“Did you know that there is no proof that punishing rape is actually beneficial for a society?” 4Channer asks

Moot reintroduced the /pol/ board based on the idea of “containment,” that people who want to share shitty ideas on the sexes and races would want to have their say on /pol/ and not elsewhere. This is actually the original reason for /b/, that if you wanted to post something completely gonzo you could put it up there and let the other boards stay on-topic.

However, more and more, I’m seeing complaints about “SJWs” and “Tyrones” on other boards. Containment isn’t working here, and it seems to be having the opposite effect.

Aww, adorable pandas and other lovely cuddlies! Thanks, people! I’m just going to sit staring at them for a while.

@ sunnysombera

That’s pretty much the case in England now (I don’t want tt be all ‘little Englander and suggest we had it first, came in in 2005)

Here’s some light reading if you can face it.

Reasonable belief in consent

Deciding whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps (A) has taken to ascertain whether (B) consents (subsection (2) of sections 1-4). It is likely that this will include a defendant’s attributes, such as disability or extreme youth, but not if (s)he has any particular fetishes.

The Act abolished the Morgan defence of a genuine though unreasonably mistaken belief as to the consent of the complainant. The defendant (A) has the responsibility to ensure that (B) consents to the sexual activity at the time in question. It will be important for the police to ask the offender in interview what steps (s)he took to satisfy him or herself that the complainant consented in order to show his or her state of mind at the time.

The test of reasonable belief is a subjective test with an objective element. The best way of dealing with this issue is to ask two questions:
1.Did the defendant believe the complainant consented? This relates to his or her personal capacity to evaluate consent (the subjective element of the test).

2.If so, did the defendant reasonably believe it? It will be for the jury to decide if his or her belief was reasonable (the objective element).

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Evidential presumptions (section 75)

Section 75 lists the circumstances in which rebuttable evidential presumptions about the absence of consent apply. If the defendant did the relevant act, as defined in section 77 (the sexual activity within sections 1-4), and the circumstances specified in subsection (2) exist and the defendant knew they existed, then the complainant is to be taken not to have consented.

The Act imposes an evidential burden on the defendant to adduce sufficient evidence to raise an issue that the complainant consented and whether or not the defendant reasonably believed the complainant consented. The question whether the defendant adduces sufficient evidence to raise an issue to be left to a jury is a matter for the judge. The issue should be left to a jury where the evidence, if accepted, raises a prima facie case. Once the defendant has done this, it will be for the prosecution to prove beyond a reasonable doubt, that the complainant did not consent and that the defendant did not reasonably believe the complainant consented.

Prosecutors should note that in practice the evidential presumptions very rarely apply.

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Conclusive presumptions (section 76)

Section 76 provides two conclusive presumptions that the complainant did not consent to the activity and the defendant did not believe that the complainant consented.

The first presumption, based on the defendant intentionally deceiving the complainant as to the nature or purpose of the relevant act, has been the subject of discussion in several cases including:
In R v Jheeta [2007] EWCA Crim 1699 where the defendant had deceived the complainant and pressured her into having sexual intercourse more frequently than she would have done otherwise, the conclusive presumption did not apply because there had been no deception as to the nature or purpose of sexual intercourse.
In R v Tabassum [2002] 2 Cr App R 328 where the defendant conducted breast examinations for his own sexual gratification, on the pretence that he was collecting data for a cancer screening programme there was no genuine consent because the complainants had consented only to an act of a medical nature and not for any other reason.
In R v Devonald [2008] EWCA Crim 527 the conviction of causing a person to engage in sexual activity without consent was upheld where the defendant in order to embarrass his victim, posed as a young woman and persuaded him to masturbate in front of a webcam.

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‘Conditional’ Consent

Section 74 has recently been considered by the High Court and the Court of Appeal in a series of cases where ostensible consent in relation to sexual offences was considered not to be true consent, either because a condition upon which consent was given was not complied with or because of a material deception (other than one which falls within section 76 of the Sexual Offences Act 2003 [SOA]). The resultant judgments identified three sets of circumstances in which consent to sexual activity might be vitiated where the condition was breached.

In Julian Assange v Swedish Prosecution Authority [2011] EWHC 2849 (Admin), an extradition case, the President of the Queens Bench Division considered the situation in which Mr Assange knew that AA would only consent to sexual intercourse if he used a condom. Rejecting the view that the conclusive presumption in section 76 of the SOA would apply in these circumstances the President concluded that the “issue of materiality …can be determined under section 74 rather than section 76”.

On the specific facts the President said:

“It would plainly be open to a jury to hold that if AA had made clear that she would only consent to sexual intercourse if Mr Assange used a condom, then there would be no consent if, without her consent, he did not use a condom, or removed or tore the condom ….. His conduct in having sexual intercourse without a condom in circumstances where she had made clear she would only have sexual intercourse if he used a condom would therefore amount to an offence under the Sexual Offences Act 2003….”

In R (on the application of F) v The DPP [2013] EWHC 945 (Admin), the High Court examined an application for judicial review of the refusal of the DPP to initiate a prosecution for rape and/or sexual assault of the complainant by her former partner. “Choice” and the “freedom” to make any particular choice must, the Court said, be approached in “a broad commonsense way”.

Against what the Court described as the “essential background” of the complainant’s partner’s “sexual dominance” and the complainant’s “unenthusiastic acquiescence to his demands”, the Court considered a specific incident when the claimant consented to sexual intercourse only on the clear understanding that her partner would not ejaculate inside her vagina. She believed that he intended and agreed to withdraw before ejaculation, and he knew and understood that this was the only basis on which she was prepared to have sexual intercourse with him. When he deliberately ejaculated inside the complainant, the result, the Court stated was:

“She was deprived of choice relating to the crucial feature on which her original consent to sexual intercourse was based. Accordingly her consent was negated. Contrary to her wishes, and knowing that she would not have consented, and did not consent to penetration or the continuation of penetration if she had any inkling of his intention, he deliberately ejaculated within her vagina. In law, this combination of circumstances falls within the statutory definition of rape”.

The third case, Justine McNally v R [2013] EWCA Crim 1051, differs from those referred to above. Unlike Assange and F, both of which turned on an express condition, McNally was concerned with the material deception of the victim by the Appellant.

The Court of Appeal dismissed McNally’s appeal against her conviction on six counts of assault by penetration contrary to section 2 of the SOA and allowed her appeal against sentence. The “undeniably unusual” facts considered by the Court involved the relationship between two girls which, over 3 years, developed from an internet relationship to an “exclusive romantic relationship” that involved their meeting and engaging in sexual activity. From the start McNally presented as a boy, a deception she maintained throughout the relationship. Examining the nature of “choice” and “freedom”, the Court determined that “deception as to gender can vitiate consent”.

The Courts reasoning was as follows:

“Thus while, in a physical sense, the acts of assault by penetration of the vagina are the same whether perpetrated by a male or a female, the sexual nature of the acts is, on any common sense view, different where the complainant is deliberately deceived by a defendant into believing the latter is a male. Assuming the facts to be proved as alleged, M chose to have sexual encounters with a boy and her preference (her freedom to choose whether or not to have a sexual encounter with a girl) was removed by the appellants deception.”

Demonstrating that the circumstances in which consent may be vitiated are not limitless, the Court explained:

“In reality, some deceptions (such as, for example, in relation to wealth) will obviously not be sufficient to vitiate consent.”

@ Orion

Furthermore hearsay rules in Australia are much looser due to certain cases, such as one where the prosecution witnesses had been 3 other people the woman had run to complain to at the party after the rape occurred, these witnesses only witnessed the victim’s testimony, they saw nothing of the actual incident, it was pure hearsay. But it was admitted because it was still relevant evidence as to the victim’s state after the incident and it lent obvious credibility that was key in making proof beyond reasonable doubt.

That sort of thing has always been an expectation to the rule against hearsay in countries that Britain used to run. It’s called ‘evidence of recent complainant’. Technically it isn’t even hearsay because the repetition of the complainant’s words by the witnesses is not admissible as to the truth of those words but only as to the state of mind of the complainant.

Ironically we’ve moved away from that in England because it reinforced the myth that women who’d been raped would immediately raise hell about it, whereas in many cases women keep quiet for ages.

As a legal aside we’ve also got rid of the ban on hearsay evidence anyway.

Alan: You commented that it’s the juries, not the judges who make the decision about rape convictions in England, so getting rid of ‘bad’ judges would have a minimal effect. However, I believe that in the UK, as in the US, judges do rule on aspects of the trial itself, including the nature of the defense, what evidence can be introduced by either side, the applicability of testimony, andso forth, yes?

In the US, at least, these rulings have been horrible. Far too many judges will stack the deck against the accuser,either restricting the evidence they can present, or far more often, giving the defense vast latitude in presenting their case. And it’s very rare for a prosecutor to appeal such rulings, so they stand as precedent that can then be cited by other defense attorneys.

What’s truly needed is a clear statement of law that says that a woman who claims she has been raped should be given the same credibility as a man who says his car has been stolen. There may be an issue of who has committed the crime, but the argument that no crime has even occured should face a much higher barrier than it does now.

@ Freemage

Judges do have final say over the admissibility of evidence but they have to abide by the relevant laws. So in England for instance evidence of previous sexual conduct of the complainant isn’t generally admissible.

There are also procedural rules, so for instance a rape suspect cannot cross examine a complainant himself; he must get a lawyer or forego the right to challenge the evidence (that in itself is an issue with the new restrictions on legal aid of course)

As a matter of practice very few defence barristers will ‘beat up’ on a complainant; juries don’t like that. Interestingly though most barristers who defend in (consent based) rape case are women (for reasons we’ve discussed before) and they can get away with going in harder on a witness than a man can (that’s one of the reasons for instructing them).

I can see your point about letting juries know that false allegations in rape cases are no more common than in other offences (anecdotally the largest example of false crime reports is ‘theft’ of mobile phones). However it’s a fundamental common law principle that credibility of a witness is the sole province of the jury. The court of appeal makes that quite clear. For a judge to say emphasise that false rape complaints are rare is in effect saying ‘you should believe the complainant’. False complaints in all areas are of course rare so if that was allowed in rape cases then prosecutors would have to be allowed to make that point in all cases. That could be problematic. In effect we’d be introducing a presumption of guilt.

Of course one of the things about rape is that it’s not enough to convict to show the complainant is telling the truth (i.e. that she did not consent). That may be accepted by the defence. The issue quite often is ‘belief in consent’.

There have been some changes here, judges now give some guidance on rape myths (e.g. they point out that many victims don’t immediately tell anyone), but saying any witness in a criminal case is inherently more credible than any other would be a hard sell in a common law jurisdiction. It also has to be borne in mind that in a criminal case the parties are the Crown and the Defendant; the complainant is just another witness. That’s obviously horrible, but that’s how criminal proceedings (as opposed to civil proceedings work).

Alan:

It sounds as if your judges are on a slightly tighter leash. In the U.S., a judge who is horrible on such issues is often quite able to continue on without consequence. It’s remarkable for a prosecutor to appeal a judge’s procedural ruling (in part because they know the judge is likely going to take offense, thereby gumming things up for them even more going forward).

As for ‘belief in consent’… Honestly, I think that the standard should be moved to ‘lacking affirmative consent’. As odious as comparisons to property crimes are, they do highlight the absurdity of the ‘belief in consent’ notion. By the belief standard as it is usually applied, an unlocked vehicle would be legitimately available for the taking.

Vikings had laws against rape. So much for their “historical perspective.”

Yup. The Danelaw was so socially progressive that more conservative societies (i.e. rapey ones) often complained that the Vikings were “stealing” their women.

(They were also more ironic, but the irony was lost on them.)

Alan Robertshaw | July 9, 2015 at 6:07 pm

However, because most of our judges are former barristers and the Bar is quite small (we pretty much all know each other, certainly in a particular circuit) then good old fashioned social pressure keeps everyone in line. If a judge is a dick someone will have a quiet word in their ear and they’ll decide they want to spend more time with their families.

In the U.S., there’s a similar degree of familiarity, but it works the other way–judges are more likely to want to ‘protect the institution of the judiciary’ from scandal by refraining from calling out a judge who isn’t actually physically abusing people in his courtroom.

Judges also don’t hold grudges about being appealed here; it’s all part of the job. In fact it’s a rather bizarre fact that the first person you ask for leave to appeal is the judge you’re appealing against. They’re pretty good humoured about it:

Take a look at that family court transcript in one of the later threads–the judge there is so petty she’s sent three children (9, 10, and 15) to juvenile detention for refusing to build a relationship with their father. There’s a push growing for some sort of reprimand, but I can assure you, judges don’t reach that point without a long history of getting away with shit and not facing any consequences at all.

I think rape is the most obvious and visceral expression of a man’s contempt and/or disregard for women.

It’s funny…as someone with a lot of experience in this arena (not as a perpetrator), I can see it’s quite untrue that there is just ONE reason for rape. Sometimes it’s more motivated by sexual desire (and the man in question’s pathology/sense of entitlement, since he can’t “turn it off”) and sometimes it’s more motivated by hate (and is therefore, as many people say, about power, not sex). I mean, in a sense all rape is about power–men’s power relative to women’s in society (and thus sense of entitlement to their bodies when aroused), men’s physical power–but in terms of individual cases, rape motivated by sexual desire feels a lot less personal than rape motivated by hate (although feeling like nothing more than an object, an alluring set of holes, is extremely dehumanizing and also very traumatic).

So why is rape so traumatic? I mean to be honest, rape by an acquaintance or partner, etc., has the potential to be MORE traumatic than rape by a stranger (even if less violent), because of loss of trust in the men around you, as well as quite possibly leading to a “he-said she-said” scenario in your circle of friends with other acquaintances siding against you or failing to defend you (as, contrary to popular opinion, rape is NOT seen as that bad–or rather, that true–in society; much like the “Madonna/whore” trope there is the “good victim/bad victim” dichotomy, and any woman who is not pure, sober, and a virtual stranger to the perpetrator is a “bad victim.” So if you are alone somewhere with a guy/guys, drink with them, or flirt with them in any way–common behavior among men and women who are friends–you are responsible if they rape you, and in fact, it’s likely rape didn’t even occur, right? Obviously you slept with him/them. You are making it up. I think this head-in-the-sand attitude, coupled with the pervasiveness of violent pornography and male entitlement–including male rage at women’s growing power in society–is what leads to so many incidences of what has been termed “date rape” or “acquaintance rape” occurring; most women don’t report it, and may not even talk about it to their friends if the rapist is someone they know, for fear of become ostracized within their community).

To combat this, women need to stand with women. Of course false accusations occurs, but it occurs at a rate far lower than the rate of rape, which is severely underreported (and in fact many women will not acknowledge that they experienced rape, though they are just as affected by it). And all the “not all men” out there also need to stand with women, and believe them. Even the specter of false accusation is so overblown; such a minimal number of men are convicted of rape that it is very unlikely that a man would be both falsely accused and convicted; and “acquaintance rape” cases rarely make it to the courtroom anyway. Most men who are falsely convicted are victims of mistaken identity in stranger rape cases (which is terrible, obviously, but not the same as a woman maliciously accusing an innocent man on purpose; and it is to be hoped that DNA science should help cut down on such instances in the modern age).

Why is it that rape is so traumatic, even if not violent? Because it’s social violence. It’s a hate crime. It’s a reminder, in the most extreme way possible, that you are what society tells you you are but what you have fought so hard not to be: less than men; worth only what’s between your legs; a thing, an object. Not a person worthy of respect. Rape erases your humanity. And if you become numb to sexual violence–as many women do (I was once)–you die a little inside every day. It erodes your self-confidence and ability to thrive in life; it kills your love for yourself and any inkling that you deserve better, that you deserve respect. It is a way to keep women in line in the often violently patriarchal societies we live in.

It is not, as evopsych would have it, because the right to select who bears your children has been taken from you. It is because you have been turned into a thing (and, as women who have been raped once are seven times more likely to be raped again–often coming from a vulnerable group, or perhaps because of PTSD changing them from the once-vibrant women they were into more fearful beings, which predators can spot–or because of subsequent promiscuity or reckless behavior driven by sorrow–women often are turned into things over and over and over again until the message finally sinks in. I think prostitution–the majority of it, in which women are unwilling participants–and sex trafficking and pornography are the most obvious representations of this phenomenon).

As far as effects go, women who have been raped may make less money over their lifetime; are more likely to experience divorce or become involved in abusive relationships; are more likely to become addicted to alcohol and drugs; get sick more often; and are more at-risk for heart attacks and strokes as they get older. Rape has a very real physical and emotional cost. Getting beat up once on the street doesn’t.

There needs to be rape and sexual violence education in school to supplement sex education. Men (and women) need to learn both why it is so bad and how not to have it occur. It’s so important for the happiness–and happy sex lives and interpersonal relationships–of both genders that we strongly advocate the affirmative-consent model.

Threadomancy here, but why did they make a convoluted backstory for a fictional owl?
And why is that puzzling me more than the rest?

@isidore13 Ah, that makes more sense. Marginally.
Here I was thinking Professor Owl was some kind of rejected kid’s character, a la Cool Cat. Only misogynistic and paranoid.