Excellent article. I only wanted to share a story from my own experience. I'm only 23 at the moment and not much the wiser. However, as a young 19 year old and jumping into the "hook up" culture as they call it, I did experience a horrific night.
I was with a guy I had met a few times and who was friends with all my friends. One beer led to another and soon we were at his place with some friendly play. But things got complicated when I didn't want to proceed and a gray area happened. I had to ask and push repeatedly for him to get his unprotected penis out of me and when he finally did I just got upset yelled and left. I went to the doctor the next day for an std test as I was shocked and confused.

This falls under that gray area. Firstly, we weren't even naked. I was wear a skirt and undies! We were only making out. I felt that what he did was wrong and I felt really violated. Afterall we were just having sex. I just happened to be wearing accessible clothing that night and I must have been to drunk to have noticed that he had his fly un-done.

Long story, short.. I went to emerge days later after having symptoms, I told a nurse what happened and begged her for an std test as i had NEVER had unprotected sex before. She asked said I had been assulted and got me a doctor. I told the doctor the same story... the male doctor. He told me that "it sounds like a misunderstanding" and "had I not have drank so much and been with the man under under non-plutonic circumstances then this would not have happened" He said I would have no reason to press charges as it was not rape.. saying this while the nurse attempted to usher in a police man to talk to me.

I always thought it was my fault until about a year ago.

However I'm still a happy sexually active gal and nothing like that has ever happened since.

Oh, I forgot to add, that the entire reason I wanted to post that story was because things like this actually do happen! Even my friends didn't believe me. But they do happen. In the end, do the grey areas just continue to be ignore in favor of the male?

Oh, I forgot to add, that the entire reason I wanted to post that story was because things like this actually do happen! Even my friends didn't believe me. But they do happen. In the end, do the grey areas just continue to be ignore in favor of the male?

The fact that you were raped does not make you any different, or broken. The fact that nobody else recognized it as rape means that they've bought into myths, not that it wasn't a violation, or that they're irredeemable monsters.

-- ACS

frog, there's a special place in hell both for the asshole who raped you and for the "doctor" who invalidated your autonomy.

I try, I really really try not to pin the blame on just one sex for these things... but stories like this sometimes make me really hate the fact that I'm straight. They do make me glad I don't date anymore.

There is no such thing as a gray area where rape is concerned. If you did not enthusiastically consent to having someone's penis inserted into your body, it's rape. End of story.

I've been with my boyfriend for awhile now, and you know what he does when we have sex? He asks me if I want it before penetration. Every time, without fail.

If you never said yes, it was rape. Some things really are black and white.

Frog, don't doubt yourself. You were raped, the man who did that to you is a rapist. You were right to seek help, the doctor is a tool of the patriarchy.

Anyone know medical ethics well? Can this doctor face peer discipline for trying to discourage a sexual assault survivor from making a complaint?

There is no such thing as a gray area where rape is concerned. If you did not enthusiastically consent to having someone's penis inserted into your body, it's rape. End of story.

-- ACS

ACS, I've never heard of a law anywhere that didn't involve consent. Lack of consent equals rape. Perhaps you know something that could enlighten me?

And even aside from the law, how on earth could it be anything other than rape if she didn't consent? Where's the gray area here? 'Cause I'm sure as hell not seeing it.

I do think that getting severely drunk promotes "why did I do that?" sex. A good friend of mine had sex with a male friend one night when they were both very drunk and he came to her the next day absolutely terrified that he had forced himself on her--he couldn't remember getting affirmative consent. Luckily she remembered giving it, but they were both shaken by the experience. Neither of them was aware enough to be responsible about protection, and neither would have hooked up with the other under more sober circumstances.

That, however, is TOTALLY different from rape. When one person does not affirmatively consent (e.g. by clear verbal consent and/or enthusiastic participation) to sex, the other person has committed a rape. Period. There's nothing gray about it, no matter how much either person has had to drink.

This notion of "grey" rape is really kind of frightening to me. It does exactly the opposite of what we ought to be doing- it casts doubt on women who've been attacked by making it seem like there's this wide gulf of "maybe rape, but maybe not so much" when rape should really be a "yes or no" situation. If you don't consent, then it's rape. Period. End of story.

Your story emphatically points to this, frog queen. That these people didn't believe you and tried to make you think it was your fault? Disgusting.

You didn't consent, and in fact, said "no." Regardless of anyone's feeling about enthusiastic consent, if you said "no" how can anyone suggest that it was anything but rape?

So, yeah... I find the whole term "grey rape" really... I don't know... wrong? Wrong.

Further proof that we really need to focus on making people aware of exactly what rape is, and that it's not just some crazy guy jumping you in the bushes. Situations like frog queen describes are every bit a rape as the (largely mythical) guy in the bushes.

The legal definition of rape varies from state to state, believe it or not, but consent is part of every law to my knowledge.

It's the burden of proof that creates a legal grey area--the prosecutor (and by virtue of her testimony, the rape vistim) has the burden to prove that she did not consent. That doesn't mean she was not raped, it just means it's really tough to prove beyond a reasonable doubt, since you're basically trying to prove a negative.

ACS, I've never heard of a law anywhere that didn't involve consent. Lack of consent equals rape. Perhaps you know something that could enlighten me?

And even aside from the law, how on earth could it be anything other than rape if she didn't consent? Where's the gray area here? 'Cause I'm sure as hell not seeing it.

The difference between the law and reality isn't in the "consent", it's in the "enthusiastic." Almost every state has wiggle room within which coercion and blackmail are legal (or at least difficult to prosecute); in Idaho, for instance, you can threaten illegal but non-violent acts, because the law omits penalties for that sort of coercion -- something that I, and any sane human being, would call rape.

There is also the difficulty, in the criminal prosecution rape, of having to prove both an act and two mental states: mens rea on the part of the perpetrator, the sexual act itself, and the denial of consent on the part of the victim. The third element is a part of the crime that is present as a necessary condition in no other criminal offense. This makes the prosecution of rape in the Anglo-American justice system extremely structurally difficult, patriarchy aside*.

Even colloquially, there are situations that are grey, by which I mean, "morally difficult." As an example: same-sex couple, together for eight years returns home after a night of drinking, utterly blind drunk. Upon waking up the next morning, they will find that (a) they had sex, and (b) they have no memory of having given affirmative consent. Did a rape occur? If so, who raped whom? Was what happened even wrong?? Of course, the 20/20 hindsight solution is "this is a dark grey area; avoid it", but when deciding -- in retrospect -- whether someone has been sexually violated ... it's difficult.

-- ACS

* The fact that the development of Western legal theory largely ignored figuring out how to prosecute the most common forms of rape? Yeah, patriarchy did that.

legallyblondeez, I guess that's why the doctor was saying that there was no reason to press charges. Quite frankly I was more worried about contracting something than pressing charges.
Even if I had done so, what would have been done to this person? And I don't even want to wonder about the devestation I would have faced from friends, family and peers in my small town after doing so.
It sucks that this shit happens. But what do date rapist face really? especailly when its hear say to the police?

legallyblondeez, I guess that's why the doctor was saying that there was no reason to press charges. Quite frankly I was more worried about contracting something than pressing charges.

-- ACS

For me, the real problem with this "gray rape" argument is the way it re-inscribes the myth that women will "cry rape" after a sexual encounter they regret. Statistically, this hardly ever, ever happens -- and it's no surprise why. Women don't GAIN anything by accusing a man of rape. Often, they lose a lot.

"Hook-up culture" or no, there are going to be times, especially when you're younger and still figuring out your own boundaries and communication skills, and especially when alcohol makes both of those things harder, when, regardless of gender, you have sex and feel regret afterward. THIS IS NOT RAPE. Never has been, never will be, and I've never seen anyone first-person claim that it is. Only folks accusing other folks of claiming it is, in order to draw attention from the real stories of rape that no one wants to deal with (and that our legal system, as has been discussed, can't deal with), like frog queen's.

frog queen,

I think that it's terrible women like you have to face doctors adn law enforcement officers who don't believe you. I don't mean to discourage anyone from reporting rape by pointing out that it's difficult to send someone to prison for it though. If we don't report it, it will only be more difficult to agitate for changes in the legal system that take this stuff into account.* That doctor had no business making the decision that your rape wasn't worth reporting, if that's what he did. All rapes are worth reporting, and worth getting appropriate care and counseling, whether we can convict the perpetrator or not.

* I'm actually not arguing against the right to a fair trial here, before anyone gets up in arms. I'm just thinking a rape victim's credibility shouldn't be undermined by irrelevant crap (yay rape shield laws!) and that we could define consent as an affirmative act, rather than a lack of protest. Not to mention recognizing that economic and other non-violent forms of coercion vitiate meaningful consent every bit as much as threats of violence.

There's a difference between not consenting to sex, and not having the capacity to consent to sex. I'm critical of ascribing the term "rape" to the latter situation, where the person did consent but was drunk and hence deemed lacking capacity. That seems to be where Jaclyn Friedman is coming from. Am I misunderstanding her? And if I'm not, isn't the logical extension that we should criminalize drunk people having sex? Isn't that absurd?

JacklynF, thanks for that. That's what I was trying to illustrate with my original story about my friend, but you put it much more clearly.

As an example: same-sex couple, together for eight years returns home after a night of drinking, utterly blind drunk. Upon waking up the next morning, they will find that (a) they had sex, and (b) they have no memory of having given affirmative consent. Did a rape occur? If so, who raped whom? Was what happened even wrong?? Of course, the 20/20 hindsight solution is "this is a dark grey area; avoid it", but when deciding -- in retrospect -- whether someone has been sexually violated ... it's difficult.

With the exception that we were dead tired, not drunk, and we're an opposite sex couple, this actually happened to me.

My husband and I had sex when we were way too tired and should have been asleep, but, well... At some point I woke up and realized we were having sex -- or at least heavy foreplay -- again. But it wasn't like "I woke up and he was fully awake on top of me" -- it's more like I drifted awake to discover that we were both masturbating each other, and he was as half-asleep as I was.

We have actually established ahead of time an agreement to consent to sleep sex -- we are both allowed to try to wake the other one up by initiating foreplay, although I don't think it would ever go as far as actual intercourse before someone woke up -- so it wasn't nonconsensual. But if we hadn't pre-established such an agreement, what would this have meant? We both were *asleep*. Not even drunk. So who would have been to blame, from a legal perspective?

Of course, I don't actually think this falls in a gray area. If two sleeping people initiate sex with each other, I think you can say they consented up until the point where someone wakes up and says "no". The problem is when one person is conscious and the other isn't, not when both are asleep.

There's a difference between not consenting to sex, and not having the capacity to consent to sex. I'm critical of ascribing the term "rape" to the latter situation, where the person did consent but was drunk and hence deemed lacking capacity.

There is a distinction. Usually, that distinction is between first and second degree rape, not between first degree rape and allowable conduct.

That seems to be where Jaclyn Friedman is coming from. Am I misunderstanding her? And if I'm not, isn't the logical extension that we should criminalize drunk people having sex? Isn't that absurd?

The issue is: how do you criminalize having sex with someone who lacks the capacity to consent without criminalizing behavior that, clearly, should not be criminal? Leaving it up to prosecutorial discretion is a bad public policy idea -- but I don't think it's ridiculous at all.

-- ACS

Of course, I don't actually think this falls in a gray area. If two sleeping people initiate sex with each other, I think you can say they consented up until the point where someone wakes up and says "no". The problem is when one person is conscious and the other isn't, not when both are a sleep.

The problem with the idea of implicit consent is that allowing it causes unjust outcomes (Stranger A rapes Stranger B in his sleep) and that disallowing it causes unjust outcomes (Couple A+B initiates sex while unconscious.) Also, there's no obvious middle ground where that line can be drawn.

-- ACS

There is also the difficulty, in the criminal prosecution rape, of having to prove both an act and two mental states: mens rea on the part of the perpetrator, the sexual act itself, and the denial of consent on the part of the victim. The third element is a part of the crime that is present as a necessary condition in no other criminal offense. This makes the prosecution of rape in the Anglo-American justice system extremely structurally difficult, patriarchy aside*.

The third part is a condition in no other criminal offense because it's assumed when you press charges. If someone kidnaps me, it's assumed that I did not give consent when I press charges for kidnapping. If someone assaults me, it's assumed that I did not consent when I press charges.

Rape is the only situation where the victim's consent routinely seems to come under question, and that doesn't make any sense to me.

jane: I think that there are two situations that often get conflated when talking about drinking and sex. One situation is two people having a few too many drinks, and deciding to have sex. They wake up in the morning, and one or both of them think "Wow, that was a bad idea." That's not rape.

The other situation is where the woman (and it's pretty much always a woman) is past the point of consenting. It's not a case of waking up and thinking "Oh, that was stupid" it's a case of being so drunk you can't consent to anything. When a person is passing out, or can't make complete sentences, or is falling down, etc, s/he's in no condition to consent to anything.

That's how I usually see the distinction, anyway.

Just to be clear: I'm saying it's rape if one person has the capacity to give/receive consent, and the other doesn't. (This is also true, I believe, if one person has the capacity, says "no," and the other person is drunk and ignores and/or "doesn't hear" that "no." I don't know what the law says here, but as far as I'm concerned, morally, it's rape.) If neither party has capacity, that is a pretty murky area. Of course, determining "capacity" is murky, too.

The truth is, though, the number of women who are raped and don't say "no" is much smaller than most discussions of this would lead you to believe. Again -- this conversation about "what if she doesn't actually say no" is often a distraction from the underlying issues.

rape encompasses more than just the penis entering into the body. please remember that, regardless of the laws, rape includes many acts, including the insertion of a foreign object or other forced activities.

Just want to urge folks to go comment at TPMCafe...it seems they could use your knowledge over there!

The third part is a condition in no other criminal offense because it's assumed when you press charges. If someone kidnaps me, it's assumed that I did not give consent when I press charges for kidnapping. If someone assaults me, it's assumed that I did not consent when I press charges.

Rape is the only situation where the victim's consent routinely seems to come under question, and that doesn't make any sense to me.

The victim's consent routinely comes into question because sex is the only potential criminal act to which people regularly consent. That is to say: the idea that someone simply donated 800 dollars and an iPod to a man in a ski mask is utterly laughable. The idea that someone consented to sex with the captain of the football team is not laughable. Despite the low false reporting rate for rape, however, that reporting rate is not probative evidence in any particular rape case.

Add to this the fact that the evidence of rape is frequently identical to evidence of sex, and you run into evidentiary problems quite distinct from biased juries, incompetent cops, sleazy defense attorneys, and unwilling prosecutors.

I'm not downplaying the effects of patriarchal power structures -- they may have a greater effect on the prosecution of rape than the structural problems with prosecuting it -- but those things also exist, and will invariably cause victim-blaming defenses to occur, even in the absence of biased juries who (effectively) vote for nullification of rape laws when they vote not guilty.

-- ACS

Good point about consent only being an element in rape, and also that pressing charges is essentially a denial of consent.

Consent is a defense to certain other crimes--like if I press charges against someone who steals my car he can argue that I let him borrow it and introduce evidence that I consented for him to take it. I wish rape worked like that. The only explanation I can think of (and I think it's a poor one) for the difference is that sex is something we normally think of as consensual, whereas other crimes are not. But since I let friends borrow my car all the time, the explanation holds no water when it comes to crimes perpetrated by acquaintances--like the overwhelmingly common acquaintance or "date" rape.

There are grey areas of capacity to consent, but let's not confuse that with the existence of a grey area of when consent is necessary.

Jaclyn - what were you saying about not liking the term "gray" in reference to rape? Your thoughts (and those of roymac and ACS) on the subject certainly are not black and white. I'm not trying to be facetious. Just making a point about the semantics.

I sympathize with your story, having experienced something like it. But I respectfully disagree with your reasoning because...well...put crudely, I like to believe that if I want to get really wasted, and then get laid, I can do so without being victim of a criminal act.

As far as the hookup issue goes, my thoughts are that Sessions Stepp is a fossil. A well-intended fossil, but a fossil nonetheless. And hooking up has nothing to do with gray rape, except insofar as they both commonly involve alcohol. So if alcohol is the common denominator, I agree with the approach of increasing awareness/education, although I'm skepitical of the efficacy of any such awareness or educational program when it comes to binge drinking. But it's not like I have a better answer.

Jane-

I'm just really unsure where you get from me, or anyone else here, the suggestion that you can't get wasted and have sex without it being a criminal act. Have at it. Just so long as you're not too wasted to hear "no" and stop if whomever you're sleeping with wants you to.

Jane-

I'm just really unsure where you get from me, or anyone else here, the suggestion that you can't get wasted and have sex without it being a criminal act. Have at it. I certainly have, though I have to say I prefer sex (at least relatively) sober, since I can feel more. But that's neither here nor there so long as you're not too wasted to hear "no" and stop if whomever you're sleeping with wants you to.

Hi Jane,

Your response to my story sounds like you think I'm an ammature drinking.. hehe

Thats funny. Getting wasted and then getting laid is one thing, but I didn't really have time to decide whether I wanted to get laid.

Consent is a defense to certain other crimes--like if I press charges against someone who steals my car he can argue that I let him borrow it and introduce evidence that I consented for him to take it. I wish rape worked like that. The only explanation I can think of (and I think it's a poor one) for the difference is that sex is something we normally think of as consensual, whereas other crimes are not. But since I let friends borrow my car all the time, the explanation holds no water when it comes to crimes perpetrated by acquaintances--like the overwhelmingly common acquaintance or "date" rape.

The fact that the same word is used in two situations with such substantial differences makes the distinction rather unclear.

-- ACS

ACS--

That is a really good point about non-consent being an element of the crime as opposed to consent being a defense in most other crimes.

To the other posters: sadly, in many states, lack of consent isn't enough. Lack of consent + force is needed. Also, states disagree over how much force is necessary. In some states, it is only the forces necessary to accomplish penetration. In others, it is force above and beyond what is needed to accomplish penetration. (In the second group of states, the perp. can still be convicted of something--like battery or sexual assault, but not rape.)

A professor told me about a law review article once where a woman scholar argued that the "non-consent" element of rape existed because at the time rape first became a crime under the common law, fornication (non-adulterous sex outside of marriage) and adultery were also crimes. So if Jane and John are found together, Jane really did have an incentive to lie. Several hundred years ago.

When it comes to rape, people forget that all human beings lie for approximately two reasons. We have a motive for to lie, or we are pathological liars. This includes bar fights, contract disputes involving parol (oral) contract terms, people who pay of drug debts with property and then report it stolen, etc. The thing is that people with motives or who are pathological liars are usually caught out.

Good point about consent only being an element in rape, and also that pressing charges is essentially a denial of consent.

-- ACS

* Okay, maybe I'm second-guessing myself, but that might be inaccurate -- you may need to subdivide false reports into "false reports against real people", "false reports after actual sex", "false reports against nonexistent people," "reports labeled as false because of asshole cops," and "false reports not labeled as false for lack of evidence." Some of these would result in convictions and some would not.

Just to chime in on the legal definition issue: we went over a bunch of different rape statutes in my crim law class (I had such a cool crim professor -- very out-of-the-box thinker, lived with his partner (he never called her his "wife") and their kids, and really thoughtful about gender issues), and I'm fairly certain we went over a fair number where, definitely, non-consent was an ELEMENT of the crime, but I am pretty sure there were/are some states whose codes require(d), in addition to non-consent, physical harm/evidence of a "fight." I could be remembering wrong (or maybe things have changed in the 4 years since I took the class), but I'm pretty sure there are some modern laws with archaic provisions like that. Fucked Up.

Andrea, I have to question that logic. Okay, even if 2% of all rapes reported turn out to be false accusations, why does that mean that it makes sense to assume going into a trial that the victim is making a false accusation?

There are also false reports of car theft, abuse, assault, robbery, etc. In none of those cases do we assume that the victim gave consent and is lying, so why should we do so with rape?

When applied to rape, lack of consent is an element of the crime, and is required to be proven by the prosecution beyond a reasonable doubt.

Well, that's sort of the point of my criticism, isn't it? Why should the prosecution be required to prove lack of consent in the case of rape? In the preponderance of cases- as with any crime- the act of pressing charges suggests lack of consent. Yes, there will be false reports- there are false reports with any crime.

The fact that the same word is used in two situations with such substantial differences makes the distinction rather unclear.

The only difference, to me, seems to be in how the courts treat "consent." The concept of consent is pretty much the same in either case, though.

Andrea, I have to question that logic. Okay, even if 2% of all rapes reported turn out to be false accusations, why does that mean that it makes sense to assume going into a trial that the victim is making a false accusation?

Because the courts are required to presume the defendant innocent. A presumption of innocence can create something that feels like an assumption that the victim is lying; however, the courts don't deal with what is true, they deal with what can be proved.

Well, that's sort of the point of my criticism, isn't it? Why should the prosecution be required to prove lack of consent in the case of rape? In the preponderance of cases- as with any crime- the act of pressing charges suggests lack of consent. Yes, there will be false reports- there are false reports with any crime.

-- ACS

I'm quite sure that the "Oh, if only" response from victims goes back long before there was a hookup culture. It was probably worse 20 years ago because the judgment level was even harsher.

Minor point re burden of proof and weight of testimony.

These are two separate issues. Saying that the prosecution has to prove rape occurred, and the defendant is presumed innocent until proven guilty means something very, very different from assuming the victim is lying. One is an operation of law. The other is an intrusion into the jury's sole and rightful domain.

It is a matter of LEGAL FACT that the defendant is "presumed" innocent. What this means, very simply, is that the prosecution bears the burden of production and the burden of persuasion that the defendant committed the crime. This means the prosecution must 1) present evidence and 2) persuasively demonstrate how this evidence proves the defendant committed the crime. The burden of proof in criminal cases is higher than in civil cases, but this is a question of degree rather than having a whole different set of requirements. A jury has to think it's more likely than not that someone did something of which they're accused in civil court. A jury has to be absolutely convinced that someone did something of which they're accused in criminal court. But the type of evidence, and the type of argument, is no different. The jury just has to be MORE persuaded in the criminal context.

An important component of an objective jury of peers is that they have no particular feelings one way or another before the trial begins. Ideally they know nothing about the case until it commences. Ideally they are not predisposed to believe or disbelieve ANYONE. They base their ultimate decision on 1) what they believe the weight of the evidence to show and 2) what credibility they attribute to the witnesses and documents. Let's take a very simplistic example (this isn't realistic -- it would never actually happen, but here's the scenario for purposes of simplicity): A man is accused of rape. There is a trial, and the only evidence presented on either side is the victim/accuser's testimony that she was raped, and that it was the defendant who raped her. First thing: this is sufficient evidence to convict the defendant of rape, because he did not present any counter-evidence whatsoever. Thus, there is substantial evidence on the prosecution side, and zero evidence on the defense side. A jury could reasonably find that the defendant committed the crime. This is a LEGAL standard and has nothing to do with credibility. Legally speaking, an appellate judge will not inquire into a jury's determination of a witness' credibility. Thus, there is no requirement that a victim be DISbelieved from the outset.

The factual part is the jury's domain, and the law doesn't get to tell the jury how much to believe the witness. If the jury finds her highly credible, then her testimony, combined with the lack of counter-evidence, will be legally sufficient to convict the defendant. If the jury finds that she is not credible, the defendant will be acquitted (again, because this is the only evidence; it would be possible for the jury to find the victim not terribly credible, but still find that the defendant almost definitely committed the rape). But when the jury goes into the deliberation room, the law tells it NOTHING about how much credibility to give to the victim's testimony. There's no standard out there that says "rape victim testimony must be viewed with suspicion because the prosecution bears the burden of proof." No one tells the jury how much to believe her. The jury decides that on its own.

TLF's exposition on burdens is exactly why I don't see there being a huge disadvantage to falsely accused persons in rape cases if we shifted the issue of consent from an element to a defense. The credibility determinations would be exactly the same, just that the burden of production--not proof--would be shifted from asking the victim to prove a negative (lack of consent)to asking the defendant to introduce evidence showing that the activity was consensual. Honestly, in cases where there is no physical or other corroborating evidence I can't see it making any difference whatsoever. But it would bring rape in line with other crimes where consent is a defense, which would remove the implicit message that a woman is not raped unless she said "no" at just the right volume, time, using the right words, etc.

Because the courts are required to presume the defendant innocent. A presumption of innocence can create something that feels like an assumption that the victim is lying; however, the courts don't deal with what is true, they deal with what can be proved.

That doesn't answer my question at all. Of course the accused is innocent until proven guilty. That holds true in all charges. Again, though, nobody is expected to prove that they did not consent to letting someone kidnap them, hit them, take their car, etc. And all of those things can have false charges as well. The question is: Why should the prosecution, from the outset have to prove non-consent? If the prosecution doesn't have to prove non-consent in a kidnapping charge, why should it have to prove non-consent in a rape charge?

Ah!

I know how to word it better:

In most criminal cases, a crime is assumed to have occured, but the accused is assumed innocent until proven guilty.

In rape cases, it's not just that the accused is assumed innocent until proven guilty- the assumption is that a crime hasn't even occured until it can be proven. In other words, the victim is assumed to be lying until she can prove she was raped, not just until she can prove that the accused raped her.

The act of pressing charges doesn't retroactively prove that consent did not exist at the time of the crime, which is what the prosecution needs to prove.

Why should it have to retroactively prove anything is the point? Claiming that you were kidnapped doesn't retroactively prove that you didn't consent to go along with someone for however long. Pressing charges of assault doesn't retroactively prove that you didn't consent to fisticuffs. The act of pressing charges strongly suggests that whatever you're charging was not consentual. If the defense thinks that it was, then they can bring that up, and use that at as a defense. Just as someone accused of kidnapping can use evidence that you consented to go with them as a defense against a kidnapping charge. If it turns out that you've filed a false report, then you can be punished for that.

Question: If someone's innocent until proven guilty, how on earth do you convict a rapist?

I truly fail to see how it's possible 90% of the time to have definitive proof. It's your word against theirs, pretty much.

TLF's exposition on burdens is exactly why I don't see there being a huge disadvantage to falsely accused persons in rape cases if we shifted the issue of consent from an element to a defense. The credibility determinations would be exactly the same, just that the burden of production--not proof--would be shifted from asking the victim to prove a negative (lack of consent)to asking the defendant to introduce evidence showing that the activity was consensual.

If we lived in a society (and we should) where exchanges of consent were always understood to be explicit, then the law would make sense. Until we actually do, though, the change in policy reverses the presumption of innocence for rape -- which, in a lot of cases, I would support, but I wouldn't support a policy change that I wouldn't entrust to Chief Prosecutor Cletus in Biloxi.

-- ACS

I guess I'm assuming a lot of confidence in a jury's ability to assess credibility and follow the rule that where there is doubt, the defendant should not be convicted. Perhaps I should not be so naive, especially considering that my excperience as an advocate has thus far shown the exact opposite in the civil context.

I am looking for a way to eliminate the bias in favor of assuming consent in cases of acquaintance rape. Maybe that's not the way, but I still think it's odd that consent is an element of rape but a defense to other crimes. The more I think about it, it has to be that many other crimes leave physical and circumstantial evidence that negate consent (why did you hot-wire the car if it was given to you?) whereas sex and rape often look identical from the POV of a doctor, forensic examiner, and the people who saw you leave the party together.

I'm glad that we seem to agree that as a non-legal matter, consent should be explicit.

Fenriswolf- this is why 1% of rapes are reported, tried, and convicted.

Because there is a big difference between what you know and what you can prove in a court of law.

Also, many people believe the myths about what rape is. They blame themselves, for drinking,for not fighting back, for not saying no, for wearing that skirt, and write it off as 'bad sex'.

Myths like 'grey rape' serve to keep rape victims divided-'real' victims who were attacked with weapons by strangers in alleys, etc.-from 'not victims' who blame themselves (and face blame from friends and family and community, doctors among others) who feel that they should have said no, shouldn't have been drinking, shouldn't have been flirting beforehand, shouldn't have worn that dress...and write it off as 'bad sex.'

And there is a lot to lose by reporting it and coming forward as a victim of rape- ostracism, maybe divorce in the case of marital rape (and all teh accompanying trauma and drama, embarassment, being put on trial by the community (not to mention what the defense lawyer will do when you're on the stand).

Sorry if this is covering ground already covered in other comments.

I am looking for a way to eliminate the bias in favor of assuming consent in cases of acquaintance rape. Maybe that's not the way, but I still think it's odd that consent is an element of rape but a defense to other crimes. The more I think about it, it has to be that many other crimes leave physical and circumstantial evidence that negate consent (why did you hot-wire the car if it was given to you?) whereas sex and rape often look identical from the POV of a doctor, forensic examiner, and the people who saw you leave the party together.

I've put a lot of thinking into this, and one of the biggest problems I've seen is that moving terribly far from the Model Penal Code definition introduces problems with criminalizing behavior that shouldn't be criminalized or convicting people that shouldn't be convicted.

However, rape laws as they stand come, in many jurisdictions, dangerously close to being totally useless. I think the argument can be made that the situation is bad enough that changing things at random at least replaces intractable old problems with interesting new ones*.

-- ACS

* On the other hand, I'm somewhat conservative about monkeying with broad criminal categories like rape, simply because criminal law involves authorizing the state to commit acts of coercion that we would never authorize for any particular person, and, historically, the record of states in using their criminal codes for good rather than evil is ... mixed at best.

In what percentage of your sexual encounters would you be able to provide evidence of your partner's consent? Especially with long-term partners? In that case, rape is the court's starting position for any sexual encounter, which contravenes a presumption of innocence.

Well, again, strictly speaking, there is no starting position. Legallyblondeez makes a good point with her comparison to other forms of assault. I hadn't really thought about it, but she's absolutely right. I think probably (maybe?) the closest analogy would be kidnapping. If the prosecution introduces evidence sufficient to demonstrate the defendant confined the victim and transported him (I can't recall the precise definition of kidnapping, so I'm being very imprecise here), the burden of production shifts to the defendant to prove a defense/excuse/etc. Consent could be one ("he willingly got into the car. He told me 'I'd love to go to Virginia with you!'").

Keep in mind, what legallyblondeez is proposing would in actuality not have a lot of practical effect. It would still be a he said/she said (it always is). But it does remove the connotation, if you will, of the victim having to prove a negative. Which would hopefully have the effect of reducing the occurrence of victim-blaming. The only REAL difference -- and this is not a big one -- is that in virtually every case the defendant would be all but required to testify on his own behalf. This is kind of de facto what happens now anyway. The difference would be that where the defendant refuses to testify (for whatever reason), consent would no longer be an issue. That is to say, the defense of consent is not proven, and therefore if the act of rape (however it's defined in the statute) has been demonstrated, there will be a conviction.

I'm probably doing a terrible job of explaining this. Allergies and the recent time change (damn you, Congress!) have conspired to make me crazy sleepy and thus unable to think very well. But I really like your idea, lb.

Fenriswolf- this is why 1% of rapes are reported, tried, and convicted.

I don't know. I wouldn't report it more because of attitudes than techinicalities, if you know what I mean?

I meant my Q more in the purely theoretical sense (because I have no faith in legalities being followed in practice - technically you're not allowed to say "but she's a slut!" and defense lawyers always do), HOW are you supposed to convict someone?

By the letter of the law, it seems impossible. Except in violent cases, obviously. :\

I will preface this by saying rape is a crime overwhelmingly committed by men against women over power issues. Date rape is a real problem and false claims of rape are very rare. Further sober consenting male having sex with a passed out, non-responsive female is rape. That being said. I have a problem with assuming rape when both parties are too drunk to remember clearly. If we call it rape absent explicit , sober consent, why hasn’t the male been raped as well. Reverse the situation. Drunk guy, sober woman have sex. Has the male been raped because he did not consent? Should the woman now go to prison? (Or are we going to assume that all males always consent to sex?). I am not trying to in any way diminish the real crime of rape and date rape, nut point out that establishing a clear rule is exceedingly problematic .

Legallyblondeez makes a good point with her comparison to other forms of assault. I hadn't really thought about it, but she's absolutely right. I think probably (maybe?) the closest analogy would be kidnapping. If the prosecution introduces evidence sufficient to demonstrate the defendant confined the victim and transported him (I can't recall the precise definition of kidnapping, so I'm being very imprecise here), the burden of production shifts to the defendant to prove a defense/excuse/etc. Consent could be one ("he willingly got into the car. He told me 'I'd love to go to Virginia with you!'").

Take, for instance, armed robbery. If the victim consents to give his money to the armed robber, is it a legal act? No. It's an absurdity.

Except in very limited circumstances (boxing, UFC), simple assault is always illegal, even when consented to by both parties. Add or strip consent from the acts; it doesn't matter.

Rape differs in that consenting to the underlying act (sexual intercourse) without force or the threat of force is not illegal or absurd in itself. Strip the victim's lack of consent out of the crime and you've just criminalized sex.

Kidnapping is a relatively close comparison. Note, however, that in MPC jurisdictions, the victim's consent is folded into the definition of "unlawfully" transporting someone; consent is a portion of an element, not an affirmative defense. Additionally, MPC jursidictions (or at least Washington) has the bullshit definition of "without consent" that plague so many rape laws; that is, force or threat of force must be used.

Setting the mens rea to negligence, or clarifying it to negligence would accomplish many of the same things without taking a burden off the prosecutor that should remain on the prosecutor.

The only REAL difference -- and this is not a big one -- is that in virtually every case the defendant would be all but required to testify on his own behalf. This is kind of de facto what happens now anyway. The difference would be that where the defendant refuses to testify (for whatever reason), consent would no longer be an issue. That is to say, the defense of consent is not proven, and therefore if the act of rape (however it's defined in the statute) has been demonstrated, there will be a conviction.

-- ACS

I will preface this by saying rape is a crime overwhelmingly committed by men against women over power issues. Date rape is a real problem and false claims of rape are very rare. Further sober consenting male having sex with a passed out, non-responsive female is rape. That being said. I have a problem with assuming rape when both parties are too drunk to remember clearly. If we call it rape absent explicit , sober consent, why hasn’t the male been raped as well. Reverse the situation. Drunk guy, sober woman have sex. Has the male been raped because he did not consent? Should the woman now go to prison? (Or are we going to assume that all males always consent to sex?). I am not trying to in any way diminish the real crime of rape and date rape, nut point out that establishing a clear rule is exceedingly problematic .

-- ACS