Oh, yes. The old "if you have to have consent, it's obviously just like getting a contract signed." Because, clearly, consent is clearly complicated and difficult and completely anti-hot. I know I've never found it hot when my partner is enthusiastically consenting. /sarcasm

"illogical"
*sigh*

This makes so little sense as described from a legal standpoint that I find myself strongly suspicious that the decision is being misrepresented, though I suppose it's possible that the way courtrooms work in Australia is sufficiently different from the U.S. to explain it.

I see immediately the following problems: first (unless Australians are very different), juries do not generally answer questions like "was that sex consensual". They answer questions like "has it been demonstrated beyond a reasonable doubt that an unlawful event with the specific description occurred". This makes it fairly difficult to find an "inconsistency" such as described. Second, I thought it was general practice in democratic countries not to second-guess juries unless the outcome is completely inconsistent with the evidence. I know of U.S. cases where a decision has been overturned for that reason, or because it was demonstrated that it was likely that the jury had been prejudiced by error during the trial, but never because the result was somehow considered internally inconsistent (someone please correct me if counterexamples are known).

Does anyone know if there is a way to read the decision itself?

After all, rape is just another "human behavior." Why would anyone want to "legislate" that?

Zed, here's the decision:
http://www.austlii.edu.au/au/cases/sa/SASC/2007/92.html

She said that both the oral sex and the intercourse were unconsentual, while he said they both were consentual (there's a surprise) so the appeals court decided the lower court was being inconstant by saying they had enough evidence to convict for one but not the other. It looks like the lower court took into consideration things like a medical condition that made vaginal sex painful for her to decide it was beyond a reasonable doubt that she would have consented to that, but I guess the appeals court didn't care.

"Yesterday, the State Government vowed to table new laws, wherein sex would become rape as soon as consent was withdrawn – even if the act had already begun."

But those "new laws" sound so very reasonable to me.

That would mean that "No", "Stop", "Get off me", "I don't want to" and similar statements coming from one person's mouth would have to translate into "No", "Stop", "Get off me" and "I don't want to" inside another person's head.

It would mean the person those statements were addressed to would need to exhibit some sort of empathy with or emotional understanding of the other person followed immediately by a little self-control.

My Dad gave me a Birds and Bees talk when I was fifteen. One of the things he said was, "It's the woman who picks you. Don't ever forget that." (Chauvinist in its own way I guess, especially in a mutually consenting world, but that's what he said. My Dad was born in 1909.)

Thanks marle.

Reading the decision, it appears that it has nothing whatsoever to do with whether the court believes that if you consent to oral sex you consent to vaginal sex, but rather that the court was successfully persuaded that since if you reduce the situation to whether you find the woman's testimony more plausible than the man's, the result is all-or-nothing, and a mixed result is irrational.

I think that this is still fairly clearly wrong -- a jury has access to more information during testimony than is stored in a transcript (nonverbal cues, etc.), and may well have been able to come to the conclusion that they weren't certain about the woman's credibility about whether or not she had actually consented to oral sex, but believed that she had not consented to vaginal sex. This is held also by the dissenting opinion. Justice Gray unfortunately got outvoted.

This decision, however, has nothing whatsoever to do with the presumptions in the news article or this blog entry about whether you can consent to one act but not another under Australian law. That question wasn't even touched upon.

Wouldnt this also destroy the right of a person to say NO after sex has begun?

Thats lowering women to the equal of animal rights, maybe even worse.

Shouldnt anyone have the right to stop intercourse after it has begun? Minds and feelings do change midstream.

This almost like saying we are obligated to satisfy sexual partners, regardless of our feelings.

Lets also take it a step further - if a 12 year old girl is "making out" or even goes down on a young man - she has no right to limit it there?

Disgusting... Reprehensible...
Almost Nazi-istic.

I see where you're coming from, Scilian, but your comment there feels to me like a massive leap in which you're equating an Australian law snafu with tenets of the Nazi party. While I am deeply ashamed that my country of origin (...that would be Australia) has some pretty sexist shite going for it, I'm also kind of piqued by that comment.

But I'll probably get over it once I've had some caffeine.

At what point do we just call for a Lysistrata-style sex strike? Seriously. If I was living in a state which ruled that once I consent to a sex act I have no more right to refuse any other sex act, I would just stop having sex. What if the women of Austrailia did that en masse? I bet the laws would change with a quickness...

so, if she consented to the oral, she could have legally followed up by giving him a lil strap-on action, no? after all, he'd consented and wouldn't have been able to change his mind.

Im sorry if I offended you Sammy. But sexist laws promote unequal wages, also promote unequal social standards. This ruling can be applied both ways, both male and female.

Essentially decriminalizing rape is not sexist, but strongly in line with many reprehensible cultures, including the Nazi party.

Dont feel bad tho, my country of origin is the US. And the day we started debating water boarding and other torture techniques and their legality, is the day I stood solidly in my affirmation that the US is a Nazi state.

Nothing personal Sammy, and Im sorry if you take that personally. It was an attack on your Country's legal and moral capacity, not you.

I actually really object to the way the word "Nazi" gets thrown around. What was singular about the Nazis was not an obsession with order, or disregarding human rights, or misogyny. What was singular about the Nazis was their state-sponsored genocide: rounding up and murdering people for their identities in an organized fashion. Hutu Power in 1990s Rwanda can be productively compared to the Nazis, but Australia? Not so much. As reprehensible as this ruling is, there's a long way to go before you reach Nazi-ism.

I don't understand your contention that "decriminalizing rape is not sexist." Allowing men access to women's bodies regardless of women's desires isn't sexist?

Well EG, if the law can be applied both ways, which it can it this ruling, its not sexist.

You act as if men were the only sexual offenders.

Just as men against women rape is severely underreported, so is women against man and child rape.

You perhaps havent spent much time in the public schools in this nation. I have, and continue to teach 7 - 12th grade education. I have known of 3 instances in 4 months at my school, were women have perpetrated rape against children. 75% which used drugs/alcohol to further the crime. Its fairly prolific.

Just because its not prime time news doesnt mean it happens.

Oh, I see, "Men get raped too." Well, the majority of male rapes are perpetrated by other men.

By the way, I was educated in public schools in this nation, and have more than one friend teaching in them even as we speak.

But you're ignoring the reality that the overwhelming proportion of rape in this culture is male rapist-female victim. Child sexual abuse is a related, but different phenomenon, because different power dynamics are in play.

So sure, theoretically, and occasionally, women rape men, and theoretically and occasionally, such a law could be used to hurt men too. But if you're really going sit there and look me in the eye (metaphorically) and tell me that the legalization of rape would not be an overwhelmingly misogynous move, then I think you're being willfully blind.

Once you compare something to the Nazis you automatically lose.
A law can be authoritarian or fascist without necessarily being Nazi. That makes your argument look weak.

Funny, no one ever seems to raise an eyebrow when people scream "feminazi"...

Well EG, if the law can be applied both ways, which it can it this ruling, its not sexist.

Jumping in here -- this is a demonstrably incorrect assertion. Observe:

A law is passed that states "any person in the state of X who gives birth to more than three children shall pay a tax of Y."

The law doesn't distinguish between men who give birth and women who give birth. Rape, yes, is not the clear-cut, one hundred percent case that pregnancy is, but the point is that in order to determine that either law is sexist, you have to look at the world and how it in fact operates. In our world, women in fact are the victims of (I don't remember precisely) the extremely high percentage of rapes. Thus, the law disproportionately affects women. Thus, is it sexist.

Funny, no one ever seems to raise an eyebrow when people scream "feminazi"...
I've never seen feminazi used on Feministing before, but I actually have corrected people in my classes & everyday life for using that word.

"I actually really object to the way the word "Nazi" gets thrown around."

I actually really object to the way people throw around the word misogyny on here, especially when most dont even comprehend the meaning.

Like it or not, the world doesnt hate women. Rapists, pedophiles, and bigots are still the minority in this world. That is hard for me to say, as even I was assaulted at one point. But I cant say that since a law allowing women to accuse a man of rape, and get a conviction without any evidence doesnt exist, then it is because the world hates women. While a minority of people may try to undermine women as a whole, the majority of people do not sit around trying to figure out how to undermine women.

Since I can find free breast exams are free for me in my area, but my husband has yet to find free cancer screenings for men, then we can assume medical institutions did this out of the hatred for men, by your reasoning?

Since children can accuse adults of molestation and get them convicted without a shred of evidence - then the people responsible for pushing the legality and burden of evidence to this degree did this out of a hatred for adults?

"
I thought some of you may be interested in these statistics from the Innocence Project, which has now had some 100 death sentences overturned based upon post-conviction evidence. According to their study of the first 70 cases reversed:

* Over 30 of them involved prosecutorial misconduct.
* Over 30 of them involved police misconduct which led to wrongful convictions.
* Approximately 15 of them involved false witness testimony.
* 34% of the police misconduct cases involved suppression of exculpatory evidence. 11% involved evidence fabrication.
* 37% of the prosecutorial misconduct cases involved suppression of exculpatroy evidence. 25% involved knowing use of false testimony."

Maybe this is why some misguided rulings occur.

Maybe it isnt fair to just label anything that may limit your rights as being designed with a hatred towards women?

Maybe no one you know was falsely accused of rape, convicted, and sentenced for it, only to be overturned later.

In your pursuit to paint everything as hatred towards women, it just simply isnt so.

I still stand by my statement this was not sexist ruling. It may disproportionately affect the sexes, but that does not automatically make it sexist. If this so - then is the burden of proof on molestation and rape charges sexist, and should be changed?

It disproportionately affects men, and results in false convictions for men, but not women, so then it is sexist, and designed out of hatred for men?

I dont understand the reasoning.

It disproportionately affects men, and results in false convictions for men,

Stats please?

In 1994, Dr. Eugene J. Kanin of Purdue University investigated the incidences, in one small urban community, of false rape allegations made to the police between 1978 and 1987. Unlike those in many larger jurisdictions, this police department had the resources to "seriously record and pursue to closure all rape complaints, regardless of their merits". The falseness of the allegations was not decided by the police, or by Dr. Kanin; they were "... declared false only because the complainant admitted they are false." The number of false rape allegations in the studied period was 45; this was 41% of the 109 total complaints filed in this period.

Unfortunately not much is done on the subject. Which again, disproportionately affects men, so it MUST be sexist.

These are just the ones who admitted they were false. Imagine all the ones that kept the secret to their graves.

So, If this so - then is the burden of proof on molestation and rape charges sexist, and should be changed?

It disproportionately affects men, and results in false convictions for men, but not women, so then it is sexist, and designed out of hatred for men?

Consequently, not one woman has been sentenced for a rape she did not commit, nor has one been wrongly accused.

Scilian, you cite one study that showed that in one small urban community in the 1980s, roughly 50 women admitted to making false rape accusations.

You did not cite a study with any statistical significance to the US in the aggregate.

You did not cite a study that showed a single false conviction.

How is the burden of proof sexist? It's the same burden of proof that exists in any criminal case -- beyond a reasonable doubt. You really can't get much higher than that without flat out saying, we're not going to criminalize rape.

Why is it we cannot have even one single public conversation about rape without someone taking the whole thread over with cries of oh the poor mens! what about the mens?

God bless you, Jaclyn. I couldn't agree more.

Scilian, you haven't indicated in any way any misuse of the word "misogyny." So I'm just going to take it that you were trying to be clever, and bridling at being called out on slinging the word "Nazi" around without fully considering the implications.

Law Fairy -

Show me a credible statistic that shows the # convictions vs the number of overturned convictions?

I cant find one. Can you?

Sure I can pull up some seriously defective christian statistics, but I cant find any thing credible.

My argument still stands tho. You cannot argue that there are false rape convictions, can you? I can post links to dozens in the past two years. (convictions overturned)

I cannot find a single case were a woman was falsely convicted of rape.

So men get convicted of false rape under these laws, and even extorted to some degree for money.

And since this has never once in history occurred to women, therefore, by your reasoning, it disproportionately affects men, and is sexist, and should be changed.

Show me just two or three false rape convictions for a woman, and you have my agreement that you are right.

But if it doesnt exist, then the current proof of burden laws favor women, does it not, which makes it sexist and designed specifically to undermine men, does it not?

I dont agree with that, but by your reasoning we should.

No one cried poor men. My reasoning was attacked and tried to be showing as defective. Im simply responding.

"Scilian, you haven't indicated in any way any misuse of the word "misogyny." "

Yes I did. Im still waiting for your proof this judge has a history of hating women, even in an hearsay manner. Until you show some kind of proof, you made an assumption based on nothing.

Some additional notes on the Kanin study: I did some hunting around for it, because it so heavily contradicts previously published numbers, and discovered that this study was published only in the Archives of Sexual Behaviour (Springer Netherlands). Judging from its own description of itself, it is not a peer-reviewed scientific journal. The only other reference I can find to its reliability is negative: it was involved in publishing an incredibly flawed study that gays can change their sexuality (it was subsequently disclosed that the "sample" consisted of individuals hand-picked by a number of religious groups specializing in "conversion").

Until something a little more reputable comes along, I think I'll stick with the previous studies which indicate about a 2% false reporting rate.

So men get convicted of false rape under these laws, and even extorted to some degree for money.

Scilian, maybe I misunderstood your comment, but I thought you just said you didn't have these statistics. It doesn't matter that I don't; you're the one claiming that this happens, so you need to prove it, which you haven't done.

Scilian, why do women have to be wrongfully convicted of rape in order for it not to be sexist? What if 100% of rapes were committed by men against women? Would that make the fact that women aren't falsely convicted of rape "sexist"? You seem to be suggesting that because the majority of people who commit a crime are male, therefore its prosecution is sexist. This makes no sense. Most murders are also committed by men -- does that make it sexist to outlaw murder?

There's a difference between (a) changing a rule such that an innocent person is suddenly put at greater risk for a crime and the people most at risk are of one sex, and (b) having a crime that is disproportionately committed by one sex. In the first case, it is sexist because it is a pronouncement by the law that women's autonomy is not important enough to protect in X cases. The woman affected by the law has NO CHOICE in the matter. In the second case, it is not, because the man makes the CHOICE to commit the crime. It is an ex ante versus ex post distinction. The two are wholly unrelated, and you're mistakenly conflating them in your analysis.

I never indicated that this individual judge has a history of hating women. I said that legalizing rape would be an overwhelmingly misogynous thing to do. I'm not responsible for your reading skills.

My apologies then EG.

I thought since you said
"I don't understand your contention that decriminalizing rape is not sexist." which was in direct reference to my contention that the ruling wasnt sexist, and then the very next response you gave said
"But if you're really going sit there and look me in the eye (metaphorically) and tell me that the legalization of rape would not be an overwhelmingly misogynous move, then I think you're being willfully blind."

I thought you were speaking about the same subject. I therefore, mistakenly applied part of your fluff as your argument.

"I'm not responsible for your reading skills."

Then we can agree you wont hold me responsible for your misdirections either?

Good. I am sorry for mistaking that as your response to ruling and my contention that the ruling wasnt sexist. Ill filter your responses properly next time.

(Reposting with one fewer link, as the original seems to have been spamtrapped.)

Some additional notes on the Kanin study: I did some hunting around for it, because it so heavily contradicts previously published numbers, and discovered that this study was published only in the Archives of Sexual Behaviour (Springer Netherlands). Judging from its own description of itself, it is not a peer-reviewed scientific journal. The only other reference I can find to its reliability is negative: it was involved in publishing an incredibly flawed study that gays can change their sexuality (it was subsequently disclosed that the "sample" consisted of individuals hand-picked by a number of religious groups specializing in "conversion").

Until something a little more reputable comes along, I think I'll stick with the previous studies which indicate about a 2% false reporting rate.

Scilian, I brought up decriminalizing rape in response to your comment that "Essentially decriminalizing rape is not sexist, but strongly in line with many reprehensible cultures, including the Nazi party."

By using the word "essentially," invoking various cultures, and referring to "decriminalizing rape" as a general action rather than this particular decision, you moved the topic from this ruling in particular to the general idea of decriminalizing rape.

I pay attention to language. It's what I do.

Skipping the misogyny/rape debacle, just wanted to say thanks, Scilian, for taking my little fit of pique nicely. I really do realise you meant no offense (and not knowing I'm Australian, you couldn't possibly make a personal attack on me!), I just had a pre-caffeine 'moment' and didn't mean to snark on you. I just love my country, faults, stupid law rulings, and all ;)

I think this post has seriously misrepresented the legislation concerning rape in Australia.

A little geography lesson, Australia is composed of six states. The majority of the population lives in two states, New South Wales and Victoria. Both these jurisdictions have legislation that clearly states consent can be withdrawn at any time; Crimes Act 1900 (NSW) s 61H(d) and Crimes Act 1958 (Vic) 38(2)(b). In contrast, the legislation in South Australia is ambiguous on this issue, rather than decisive – hence the need for further clarification; Criminal Law Consolidation Act 1935 (SA) s 48.

For those interested in rape laws, take a close look at the Victorian legislation which is considered the most progressive in Australia. In particular, it makes rape a crime regardless of sex while still acknowledging as its guiding principle that: ‘a significant number of sexual offences are committed against women’; s 37B(c).

I’m not trying to be nationalistic, I just feel the post is sensationalist rather than informative. It discredits the author as well as the inroads Australia’s made.

The Australian and Maryland cases are very different. In Maryland, it's still today a jailable offense to continue to have sexual relations with a woman after she has withdrawn consent; it's assault and it carries up to ten years in prison. It may also be a sexual offense below that of "rape" depending on the precise facts.

Maryland imported an antiquated definition of "rape" from English law at it stood on the date of the Revolution. The Court of Appeals held that the General Assembly could make the crime of rape to include continued relations after withdrawal of consent, but had not yet done so. The English common law definition defined rape not as general sexual violence, but as the penetration of the vaginal orifice.

Maryland and other states have passed many laws to add sexual offense categories other than rape. The Court of Appeals simply said that the General Assembly, not the Court, was competent to write that additional statute. A FAR cry from the horrible mess in Australia.

Readers seeking a detailed analysis of the case can take a look at Maryland Courts Watcher, of which I am one of many contributors, and if conceivably interested in my own take on the intermediate appellate opinion at Crablaw Maryland Weekly.

This is ridiculous. Just because you agree to one thing does not mean you agree to everything! I can't believe this man was able to get away with that!!! It sickens me!