Thursday, January 03, 2013

Rape outside of marriage

Henry David Thoreau preachin' it back in 1849:
Law never made men a whit more just; and, by means of their respect for it, even the well-disposed are daily made the agents of injustice.
An appeals court in California proving his point in 2013:
We reluctantly hold that a person who accomplishes sexual intercourse by impersonating someone other than a married victim's spouse is not guilty of the crime of rape of an unconscious person under section 261, subdivision (a)(4).
Out of wedlock sex: Wrong. Out of wedlock rape: Well, it's complicated.

(via @cowofevil)


  1. The equally sad (though far less violent) commentary on this is that judges somehow think their job is merely to apply law as it stands rather than interpret it. Isn't interpretation of the law what that whole constitution thing said that the judiciary was about? Guess that takes too much effort, or perhaps just causes controversy.

    1. So... you think judges should be more creative in interpreting felony statutes? "Hey, you just did something that wasn't clearly a felony, but I'm going to put on my Creative Judge hat and declare that the state is allowed to throw you in prison anyway!"

      You might want to read up on the 5th Amendment and the history of why it was drafted before making suggestions like this.

    2. Yes, Todd. Go read up on what the rapist slaveowners who founded this country had to to say about this whole matter. Whatever you do, don't go around saying sex without informed consent is not consensual. It's more complicated than that!

    3. This comment has been removed by the author.

  2. Charles:

    You're being dishonest. "Out of wedlock sex" is not a felony anywhere in the US. This case is about whether consensual sex under false pretenses is a felony. The court held that, in this case, it was not. (It's worth remembering that, in cases involving factual disputes, as in this case, the court is obliged to hold the prosecution to a standard of proof "beyond a reasonable doubt".)

    As a counterpoint, see the Israeli case from a few years back involving an Arab man who was convicted of rape because he lied to his sexual partner about being Jewish. That case inspired quite a bit of outrage, as it should have. Have you ever lied to a sexual partner about something that might have influenced their decision to have sex with you on any particular occasion? If you had, do you think that act should have been considered sexual assault? I trust you see the problem.

    So, yes: it is complicated. If we started throwing people into prison for every misrepresentation they made to their sexual partners, I imagine we'd all be in trouble. And if we want courts to start lowering the burden of proof on the state for felony charges, then we'd also all be in quite a bit of trouble.

    California has a statute that defines sexual assault as a felony offence, and it has case law establishing what various words in that statute mean, such as "consent". Consent based on a misunderstanding is a very tricky issue in this area of law. I can't say that this decision was correct, or that the married-vs-nonmarried thing isn't anachronistic, but to make fun of the court for treating this issue as "complicated" is childish and unworthy of you.

    1. It's weird how having a penis leads men like you to portray clear instances of rape -- no party in this case denies that the man had sex with a drunk woman in a dark room by pretending to be her boyfriend -- as "complicated." It's also weird that you missed the whole point of this post, which is that it is childish and unworthy of an honorable human being to obey and uphold laws that perpetrate injustice.

    2. Brian M6:28 PM

      Sure, let's eliminate all "law". Because all understandings of justice are completely individual and equivalent. There should be no law but only our liberty as individuals. My understanding of "justice" is that I have the Godly right to assault any female because I understand God as allowing me to, no directing me to. So, what's the problem?

  3. Anonymous9:12 PM

    It may be true in some narrow, technical sense that no party denies the woman was drunk. But no party appears to assert it either. At least, it's not reflected in the appellate court's decision. What the decision says is that she had 3-5 beers, and then describes a subsequent sequence of events (they went for food, ate, the boyfriend stayed after she went to sleep, leaving "eventually") of a duration which we just don't know. It also relates an account of a sober sounding conversation Jane had with her boyfriend (i.e., not to have sex because protection was not available.)

    Regardless, the issue of consent was not that she was drunk, but that she was asleep. Given that, the question of impersonation seems completely beside the point. Because, suppose instead of someone who may or may not have been impersonating her boyfriend, that the sex was with her actual boyfriend. If she were sleeping, wouldn't that still be rape? Sure sounds like it to me. She already communicated a wish not have sex. Being asleep would sure seem to preclude her changing her mind.

    Moreover, the appellate court did not say, as the blog post linked to incorrectly suggests, that there was no rape. What they said was it was unclear on what basis the jury had made their decision, and therefore it should go back to a jury for them to decide whether there was consent.

    If they believe there was no consent (sounds to me like there wasn't, but they'd be in a much better position to evaluate) then they will presumably convict for a second time.

    And maybe it's my penis getting in the way, but I'm not seeing the connection between the Thoreau quote and the statute, either. If that government that governs best, governs least, do we want the state interposing itself into the question of whether consent for sex engaged in absent any force would or wouldn't have been given if the consenter had more or better information? Sounds to me like the current provision in California law regarding impersonation of spouses, is a hot load of paternalistic bullshit. Better to accord the dignity and moral agency for a person to be their own best judge of who they have sex with and why, no?


  4. Anonymous6:33 AM

    I'm only commenting to balance out the "rape is complicated/rape is rape" ratio of this comment section, which is dangerously off kilter. Rape is definitely still rape, bros, and if the state is going to prosecute anybody for anything it should probably be for rape.

    I realize we live in a golden era of criminal justice reform and general amnesty is just around the corner, but personally I want to make sure my old pot dealer gets out before the dude who sneaks into dark rooms to rape - sorry, give moral agency to - passed out drunk women.

  5. jerkstore7:18 PM

    I love that when there's any chance to call a woman an undebatable victim, the territorial-'real'-feminism branch of leftism always comes along to say, "forget all that liberal ambiguity and weirdness of life stuff, it's MENZ-huntin' time".

    When you start equating every single act of sexual trickery/dishonest/evil/what have you, you trivialize rape in the extreme and create paranoia over trivial things. That's the true lasting achievement of urbane academic 2nd wave feminism.

    I don't know the law and don't know the case. But to equate impersonation with 'unconsciousness' is a lovely and admirable bit of philosophical philistinism, aka sophistry. And the law absolutely does allow for it. It's what makes the history of laws, applying simpler statements to new events.
    You could totally argue it in court. But socially, you'd have to change my understanding of what constitutes sexual responsibility and assault to say, again without reference to this specific case (maybe she was really drunk and he was really NOT drunk and could barely see him and he knew that he had no reason to assume etc), to say that going up to someone who is fairly aware, in dim but not dark lighting in a public space like a party and pretending to be someone who she'll have sex with in front of everyone, if you want to tell me that the police should step in and nanny manage that,
    either leftism means we want a nanny state because we're big babies or else this is just umpteenth proof that you can't belong to left unless you politely nod a "yes dear" to the kind of feminism that says "men are bad, and any who disagree are anti-feminism".
    Of course this makes me a fox watching, limbaugh licking, chauvinist, anti abortion, pro-cop, anti street crime, anti-welfare, can't-get-laid-woman-resenting, cut-my-taxes non-voter walking privilege.
    I'll just go and slap some sense into myself.

  6. jerkstore7:26 PM

    There's no denying that the sexual regulation on grounds of decency is extreme in America and that the sexual deregulation on grounds of privileged power, usu. political/financial/police, is obscenely phallocentric, authoritarian and woman hating.

    Just not to argue only one side.

  7. jerkstore7:49 PM

    Also, the first poster is being himself dishonest/incomplete by pointing out that out-of-wedlock sex is not a felony. It may not be, but it is illegal in some parts, IIRC. Those could be archaic and unenforced laws, like the only recently repealed outlawing of inter racial intercourse in Alabama. So even laws that everyone (well, except, certain masses who would like them enforced) agrees are obscene remnants of history, nothing credible in todays world, still do exist.

  8. jerkstore9:16 AM

    Here's the kind of human dignity that second wave feminism, with its "eww sex is gross, men are objectifiers" etc etc prudishly champions, along with the extreme right and wimpy liberals everywhere:

    A government services panel's decision sounding like a fire and brimstone sermon on Sunday. As gloria steinem and feministing and the whole lot always did.

    We need to save women, by punishing them for being sexual in anything but a modestly married way. The hypocrisy of upholding marriage while denying women sexual protections outside of it sounds a lot like the hypocrisy of saying women need to be protected from objectification while punishing them for participating in it.
    Love the sinner, hate the sin. Men are scoundrels.