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Final Version | | | -- ClaireOSullivan - 31 Mar 2008
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< | I do agree with your thesis: "Rape is a problem that our justice system is not well equipped to address." And I would like to suggest some names for the tort you propose: "Moving too fast;" "Disrespecting an acquaintance;" "Violating Title VII with a potential co-worker;" "Stealing bases." | | | | |
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< | I don't mean to disrespect the real problem: social intercourses get interpreted differently by their participants. But the fact that intercourses (sexual or otherwise) contain misunderstandings does not, by itself, justify the erection of state power and its thrusting upon one party the other's understanding. "Misunderstanding" should not be made a tort. | >
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- This is an interesting essay, Claire, and I appreciate the vibrancy of the conversation it started, which is a good sign of the effectiveness of the writing.
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< | I think that education and therapy are more properly applied preemptively, as they currently are. Assuming that our goal is to reduce the number of relationships that end in accusations of rape, we should help EVERYONE, men and women alike, learn to send and read signals better. | >
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- But your legal thinking here is unfortunately naive. It is not juries who determine either the under-prosecution of acquaintance rape or the underreporting of rape as a whole. You cannot significantly change prosecutorial behavior by adding another sexual misdemeanor to the "toolkit." Because we're not going to recriminalize "fornication," we can't make the sex itself a misdemeanor--some additional element must be proven. Prosecutors have sexual battery misdemeanors available in every modern penal code with which to charge less than felony rape or sexual crime if they want to. You might find it useful to look at the scheme in N.Y. Penal Law section 130, including the general provisions concerning consent, and the Class A misdemeanor called "forcible touching" which is New York's relevant offense already available.
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< | -- AndrewGradman - 31 Mar 2008 | >
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- The problems with using this tool are twofold, and they lie away from your essay's focus. In the first place, the political moron-show that is public discussion of criminal justice matters has been scaring the booboisie sick about "sex offenders" for years now, and has been politically rewarded for passing statutes that horrendously burden the constitutional rights and daily lives of "sex offenders," which can include those convicted of the sexual battery misdemeanors. It's hard to get people to plead guilty to something that's going to destroy their lives if they don't think they did anything wrong and they have social and economic resources with which to go to trial. In the second place, and more importantly, prosecutors don't want to go to trial in misdemeanors that are simply "he said, she said" evidence--that's even worse for the prosecutor than the felony is, because the standard of proof is just as high, but if you win all you did was get a misdemeanor conviction--which doesn't help your stats at all--and if you lose you've wasted as much time as you'd have spent on trying the felony.
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- So the real issue is whether you can get the offender to plead to the misdemeanor by threatening to take him to trial on the felony, which if successful will result in his being sent away to be raped by somebody else once he gets to prison. Prosecutors don't understand themselves as intake officers for psychotherapy and behavior modification, you understand? They're public servant warriors whose task it is to use the People's force to introduce offenders to the "correctional system" through guilty plea or trial verdict. Those they cannot convict by threat or force they do not want to charge. Sex crimes units are not special anti-patriarchy holistic intervention centers: they are run by and contain the same well-bred wolves who succeed elsewhere in the pack.
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- I would freely concede that the "Drug Courts" bullshit offers the sort of picture that might convince you that you are on the right track here, which means that naivete has spread to people supposedly older and wiser than you are in the ways of this sick-making "system" of ours. But adversary criminal justice in the contemporary style is not a good place to look for social therapeutics, and you can't graft them together bough to stock.
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< | Claire isn't advocating the creation of a tort. I think she's trying to find a middle ground within criminal law between the approach of Canada, which may over-criminalize such 'misunderstandings', and the approach of jurisdictions which refuse to recognize non-forcible rape at all. This doesn't preclude preemptive education, but we get plenty of that in high school and college and it's barely taken seriously, i think precisely because non-forcible rape is often chalked up to a simple misunderstanding. However, to call non-forcible rape a misunderstanding is oversimplified because in many instances the perpetrator may understand perfectly well the signals being given, but may know that that he (or she?) can pretty much get away with it. I have no idea how criminal law should deal with that problem. I think this will be a good topic to grapple with. | >
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- The sad truth of the matter is that we are a society in which a woman somewhere is beaten, in her home, every few minutes. Husbands commit forcible rape upon their wives, every single day. Any adolescent girl who through choice or circumstance associates unsupervised with adult males--including all too often relatives such as uncles and cousins, or co-resident sexual partners of her mother or other relatives--is likely to find herself initiated in what is at best a semi-consensual setting, and long before the age of consent. Young adult women report rates of abuse from puberty on that we should take seriously and be horrified about; every year I meet law students whose lives have been harmed, whose trauma has been severe. This society tolerates levels of brutality to and sexual mistreatment of women that should be a source of militant determination to everyone who lives here. Instead, we excuse ourselves by pointing out that few parts of the world are substantially better and many are inexpressibly worse. That excuse is obnoxious crap. But by the same token, we aren't exactly being realistic when we sit wondering how to use the criminal justice process to deal with the cases of mistaken understanding of consent while all the rest of the brutality goes on unchecked around us. You are right that we have work to do in the culture. But we should be designing that work with a view of the problem as a whole, not merely any part of it.
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< | -- VishalA? - 01 Apr 2008 | | | | |
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< | Andrew, I think that having an intermediate misdemeanor charge such as the one Claire suggests may serve as a deterrent or a self-policing mechanism (a preemptive strike, as you put it). Knowing that they may face such a charge, individuals about to engage in sexual conduct will be urged to ask themselves: “Am I absolutely sure that there is consent here?” If one party is drunk, or in some other way incapacitated, there will be incentive to refrain from sexual conduct. | | | | |
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< | As Claire said, the subjective element of sexual conduct/relations makes it difficult to address through traditional legal avenues. Perhaps we could use the law--through potential punishment/sanctions--to encourage individuals to police their own sexual behavior? Since a misdemeanor charge would possibly be easier to charge and convict on, individuals may be more likely to make sure that they aren’t engaging in date rape. Claire, I’m excited to see how this idea pans out. | | | | |
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< | -- MinaNasseri - 01 Apr 2008
Claire, i think that this is an excellent idea, and, as i mentioned to you before, it is very close to how i was originally going to frame my topic. I've since broadened my topic so as to create less overlap. But, i'm thinking i'll link your topic to mine, because it's a good example of the analysis that i think should occur more often wherever there are gender biases in the law. You get at the heart of the problem, and think outside of the box to create a solution. All in all, very good idead.
Unfortunately, and it is with great dismay that i say this, i have to at least partially agree with gradman. If you concede that the root of the problem is in socialized gender miscommunications which play a role in how both genders communicate in the bedroom, i hardly see it as fair to penalize one gender for a mistake both contribute to. I'm not sure i see any better way to do it (maybe better sex ed in HS dealing with issues like this), but it seems like blaming the individual for a mistake created by the group, if not society as a whole.
I don't know. I like the analysis. I just don't know how well tailored to the problem the solution really is.
-- OluwafemiMorohunfola - 04 Apr 2008
Thanks everyone for your feedback. I do see why it is unsatisfying to identify a one-sided solution for a problem that I've framed as two-sided. I've tried to address this in my final version; however it also seems to me that, since the problem still comes down to unwanted sexual contact being imposed on the victim, it makes more sense to put the onus on the aggressor to change their behaviour and mindset. Holding women responsible for re-framing their lack of consent (say, by fighting back physically) to make sure that the man will understand seems dangerous to me. Anyway I find this to be a very difficult issue (which was why I wanted to spend some time thinking about it by writing this paper) and I appreciate everyone's input.
-- ClaireOSullivan - 04 Apr 2008
This is a really interesting piece. This may not be the point of your paper but I got left wondering what the gender stereotypes are which lead to acquaintance rape. I don't know if you have the space or the inclination to deal with that. It could be a whole other paper though. Very interesting to read. I wonder what the male perspective on this reform would be. Maybe it's Femi's reaction that one gender should not be penalized for the miscommunication. Should women undergo some sort of therapy so withdrawn consent does not reoccur? Just an idea.
-- JulianBaez - 04 Apr 2008
Feminine timidity regarding sex isn't an inherent aspect of women that society should intervene and correct. This timidity, to the extent that it does exist, is the result of the objectification of women in society as possessions to be won. (Malfeasance versus nonfeasance). Acquaintance rape sounds like the symptom of larger gender problems in society. (Woman being prized for their sexuality and modesty (contradiction,.. right? maybe not.) while Men are prized for their conquests.
Hmmmm... heres a thought... if you could index Countries attitudes toward Sex, or rather openness, would that have an indirect relationship with acquaintance rape? Just a thought for a future empirical study. Overall, I really enjoyed your paper... I didn't have any academic (or otherwise!) experience with the subject.
-- JosephMacias - 05 Apr 2008
I thought this was really interesting piece as well. I like the way you framed the issue and identified the problems. it does seem to be a problem in social/gender conditioning which education could address in part over time. The problems you and others identified with your solution are considerable and i would be interested to hear what other ideas people have to deal with the way this type of rape should be treated. i was wondering if you had more or any kind of information/statistics on acquaintance rape as in what percentage of reported rapes every year it comprises? also, im sort of curious as to how they come up with these estimations regarding the number of rapes that go unreported every year.
-- JonathanBoustani - 10 Apr 2008 | | |
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