New rape law allows change of mind

[Sikander]

Originally posted by Ned
The word is that the woman who accused Kobe was deeply depressed and had tried to kill herself twice in the weeks preceding the alleged rape. I was wondering how mental and emotional problems could affect such a case.

Well for starters it poisons the jury pool once the defense team leaks it to the media or the tabloids buy the story from her college roommate.

[Az]

What about subjudice or whatever it is called?

[Velociryx]

Flubber.....the first case you mentioned would be correct. Not a troll at all. Scout's honor.

The fact is, I really *don't* know much about the law. About the only time I even THINK about the law is in that little span of seconds between taking my foot off the gas pedal of my truck after I've seen the state trooper, and until I round the next curve taking him from my sight.

As Gepap pointed out earlier, I am a champion of individual responsibility, as well. For me, this means structuring my life such that I don't NEED the court system. I've been "in court" all of twice in my life. Neither was pleasant, ranking right up there with root canal surgery, but that's okay. As a responsible adult, and someone who takes personal responsibility for myself and my actions, I find that I do not have much need of the court system. If I am in disagreement with someone about something, we work it out.

Here are the laws that affect ME:
Speed Limit 55: 56 = breaking the law, 55 = you're okay. If I get a ticket, I pay the fine. No fuss, no muss, no questions asked.

Liquor store not open on Sunday: Because in SC, you can't buy liquor on Sunday.....guess who doesn't go to the liquor store on Sunday for next week's party? If I did (assuming there was one open) = breakin' the law. Any other day of the week = fine.

I live in a state where I could go to work to day, tell my boss to kiss my....shins, and pack my desk. No two week notice needed, no nothin' See ya, gone.

And....that's about it. I pay my bills on time, I don't make trouble, and if I FIND myself in trouble, I work it out alllllll by myself. No judge, no jury, no court.

And it works.

So the laws I deal with are a) very limited, and b) very cut and dried 55 or less, fine, 56 and over you're breakin' the law and you know it).

That is why ambiguous language IN a law scares me, and you said it yourself "everybody would be guilty". That's right. I agree.

To Ting.....you know that's not what I'm talking about. Reasonable Doubt has everything to do with instructions to a bunch of guys who weren't at a given place on a given day, being presented with evidence about events they know nothing about and asked to decide.

That's very different from this law, unless you want to make the argument that one or both parties involved were not present and accounted for when the event occured?

-=Vel=-

[Flubber]

Vel

Most laws can never be as clear cut as your speeding example. Example. .. murder laws. WE could make it simple . . . kill someone=murder, don't kill anyone=no murder . But the problem is

what if its an accident in which I could have done nothing wrong?( they jump in front of my car)
what if its an accident where I am at fault? ( cleaning a loaded gun)
what if they are trying to kill me ?
what if they are robbing me ?

There are so many shades of grey when someone dies at the hands of another and range from not being an offense at all to first degree murder. In order of examples the likely result would be

-- no offense
-- possibly criminal negligence or manslaughter depending on jurisdiction
-- no offense
-- No offense in many US states ( where protection of property is an explicit defense to Murder)-- possibly an offense in Canada, and some US states depending on the circumstances


To the law at hand, you can take most any law, focus on a single word, give it its most absurd interpretation and the result is an unworkable law. There are many principles of statutory interpretation common across the jurisdictions I am aware of. oNE OF THE RULES:

-- If a word has two meanings and one of them leads to an absurdity, they meant the other meaning

[Velociryx]

Hiya Flubber! And yes, that last bit makes a fair amount of sense to my brain. Thank ya for taking the time to 'splain it (I know I can be hard headed, but I really CAN learn! ). In truth, this law, passed or not, will not impact my life one whit, so I'm not going to lose any sleep over it either way. The principle is sound (of course a woman has the choice, at any time, to change her mind), but coming from the school of thought that more laws =! greater justice, I'm unconvinced that another entirely NEW law is needed to spell this out. We've got TONS of useless laws on the books right now, tons of loophole laws, tons of laws that nobody enforces, and while all of those things represent job security for the legal profession, they do not promote a greater sense of justice.

I'm fairly convinced that can be done with relative few laws, especially as compared to the sheer number that we have now.

Thus, even tho I'm hardly an expert on the subject, when something rubs me the wrong way, I'm inclined to say something about it, whether it will effect me personally or no....

-=Vel=-

[Flubber]

Originally posted by Velociryx

We've got TONS of useless laws on the books right now, tons of loophole laws, tons of laws that nobody enforces, and while all of those things represent job security for the legal profession, they do not promote a greater sense of justice.

Thus, even tho I'm hardly an expert on the subject, when something rubs me the wrong way, I'm inclined to say something about it, whether it will effect me personally or no....

-=Vel=-

I agree that there are very very many useless or unenforced laws.

You have every right to make your views known . .. Its just that some of your views were based on an inaccurate legal analysis.

[Velociryx]

That's why I like 'poly....I've actually learned quite a lot here from different folks!

As to this law in particular....I really hope it doesn't create a loophole and open the door for abuse, but it sure looks like it could, and the whole more laws != more justice gets my goat too....that's why I'm leery of every new law that comes down the pike....even well-intentioned ones....the more weight added to the legal system, the more opportunities for abuse and stupid loopholes, and the more laws that will wind up being not enforced. This detracts from justice, rather than adding to it, yes?

-=Vel=-

[Flubber]

Originally posted by Sikander
you won't ever have to explain to your parents why you need $10,000 to hire a really good lawyer like Flubber.

While I appreciate the compliment, I fear you have little evidence on which to make the assessment of my skills

Most of what I am spouting on here is basic first year criminal law stuff remembered from law school with some recent crim cases that I read for interest. I don't practice criminal law as I could never get past the dilemma of defending say a child molester, knowing they will likely reoffend. I am actually a bit of a coward/hypocrit in that I believe in everyone's right to a fair trial but leave the work of defending them to others

[Flubber]

Originally posted by Velociryx
That's why I like 'poly....I've actually learned quite a lot here from different folks!

As to this law in particular....I really hope it doesn't create a loophole and open the door for abuse, but it sure looks like it could, and the whole more laws != more justice gets my goat too....that's why I'm leery of every new law that comes down the pike....even well-intentioned ones....the more weight added to the legal system, the more opportunities for abuse and stupid loopholes, and the more laws that will wind up being not enforced. This detracts from justice, rather than adding to it, yes?

-=Vel=-

I don't think that there is ANY added room for abuse here. IF a woman wants to be a total liar and make a false claim, her most sympathetic course is to claim no consent from the start.

I don't mind this law-- its probably unneccessary since IMHO it merely codifies what everyone should know-- consent to sex may be withdrawn at any time and that decision must be respected. I think they just wanted to make that point clear.

I found it interesting that the people with legal training seemed to fear this law much less than those without. Its perhaps because we see every day how much ambiguity there is in the language used in our laws and have a greater trust in the courts to reach a reasonable interpretation.

THis particular law will have even less effect on me as
1. I am Canadian and
2. I only have sex with one person and just my love and respect for her would mean I would not continue any contact she is not happy with -- I am trying to be super-sensitive on this point since she had the baby

[Shi Huangdi]

Hmmmm, noticed a typo. I meant to say impossible to prove unless there was an audio or video recording of the sex. It seems hard to imagine many situations in which it can be proved beyond a reasonable doubt that she withdrew consent during sex and he didn't stop.

So ya, I guess to apply to this law you need Vel's "consent cam"

[Velociryx]

Patent pending, and coming to a Best Buy near you!

-=Vel=-

[Bugs ****ing Bunny]

Originally posted by Shi Huangdi
Hmmmm, noticed a typo. I meant to say impossible to prove unless there was an audio or video recording of the sex. It seems hard to imagine many situations in which it can be proved beyond a reasonable doubt that she withdrew consent during sex and he didn't stop.

So ya, I guess to apply to this law you need Vel's "consent cam"

Or a statement from the man. You'd be amazed how often they will incriminate themselves.

[Ned]

Originally posted by Lazarus and the Gimp


Or a statement from the man. You'd be amazed how often they will incriminate themselves.

Lazarus, apparently, one of the reasons the prosecutor brought charges in the Kobe Bryant case was due to his "inconsistent" statements. He may have hung himself.

[Bugs ****ing Bunny]

Sounds about right. I can see statements like the following cropping up.

"Well she started saying "no" and trying to push me off, but I was nearly finished so I just speeded up."

[Agathon]

Originally posted by Tingkai
I found this description about the California case. Can't vouch for its accuracy.

In the case that challenged the old rule, a 17-year-old girl, Laura T., had consented to sex with the defendant, John, but then later told him that she needed to go home. While she never explicitly told him to stop, he continued for, "four or five minutes after Laura's first statement and for a minute to 90 seconds after her third and final one" (Cooper, 2003:2). John had apparently told Laura, "Just give me a minute" (Cooper, 2003:2). While this case may not appear to be rape to some, the California Supreme Court has ruled that it was indeed a rape. The Court took into account what was called a "primal urge theory" that could possibly justify a "reasonable time" rule for John's failure to stop. However, the Court later rejected this claim saying that John had been given sufficient time to withdraw and that the law books would not allow for such a claim of "reasonable time" (Cooper, 2003:2). It is important to remember that rape does not occur when a woman simply changes her mind or feels that she has made a bad decision. In this case, John had also grabbed Laura's waist and pushed her down while she was making the statements that she needed to go home.

If the case was like this, then I think there is reasonable doubt as to whether it was rape.

Compare:

You are having sex with a woman and she says "stop I have to go to work".

One reasonable interpretation of this statement is that it implies the conditional, "If I didn't have to go to work, we could finish having sex", which entails, "It's not the sex I am objecting to, it's the time wasting". In this case the woman apparently isn't objecting to the sex per se which is the usual grounds for rape.

Confronted with this I don't think a reasonable person could be deemed evil for thinking "****, she's in a hurry, I'll be finished soon, I better hurry up" since it's unclear whether the woman is objecting to the sex or the time it's taking.

What this shows is something that is little appreciated. If people wish to stop having sex they should indicate so in a way that avoids ambiguities - some variant on "I want to stop doing it right now" without adding riders that would lead people to understand differently.