June 19, 2015

"Can total passivity = ‘victim indicat[ing] by speech or conduct that there is not freely given consent to performance of the sexual act’?"

Eugene Volokh asks, looking at a case where there's good reason to want to answer yes.
But the legislature deliberately enacted a law that made it an aggravated felony to have sex with someone if “at the time of the sexual assault, the victim indicates by speech or conduct that there is not freely given consent to performance of the sexual act.” An alleged victim’s being passive — and, again, passive without the defendant’s use or threat of physical force — is a reaction that is broadly consistent both with absence of consent and presence of consent (even if not necessarily enthusiastic consent). In such a situation, passivity shouldn’t satisfy the statutory requirement of the victim’s “indicat[ing] by speech or conduct that there is not freely given consent,” especially since the defendant’s guilt must be shown beyond a reasonable doubt.


tim maguire said...

Of course the answer MIGHT be yes, or it might be no. Depending on context.

Skyler said...

Many many women are passive and want to be led by a confident man. That's part of what makes a very large percentage of relationships work.

MayBee said...

Isn't that the problem with trying to make laws that so specifically detail what behavior is legal and what is illegal?
There would be no problem getting a rightful conviction for statutory rape. Unlike the case in Michigan.
But to add on complication because there was no affirmative consent? I don't think so. That's what the statutory rape laws are made to cover anyway.

We should take things on a case by case basis, introduce the facts to the judge or the jury, and let justice be served. That's what humans have judgement for- to use. Making more and more laws to "protect" women isn't helping.

(ps. note this 14 year old girl is not using the excuse that involving the police is too much of a burden, as so many of the college super star "victims" do)

Amichel said...

The maxim is "Qui tacet consentit": the maxim of the law is "Silence gives consent". If therefore you wish to construe what my silence betokened, you must construe that I consented.

—Thomas More in A Man For All Seasons

Ignorance is Bliss said...

1) No.

2) What the fuck are you doing letting an unrelated man live in the house with your 14 year old daughter?

Bob Boyd said...

I assume they want the aggravated rape conviction so they can give this guy a harsher sentence. If the punishments available for the crime he committed aren't severe enough to satisfy the people of New Hampshire that justice is being done, the legislature could change the law.
In a free society adults have to take some responsibility for themselves and for the outcomes of situations they get themselves into.
I'm not saying the law should apply that standard to minors, but by the same token the law shouldn't be creating precedents that will result in the standards for minors being applied to adults.

Laslo Spatula said...

This is why I look for Face Down Ass Up to indicate consent.

With the requisite Catholic Schoolgirl Skirt.

I am Laslo.

Skyler said...

Of course in the case of a 46 year old man and a 14 year old girl there is no need to have more severe penalties. The pervert needs to be executed.

My comment above was limited to adults.

Laslo Spatula said...

I once had a girlfriend who was quite the aficionado of enacting rape fantasies.

Sometimes I was a cop, sometimes I was a plumber, sometimes I was a wayward drifter, but with clean fingernails. For that matter, when I was the plumber I had clean fingernails, too. Maybe that took away from the realism, I don't know.

Anyway: I noticed that, after awhile, she kept wanting only to play the scenario in which I was her ninth-grade English teacher Mr. Roth.

It always started by her reading me a poem that she wrote in longhand, something about butterflies and seagulls, for which I would then ask her to stay after 'class' to discuss.

During this 'discussion' I would 'accidentally' drop my pencil to the floor and she would -- of course -- bend over to pick it up in her short skirt. Eventually she would be pressed over the desk, skirt up, and I would proclaim that she made Mr. Roth "a bad, bad boy."

She had a LOT of specifics in the 'Mr. Roth Rape Fantasy.' Wool sweater, for example. Always the wool sweater. Eventually, this made me uncomfortable. Both the sweater and the situation.

Actually, the situation didn't make me THAT uncomfortable, but I realized that it had probably should.

Somewhere Mr. Roth, you have a lot to answer for.

I am Laslo.

Laslo Spatula said...

The important thing for two consenting adults enacting a rape fantasy is to have a Safe Word.

For instance: if she says "don't impale me with your giant rock-hard cock" this could simply be role-playing on her part, or it could mean "no - REALLY -- don't impale me with your giant rock-hard cock." This can be hard to tell in the heat of the moment.

This also applies if she says "don't put your giant rock-hard cock in my ass." Same thing.

I am Laslo.

kcom said...

Beyond a reasonable doubt is so passé.

sean said...

No, no, no. Qui tacet consentire videtur. Silence is not equally compatible with the presence or absence of consent.

HoodlumDoodlum said...

In the general case, though, silence = lack of consent doesn't mix well with the legal idea that consent can be withdrawn at any time. Consensual activity begins, with mutual spoke agreement/consent, and then at some point one party withdraws consent, but passively--without indicating anything. How is the other party supposed to reasonably know? Combine THAT with one party not bringing charges until much later and I'm not sure how the justice system is supposed to deal with claims of that nature (again, in the general case, not this one).

If passivity and silence can indicate a lack of consent and if consent can be withdrawn at any given time I'm not sure how anyone can know if any given moment or action is fully consensual without a running verbal affirmation of consent.

William said...

And yet if you insist on wearing a go-pro camera during sex,they treat you like you're some kind of pervy creep. And don't even ask to have your lawyer present during these acts.

tim in vermont said...

There was a case in Buffalo many years ago where a black man was arrested for beating a man nearly to death in a public park. It turned out that the man had chased down another man that had just attacked his daughter through a downstairs bedroom window. The police took up a collection for his bail.

There used to be rules.

Leigh said...

When the state, through regulation, turns sex into a strict-liability offense, what is left?