware that the other was so intoxicated that they were beyond some interpertaion of having capacity to give valid consent. While there can be debate to where to draw the line, there are certainly example where a person is far beyond the fuzzy boundary of still having their faculties intact to make an informed decision.
I think in terms of application, it's not a problem of law but attitudes and discretion of the justice system. I don't imagine most people under law would end up convicted for their drunken sexual encounters. In much the same way that laws are still waiting to change in a lot of places so sexual images between minors that are consensual aren't landing them with child pornography charges are in practice not being chared despite the overly broad legislation as the discretion of police means they aren't prosecuting these teens.
https://aifs.gov.au/cfca/publications/images-children-and-young-people-online
While sexting is relatively common in teenage relationships, it is important to know that in some states and territories, the misuse of such images may be against the law and can result in criminal charges; however, the police are unlikely to prosecute if there is no harm to those involved (Cybersmart n.d.). Instances are more likely to result in legal implications where one person deliberately shares a photo or video of another person without that person's consent, particularly if the person who shared the image had an intention to humiliate or embarrass.

Victoria was the first state in Australia to introduce sexting legislation. In October 2014, the Victorian Government passed the Crimes Amendment (Sexual Offences and Other Matters) Bill. As part of the new legislation, young people under the age of 18 who engage in non-exploitative sexting can no longer be charged with child pornography charges or be put on the sex offender's register. However, it is an offence to send an intimate image of a person under the age of 18 years to a third party, even if the person under 18 has provided their consent. The law also states that adults who threaten to distribute an intimate image without consent will face charges (Victoria Legal Aid, 2014).

Though I have seena case where for some reason in the US unviersities deal with sexual violence in what appear to be entirely inadequate courts where two freshmen were both beyond teh capacity to consent an the guy ended getting expelled and the girl dropped out with possible PTSD symptoms. The mishandling of the case by the unviersity was pretty abysmall and instead they should've sought means to support the girl and let the guy off, acknowledging that he couldn't have consented either and that though tragic, there's no basis for punishment. - http://www.businessinsider.com.au/occidental-sexual-assault-2014-9
What oftne gets lost in translation when discussing rape and being drunk is considering consent and how that creates varying outcomes.
So above we have two people who can't give valid consent because they're too drunk, though they did give consent presumably as the evidence suggests they both pursued it. = Both Drunk, Both Consented, both consents were invalid, court should've ruled no rape since two people incapable of giving cosnent can't comphrensibly rape one another becuse who then is the victim?
Another scenario is the one in drunken consent paper, where...
The leading case on this issue is the Court of Appeal decision in Bree. The case involves a complainant who was continually vomiting in her bathroom after a long night of heavy drinking. The defendant was helping her out, washing her face and hair. He then went on to have sex with her—according to his account, with her consent, although the complainant claimed that due to her drunken condition she had gaps in her memory of the event and could not remember whether consent was given

Here, the woman only was exceptionally drunk, to the point that reasonably believe she was far beyond giving valid consent, unclear she could even give an invalid expression of consent. Which doesn't matter in this case anyway. = One severely drunk, can't give consent, the other not heavily intoxicated, took advantage = rape. Though the court concluded otherwise and the paper argues why this was incorrect.
In another scenario one perhaps rather common, two people are relatively drunk, but not so ridiculously drunk they're vomiting and barely there, they meet at the bar and go home and fuck like rabbits and they both consented to it, wanted it. Their level of intoxication even if somewhat strong, what ever a relative term like that means, there's no crime committed.
Hell, one could get a bit more dubious but think unless had strong case for it being predatory, you could go someone being mildly intoxicated whilst the others dead sober, they both want sex and it's considered consensual and not rape. Because being moderately drunk doesn;t seem to be firmly in the grounds that a person is incapable of giving consent, though depending on how harsh want the law to be, it could come down on those that acted in ambiguous circumstances and consider them predatory if the case was pursued through the courts. But I imagine, depending on the surrounding circumstances like it being between a couple or strangers or what ever would change how likely and how harsly anyone would judge such circumstances. It might at worst be deemed immoral but to murky to criminalize and consider rape.

3. I agree with this one and though stil not completely familar with the affirmative consent thing, my impression is once again call for reform i met with exaggerated fears that think that someone can be convicted without evidence. The prosceution would still need to prove the case was rape, affirmative consent laws merely make an attempt to put into practice that women aren't in the eyes of the law ina state of constant consent until they revoke that consent and instead apply a more realistic sense in that consent is negotiated and not ever present until explicitly expressed otherwise. Also, the idea that sexual consent is expressed purely in the content of words like no and yes takes an extremely shallow sense of communication, whcih is where par tof the hyberbolic fears that people will have to say a bland yes to every sexual act to express consent are idiots.
And even if these reofmr is implemented, it isn't guaranteed it's followed in practice as state of Tasmania, Australia shows - http://eprints.utas.edu.au/14748/2/whole-cockburn-thesis.pdf
But should also note it's not some golden bullet to the poor response we have to sexual violence since one could have perfectly written laws and still fail because of the attitudes that inform their practice.

There is a significant attrition rate at play before people even get to court.
Image
In part because cops are dullards that introduce misconceptions into their considerations of people's claims. Thus over report false reports because they think peolpe who are, by rule of thumb, more vulnerable (drunk/drugged persons, people with disabilities, children). Viewing them as incompetent witnesses and or liars instead of positioning them as having a more credible position since these demographics are in fact the most likely to be vicitms of sexual violence.

PS. Hate talking law online, law varies so much from region to region let alone country to country, so getting into specifics can be a bit messy in regards to law and its practice.
There is a matter that it is indeed difficult to get convictions for such violence but it's certainly true that quite often many flaws in the entire justice system chips away at the capacity for people to have a good chance at getting a conviction.
There are still changes that could be made beyond just cultural attitude sbut just for better ivnestigations like pre-text calls - http://justicewomen.com/handbook/part2_d.html#f

And as a freebie if you're interested is this good paper discussing conceptions of consent.
http://moritzlaw.osu.edu/osjcl/Articles/Volume2_1/Commentaries/Westen-PDF-11-29-04.pdf
That should provide you with some fun leisurely reading if you're ever interested.

Unfortunately, convicted rapists espouse sexist values that are prevalent in most cultures. We can't deny that changing our culture to one that automatically believes victims of rape in the same way one automatically believes the victim of an assault would make a huge impact. That's why there is a huge cultural movement against victim blaming and promoting affirmative consent (yes means yes).

One doesn't need to assume anyone is correct, police should do their bloody jobs and investigate the case for evidence. One doesn't need to presume that the victim is certainly telling the truth to do this, in fact it can maintain skepticism. The problem certainly is though that police and people presume innocence without collaborating evidence that readily deduces that a claim is false, not realizing that doubts/suspicions aren't proof and one actually need to show that there is no subsntial evidence for a criminal offence.
Last edited by Wellsy on 14 Sep 2016 07:18, edited 4 times in total.
#14718140
@Syph, you still haven't responded to the point that prison rape is a larger social epidemic than campus rape. You seem to dismiss its significance because of how the public negatively perceives the prison population, but interestingly you don't have the same pessimistic attitude toward cultural perceptions of woman rape victims. It isn't very consistent and the contradiction appears to rest in the fact that you want to make it easier for the state to incarcerate people.
#14718160
Syph wrote:And neither will have a defence if the other accuses them of rape. If you are too drunk to drive, you are too drunk to have sex. Unfortunately, many young men are so desperate to get their fill that consent is irrelevant.


You're back to asserting, implicitly, that all men are rapists, some of them just haven't done it yet. There's a difference between someone who just snatches someone off the street to rape them, someone who takes advantage of someone who is drunk and is themselves sober or close to it, someone who actually does something like spike their drinks in order to plan out a rape beforehand, and two drunk people who have sex with each other.

Clearly, many young women are so desperate to get their fill that consent is irrelevant.

When two drunk people have sex with each other, I'm not following your train of logical thinking here in asserting some kind of Victorian-era view on sexuality in that only men want sex, and the woman must be getting raped if two drunk people go off and fuck each other. People who are that drunk are not thinking clearly to begin with, and this affects men and women. Obviously, many young men and women are so desperate to get their fill that consent is irrelevant.
#14718169
Wellsy wrote:...

You'll have to bear with me but I will get around to answering your post.

Donald wrote:@Syph, you still haven't responded to the point that prison rape is a larger social epidemic than campus rape.

The difference in my eyes being that the rape of women is oppressing a historically marginalised group within a culture that doesn't adequately appreciate the crime of sexual violence. Prison rape is a terrible problem but let's not pretend that it's of higher priority on anything but a purely utilitarian slant (mainly because rape is under-reported due to cultural factors)

Donald wrote:You seem to dismiss its significance because of how the public negatively perceives the prison population, but interestingly you don't have the same pessimistic attitude toward cultural perceptions of woman rape victims.

I wonder if that would have anything to do with the characterisation of all women being sexist. The prison population have wronged society already and their reduced liberty is a function of that. We should still double down our efforts to prevent prison rape but it isn't the priority.

Bulaba Jones wrote:You're back to asserting, implicitly, that all men are rapists, some of them just haven't done it yet.

I really hate bringing up the P word but I need it to to explain this. The burden of risk in sexual relationships is on women. Men have privilege that means they can't really consider the reality of women because there are significant parts that don't overlap. Hence, Schrodinger's Rapist.

You can't dismiss a woman's fears for her own safety when in our current culture, she feel the need to take such extreme measures to protect herself.

Bulaba Jones wrote:There's a difference between someone who just snatches someone off the street to rape them, someone who takes advantage of someone who is drunk and is themselves sober or close to it, someone who actually does something like spike their drinks in order to plan out a rape beforehand, and two drunk people who have sex with each other.

Legitimate and illegitimate rape, right? You have to be the right kind of girl with the right kind of story, otherwise it's not rape.

Bulaba Jones wrote:I'm not following your train of logical thinking here in asserting some kind of Victorian-era view on sexuality in that only men want sex, and the woman must be getting raped if two drunk people go off and fuck each other.

Men initiate sex far more often than women, that's a fact. However, when a woman initiates that's affirmative consent and can't be rape (unless she's drunk).
#14718174
Syph wrote:The difference in my eyes being that the rape of women is oppressing a historically marginalised group within a culture that doesn't adequately appreciate the crime of sexual violence. Prison rape is a terrible problem but let's not pretend that it's of higher priority on anything but a purely utilitarian slant (mainly because rape is under-reported due to cultural factors)


I'm not sure why prison rape should be less of a priority when it is happening more frequently than campus rape and it deals with issues such as the prison-industrial complex and its impact on the poor, especially communities of colour.


I wonder if that would have anything to do with the characterisation of all women being sexist. The prison population have wronged society already and their reduced liberty is a function of that. We should still double down our efforts to prevent prison rape but it isn't the priority.


In other words, you are victim blaming, in this case it's the raped prisoner's fault for getting themselves incarcerated in the first place. Not at all different from the way people fault the clothing and attire of woman rape victims. Your priorities are of course totally arbitrary identity politics.
#14718175
Prison rape is a symptom of toxic masculinity which is part and parcel to patriarchy. The peculiarity of American rape is probably because the guards tolerate it as a method of social control. Most feminists would agree that it needs to end. They would also say that feminism is about women's issues so it's going to focus on women's issues over men's issues.
#14718179
That's pretty abstract. According to feminist criticism, the entire world civilization is a multi-millennium old patriarchy. Good luck changing that.

We can however approach the issue of prison rape by confronting tangible aspects of the criminal justice system.

They would also say that feminism is about women's issues so it's going to focus on women's issues over men's issues.


Feminism, in theory, is not about "women's issues" but how the superstructure of patriarchy adversely affects both men and women. According to the intellectual logic of feminism, we should be deconstructing and demystifying the criminal justice system instead of sending young men into it.
#14718186
LV-GUCCI-PRADA-FLEX wrote:Prison rape is a symptom of toxic masculinity which is part and parcel to patriarchy. The peculiarity of American rape is probably because the guards tolerate it as a method of social control. Most feminists would agree that it needs to end. They would also say that feminism is about women's issues so it's going to focus on women's issues over men's issues.


What exactly is toxic masculinity? I do wonder if the same women and weaklings who rely on masculinity to keep them safe regard that iteration of manhood as toxic.
#14718189
LV-GUCCI-PRADA-FLEX wrote:Prison rape is a symptom of toxic masculinity which is part and parcel to patriarchy. The peculiarity of American rape is probably because the guards tolerate it as a method of social control. Most feminists would agree that it needs to end. They would also say that feminism is about women's issues so it's going to focus on women's issues over men's issues.


You're not doing a good job selling this; we already have another feminist in this thread who thinks people accused of rape should have the burden of proof switched to them, with the full knowledge that young men will be sent to jail and prison where the cycle of rape will continue. Just insane.

However, I commend you on being honest with yourself and us about how bourgeois, liberal feminism is about women's issues rather than men's, in spite of some feminists who pretend that liberal feminism is about everyone's issues. As Kollontai said, why would working class women want to ally themselves with upper class, middle class feminists?
#14718262
Syph wrote:And neither will have a defence if the other accuses them of rape. If you are too drunk to drive, you are too drunk to have sex. Unfortunately, many young men are so desperate to get their fill that consent is irrelevant.

Why is it that drunk drivers can be held responsible for their actions and be charged with a crime but you consider those who have sex whilst drunk to be passive victims?

Why are you only concerned about female university students being raped and ignore the plight of those who are raped off campus?
#14718268
Donald wrote:I'm not sure why prison rape should be less of a priority when it is happening more frequently than campus rape and it deals with issues such as the prison-industrial complex and its impact on the poor, especially communities of colour.

I'm talking about sexual violence outside prisons not just on campus. I really don't want to take this topic in a racial direction aside from an intersectional feminist direction.

Donald wrote:In other words, you are victim blaming, in this case it's the raped prisoner's fault for getting themselves incarcerated in the first place.

Rubbish, I've been condemning prison rape. It's lower on my agenda because sexual violence as a whole dis-proportionally affects women. It's not as important to me because men are not a historically oppressed group. It also seems a bizarrely American phenomenon but I could be corrected.

Thompson_NCL wrote:What exactly is toxic masculinity? I do wonder if the same women and weaklings who rely on masculinity to keep them safe regard that iteration of manhood as toxic.

Toxic masculinity associates the following behaviours with masculinity: competitiveness, aggression, insatiable libido and dominance. You need none of these things to be a good soldier but unfortunately the indoctrination of armed forces has real world consequences in terms of sexual violence against servicewomen because it ties the toxicity to the identity of a soldier.

AFAIK wrote:Why is it that drunk drivers can be held responsible for their actions and be charged with a crime but you consider those who have sex whilst drunk to be passive victims?

Driving is an individual pursuit, sex is collaborative. Rape and drunk driving are similar as they are both individual pursuits with passive victims. If your sex partner is just lying there and you just plow on without checking in or stopping, there is no collaboration and it is rape. Both partners should be active during sex rather than reluctant or passive.

To take the driving analogy further: it's a fun experience when your passenger is chatting, singing along to music or helping with directions, you might be worried if a drunk person wants to drive you home and would refuse, a drunk person may be more likely to be their passenger but to a third party this is wrong.

AFAIK wrote:Why are you only concerned about female university students being raped and ignore the plight of those who are raped off campus?

Nowhere have I suggested that this is a campus based problem. It's a societal problem and the research and statistics come from studies conducted within campuses because it's far easier for researchers.
#14718288
Toxic masculinity is just bullshit. It's simply a byword for misandry.

A very small minority of men are rapists. If they commit rape, they should, of course be charged and sentenced to horridly long times in prison. Assuming a man is guilty before proven innocent, goes against every reasonable law in the Western world. It's simply insanity for it to be that way.
#14718294
AFAIK wrote:1. Why is it that drunk drivers can be held responsible for their actions and be charged with a crime but you consider 2. those who have sex whilst drunk to be passive victims?

Your question sounds rather confused or at least, it confuses me.
1. Sounds concerned that a drink driver can be culpable for a crime
2. Doesn't sound like asking how can a victim be culpable for a crime whilst drunk.

So it seems non-sequitur to me.
This is hard for me to explain because the two ideas don't go together.
Because from past discussions, the sense I get from people is they start with criminal culpability and then move to a point about the capacity to give consent when thoroughly intoxicated.
Syph's statement...
If you are too drunk to drive, you are too drunk to have sex.

Doesn't relate to criminal culpability, but instead sounds more like an assertion of how one can determine one is no longer capable of giving valid consent based on how intoxicated they are. The idea I imagine, is that the person who is so drunk that they can't be considered to be safe to drive, also lacks the cognitive capacity to give valid consent to sexual acts. Unless plan to clarify how the capacity to give consent is comparable/related to one's capacity to be culpable for a criminal act, I think something needs to be cleared up and changed.

In past discussions, I've seen analogies with drunk drivers. And what confused me is that their assertions sounded more like they were accusing someone thought to be a victim of rape because they were considered too drunk to give consent, to be culpable for a crime.
But the culpability of a drunk driver who runs over someone is more comparable to someone who is drunk and raped someone, in that their intoxication isn't a defense of their crime. Because their intoxication isn't about their capacity to give consent to harm someone as much as it is that intoxication plays no role in culpability to my knowledge. That we still hold crimes done under the influence of alcohol to be criminally culpable. Which is sensible otherwise one could get pissed and commit heinous crimes.

Though on another note we could examine why alcohol doesn't provide a defense, though even beyond that, intoxication could at best provide a partial defense I imagine.
http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1026&context=clrcircuit
http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=6911&context=jclc
A state that seeks to hold intoxicated offenders fully responsible for their conduct may avoid procedural challenges by explicitly declaring that extreme intoxication satisfies the requisite mens rea for a charged offense. Such a policy would comport with recognized principles of criminal liability.

Critics of full responsibility disagree with the policy of holding individuals responsible for consequences they did not intend, or even subjectively foresee. 156 Such analysis follows the subjectivist theory that criminal conduct should be evaluated on the exclusive basis of the offender's intent. This exclusive focus on the offender's subjective perspective ignores other important considerations which support full responsibility

There are three elements involved in determining an offense's magnitude: the offender's culpability, the danger posed by the offender's conduct, and the harm which results from it.15 7 The combination of these three factors determines how the criminal law grades the offense; more of one factor may compensate for less of another.' 58 A review of basic criminal statutes reveals the interrelation of the three factors.


I think this also points out why analogies are a pain in the ass and its better to speak specifically about the subject one's talking about. Cross referencing what something represents in the other context is adding too much of an intellectual load unless the analogy is explaining simple things, so emphasizing one comparable aspect to another. In the case of consent and alcohol, it's mixed because have two different actors, where the rapist, the victim or both can be drunk and other details relevant to determining the validity of the crime. Where even when both are drunk, like in case I mentioned in previous post about two students, their case was they both incapable of cosnent, but both gave invalid consent, they just were too drunk. But on the other hand, a rapist and one's victim can both be drunk in that not even invalid consent was present, and the rapist's intoxication being no defense for their criminal culpability.

Driving is an individual pursuit, sex is collaborative. Rape and drunk driving are similar as they are both individual pursuits with passive victims. If your sex partner is just lying there and you just plow on without checking in or stopping, there is no collaboration and it is rape. Both partners should be active during sex rather than reluctant or passive.

To take the driving analogy further: it's a fun experience when your passenger is chatting, singing along to music or helping with directions, you might be worried if a drunk person wants to drive you home and would refuse, a drunk person may be more likely to be their passenger but to a third party this is wrong.

And I think this may not be clear enough with the relevant concepts that are important to understanding and interpreting whether a sexual crime has occurred. Like could be more explicit about consent, which is based on enlgithenment ideals of rational agency, in which one's rational capacity means one can make informed decisions and thus is capable of consent. This is why there's laws protecting kids in which they can't give valid consent to things as they're viewed with a diminished rational capacity.

You're getting at these ideas but they're kind of implicit rather than explicit in my reading of the quote.
The focus on two active agents is based in the sense that sex requires two active participants. When one isn't active, it is comparable to one agent acting upon another which is equivalent to having sex with an unconsious person, person with diminished/restricted/absent agency. But I think may take it too far, in that it's perfectly within reason, that one could be passive and be acted upon and it be consented to, though more risky in discerning consent as it's not actively affirmed. The real problem is that often passivity and a lack of resistance is assumed to be consent when it also may not be. Which is the issue of passivity and how its' interpreted as inhernetly consensual rather than vague and possibly consensual or not.

Think have to be a lot more specific since I can see people interpreting the breadth of these statements to an extreme will might be misinterpreted. Which depends on what you specifically have in mind when you say...
If your sex partner is just lying there and you just plow on without checking in or stopping, there is no collaboration and it is rape.

Moving away from the car and drink driving. To be specific would have to describe what think is the minimal amount of action for something to be considered collaborative and thu consensual.
And I would also affirm, that its possible to not act at all and it be consensual, but the risk in this is that consent isn't communicated and it's known only subjectively to the individual. Which we could say that while possible to consent to, the law might be harsh and consider that criminal on the basis to smooth out the edges so that it's clearly drawn up in law that people have to engage in a clearly mutual sexual encounter.

The latter part of the quote...
you might be worried if a drunk person wants to drive you home and would refuse, a drunk person may be more likely to be their passenger but to a third party this is wrong.

Seems to again be referring to the idea about being so drunk that one's cognitive capacities are so impaired that one wouldn't allow them to drive. Which follows into that if one was so drunk they couldn't legally drive, then they likely are so impaired they can't give valid consent. But with added point that when a third party sees someone who'd they think is so drunk they can't drive, they'd also morally know that one is so drunk they can't give consent. Thus anyone who acts upon a person that drunk sexually, would satisfied mens rea and be culpable for sexual crime of some sort.



On a seperate note, heres stuff about toxic masculinity.
https://www.reddit.com/r/FeMRADebates/comments/1voxgf/toxic_masculinity_came_from_mens_activists_not/
A good deal of the early discussion of toxic masculinity comes from the Mythopoetic Men's Movement. The MMM wasn't explicitly anti-feminist, but it was reacting against what it saw as negative consequences of (among other things) second-wave feminism (or at least negative issues brought to light by it). Fearing that feminist emphasis on women's voices and problems was muting the voices of men and that men were without a positive, ritual way of developing and celebrating masculinity, the MMM saw men as emasculated and in crisis.

To the MMM, the current state of Western culture was preventing men from realizing a positive masculinity. This resulted in a harmful, distorted, competitive, and aggressive hyper-masculinity.Shepherd Bliss, who invented the term Mythopoetic Men's Movement, also seems responsible for the term "toxic masculinity." Shepherd contrasts this toxic masculinity to what he calls "deep masculinity," a more cooperative, positive form of masculinity which he seeks to recover. He lays this out at some length in response to pro-feminist criticisms of the MMM in the edited volume The Politics of Manhood: Pro-Feminist Men Respond to the Mythopoetic Men’s Movement (1995) (301-302).

http://api.viglink.com/api/click?format=go&jsonp=vglnk_147385957043611&key=5c53c31e72935bf90b394bd983e1640f&libId=it2xybe70100seql000DLp4ai3jnc&loc=http%3A%2F%2Fpersonalitycafe.com%2Fdebate-forum%2F891538-feminism-25.html%23post29957258&v=1&out=http%3A%2F%2Fwww.collectionscanada.gc.ca%2Fobj%2Fs4%2Ff2%2Fdsk2%2Ftape16%2FPQDD_0010%2FMQ26936.pdf&ref=http%3A%2F%2Fpersonalitycafe.com%2Fsex-relationships%2F913722-how-win-heart-sjw-girl-11.html&title=feminism%20-%20Page%2025&txt=http%3A%2F%2Fwww.collectionscanada.gc.ca%2Fo...10%2FMQ26936.pdf
1.1 THE MYTHOPOETIC MEN'S MOVEMENT
Although often regarded by the public as a homogeneous social movement, the contemporary men's movement in fact consists of at least four (and according to some scholars, six (see Clatterbaugh 1 990)) subgroups (Harding 1 Wb). The Profeminist/ Gay Affirmative branch of the movement, influential among men's studies cumcula at universities, is generally regarded as having resulted from the women's movement and the development of feminism, and concems itself with issues of sexism and inequality. Conversely, the Men's Rightd Fathers' Rights branch appears to be a reaction to feminism and the women's movement, which both rnimics the latter's mode1 of aggressive political discourse and directly counters its claims about men. The Addiction/ Recovery branch evolved out of twelve step programs, centres around the idea that men need to be healed, and abounds with terms like .'toxic masculinity," "woundedness," and "father issues," and shares many similarities with the fourth branch of the men's movement-the mythopoetic branch.

An example of the bold...
http://www.menalive.com/PDF/booklet5.pdf
9) Men must honor and develop the deep masculine functions before we can integrate the feminine functions.

Many men have recognized that there are destructive aspects to the male role. Psychologist Shepherd Bliss calls this “toxic masculinity.” In our desire to heal many of us have sought to find health by drawing on the feminine. If the male role is destructive, we thought, maybe the women have a better sense of what is healthy. The result has been a poisonous dependency on women where we have become locked into destructive relationships and taken on womenʼs toxic femininity.

Rather than rejecting our masculinity in favor of the feminine, we must go deeper to reconnect with the source of our authentic manhood. This can only be done in the company of other men. Having reowned our manhood we can then enter into healthy relationships with women (who have done their own healing in the company of other women) and integrate the feminine into our lives.


The only other place I could find the term has been in psychiatric/psychology paper.
http://www2.clarku.edu/faculty/addis/menscoping/files/addis_cohane_2005.pdf
A central assumption in social constructionist frameworks is that there is not a singular masculinity but rather multiple competing masculinities that are continuously being constructed and contested (Connell, 1995). For example, White lower-class suburban masculinities may take different forms than Latino urban masculinities, although they may also share some features. Thus, some social constructionist theorists have emphasized the different ways race, ethnicity, and social class are simultaneously constructed alongside different masculinities. In effect, there is nothing called masculinity, but rather urban African-American masculinities, White middle-class masculinities, and so on. Finally, social constructionist frameworks allow, and in fact expect, considerable contextual variability in the construction of masculinities. For example, Kupers (this issue) describes a specific form of masculinity he terms “toxic masculinity” that is thought to be common among men in prison.


and on popfem websites: http://everydayfeminism.com/2016/05/when-masculinity-fails-men/
http://geekfeminism.wikia.com/wiki/Toxic_masculinity

The only paper I saw that relates to academic feminist of some sort has been work of Raewyn Connell who is an expert in the field of masculinities.
http://xyonline.net/sites/default/files/Connell,%20Hegemonic%20masculinity_0.pdf
That the concept of hegemonic masculinity reduces, in practice, to a reification of power or toxicity has also been argued from different points of view. Holter (1997, 2003), in the most conceptually sophisticated of all critiques, argues that the concept constructs masculine power from the direct experience of women rather than from the structural basis of women’s subordination. Holter believes that we must distinguish between “patriarchy,” the long-term structure of the subordination of women, and “gender,” a specific system of exchange that arose in the context of modern capitalism. It is a mistake to treat a hierarchy of masculinities constructed within gender relations as logically continuous with the patriarchal subordination of women. Holter (1997) tellingly points to Norwegian survey evidence showing that the gender identities of men do not map directly onto such equality-related practices as attitudes toward violence.
...
Because the concept of hegemonic masculinity is based on practice that permits men’s collective dominance over women to continue, it is not surprising that in some contexts, hegemonic masculinity actually does refer to men’s engaging in toxic practices—including physical violence—that stabilize gender dominance in a particular setting. However, violence and other noxious practices are not always the defining characteristics, since hegemony has numerous configurations. Indeed, as Wetherell and Edley (1999) ironically observe, one of the most effective ways of “being a man” in certain local contexts may be to demonstrate one’s distance from a regional hegemonic masculinity.
...
Thus, while we welcome most of the applications and modifications of the hegemonic masculinity concept as contributions to the understanding of gender dynamics, we reject those usages that imply a fixed character type, or an assemblage of toxic traits. These usages are not trivial—they are trying to name significant issues about gender, such as the persistence of violence or the consequences of domination. But they do so in a way that conflicts with the analysis of hegemony in gender relations and is therefore incompatible with (not just a variation on) both the initial statements and the main developments of this concept.
#14718341
Thank you for your contribution to the thread, Wellsy. I've learned a lot from your posts.
Wellsy wrote:I think there is a fear of setting precedents of convicting someone in a scenario with alcohol intoxication resulting in prosecuting ALL alcohol related sex.

You are right. Alcohol is a factor is a lot of consensual sex but it is also a factor in coerced sex as well. Imagine a situation where a person declines an offer of sex, is given alcohol by the proposer and then has sex with them. Such scenario is uncomfortable as it's in that grey area in normal circumstances but rape where the standard is affirmative consent.

Wellsy wrote:I think in terms of application, it's not a problem of law but attitudes and discretion of the justice system. I don't imagine most people under law would end up convicted for their drunken sexual encounters.

I agree that the problem is systemic, but change in such institutions is painfully slow and the scale of sexual crimes is huge. There is no easy answer and in an ideal world, rapid change could be enacted to cultural and justice attitudes to make our society one that victims feel comfortable to come forward.

Wellsy wrote:So above we have two people who can't give valid consent because they're too drunk, though they did give consent presumably as the evidence suggests they both pursued it. = Both Drunk, Both Consented, both consents were invalid, court should've ruled no rape since two people incapable of giving cosnent can't comphrensibly rape one another becuse who then is the victim?

It is my understanding that the initiator of the sexual encounter would be held culpable in sex-positive circles. I agree that no-one should be punished in this case if there was no evidence of predatory behaviour.

Wellsy wrote:3. I agree with this one and though stil not completely familar with the affirmative consent thing, my impression is once again call for reform i met with exaggerated fears that think that someone can be convicted without evidence.

Affirmative consent is merely a mechanism by which two potential sexual partners express enthusiasm for a sexual act but respect the other when they show signs of discomfort. Such consent can be non-verbal (i.e. mutual touching) or verbal in the form of asking for consent etc.

Wellsy wrote:Also, the idea that sexual consent is expressed purely in the content of words like no and yes takes an extremely shallow sense of communication, whcih is where par tof the hyberbolic fears that people will have to say a bland yes to every sexual act to express consent are idiots.

I do think we should encourage sexual verbal communication to avoid mishaps. I'm not suggesting asking every stage of the encounter but being playful with it such as stating intent and appreciating the response. This makes everything so much clearer rather than winging it.

Wellsy wrote:And even if these reofmr is implemented, it isn't guaranteed it's followed in practice as state of Tasmania, Australia shows - http://eprints.utas.edu.au/14748/2/whole-cockburn-thesis.pdf

Interesting.

Wellsy wrote:One doesn't need to assume anyone is correct, police should do their bloody jobs and investigate the case for evidence. One doesn't need to presume that the victim is certainly telling the truth to do this, in fact it can maintain skepticism. The problem certainly is though that police and people presume innocence without collaborating evidence that readily deduces that a claim is false, not realizing that doubts/suspicions aren't proof and one actually need to show that there is no subsntial evidence for a criminal offence.

This is really convincing, thanks. How would this change be enacted? Education of law enforcement personnel?

Wellsy wrote:In past discussions, I've seen analogies with drunk drivers. And what confused me is that their assertions sounded more like they were accusing someone thought to be a victim of rape because they were considered too drunk to give consent, to be culpable for a crime.

Perhaps I was unclear in my analogy, the driver (drunk or otherwise) initiating sex and the potential passenger answering the offer affirmatively or negatively.

Wellsy wrote:But I think may take it too far, in that it's perfectly within reason, that one could be passive and be acted upon and it be consented to, though more risky in discerning consent as it's not actively affirmed.

Within the BDSM community, one partner is often a sexual object for the other to use as they please. However, this has two caveats:
  1. Two active participants discuss their kinks and draw up limits to the sexual activity before any sex has taken place.
  2. The "top" is responsible for the "bottom" and must check in to see if they are okay if they are worried and stop play immediately if the "safe word" is utter by the "bottom"
The explicit consent is present in these sexual encounters and a mutual respect and trust is required before engaging in these acts.

Wellsy wrote:To be specific would have to describe what think is the minimal amount of action for something to be considered collaborative and thu consensual.

A few ideas:
  • An explicit "yes" in the absence of coercion.
  • An implicit yes in terms of mutual touching after one partner initiates.
  • Respecting "no" or discomfort through body language and checking in.

Wellsy wrote:On a seperate note, heres stuff about toxic masculinity.

This stuff is fascinating thanks for sharing.
#14718350
Bulaba Jones wrote:You're not doing a good job selling this; we already have another feminist in this thread who thinks people accused of rape should have the burden of proof switched to them, with the full knowledge that young men will be sent to jail and prison where the cycle of rape will continue. Just insane.

No, @Syph said given certain conditions of evicence that they should have to prove affirmative consent.

The burden of proof in a trial should rest on the perpetrator to prove enthusiastic consent before and during a sexual encounter if the following criteria are met:

-The victim filed a contemporaneous police report.
-A rape kit was taken.
-There is evidence of violence to the victim's genital area consistent with rape.

Also of note, Syph doesn't say they have to prove that there was affirmative consent after the fact, so lets not try to go there by saying she can just change her mind or some other such nonsense. Furthermore, if someone had a rape kit taken after the fact, filed a police report, and there was evidence of violence consistent with rape, how are you saying that "young men will be sent to jail and prison where the cycle of rape will continue", as if there is absolutely no evidence that Syph wants to require?

However, I commend you on being honest with yourself and us about how bourgeois, liberal feminism is about women's issues rather than men's, in spite of some feminists who pretend that liberal feminism is about everyone's issues. As Kollontai said, why would working class women want to ally themselves with upper class, middle class feminists?

Correction, 3rd wave feminist also includes the component of intersectionality, so race issues are also important. Feminism would probably best be connected to the destruction of patriarchy and the destruction of racial hegemony. I can't say that I speak for every feminist though.

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