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Is this rape? Consent? Something else?

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12 hours ago, Eiuol said:

Social anxiety, anxiety about sex, PTSD are at least three possibilities that aren't just severe mental disabilities. Shyness is a dumb word to use, yeah, but these three examples would make sense. These are things where people really would sit silently.

The important point is that her lack of consent was already clear. 

I 've had sex many times, without being asked for verbal consent first. I guess in progressive loonie land, I've clearly been raped.

And no, anxiety or PTSD would not cause someone to willingly sit through being raped any more than shyness would. Besides, wouldn't either of those conditions be relevant enough to the story to be mentioned?

Edited by Nicky

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8 hours ago, SpookyKitty said:

You do realize that victims of sexual abuse and rape are often traumatized and can go into shock even while having consensual sex let alone going through another rape?

Is that part of the setup?  Is Sally from the story one of those women?

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4 hours ago, softwareNerd said:

That's the crux of the example, and when I read it, my first thought was that there's an unexplained  gap in the narrative. We suddenly find the guy's penis inside the woman's vagina. If I were a juror, I'd want to roll the tape back about a minute and understand what actually took place.

Heh, well, I don't love the narrative as a narrative. It's not exactly Stephen King up there. :) But operating from what's there, we have:

Quote

The room was pitch black. 


The two began kissing and touching. Sally was still mostly clothed when she felt Chris...enter her without warning.

All right. What I read here is that they're messing around, doing the things that Sally had explicitly agreed that she was willing to do ("she explained that kissing and touching was fine but no oral or penetration") when Chris uses the cover of darkness to surprise her with something she had explicitly stated that she was not willing to do. To force the issue, in a manner of speaking.

I'm sure there are plenty of details we might wonder about. What was the nature of the "touching" they were engaged in? Was Chris fully undressed in the light -- or did he only take off his shorts in the darkness? What of Sally's state of dress? What does "mostly clothed" refer to?

But the fact that the author of the narrative didn't believe that those details were necessary says something, at least, about what he considers important in this scenario: Sally said that X was okay, Y was not; Chris engaged her in Y anyways.

If by "consent" we are looking for a moment where Sally considers and agrees to Y... I don't think we're going to find it in this story. But then, from some time ago I remember arguments such as, "if a woman goes to a man's hotel room, she has offered implicit consent to sex," so maybe people here are reading consent in the fact that Sally was undressed at all. That seems to be the implication with "Mostly clothed + enter without warning = crotch area intentionally exposed by Sally, which Chris naturally interprets as consent." and "First off, if the guy's penis cuts through clothes, that's quite the medical wonder he's got there."

But I don't agree that undressing (possibly to allow for "touching") is consent to sex, or even that it is "naturally interpreted" as such. I'd mentioned that I've had real life experience in just such a scenario, where it was made clear to me that certain activities were consented to and others were not, even when fully undressed, in bed, in the dark. I respected the wishes of my partner; Chris did not. And in this narrative, Chris has been told specifically -- more than once -- that sex was not okay (including that very night). He initiated sex with someone he knew did not want to have sex with him, disregarding her explicit instructions and their mutual agreement.

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How does one approach such an example: does one try to hypothesize the possible realities? Or does one scan for consent within the example as presented?

If we are going to discuss this example, then I think we must look for consent within the example as presented. That consent may be explicit or found implicitly in something other activity, but I find neither; instead, I find the opposite of consent, where sex is specifically disallowed...

Quote

We know that rape is not a synonym for a lack of consent. I mean: lack of consent is clearly a crucial aspect, but what else? Lack of consent to what? Not to the use of a car (to be silly about this), Well... to sex. 

But...what is sex? I should apologize for sounding like Bill Clinton, but that's a legit question in a forum like this, where members want to dissect things minutely. Is the penetration of a vagina by a penis a crucial aspect in rape? I assume we can all agree that if he turned her over and penetrated her anally, that would be rape too? So, is some type of penetration essential?

You don't need to apologize for these sorts of questions. If anywhere, this is the forum to ask them. But I may or may not agree as to their strict relevance to the present scenario. For example, whether penetration is essential to rape or not, we have penetration in this example. Whatever "sex" may refer to in its broadest sense, penis fucking vagina certainly qualifies.

But to try to answer them as asked, in this context, we're discussing consent to sexual acts, specifically. One may consent to something else generally -- including use of a car -- and if Chris had taken Sally's car against her explicitly stated wishes, it wouldn't be "rape," but it might be theft. The point remains that Sally has (or ought to have) control over certain aspects of how she (or her property) is used or engaged by others. When we're trying to determine whether it's okay for someone to use Sally (or her property) in a certain way, we look for whether she "consents" to that activity; whether it is consonant with her will, insofar as we can divine such a thing. If it is so consonant, then fair play. If not, then not.

In this case, Sally had told Chris that she did not want to have sex. I think that's the clearest expression of her will that we have (and in this case, we also know something of her internal state both during and after the act, which I believe contribute to the interpretation that this is taking place against her will... but it is not something Chris would have direct access to, in any event).

Is penile penetration required for rape? I'm not certain. The penetrative aspect seems to me to be more crucial than the penile. I'd imagine that one could sensibly be raped by some kind of object. Pleasant speculations. Lovely topic. :)

Quote

The example says they agreed no oral. So, what if he slipped down and started licking her clitoris? Would that be rape? What if she had slipped down and started giving him a blowjob? Would that be rape? 

Good questions, and I don't have all the answers for them. If he went down on her -- again against explicitly stated wishes -- it may or may not be rightly viewed as some species of "rape" or "sexual assault" or something like that. Parsing that sort of thing (much like "murder" vs. "manslaughter") seems a slightly more narrow sort of discussion, and less interesting to me.

If she had started giving him a blowjob, knowing that he was receptive to it (perhaps he had requested one earlier and been denied), then I would think such a thing reasonable -- that consent could be initially assumed... and then depend upon Chris's further actions/reactions. (E.g. if he asked her to stop, she should stop.)

Frankly -- and since you'd asked about "ambiguity" -- I would find more ambiguity in either of these scenarios (including cunnilingus in the dark) than an unwanted, surprise penetration. I don't disagree that there is the possibility for ambiguity in human communication -- or even that sexuality is notoriously fraught with it -- I just disagree that there is ambiguity in the present scenario. If we change the details, my evaluation is bound to change, too.

Edited by DonAthos

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Grames:

"Objectively, it is not too much to ask that an unwilling women say no"
But she did, why does she need to say it again?

" As this story has a complete absence of any sign of resistance at all, it can't possibly be rape. "
What does it matter that she didn't resist after saying her limits clearly?

"They were together for week, I guess that's good enough nowadays in the age of Tinder hookups"
I think it means that "I don't do sex outside of a relationship", not "I didn't have sex with anyone else".

3 hours ago, Nicky said:

without being asked for verbal consent first.

That's different, since here, a clear no was given a few hours before. If Sally said NOTHING beforehand, I'd say it's not rape.

3 hours ago, Nicky said:

And no, anxiety or PTSD would not cause someone to willingly sit through being raped any more than shyness would.

Dissociation causes that. It wouldn't matter anyway, she still said no earlier. Why she froze up isn't the issue, only the fact she froze. The situation realistic enough even though it's not common. Anxiety -could- be bad enough to do that, but PTSD for sure.

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19 minutes ago, DonAthos said:

Good questions, and I don't have all the answers for them. If he went down on her -- again against explicitly stated wishes -- it may or may not be rightly viewed as some species of "rape" or "sexual assault" or something like that. Parsing that sort of thing (much like "murder" vs. "manslaughter") seems a slightly more narrow sort of discussion, and less interesting to me.

Fair enough, but to me the most interesting part is how one draws the line. Not interested so much in a precise line. As with abortion, I realize its a continuum.

I also purposely wanted to consider a blow-job, because I want to understand how much the actor's gender plays a role. If we assume that they agreed "no oral" and if we add in an assumption that he did not ask for one previously, it sounds like you think that Sally may be guilty of some degree of sexual assault if she starts to give him one. You say that she should stop if he tells her to stop. Would it be (minor) sexual assault even before he asks? If not, then isn't there an inconsistency in considering penetration rape ... since they agreed no oral and no penetration? What if she says 'no" and he immediately withdraws, realizing he has gone too far. I assume that would still be rape?

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42 minutes ago, Eiuol said:

Grames:

"Objectively, it is not too much to ask that an unwilling women say no"
But she did, why does she need to say it again?

" As this story has a complete absence of any sign of resistance at all, it can't possibly be rape. "
What does it matter that she didn't resist after saying her limits clearly?

"They were together for week, I guess that's good enough nowadays in the age of Tinder hookups"
I think it means that "I don't do sex outside of a relationship", not "I didn't have sex with anyone else".

Exclusivity is not the relevant factor.  The "no sex" clause was conditional on "outside of a relationship".   Had enough time passed to meet the condition?  Ultimately it would not be up to Sally to decide if Sally and Chris had a relationship but a judge and jury.  That is an important part of putting objectivity into a justice system.

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1 hour ago, softwareNerd said:

I also purposely wanted to consider a blow-job, because I want to understand how much the actor's gender plays a role.

As far as I'm concerned -- and as far as I know my own mind -- gender plays no role (as such; differences in physical biology/sex may play a role). Maybe I'm influenced by gender unawares?

1 hour ago, softwareNerd said:

If we assume that they agreed "no oral" and if we add in an assumption that he did not ask for one previously, it sounds like you think that Sally may be guilty of some degree of sexual assault if she starts to give him one.

The reason why I would view Sally going down on Chris differently than the reverse is because in the setting of the scenario, Chris appears to be the one pursuing sex. I don't know whether Chris would have asked for a blowjob, specifically, but I expect he would not be adverse to one, given what I know of them both -- and it seems like Sally is the one setting limits that Chris, left to his own devices, would not desire.

If we imagine the situation to be reversed, where Sally wants to have sex and Chris does not want to, and insists on "no oral," then I would view his going down on her in a more favorable light (despite their agreement) than her going down on him, contrary to his clearly expressed wishes.

And while it happens that I think that oral sex in either scenario is somewhat different from penetrative sex, if Chris had made it clear that he did not want to have oral sex, but Sally disregarded this and began to fellate him anyways, then yes, she may be guilty of some degree of sexual assault.

1 hour ago, softwareNerd said:

You say that she should stop if he tells her to stop.

Yes.

1 hour ago, softwareNerd said:

Would it be (minor) sexual assault even before he asks? If not, then isn't there an inconsistency in considering penetration rape ... since they agreed no oral and no penetration?

Again, I see a difference here specifically because it appears as though that Sally is the one setting limits -- limits that Chris would gladly cast aside, if possible. Unless Chris gives some indication that he doesn't want oral sex, I would think it reasonable for Sally to act on the assumption that he does; but this is different than Chris taking a similar action, knowing that Sally has specifically deemed it off-limits.

For Sally, I think it would be reasonable for her to begin to engage him in fellatio -- in the manner that, in my experience, people do... slowly at first, and looking for signs of acceptance or rejection. I wouldn't even fault Chris for acting in a like manner, and trying to engage her in cunnilingus, slowly and gently and searching carefully for meaningful response. I believe that there are valid ways of trying to gain a non-verbal consent (although in a case like this, where I was aware that my partner had conscious limits, and had expressed those limits, I think I would double check anyways with something like, "This OK?") But his actual manner of "surprising" Sally with a sudden penetration that she could not see coming, and could not stop, is something else altogether.

1 hour ago, softwareNerd said:

What if she says 'no" and he immediately withdraws, realizing he has gone too far. I assume that would still be rape?

I think the way Chris has approached this is a violation no matter what happens next: yes, I think "rape" still fits; the immediate withdrawal you propose, realizing that he has gone too far, only strikes me as fundamentally inconsistent with a man who would, without warning, with the lights off, penetrate someone who had not long ago made it clear that she does not want to have sex. (Could such an inconsistency exist within an actual person? Perhaps. But I don't see that it changes what he's done to Sally.)

If we imagine this slightly differently... like, suppose instead of a sudden penetration, Chris transitioned foreplay from "touching" to rubbing his penis against her thighs... and then moving up towards her vagina (god, I feel like I'm writing erotica) slowly, allowing space for Sally to respond, and then moving from there to light "just the tip" penetration, and etc. Well, if we imagine such a gradual transition, such a seduction, then even if Sally suddenly realized what was going on and decided that she did not want it, said "no," and Chris responds with immediate withdrawal -- then no, I would not call that rape.

So maybe that's the ambiguity you were looking for? :)

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2 hours ago, Eiuol said:

That's different, since here, a clear no was given a few hours before. If Sally said NOTHING beforehand, I'd say it's not rape.

Makes no difference, that happened too. I have said no to sex before, only to then do it anyway...without verbal consent. I bet most people have, that's just how sexual arousal works. We have an entire concept, dedicated to the phenomenon: seduction...you know, convincing someone to do something they didn't originally intend to.

So you're still saying that I'm a rape victim, and so is everyone else who has ever been seduced. And it's still just as out of touch with how people interact.

Edited by Nicky

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11 minutes ago, Nicky said:

Makes no difference, that happened too.

Lucky for them you didn't mind. But there are still variables like if you did things to literally and physically encourage contact. I'm talking about the Sally case, where she had said no, froze up, and did nothing to encourage more contact. And as far as the clothes, it's still plausible she wore a skirt and nothing underneath.

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7 minutes ago, Eiuol said:

Lucky for them you didn't mind.

Does this affirm that you believe Nicky was raped? If so, would you care to guess the percentage of sexual encounters that are recategorized as rape by this standard?

Using a verbal-only standard when determining rapes or anything else is ridiculous. Humans aren't robots marching around uttering, "Yes, I confirm your request to penetrate my anus, engage now."

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22 minutes ago, JASKN said:

Does this affirm that you believe Nicky was raped? If so, would you care to guess the percentage of sexual encounters that are recategorized as rape by this standard?

Using a verbal-only standard when determining rapes or anything else is ridiculous. Humans aren't robots marching around uttering, "Yes, I confirm your request to penetrate my anus, engage now."

There are probably many differences that aren't mentioned. I can't talk about that case with no details.

I already explained in many posts is that in the OP example, she already said no, made it clear, then took no further action to encourage sexual contact. Consider if she grabbed his hands then placed them on spots she didn't talk about before. That would be sensible non-verbal consent.

But I asked why her earlier "no" doesn't count. All I got as response is disbelief that I expect that to be enough. It is both risky and unethical for Chris to "surprise" Sally - I hope you are only questioning the legal considerations. A person should openly welcome - physically and verbally - sex, otherwise there is no ethical reason to have sex. As far as legality, the earlier verbal no AND lack of welcoming action makes the Sally case rape.

I think Don and I are fine with non-verbal consent in principle - but see no actual consent at any point in the story.

3 hours ago, Grames said:

The "no sex" clause was conditional on "outside of a relationship".

No, I mean you misunderstood it. It wasn't a condition, it was just part of the case to perhaps explain why she didn't want to have sex. I was saying it's not important to even talk about this part. You're right that it doesn't matter in order to evaluate the legal issue.

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17 hours ago, softwareNerd said:

Do you mean you aren't sure how to classify that from a legal perspective, or that you'd need more facts?

If it were to be legal rape, who would be raping whom? Would it always be the man raping the woman, or would it be the person who is less drunk? 

Unsure how to classify; I might say it can't be determined if rape happened or not.

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33 minutes ago, Eiuol said:

I think Don and I are fine with non-verbal consent in principle - but see no actual consent at any point in the story.

As has been pointed out, un-clothing the previously off-limits area and then not protesting in the middle of hot-and-heavy is consent.

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3 hours ago, JASKN said:

As has been pointed out, un-clothing the previously off-limits area and then not protesting in the middle of hot-and-heavy is consent.

 

Do you also believe that leaving your door unlocked is an invitation to your house?

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28 minutes ago, SpookyKitty said:

Do you also believe that leaving your door unlocked is an invitation to your house?

More analogous would be an unlocked door of the home hosting a party to which I was invited at 7:00pm but arrived early, then opening the door myself and yelling a hello to the face of a surprised host who then jerks her head at me toward the kitchen.

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1 hour ago, JASKN said:

More analogous would be an unlocked door of the home hosting a party to which I was invited at 7:00pm but arrived early, then opening the door myself and yelling a hello to the face of a surprised host who then jerks her head at me toward the kitchen.

The analogy breaks down when you are expected to show up, they know you, and the only possible bad result for the accident is perhaps dirt on the floor. With sex, there's a pretty good chance it will be rape if there's an "accident". 

If the plumber enters your house early, that's not acceptable. But if opening the door and yelling means staying at the doorway, it's fine.

I see no issue that in this Sally case that it is treated as rape. We don't need to ask if Sally was being dumb, or should have spoken up rather than be pressured, since all that matters is if she consented. Why go past "well maybe Chris thought that..." when honestly the answer should be "Chris should've just forgotten about Sally when she said no at the party". He took it as if she was a conquest, or the silly idea that men and women sexual relations is about penetrator/penetrated so we need to give men leeway - lest they never have sex again. I think that is implicit in the "not rape" answers, even if you don't intend it. 

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3 minutes ago, Eiuol said:

He took it as if she was a conquest, or the silly idea that men and women sexual relations is about penetrator/penetrated so we need to give men leeway - lest they never have sex again. I think that is implicit in the "not rape" answers, even if you don't intend it. 

Projecting.

4 minutes ago, Eiuol said:

With sex, there's a pretty good chance it will be rape if there's an "accident".

Does this come across to you as absurd as it does to me when rephrased, "Whooooops! I raped..."

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1 hour ago, JASKN said:

Projecting.

I said as if, and implicitly. I think that's the logical implication, as in that's the type of premises the view requires. Those exact thoughts might not be there, but that's what the actions amount to. (Rand did that sort of thing A LOT so I think I'm in good company.)

1 hour ago, JASKN said:

Does this come across to you as absurd as it does to me when rephrased, "Whooooops! I raped..."

Yeah, so I used the quotes. It was an example of ambiguous language to say more with less. ;) Accident just to make it like your analogy. Anyway, did you see where sNerd said "legal rape"? Similar thing. It sounded absurd for a split second, but I figured out what he meant.

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14 hours ago, DonAthos said:

If we imagine this slightly differently... like, suppose instead of a sudden penetration, Chris transitioned foreplay from "touching" to rubbing his penis against her thighs... and then moving up towards her vagina ...

So maybe that's the ambiguity you were looking for? :)

That progression is what I meant when I said that if I were a juror, I'd want to roll back a minute or so before the penetration, to understand what happened. When I read the original example, the thing that immediately struck me as inexplicable is the sudden appearance of the penis in the vagina.

What! where did that come from? That's not this works. In the movies, the guy will work wonders. He'll throw the woman here of there, sometimes lifted up and against a wall, like one of those virtuouso well-built porn starts, and hit is target spot on. Real life doesn't work that way. There's so much more groping and positioning, and most of the time, the woman has to help the guy or he has to probe like he has feelers. 

If a lawyer were to question the witness, I'd expect to find details such as: he'd got her underwear off with help from her. that he'd stimulated her, that he had repositioned his body in a way that made it possible to enter her, that he has using his penis to probe around her vagina... the details would vary but there would almost certainly be some such lead up, lasting some length of time. I'd be open to testimony that said otherwise, but I'd want to hear it specifically. 

The second thing I'd question is that she could not simply tut-tut him. Saying no is in pretty integral to couples who have not yet decided how far they want to go. For instance, a girl might tell a boy that she's okay only kissing him. They're kissing and he places his hand on the narrow of her waist and starts to caress her, moving it toward her breast. This probably happens a million times all around the world. It is not the act of some weirdo, but the method but which consent is probed. Heck, she may not even say she's okay being kissed. He might move in and she might allow it. A small twitch in this direction or the other is usually sufficient. Millions of women do this, even if it is their first time.

Or maybe she allows his hands on her breast through her clothes, and then his lips go down to her neck. Again, no explicit permission was requested. He might progress lower moving from neck in the direction of her breasts. And so on... none of this is sexual assault as such. For it to be sexual assault, we'd need something more than the progression. We'd need some indication -- however small -- that the woman did not want this.

And, importantly, in the progression above, we'd want this indication to be external. We'll agree that it is not sufficient to say that she was moaning with pleasure while being disgusted with herself. But, similarly, we can't take her unexpressed shyness or other internal state of mind as enough to make this sexual assault.

We know that Sally had no problem talking about sex and limits. To me, as a juror, it does not sound plausible that she suddenly loses all agency and does not do what is so routine that it is almost second nature.

These are the things I meant when I said that one has to make the concept concrete. One cannot simply scan for one aspect.

Also, rape is mot just consent. Nor it is just sexual assault. Another way of answering "what is rape" is not to start with concretes first, but to ask why we need this concept. We're talking of a concept that is primarily a legal concept. Just as we have misdemeanors and felonies, to distinguish degrees to crime, we distinguish between rape and sexual-assault. Attorney's ill go further and may have multiple "degrees" of sexual assault. Rape comes beyond all that. So, when we ask "is this rape", we're asking "is this an extremely serious sexual assault that has gone beyond other types of sexual assault".

But, there's more... if we keep the concept real, we understand that the whole idea of such concepts is to indicate the penalties. If we are in the U.S., the average sentence for rape is over 9 years, with the criminals ending up actually serving over 5 years. So, when we ask: "is this rape", we're asking "is this a sexual assault that is serious enough to send a person to jail for 5 years or so". 

One might reject this by saying that that is a different issue. Why talk about sentences? Well, take a rape where a taxi driver veers into a dark alley, holds his passenger down, tears off her clothes, and ignoring her screams and fists, violates her. Perhaps he is strong enough that he does not do her much lasting bodily harm. The bruises might heal in a few weeks, but we all understand that the trauma will be there for ages, perhaps forever. We understand that this goes beyond sexual assault where someone feels up a girl in a crowd. We understand that we want to get the perpetrator off the streets for a long time. All this is the reason we need a separate concept in the first place.

So, when one thinks of concepts, one cannot divorce this from the need for the concept and all the concretes around that need. We need the concept of rape to describe serious sexual assault for which we're happy to deliver at least some serious jail time. All this is part of how one thinks about concrete instances. That's what I meant when I said that it goes beyond scanning words in an example.

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3 hours ago, softwareNerd said:

That progression is what I meant when I said that if I were a juror, I'd want to roll back a minute or so before the penetration, to understand what happened. When I read the original example, the thing that immediately struck me as inexplicable is the sudden appearance of the penis in the vagina.

That progression is something I'd invented to alter the narrative (and accordingly come to a different conclusion). It does not exist in the original. If you find it inexplicable that Sally is penetrated without warning, then you do -- however unlikely it may be, I don't find it utterly impossible -- but that's the narrative that we are supposedly working with.

3 hours ago, softwareNerd said:

What! where did that come from? That's not this works.

That is how this works, in this story.

It's sort of hard for me to accept that we've come so far only to reach the point of saying, "well, maybe what happened in this story isn't what happened in this story." I'm frustrated. If we don't accept the details of the narrative you've provided in the OP, then what are we even doing in discussing it? Why bring it up in the first place?

3 hours ago, softwareNerd said:

If a lawyer were to question the witness, I'd expect to find details such as: he'd got her underwear off with help from her. that he'd stimulated her, that he had repositioned his body in a way that made it possible to enter her, that he has using his penis to probe around her vagina... the details would vary but there would almost certainly be some such lead up, lasting some length of time. I'd be open to testimony that said otherwise, but I'd want to hear it specifically.

Oh, I'm certain a lawyer could do all sorts of things in that radically different context. But if we're reading the narrative provided in the OP for meaning -- if we're trying to understand and respond to this provided example honestly -- then we may invent such details as seem necessary to us so long as they do not meaningfully alter what is provided.

Sally may have assisted with taking off her underwear, or any other activity consistent with the provided details, but she did not know that Chris was planning on penetrating her. It took her by surprise. That's what we're given.

3 hours ago, softwareNerd said:

The second thing I'd question is that she could not simply tut-tut him.

As a lawyer, you might well do so. You could also question what she was wearing at the party, and how many lovers she'd had before Chris, and so forth...

But in this case, again in terms of the narrative provided in the OP (the one you provided), we know that she could not simply tut-tut him.

3 hours ago, softwareNerd said:

Saying no is in pretty integral to couples who have not yet decided how far they want to go.

I agree. But this couple had decided how far they wanted to go: Sally had said "no" to Chris when he'd asked about sex. That's pretty integral to this story, I'd argue. Then he penetrated her without warning and without consent, and Sally wanted to say no again, but she froze up. Those are the details of the story. That's what we have to work with.

3 hours ago, softwareNerd said:

For instance, a girl might tell a boy that she's okay only kissing him. They're kissing and he places his hand on the narrow of her waist and starts to caress her, moving it toward her breast. This probably happens a million times all around the world. It is not the act of some weirdo, but the method but which consent is probed.

I agree. That's in-line with the scenario I'd provided. But that isn't what happens in the story you'd provided in the OP.

3 hours ago, softwareNerd said:

We'd need some indication -- however small -- that the woman did not want this.

And we have it. Sally had told Chris "no" repeatedly, which is not a "small indication" but the archetypical example of expressing that she did not want this. We know that Sally did not want this. (And we know, not only according to what she'd said to Chris, but also according to what she thought and felt, before, during and afterwards.)

Do you believe Chris honestly thought otherwise? Perhaps the reason why he waited until the lights were off, and orchestrated things such that he could penetrate Sally by surprise, and did not initiate the kind of natural, seductive "progression" we've discussed -- is because: he knew that Sally would say "no" again and did not want to allow her that opportunity.

The narrative tells us that Sally froze up, in part, due to feeling "kind of intimidated." Perhaps that was Chris's intention as well. By penetrating her against her will, without her consent, and against her explicit instruction -- in a word, rape -- perhaps he meant to communicate something like, "What you say and what you want doesn't matter to me. I'm doing this regardless." That's potentially rather intimidating.

If we assume (though we do not have to, but at least this would not fundamentally alter the given narrative) that Chris was larger and stronger than Sally, then maybe she was doubly right to feel intimidated. Maybe if she had tried to resist, she would have provoked some more threatening, more brutal response? I mean, I don't know. I'm just making that up. But why not? Maybe a lawyer (you know, for the prosecution) would elicit those kinds of details from Sally in direct.

As a reader, even as we strain for those details of complicity (or invent them outright) which would allow us to conclude that this was "not rape," as it appears our interest to do, maybe we could also look for such non-verbal signs of revulsion and rejection that Sally may have been communicating to Chris as consonant with the provided narrative. She said "no" when asked and she thought "no," but this is not enough to convince you that she did not consent? All right. Perhaps all of her non-verbal communication amounted to "no" as well. That makes a kind of sense, right?

3 hours ago, softwareNerd said:

And, importantly, in the progression above, we'd want this indication to be external. We'll agree that it is not sufficient to say that she was moaning with pleasure while being disgusted with herself. But, similarly, we can't take her unexpressed shyness or other internal state of mind as enough to make this sexual assault.

She had said "no"; she had expressed her internal state of mind, vis a vis sex, and it was "no, I do not want this."

You mean the time frame involved is too large for you? She had only said "no" earlier that evening, and not after she was penetrated by surprise? If she had said "no" ten minutes before penetration, would that suffice? Or what about thirty seconds? Perhaps we can imagine good-ol', innocent, honest Chris thinking, "well, you didn't want this a minute ago... but maybe you want it now!" Maybe with every thrust, even as she says "no" repeatedly and screams in terror, Chris can "reasonably" wonder whether she has now changed her mind.

Or can we ever expect him to respect her expressed wishes?

And "moaning with pleasure while being disgusted with herself"? I don't find that specific quote in the original narrative; but is that how you imagine the scene? Again, if we're going to be inventing details, why not try to be consistent with what's actually there? How about this instead: she was dry as a desert (except for the blood from the resultant vaginal tearing), and did not "moan with pleasure," but instead whimpered with the pain that is actually in the fucking narrative?

3 hours ago, softwareNerd said:

We know that Sally had no problem talking about sex and limits. To me, as a juror, it does not sound plausible that she suddenly loses all agency and does not do what is so routine that it is almost second nature.

Objection, Your Honor! softwareNerd has not been deemed an expert such that he can speak to what is "second nature" in this sort of situation.

Or maybe you are. Have you worked with rape victims, etc.? Did you participate in the kinds of studies referenced in this article, perhaps?

3 hours ago, softwareNerd said:

Also, rape is mot just consent. Nor it is just sexual assault. Another way of answering "what is rape" is not to start with concretes first, but to ask why we need this concept. We're talking of a concept that is primarily a legal concept. Just as we have misdemeanors and felonies, to distinguish degrees to crime, we distinguish between rape and sexual-assault. Attorney's ill go further and may have multiple "degrees" of sexual assault. Rape comes beyond all that. So, when we ask "is this rape", we're asking "is this an extremely serious sexual assault that has gone beyond other types of sexual assault".

But, there's more... if we keep the concept real, we understand that the whole idea of such concepts is to indicate the penalties. If we are in the U.S., the average sentence for rape is over 9 years, with the criminals ending up actually serving over 5 years. So, when we ask: "is this rape", we're asking "is this a sexual assault that is serious enough to send a person to jail for 5 years or so". 

One might reject this by saying that that is a different issue. Why talk about sentences? Well, take a rape where a taxi driver veers into a dark alley, holds his passenger down, tears off her clothes, and ignoring her screams and fists, violates her. Perhaps he is strong enough that he does not do her much lasting bodily harm. The bruises might heal in a few weeks, but we all understand that the trauma will be there for ages, perhaps forever. We understand that this goes beyond sexual assault where someone feels up a girl in a crowd. We understand that we want to get the perpetrator off the streets for a long time. All this is the reason we need a separate concept in the first place.

So, when one thinks of concepts, one cannot divorce this from the need for the concept and all the concretes around that need. We need the concept of rape to describe serious sexual assault for which we're happy to deliver at least some serious jail time. All this is part of how one thinks about concrete instances. That's what I meant when I said that it goes beyond scanning words in an example.

I disagree with your approach, that we "need the concept of rape to describe serious sexual assault for which we're happy to deliver at least some serious jail time." I think we need the concept to describe those real life situations where some person is forced to have sex against their will. (I also think it at least plausible that "sexual assault" is derivative of this, and that "rape" came far earlier, conceptually). Similarly, how we deal with jail time (or other conceivable responses) is a wholly separate issue. One can recognize a "rape," being a function of reality, and yet argue that a given legal response is too strong or too light or etc.

And with that, I need a break.

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1 hour ago, DonAthos said:

You mean the time frame involved is too large for you? She had only said "no" earlier that evening, and not after she was penetrated by surprise? If she had said "no" ten minutes before penetration, would that suffice? Or what about thirty seconds? Perhaps we can imagine good-ol', innocent, honest Chris thinking, "well, you didn't want this a minute ago... but maybe you want it now!" Maybe with every thrust, even as she says "no" repeatedly and screams in terror, Chris can "reasonably" wonder whether she has now changed her mind.

I quoted this because I think these are questions worth answering. Even if the argument becomes "well, maybe Chris thought that if Sally invited him in, she might've changed her mind, so the earlier limits didn't apply anymore", that's no better. Since there was an obvious contradiction, he needed to ask again. I'd say there is no time limit that a "no" lasts, it doesn't reset even when someone takes off their clothes. If something suggests a change, you ask.

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On 8/13/2017 at 10:37 PM, Eiuol said:

Lucky for them you didn't mind.

You're missing the point. The issue isn't whether I mind, the issue is how absurd it is to suggest that if I decided to do "mind" after the fact, I should be taken seriously, and my sexual partners should face rape charges.

Edited by Nicky

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2 hours ago, Nicky said:

You're missing the point. The issue isn't whether I mind, the issue is how absurd it is to suggest that if I decided to do "mind" after the fact, I should be taken seriously, and my sexual partners should face rape charges.

I mean that you'd be able to press charges. Since you didn't actually mind, it would be wrong of you to pursue it of course. I don't think it'd be hard to show though that there were good signs you consented anyway if you honestly didn't mind. Focusing on Sally and -those- details, we see nothing about consenting.

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7 hours ago, DonAthos said:

And with that, I need a break.

Thanks for the discussion. I hope it was of some type of value to you. I do understand the the frustration and partial invisibility that comes when two people find themselves talking across an epistemological chasm.

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On ‎8‎/‎12‎/‎2017 at 11:54 AM, softwareNerd said:

Here's an exercise. I'm going to tell a story. You tell me if the woman in the story was or wasn't raped. Obvious trigger warning.

Sally was fresh out of high school, didn't do drugs or drink. She met Chris and told him that she did not have sex outside of a relationship. She explained that kissing and touching was fine but no oral or penetration. Chris acknowledged this and they hung out for about a week before going to a party. Right before the party Chris asked bout sex again. Sally gave him the same boundaries. Sally of course, drank water at the party. When they got back to Chris's place, they watched a movie, after the movie was over, Chris turned the TV off. The room was pitch black. 


The two began kissing and touching. Sally was still mostly clothed when she felt Chris...enter her without warning. She wanted to say no at first but she was super shy and kind of intimidated. She froze up. 


A million thoughts went through her head. Maybe this is his way of saying he wants to be with me? That was the agreement anyway. 
It was very painful but Sally stuck it out. 


The next day after they went their separate ways, Sally tried to call Chris. 
She never heard from him again. Sally didn't press charges, but the incident damaged her psychologically, severely.

...  ... if you were in her shoes, what would you say happened?

Wading into this very late.

A few general principles offered:

 

First, on legal principle, any crime must be defined with objective criteria and be defined to simultaneously protect a victim of an actual crime, and protect the rights of the wrongly accused.

As such, "the consent" which must be present must be objective, i.e. external.  No one is telepathic.  If verbal and non verbal communications, both immediate and prior, in the full context indicate "YES", the momentary thought of "no" is not sufficient to convey non-consent, and If verbal and non verbal communications, both immediate and prior, in the full context indicate "NO", the momentary thought of "yes" would not be sufficient to convey consent... i.e. if you wish to indicate non-consent, or consent when the context indicates otherwise one needs to rebuff or respectively, make a move.

Consent is contextual, evidence for it includes both past conduct and current immediate conduct.  That said, consent is a state of the moment: whatever state of consent is apparent from the past evidence, current evidence is a better indication of the current state of consent. 

A person can change his/her mind at any time, and communicate it through conduct or statements, a "no" can become a "yes" and equally, a "yes" can become a "no".

Consent is verbal and non-verbal, communication of consent can be provided by any number of verbal and nonverbal cues... human nature and our customs and culture of falling in love.. need not be lowered to the level of writing up an agreement prior to engaging in the back and forth of intimacy.

Consent cannot be given (not in the moment) by the unconscious... and couples who attempt to play games with this (even with prior written agreement) should in general not announce their practices to the authorities... and out of caution such games ought to be avoided altogether.

Consent cannot be retroactively given... (i.e. one cannot simply say, after a kidnapping and repeated rape, that "well, now we are in love and so I now consent to what happened previously".)

............

Specifically as to the facts at hand:

Although the OP has attempted to be vague, "enter her without warning" is not vague.  "without warning" implies without invitation, verbal or otherwise, without guiding him toward her, without moaning louder as he got closer (as in some game of "hotter" and "colder"), it means she gave no communication, verbal or otherwise, that this is what she wanted.

The OP has not stated that she did anything to indicate that her previous pronouncement that "kissing and touching was fine but no oral or penetration" had changed or that she did anything to indicate to him that her stance softened in any way.  In the absence of statements of this kind, people (as opposed to philosophers or college student aspiring to become philosophers) will generally mess around, trying this and that within reasonable bounds of incremental experimentation, and through verbal and nonverbal communication, indicate to each other what is acceptable or desired and what is not.  In such a situation an innocent move towards doing something undesired by the other party is not by any stretch attempted rape but merely a back and forth requiring guidance and openness to correct.

Clearly here, however, non-consent was voiced, "without warning" implies there was in fact no indication of consent for the act of penetration.  At that moment rape occurred.

 

What of the fact that she did nothing, that she "froze up"?  Without dismissing the emotional stress Sally was going through, unless there were objective indicia she should be afraid for her safety, or was threatened to act against her will, or was cognitively impaired to the point of being unable to give consent, her sexual actions (if she took any) after the rape initially occurred indicated consent for the continuing of the sexual intercourse.  In the full context, after the hanging out and the kissing with a guy she liked and was getting to know, when she began to participate in the sexual act, at that moment she gave consent.  Notice the OP does not state she acted like a comatose rag doll, not moving, or making any sounds whatever... such in fact would be very strange and as such a strong (non verbal) indication of non-consent, and there would have been no consent for the entire time. 

Realistically speaking, communication of non-consent by any person in control of their voice and/or body, for any action by another person they like and are not in fear of, and with whom they were just making out with, is easily conveyed with a simple "no..please stop" or a refraining motion or push.  A fully conscious adult person's not taking any action whatsoever, almost always only occurs within the confines of that self-masturbatory orgy which is a college level philosophical hypothetical.

In any case, it does not matter, however, because whatever objective evidence is discernible from the verbal or non-verbal communication in the acts after penetration, that "post penetration" consent cannot retroactively apply to the rape which occurred when in fact there was no consent... namely, at the moment of penetration.

 

Edited by StrictlyLogical

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