Two different stories about consent and "rape", a paradox

Or, you could look into what the law was in 1911! You don't actually have to make **** up!

In 1911, sex within marriage was seen as a duty.

A woman in marriage was "femme covert" - she was considered a dependant who could not own property, control her own earnings, etc. She was like an underage child. She might not even get custody of underage children if her husband died.

In Thompson v Thompson (1910) the USSC ruled against a woman who sued her husband for $70,000 of physical damages on the grounds of the marriage being one legal entity - femme covert. So, there couldn't be two sides to the issue.

Due to the history of coverture, marital rape wasn't considered a crime until the 1970's.



Now, you want to ignore the last 50 years of jurisprudence in order to block men from being charged with rape???

Do you really want to go back to 1911 - like you propose above??

 

Isn't it?

 

That's not true at all. Women could own property. They just had to be 21. And if it was joint property, the husband's signature was needed.

I think there may have been some special limitations about entering into contracts to take on debt, but that was there to protect women. Debtors prisons were not an appropriate place for women to be.

Mainly because in many cases she would not have been seen as being able to financially provide for them. If she was an heiress, there would have been no problem.

 

It was still possible for the husband to be charged with abuse, in extreme circumstances. Sodomy was still a crime at that time, so he couldn't have whatever type of sex he wanted with her.

Physical abuse was also legitimate legal grounds for divorce. She could get out of there.

You know, it is possible for the pendulum to swing too far in the other direction.

 

That's not really what I said.

You are assuming the woman being able to have "consent" automatically means her husband should be criminally prosecuted for "rape" if he violates that consent.

That is the big logical leap I am debating.

Is her consent violated? Yes. But she is nowhere near as violated as she would be in an ordinary rape.

 

No it is not....unless you are a religious misogynist who views omen as property, then yes.

 

When, objectively, is past consent violated?

 

I don't know the exact legalese, but if consent were gained through fraud, I doubt it would hold up in court.

There is certainly redress for business deals made through fraud.

Why would a court rule that consent was given, regardless of the fraud used to gain it?

 

Think about it. Two people in a partnership. They're not supposed to have sex outside of marriage. Isn't it their duty to try to fulfill the other's sexual needs?

Didn't you tell us in another thread that you were involved in "polyamorous" relationships? Maybe you wouldn't really have the best perspective on this.

I can understand how to you this might seem absurd, since if one of your sex partners is not feeling like it you can always find another.

 

The question is what type of fraud. What is it specifically the person has to deceive the other about?

Sex is obtained through fraud all the time. It is fairly normal. How many women would sleep with the guy if he told her everything?

This is a funny question.

Girl asks guy "Are you still seeing that other girl?",
guy lying: "No"
girl: "Okay, I'll have sex with you."

Would you make that into rape?

 

Alright, let's shop around

• unlawful sexual intercourse or any other sexual penetration of the vagina, anus, or mouth of another person, with or without force, by a sex organ, other body part, or foreign object, without the consent of the victim. (Dictionary.com)
  
• Penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim (FBI:UCR)
• The legal definition of rape is when a person intentionally penetrates another's vagina, anus or mouth with a penis, without the other person's consent. (Met Police (UK))

By all means, there are other definitions, I find a few that still mention consent, but which also stipulate force or threat. I can also find ones that specify that it must be with a penis, or must be done to a woman, or must be done to a man, as well as older ones in which it means something closer to what we would today call kidnapping ("rape" comes from the same word as "raptor", "to carry off").

May very well be true. As with every word in every language, there is semantic drift, meanings aren't set in stone. Just like "you" replaced "thou".

I'd say that's true. The idea that things are bad because they cause harm to body, mind or rights (as opposed to being wrong because of the say-so of a King, God, Confucius, or the guy with the biggest stick) is definitely a political and social ideology. With a wording as vague as "has some of its roots in", we can probably link it to women's emancipation (and further to general emancipation). Just like clinging to old definitions often have roots in political and social ideologies.

I don't think they're that vague, but as with any law, word, or most concepts that matter, there will be grey areas. I'm sure the distinction between "murder" and "manslaughter" (and maybe "kill") is blurry too.

Having that sort of vagueness isn't really a problem. It's not quite clear from your post why you think that would be a problem, or even if you think it is a problem.

Ok, so your suggestion of 'shouldn't the wife have to kick and scream and fight, at least try to push her husband off her, for this to be considered a "rape"?' doesn't seem to hold up. Perhaps it even reduces protection for those who are most in need of it.

You're clearly onto something that makes sense. What is it about "kicking and screaming" that meant that it could automatically be bundled with the case where the victim is too afraid to kick and scream? It seems to me the common thread there is the consent.

There will always be grey areas, that in itself doesn't say very much.

 

I don't see your point. All of those have nothing specifically to do with married couples or those in long-term relationships.

Of course none of us dispute those definitions when the two have not already had sexual intercourse. Those are general definitions, not really specific in this type of case we are talking about.

I think you are falling into the fallacy of literalism.

It is extremely common for statements to be made that are not true in all situations. Those statements are made in a certain context (or rather apart from a certain context, in this situation). Because it would just be too complicated and impractical to always make statements that all hold literally true in all situations.

The problem here is oversimplification, and the complexity of the real world.

You do have to admit it is kind of vague when the woman has given him consent to sex in the past, and will give him consent to sex in the future, but not specifically right now, on a specific occasion.

That is definitely not the "typical" situation people usually have in mind when they think about the concept of "rape".

 

The article goes on to say

Consent is affirmative "informed approval, indicating a freely given agreement" to sexual activity. (source)​

I'd say informed approval doesn't not include approval given as a result of fraud.
That being said, that quote is from a different source, so it's not obvious whether they refer to the same thing.

Personally, I'm not hugely bothered whether it falls under rape or not. Languages change over time. Laws should be clear, but they should be clear by being explicit. Laws (or interpretations of laws, such as court rulings) should be worded in a way that they are clear, even when the words they invoke aren't automatically clear. (For instance, "actual malice" is well defined in law, even though it doesn't match with what a modern English speaker might mean by "actual malice").

 

Yes that is exactly what I am assuming and what is the basis of a great number of our laws. When consent is violated, a crime is committed. Period. The relationship between the two people is immaterial to that point. In the case of sex without consent, that is called rape. Right now, by the logic you are using, your wife (hypothetical at this point) can throw you down on the bed, and take a dildo to your arse, and that cannot be rape because she's your wife, so there is an implied consent to any kind of sex with you.

I've got news for you. This is ordinary rape. There are only two types of rape: Ordinary and statutory. Anything else is an attempt to excuse a rapist's actions. Now that is not to say that non-rape actions (ex: groping) are actually rape, nor does that imply that a rape claimed is actually a rape. But we are not taking actual situations here, in your OP's, with limited facts and trying to determine if they can be proven as rape or not. We are taking a set of conditions and seeing if the crime of rape applies.

 

In keeping with the fact that neither of us are lawyers, I believe what we are dealing with is the nature of a crime. IOW, there is not a doubt that a crime, a violation of a right, has occurred. It is the nature of the crime. If I grab a woman's breasts and grope and fondle them, this is indeed sexual assault, but it is not rape. So likewise, especially where rape typically has certain conditions to counts as rape, the use of fraud is not among the ones to bring the status of rape, but may still have the status of sexual assault, or just simply fraud. Tricked is not the same as forced or having the ability to consent removed. And that is a key difference.

 

Before I answer the post as a whole, I am going to need you to fully define this and spell it out. Because I see a huge potential logic hole here and I want to be sure where you stand in case what you imply with your wording is not what you intended to convey.

 

What I find interesting here is that a person who f***s a woman's vagina with a beer bottle would not be guilty of rape, nor would a woman who violates a man's anus with a strap-on. I think the UK needs to seriously catch up.

Off topic piece of lingual trivia. "Thou" was the singular form and "you" was the plural form. "You" eventually became both the singular and plural forms.

 

You have given consent to eat her cooking in the past and will give consent to eat her cooking in the future. So should she be able to force food down your throat now when you don't want to eat simply because of that past and present consent?

 

Now, you're making up more stories. You posed the first two. And, that wasn't enough for you, I guess.

Let's remember that every state has its own domestic violence law, including rape.

 

Let's remember that every state has statutes covering violence including sexual violence.

Thus it's not easy to know exactly what the charges would be for a particular act, as the charges could be very different or nonexistent in different states.

 

Well, that could be a likely chocking hazard. But apart from that, yes it would be similar.

Sex is different from that example. The woman is also the passive partner. The man does things, the woman just lies there.

In your example, on the other hand, the woman takes a more active role in feeding you than you have permitted her to in the past.

If you had some fetish where you allowed her to force feed you in the past, like some sort of BDSM kink, then it might be viewed more forgivingly if she did it again to you but this time without your consent.

Same thing if the two were professional performers and the man had asked the woman to shoot an apple off his head many times before, and then one day she did it without his consent and forced him to stand there.

 

OK, THAT depth of ignorance is just plain overwhelmingly sad!

 

Face it, if the man has done it many times before to her, and will do it in the future, it is not as bad.

The only real difference is how she FEELS about it.

 

I grant that the legal definition is not always going to reflect the larger definition that is common use. However, unlike murder, which is an illegal homicide, that is by definition based upon the legal description, be it civil or religious or whatever (and that is not any attempt to say that religious law should match civil or vice versa), rape would have a definition that is not reliant on law to define it, even if it needs law to provide for the prosecution of it.

If rape is only defined by law, then we can't make the claim that a husband can rape his wife, until that law is made. So prior to the law change, were husbands raping wives? If not then why was the battle to get the law to recognize that rape was occuring?

 

It would seem that you have a very limited sex life to make this statement.

Last I checked, cooking and feeding are rather active, so I am unsure what you mean by "permitted her in the past."

While I am in agreement with you as far as what a given prosecutor might be looking at as to whether they could prove something or not, the point of whether or not a given act could be proved is a separate issue. Think of it this way. You steal something of mine. That is theft pure and simple. Whether I can prove that you stole it or not does not change the fact that you committed theft. Hell, I don't even have to know it was you for it to still be a fact that you committed theft. When making examples, we can label the situation for what it is, regardless of whether there exists the proof needed to bring it to court or produce a guilty verdict.

Let's go back to the husband case. We are able to look at that two way. First as what is the situation as described, and then secondly, if this specific case provable as described. For the first part, we have a description that he engaged in sex with his wife when she specifically said no. That is clearly a situation where she has withdrawn her consent, at least for that time, and his continuation constitutes rape. In the second aspect, we are now asking if there is any proof that the situation happened as described. Did the woman actually say no and clearly withdraw her consent? Did he actually keep going despite that? Your initial premises from your OP took us into the realm of the first aspect. Maybe you didn't intend to, but that is were it took us. You gave us two examples, but examples imply that we are taking about the greater topic, not those two specific cases.

Arguing what can and cannot be proved within any given specific case, holds no bearing on whether an act is or is not a given label. A "no" means that it is rape, unless you are talking a BDSM session where it was agreed that "no" doesn't count, and that the decided upon safeword means "no". "Yes" means that it is not rape, unless that "yes" is obtained when the person is drunk and not making decisions clearly, or is forced out by threat or death or harm. We are looking at the conditions that makes the act rape or not. We are not looking at whether anything can be proven in any specific case. Everytime you bring up the idea of whether or not something can be proved, you are engaging in red herring fallacies.