Connecticut Court requires disabled rape victim to prove she resisted

[Al B. Sure!]

Story:

http://thinkprogress.org/justice/2012/10/03/947981/court-requires-disabled-rape-victim-to-prove-she-fought-back-calls-for-evidence-of-biting-kicking-scratching/

Connecticut court overturns sexual assault conviction of a man accused of raping a woman afflicted with cerebral palsy because she did not communicate lack of consent. I understand the mistaken approach of the prosecution but this sparks another thought:

Why is it that the standard for consensual sex is the absence of a negation and not an affirmation? That is, why is the standard for consent merely no 'no' rather than a 'yes'? It may seem like a minor quibble of semantics but it has philosophical underpinnings regarding gender with potential, as demonstrated by this case, of real world consequences.

[Zevico]

It isn't necessarily. No comment on American law, but in Victoria (for example), rape is defined as (among other things):

http://www.austlii.edu.au/au/legis/vic/consol_act/ca195882/s38.html

2) A person commits rape if-

(a) he or she intentionally sexually penetrates another person without
that person's consent-

(i) while being aware that the person is not consenting or might not be
consenting; or

(ii) while not giving any thought to whether the person is not consenting
or might not be consenting; or

(b) after sexual penetration he or she does not withdraw from a person who
is not consenting on becoming aware that the person is not consenting
or might not be consenting.

So here, for example, your bloke might claim that the lady with cerebral palsy communicated consent first, and withdrew it without his knowledge later. Keep in mind that's a response to your "philosophical" point not to the facts of the case as such. And note from your article:

An astute reader pointed out that the prosecution appears to have made an egregious error in the trial. Instead of prosecuting the sexual assault on grounds that the victim was “mentally defective” (subsection 2 of this code), they charged that sexual assault took place because the victim was “physically helpless” (subsection 3). Without the subsection 2 evidence, the Court could not consider the mental capacity of the victim and hence ruled only on physical helplessness, perhaps wrongly. As noted above, disability rights advocates still have major concerns about the majority’s holding on subsection 3 grounds, as it appears to set a higher standard of proof of “physical helplessness” for disabled victims relative to able-bodied ones.

The finding was that the victim was not phyiscally helpless within the meaning of subsection 3. The prosecution could have relied on subsection 2, with far greater prospects of success.

So the court got it at least arguably right. A person with cerebral palsy is at least arguably not physically helpless. It's not the best outcome but the job of the court is to enforce the law, not bring about the perceived best outcome.

[Wiglaf]

Story:

http://thinkprogress.org/justice/2012/10/03/947981/court-requires-disabled-rape-victim-to-prove-she-fought-back-calls-for-evidence-of-biting-kicking-scratching/

Connecticut court overturns sexual assault conviction of a man accused of raping a woman afflicted with cerebral palsy because she did not communicate lack of consent. I understand the mistaken approach of the prosecution but this sparks another thought:

Why is it that the standard for consensual sex is the absence of a negation and not an affirmation? That is, why is the standard for consent merely no 'no' rather than a 'yes'? It may seem like a minor quibble of semantics but it has philosophical underpinnings regarding gender with potential, as demonstrated by this case, of real world consequences.

This is a nonsense question. A 'yes' works just as well as no 'no' in showing consent.