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Light sentencing for sex offenders
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Tehanu
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PostPosted: Mon May 30, 2011 4:17 pm    Post subject: Reply with quote

Well, Magoo, as we've seen, sexual assault or inappropriate sexual activity during surgery does indeed happen. Remember this case?

I'm also trying to be patient and calm, because this is an emotional issue for me.

As someone who (far too often) works with young women who have been sexually assaulted, often in the context of "we were both drunk and he wouldn't stop" acquaintance rape cases, I have no problem with setting the consent bar high. I'll add that I've also talked with young women who were raped when they were passed out. Which is a FAR more common scenario than this case, and a scenario that unfortunately is far too often facilitated by men. And which is far too commonly condoned in our culture.

The details of this case in particular are extremely uncommon, which is probably why the appeal went through. However, the Supremes took took the opportunity to clarity that if you're having sex with someone who's unconscious, it's sexual assault. And I thank them for it.

Because there are plenty of JUDGES who still seem to be damn fuzzy about the issue. (I can dig up cases and links from the last year if people need reminding.)

The kiss and snuggle when she's sleeping scenario? Come on, let's be realistic. Put it into context. It's so very, very hard, difficult, painful, excruciatingly frustrating, to take a sexual assault case through the justice system. So I'm not anticipating a rush of people pressing charges because hubby decided to spoon one night.
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sparqui
Dog tired


Joined: 30 Apr 2006
Posts: 5349
Location: Winnipeg

PostPosted: Mon May 30, 2011 5:35 pm    Post subject: Reply with quote

Brava Tehanu! Clap, Clap
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Raos
volatilis vir


Joined: 11 Apr 2006
Posts: 5581
Location: Petropolis

PostPosted: Mon May 30, 2011 5:41 pm    Post subject: Reply with quote

TS. wrote:
I have to say that if you think that is what the Supreme Court did, I suggest you re-read the decision. What the Supreme Court did was essentially say that a person does not have the capacity to give consent while conscious to sexual activity that will occur while unconscious. They did not say that it is not possible to be innocent. There are various defences that can be raised to a charge of sexual assault that could still result in a finding of not guilty.

Again, IANAL and I am not trying to make legal arguments. Assuming the fact of sexual contact is not in dispute, establishing sexual assault is a matter of consent. The decision declares no possible grounds for consent, that seems pretty clearly and directly to lead to a presumption of guilt since there is no possibility whatsoever (no matter how remote) for it to have been consensual.

TS. wrote:
If the participant is no longer consenting, then they are no longer consenting. It isn't that difficult a situation.

Well, actually yeah it is, it seems. It if were so simple, I don't think there'd be so many issues in prosecuting sexual assault, would there be?

TS. wrote:
Certain kinks carry risks, as I think many participants in them would acknowledge. That is why precautions are taken, and such precautions need to include such things as fool-proof ways of indicating that consent is withdrawn. One of the risks of these kinks is that one party may withdraw consent but be left unable to communicate that withdrawal, exposing the other party to assault charges.

So how does that compare with the "honest but mistaken belief in consent" in response to fork above? If you've gone to lengths to negotiate a means of communicating withdrawal of consent and the other person doesn't use it for whatever reason how can you be guilty of sexual assault? I don't know what more could be reasonably done to rectify such an "honest but mistaken" interpretation of a situation. To what superhuman psychic lengths is a person expected to be able to automatically know in these situations that are apparently simple to interpret?

TS. wrote:
And I oppose mandatory minimums. The fact that the government drives sentencing too far doesn't mean that an activity that was illegal before should suddenly become legal. The legality of a behaviour doesn't depend on the punishment imposed for it.

Um...my point exactly? How does this fall on the side of "leave the innocuous behaviour illegal, but cover the unfairness in sentencing" rather than "whatever the sentencing, the innocuous behaviour shouldn't be illegal to begin with"?

TS. wrote:
There is a clear distinction between medical and sexual consent. For one thing, medical consent is substantially more exacting.

So you're capable of providing the more exacting consent prior to unconsciousness, but not the less exacting?

TS. wrote:
The same word is used, true, but medical and sexual consent are very different creatures.

Again, I'm not really trying to make legal arguments. As a matter of logic/rationality/reasoning do you not see the parallel between consent for X (medical) being done while unconscious, and consent for Y (sexual) being done while unconscious? Whether that parallel is reflected in the law is a legal matter, it does not affect whether that morale/rationale parallel exists or not in reality.

TS. wrote:
That may be. But I am going to come down on the side that offers greater protection to victims of sexual assault. I think we can also rely on a lot of good sense that people have not to file police complaints because their partner kissed them while they were asleep. I think the bigger problems will arise from setting the bar for consent too low than from setting it too high.

And I'm going to come down on the side that doesn't entirely eliminate the possibility to exercise sexual autonomy in these situations. Whether people are going to be filing complaints or not, a kiss is one example on a continuum. According to the law, it's all illegal. There is no ability to exercise "good sense" in determining reasonableness or legality, there is no bar (high or low, and you'll note I haven't exactly weighed in against a high bar), it's all illegal.

Tehanu wrote:
Well, Magoo, as we've seen, sexual assault or inappropriate sexual activity during surgery does indeed happen. Remember this case?

I don't believe Magoo claimed that it couldn't happen. But how would considering that change the effect of these situations? There was no sexual consent (recognized by the supreme court or not) to begin with, it makes no difference whether the theoretical potential for prior-consent to sexual contact exists or not.

Tehanu wrote:
The details of this case in particular are extremely uncommon, which is probably why the appeal went through. However, the Supremes took took the opportunity to clarity that if you're having sex with someone who's unconscious, it's sexual assault. And I thank them for it.

Because there are plenty of JUDGES who still seem to be damn fuzzy about the issue. (I can dig up cases and links from the last year if people need reminding.)

Yeah, including the 3 supremes who ruled the other way. I still don't agree that there is no possibility of consenting to sexual contact while unconscious. I don't recall ever saying that X or Y is right or wrong because it's common or uncommon, and we're not even just talking about the specific details of this exact case in isolation, because that isn't all that was ruled on. The ruling made was very general, and very broad, and criminalizes a lot more the just the situations that you've described. Situations that were already criminal and illegal.

Don't take my word for it, though, from the CBC coverage:
Quote:
Three Supreme Court judges disagreed. In the dissenting opinion written by Justice Morris Fish, the judges said Friday's ruling would deprive women "of their freedom to engage by choice in sexual adventures that involve no proven harm to them or to others."

They also expressed concern about the criminalization of normal sexual relations between spouses.

"The approach advocated by the Chief Justice would also result in the criminalization of a broad range of conduct that Parliament cannot have intended to capture in its definition of the offense of sexual assault. Notably, it would criminalize kissing or caressing a sleeping partner, however gently and affectionately."


Tehanu wrote:
The kiss and snuggle when she's sleeping scenario? Come on, let's be realistic. Put it into context. It's so very, very hard, difficult, painful, excruciatingly frustrating, to take a sexual assault case through the justice system. So I'm not anticipating a rush of people pressing charges because hubby decided to spoon one night.

I don't recall saying that there's going to be a rush of people pressing charges, and a kiss and a snuggle is one extreme end of a spectrum that extends to a lot of other behaviours. Do you think it should be illegal, though? Does a person have any ability whatsoever to give prior consent to sexual contact while unconscious?
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Senor Magoo
He's got a big one


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PostPosted: Mon May 30, 2011 6:42 pm    Post subject: Reply with quote

Quote:
I don't believe Magoo claimed that it couldn't happen.


Agreed. I was only wondering one of the things that you seem to be wondering: how I can give consent to someone to slice into my abdomen and remove chunks of organ while I'm unconscious. Is that consent irrevocable? Or, if it's revocable, how shall I revoke it while unconscious?

I'm open to the idea that this law is not consistent out of necessity, but I'd like to know that rather than guess that.
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Tehanu
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Joined: 12 Apr 2006
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PostPosted: Mon May 30, 2011 7:07 pm    Post subject: Reply with quote

Raos wrote:
Tehanu wrote:
The kiss and snuggle when she's sleeping scenario? Come on, let's be realistic. Put it into context. It's so very, very hard, difficult, painful, excruciatingly frustrating, to take a sexual assault case through the justice system. So I'm not anticipating a rush of people pressing charges because hubby decided to spoon one night.

I don't recall saying that there's going to be a rush of people pressing charges, and a kiss and a snuggle is one extreme end of a spectrum that extends to a lot of other behaviours. Do you think it should be illegal, though? Does a person have any ability whatsoever to give prior consent to sexual contact while unconscious?

I am not one for absolutes, in the law as well as everything else. I'm also a believer in taking context into account when dealing with poor/criminal behaviour. I don't even really believe in prisons, including -- it may surprise you -- for sexual assault. So I'm not jumping up and down for joy at the possibility of criminalizing something that shouldn't be criminal.

But I HIGHLY doubt that this will ever be the case, and even if someone were to try and press charges for something like their partner cuddling them, I'm pretty sure the Crown would decline to prosecute.

Because this is in the culture in which the police routinely decline to lay charges and/or the Crown declines to prosecute it's a he-said-she-said case, because they figure there isn't enough concrete evidence to make it stick.

Even though a woman was raped. (Or a man, or a child.)

So nothing happens. Nothing changes. He rapes again.

[And that's not even counting the cases in which the cops, the Crown, or judges blame the victim for being raped.]

This is the culture I live and work in. In which a friend tells me about her first sexual experience -- she was crashing at a friend's house, she fell asleep, she woke up to discover he was raping her. A culture in which a university student comes to me and says she was raped by an older student, who got her drunk during her first week on campus. A culture in which a woman's friend discloses to me that her friend went to a party, got drunk, and was raped ... and then the cops told her that if she couldn't give a better description of the guy, it would be her fault if he raped someone else.

And it goes on, and on, and on, and on.

Either some guy is too goddamned shit-stupid to actually figure out that if a woman is unconscious or drunk or asleep or in any other way incapable of giving consent then he shouldn't have sex with her, or he's lying by using the "oh, gee, I didn't realize" defence.

Or, to be fair, he just didn't think twice. Because he's been immersed in all kinds of rape culture messages joking about getting her drunk to get into her pants, or he's been egged on by his friends, or he also was drunk and did something stupid. And our society has done an extremely poor job of socializing people NOT to rape. Note that these are not excuses, but context.

Either way, the Supreme Court has just said that when she's unconscious, that is not an option. She is not giving consent. They kept it simple. If she's unconscious, don't have sex with her.

Big hardship, I'm sure!

So yeah, it's great and all to think of different situations and contexts and ways that an unconscious person could give prior consent, but -- to me -- it's damned clear that a nuanced approach is just not working. We need a clear, simple statement, and this doesn't even begin to tackle all the other ways that women are sexually attacked without their consent. Just a very obvious one.

Obvious to most of us, maybe. But apparently in order to get through to the men who do this, to the cops, to the prosecutors, and to the judges, the message HAS to be simple.

If she's unconscious, and you have sex with her, it's rape.

Let's see if it actually makes a difference.
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DSquared
aka Aristotleded24


Joined: 11 Apr 2006
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PostPosted: Tue May 31, 2011 5:17 am    Post subject: Reply with quote

Tehanu wrote:
A culture in which a woman's friend discloses to me that her friend went to a party, got drunk, and was raped ... and then the cops told her that if she couldn't give a better description of the guy, it would be her fault if he raped someone else.


I can see where the investigators would legitimately be frustrated in such a situation where they don't have the evidence to stop a dangerous predator. But frustration aside, doesn't anybody train these investigators? I'm not a trained investigator, yet I don't see these kinds of threats as helping the victim remember the important details.
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Tehanu
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PostPosted: Tue May 31, 2011 4:05 pm    Post subject: Reply with quote

Welcome to the world of reporting sexual assault. Guilting the victim is still far too common, and it happens with the police, it happens with the prosecutors, it happens in court, it happens with judges. Which is why I and many others are wrestling with the very idea that using the judicial system to address sexual assault cases doesn't reliably produce any beneficial outcomes.

DSquared, in this particular case, it apparently wasn't just the cops on the beat. It was the sexual assault unit. Who one would really hope were better trained in supporting the victim. I suspect part of the problem is that police are very focussed on finding the perpetrator and making an arrest.
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Raos
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PostPosted: Tue May 31, 2011 6:46 pm    Post subject: Reply with quote

Tehanu wrote:
I am not one for absolutes, in the law as well as everything else. I'm also a believer in taking context into account when dealing with poor/criminal behaviour. I don't even really believe in prisons, including -- it may surprise you -- for sexual assault. So I'm not jumping up and down for joy at the possibility of criminalizing something that shouldn't be criminal.

Awesome, then I agree. That was all of the opinion I was trying to convey, that it (even if without likely having much negative impact on anyone) over-reaches by criminalizing something that shouldn't be criminal. Most responses made it sound like what I was saying was totally and unconscionably out to lunch, though, and that the ruling was spot on, to the T, without touching any behaviours that aren't rape.

Quote:
Why? Consent to sexual activity is revocable at any time. Having sex with someone while that person is unconscious deprives them of the ability to revoke their consent.
Quote:
For whatever reason you might be unconscious, be it deep sleep, too much booze or a victim of being drugged, if someone takes advantage of your inability to object, then it is a crime. [. . .] There is absolutely no consent under those circumstances.
Quote:
Sex with an unconscious person violated all three of those characteristics of consent. So no, it isn't really any different from being uncooperative on account of unconsciousness.


I might not entirely agree, but I'm can get that it's an over-reach as a matter of practicality.

TS. wrote:
Obvious to most of us, maybe. But apparently in order to get through to the men who do this, to the cops, to the prosecutors, and to the judges, the message HAS to be simple.

If she's unconscious, and you have sex with her, it's rape.

Let's see if it actually makes a difference.

I'd love for it to be so, but I doubt it'll be that effective given "no means no" is a message about as simple as it gets yet cases with actively objecting victims still aren't treated seriously.
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Rufus Polson
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PostPosted: Fri Jun 03, 2011 11:15 pm    Post subject: Reply with quote

sparqui wrote:

As for habits between couples married or not, if they are both cool with a nudge in the dark in a semi or less conscious state, they are not going to bring up charges against their partner.


So would that reasoning apply equally to laws against anal sex? All fine outlawing it, because couples who are OK with it won't be pressing charges against each other anyway?

There are reasons for going all-out on consent and throwing out nuance and exception. I see Tehanu's reasons for saying that consent while awake to something that will happen when not awake is dangerous to admit as consent. But that rationale for saying that it just doesn't matter if there might be many cases where a rape conviction would be a bad thing, does not strike me as persuasive.
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sam
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PostPosted: Sun Jun 05, 2011 12:12 pm    Post subject: Reply with quote

Rufus Polson wrote:
sparqui wrote:

As for habits between couples married or not, if they are both cool with a nudge in the dark in a semi or less conscious state, they are not going to bring up charges against their partner.


So would that reasoning apply equally to laws against anal sex? All fine outlawing it, because couples who are OK with it won't be pressing charges against each other anyway?

There are reasons for going all-out on consent and throwing out nuance and exception. I see Tehanu's reasons for saying that consent while awake to something that will happen when not awake is dangerous to admit as consent. But that rationale for saying that it just doesn't matter if there might be many cases where a rape conviction would be a bad thing, does not strike me as persuasive.


The big difference with anal sex laws is that those laws discriminate against gay men either by design or by effect. Criminalizing an activity that is clearly practiced by a minority group protected by the Charter is a far different issue than determining, as a question of law, the limits of consent. That is what this case is about - what are the LEGAL limits of consent? It is critical to separate that from the FACT of consent. It is no different, conceptually, from saying that the law does not recognize the consent of a child under the age of sixteen to sex with someone over the age of twenty-one. Note that I am not saying that the REASON for limiting legal consent is the same in both cases. I am saying that the analytical process is the same.

That is why the comparison with honest but mistaken belief is inapt. H.b.m belief is a mistake of fact. If your belief was true, the person WOULD HAVE BEEN consenting. They weren't, but the law recognizes that your mistake entitles you to an acquittal. The thing is, you are not entitled to an acquittal if your mistake is actually a mistake of LAW. ignorance of the law is no excuse - everyone will have heard of that saying. The Supreme Court has said that mistakes about the legal limits of consent are mistakes of law. eg, believing that "no" means "yes" or "try harder". What the 6-person majority said here is: looking at the specific Crminal Code provisions on the definition of consent in sexual assault (which is a special set of provisions for THAT OFFENCE) we have determined that consent in LAW does not persist after the person loses consciousness. If consent cannot exist in law after that point, then it really doesn't matter WHAT was said between the parties. Jus as it wouldn't matter with a child, or someone who was being abused, or someone who was extremely drunk.
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