Maybe. They're agreeing to compensate them for the transaction and then not only not compensating them for it, but arresting them. So the condition on which the prostitute consented isn't met. Also, if a prostitute doesn't have meaningful freedom to withhold consent (unclear in this case), sex with her could be a kind of rape.
See, that was my argument, too. My (asshole, in law school, we should all be scared) friend's argument was that the cop didn't *force* the hooker to fuck him, so it wasn't rape.
B, is your question about a) legal or b) moral rape?
Also, do you think the situation is distinguishable from: Man X meets Woman Y at a bar. X lies about how successful he is at his job. Y's false belief about X's success plays some role in her decision to have sex with him.
Also, I think part of the answer is that because prostitution is illegal, a prostitute has no legally cognizable interest in being paid, but I'm sort of pulling that out of my ass.
I had an argument with a friend the other day about whether or not what the cops are doing could be considered rape.
Absolutely not. If I tell a woman that I love her and will marry her to get her into bed, and then I don't - you want that to be rape? It's definitely wrong, but it's not rape.
Also, if a prostitute doesn't have meaningful freedom to withhold consent (unclear in this case), sex with her could be a kind of rape.
I think they paid for it too, although presumably if the women were arrested, they didn't keep the proceeds.
Obviously, I don't mean rape in the legal sense--clearly, the cops' actions don't constitute legal rape, or at least, are highly unlikely to be prosecuted as such. My argument ran thusly: obviously it's entrapment and breach of contract. However, the "contract" being breached here isn't an exchange of goods; it's an exchange of money for sex (it's also a legally unenforcable contract, btw). I would argue that violating a contract in order to get laid is different in kind than violating a contract that's about goods or money, and I'm pretty sure that I would feel a lot more violated by being lied to and fucked than I would by being lied to and ripped off.
In the cops' minds, they *know* that the result of this exchange is going to be arrest: this, along with Tia's point about whether or not the right of refusal is really an option for hookers, means that there *is* an implicit threat of force behind the sex--whether or not the woman herself is aware of it. Hence, it's a little bit different from SCMT's "I lied to get a woman into bed" scenario, as should be obvious.
Having said that, I wonder about the scenario where person A lies to person B in order to fuck person B. Is that rape? In a legal sense, no. But in a moral sense....?
There was a case in Texas where a woman working for an investigative company befriended a man who was suspected of a serious crime and dated him, until finally he proposed marriage. But first he said, "There's something you have to know about me first...." and told her about his crime. The first chance she got she went to a phone booth and called the cops.
Agreeing to fuck someone who is lying to you about, or omitting to mention, factors which either a) a reasonable person would weigh in deciding whether or not to have sex or b) the particular person lying or omitting has reason to know that you will be weighing, reasonably or not, does not constitute informed consent, and is therefore is in some as yet unspecified way wrongful, and might be rape.
Hence, it's a little bit different from SCMT's "I lied to get a woman into bed" scenario, as should be obvious.
It's not the least bit obvious to me, I'm afraid. In part that's because of this: there *is* an implicit threat of force behind the sex--whether or not the woman herself is aware of it. How can you threaten someone if the person is not aware of the threat?
Informed consent isn't doing the work here. If I lie to my boyfriend, telling him I'm on the pill, knowing I forgot to take it and he wouldn't want to risk getting me pregnant, and we have sex, I don't think I've just raped him. If he lies and says he loves me to get me into bed, he's a jackass, but not a rapist. If I say I'm disease-free, etc.
Meaningful freedom to withhold consent, however, does seem to be doing the work here. If the prostitute can't say no because of her brothel, then it seems she's raped even if she's paid.
I don't think it counts as rape, even morally, unless the second condition is met. It may count as lots of other moral failings, though.
#13: I think promising something that you then do not deliver is qualitatively different from not mentioning something that is a *conseqense* of whatever-it-is. So, for instance, if I promise to bring you flowers, and then don't, I'm a shit and a liar, and maybe I'm in breach of contract, if you made me dinner b/c I promised flowers in payment. But if you make me dinner b/c I promise to bring you flowers, and I show up with the flowers, but in your head you are thinking, "if that bitch shows up with flowers I will beat the crap out of her" then you are guilty of assault, no?
You're guilty of assault for beating the crap out of her, no?
And surely it's got to matter that you're setting her up to do something *in order to* beat her up (or, in the cop scenario, to arrest her). If it's not rape, what is it?
The acts described by the police are not rape because (from the information available) they did not involve force, threat or intimidation in a legally cognizable sense. It could be entrapment if the officers made the offer of money (that is, if they actively induced the provision of sexual services for money) but the article does not seem to give any indication that this is what happened.
All that being said, it sure seems sleazy, unfair and pointless.
The prostitutes are certainly aware that prostitution is illegal, and that their agreement exposes them to criminal liability. Risk of arrest is assumed by them, as is the possibility that their customers might turn them in.
Legally, they're not rape; I conceded that up front. But I think they are, nonetheless, rape in the sense of coerced sex, even if the coercion doesn't amount to pulling a gun on the prostitutes.
#20: What if the agent makes the buy, then shoots up before making the arrest?
B, since everyone agrees that it's bad, I think the argument about, "is it rape?" comes down to "Is it as blameworthy, should it be punished as severely, as paradigm cases of rape which we all have in the back of our heads?" My answer to that is no.
Apo, I disagree with 24, if the cop is shooting up it means he or she is taking possession of the drugs in his or her private capacity (ie., stealing them), as opposed to in his or her capacity as enforcer of the laws. Which makes it (morally) equivalent to any other kind of theft you care to discuss.
But if you make me dinner b/c I promise to bring you flowers, and I show up with the flowers, but in your head you are thinking, "if that bitch shows up with flowers I will beat the crap out of her" then you are guilty of assault, no?
Note, you don't actually say anyone was beating the crap out of anyone here. Hence my confusion. And you'd be guilty of assault in that case, where you beat her up, regardless of what you were thinking.
In any case, I think that the 'informed' part of 'informed consent', which I do think is a generally reasonable guideline, has been met here. It's not as though she was tricked, or didn't know what sex entailed, all of which would nullify consent. I see what you're saying - she *thought* she was consenting to a paid-for act, but she wasn't, and presumably wouldn't have consented otherwise. But in that case, there's lots of parallels that don't seem to amount to rape. ('If I have sex with him, he won't leave me.' 'If I have sex with her, she won't get pregnant.) I don't think a promise for exchange or reward after the fact nullifies anything here, and it doesn't seem itself to amount to coercion (although the rest of the brothel set-up might.)
This is 'do x and I'll do y', but it's an unenforceable contract because it's illegal. Morally, I don't know what it is besides despicable. Serious breach of promise? It doesn't seem to fit under the umbrella of rape, though, unless we widen the umbrella too much.
I think WD has got it. It's an agency and embezzlement question.
When the cop shoots up, he's taking goods obtained in his capacity as an agent of the state and converting them to his own use. It's just like the cop who, arresting the burglar, seizes the stolen Rolex and decides to keep it for himself.
Similarly, the cop who pays the prostitute is obliged to sequester and preserve the fuck, so it can be sold at police auction.
I agree with 32, but in that case, the fact that the customer is a police officer is irrelevant. 32 is just saying that patronizing any prostitute is potentially a rape, correct? I would agree with that, but it's a non-sequitur if we're discussing why the police officers' actions were particularly reprehensible.
Just to indulge in a bit of pedantophilia, assault is the threat of force. Any actual application of force is generally battery. Unconsented touching (application of force) is battery (civil, criminal, or both). Uninformed consent is ineffective consent, and thus the touching remains battery. Roughly speaking.
Obtaining something of value, in exchange for a promise which the promisor has no intention of fulfilling, is often a sort of fraud. It's a misrepresentation: the promisor knows the promise is false, and expects the other to rely on the promise to their detriment.
B. does raise two interesting questions (even if her analogies suck).
First, we know that what the cops did was bad. But was it bad simply because it involved arresting someone for providing a service that the arresting party enjoyed – i.e., bad because it constituted hypocrisy? Or was it bad because there is a special problem tied up with receiving *that* service under false pretenses?
Second, is fraudulently inducing someone to have a sex with you a species of rape? As a general matter, we define rape as having sex with someone who was not given the choice not to have sex with you, either because of the use of force or because the other party was incapacitated in some way (e.g., unconscious). We generally say that what is wrong about fraud is that it deprives the other party of the ability to exercise meaningful choice. Yet most of us don't want to say that lying to get sex is a form of rape. Is it simply a problem with our inability to draw bright lines in this area?
If we want to discuss why the police officers' actions were particularly reprehensible, I think it comes down to a particularly egregious form of hypocrisy.
If the point is to arrest prostitutes, it is unnecessary to sleep with them. Also, if the point is to stop prostitution, arresting prostitutes is probably not the best method.
Therefore it seems like the point is to have sex with prostitutes under cover of law. And then arrest the prostitutes, just for fun. It smells of misogyny. The officers are punishing women for crimes that men are most responsible for, and in this instance, they themselves were responsible for.
To be pedantic back: all true, but irrelevant because a cause of action will not lie where the claim is that the fraud or fraudulent inducement lead a person to commit a crime. The reliance was not reasonable as a matter of law.
re: 31 (the cop who pays the prostitute is obliged to sequester and preserve the fuck, so it can be sold at police auction.)
This comment vividly brings to mind the standard GI quip made to a buddy who asks if you need him to get anything for you while he is out:
If the point is to arrest prostitutes, it is unnecessary to sleep with them
Not an attempt to defend, but the cops' argument is that they couldn't bust the operators of the establishments unless the money passed through to their hands as well.
Here's the thing, pjs: we're all frauds, more or less. Few of us fully accept our faults, and we all engage in puffery, sometimes subtle, and sometimes not so subtle, in persuit of friends and lovers.
Do we want to get in the business of parsing that out, treating some instances of personal puffery as crimes? Seriously, we have enough crimes. It's silly.
#32 is right, but there's an extra step there, which is that the cop is fucking her with the intention of arresting her. It adds an extra level of despicability that I feel is, somehow, tatamount to rape, but I am having a really hard time explaining why.
So like the flowers/dinner/beating story, what I was getting at is that the beating would be assault in any case, but the manipulation of the woman into "causing" the beating by bringing flowers makes it something else. Abuse? Isn't domestic violence/abuse different from straight-up assault?
38: since I haven't read the link, perhaps I shouldn't opine. Got to run, but I'll leave you all with a hypo:
If I promised my girlfriend pancakes, but did not make pancakes, lacking the batter, and if my girlfriend promised me waffles, but did not make waffles, lacking the initiative, and then we both had sex (with each other), and then my girlfriend thought "I'd like to beat him for refusing to make me pancakes," but she did not beat me, to my dismay, and if I thought "I'd like to perform a dutch oven," and I did perform a dutch oven, and if subsequently my girlfriend did beat me for having performed the dutch oven, and if, after that, we had a nice nap, please identify all instances of rape.
34 is of course correct as as to the common law, and as to Tort law, at least the way I learned it. But if you look at, for instance, the New York Penal Code, the distinction is obliterated, as battery is never mentioned and things which were historically instances of battery are described as assault.
Ok, I like #35 and #36. I think my problem is that it is obviously misogynistic; and it's using misogyny, somehow, to "get" sex. I don't think #39 is an adequate response: I'm not talking about criminalizing bullshit, exaggeration, or self-flattery.
I will admit that I'm saying that I have a fundamental problem with the idea that a substantive lie designed to "get" a woman (or a guy) to sleep with someone is just par for the course, or garden-variety assholery. It may not be something that, in day-to-day life, we should prosecute, but I think on an ethical level, at least, it's pretty close to rape. And I think that when the law is involved, as it is here with the cops, that somehow it is, or might as well be.
But my sucky analogies are not helping me explain to myself why.
Thanks for the clarification, WD. I think that the NM statutes, the last time I looked, kept the distinction. NY is a fun place to visit, but I've never wanted to read the penal code.
It may be that the fucking cop, unlike the drug buying cop, is actually increasing the amount of crime. The aim of the law against selling sex is to eliminate the selling of sex. The aim of the law against selling drugs is to eliminate the use of drugs.
When the cop buys drugs, it gets them out of circulation. It means those drugs will never be used. It reduces (one hopes) the supply of drugs.
When the cop buys sex, and sex is delivered, that completes the wrong. It's not like the cop is preventing that particular fuck from being cut with flour and resold to schoolkids, who will then become sex addicts.
So we excuse the cop's possession and purchase of drugs, because it furthers the purpose of the law. There's no such excuse with prostitution.
There's also something wrong with cops getting, as a fringe benefit of their employment, something others are forbidden.
Here's a hypo that might clarify our intuitions. Suppose that a rich man says to a very poor woman: "If you sleep with me, I'll buy the medication that your son needs." And then she agrees. Is it more like rape if he doesn't buy the medication? Or does that not change things?
My sense is that, to the extent that this is like rape, it is because it involves taking advantage of a woman's desperation. The failure to follow through on the promise makes the act more despicable, but not more like rape.
Agreed with all of that. But isn't there something else wrong specifically from the p.o.v. of the woman being prostitued? It's not just about her "goods"; it's about a wrong that's being done *to her*.
I wasn't asking if you would; I'm assuming you would maim the guy, and then leave. I'm wondering why she did. I can understand why people with kids stay married to assholes. I can't understand why they stay with them until that point. Or at least - don't marry him.
Mostly, I suspect, b/c they are seriously fucked up and have learned, somehow, to be "understanding" of bad treatment. See, e.g., this very wrenching confessional post from a blogger I really like.
That document is pretty odd, but I suspect is more common in dom/sub relationships than those of us not in them realize. That guy sounds mighty disturbed from the rest of the story, however.
Women in relationships with abusive scumbags can have very messed up priorities. It's not a surprise that someone who has been told they are worthless and been subjected to abuse by someone who has systematically destroyed their sense of self-worth might find it hard to get out a relationship with someone who says they love them, and that they'll change, and that they only beat them because they were really provoked or because they are stressed, etc.
Especially if at other times the abuser can be tender and loving and may well be a genuine fuck-up that the abused person feels they ought to help.
Maybe is has to do with being cheated. Hypothesis: people feel cheated when they have a set of expectation of others' conduct, and someone changes the rules mid-game.
Assume: prostitutes do it for the money, not for fun.
Assume: for decades, the police/prostitute game has always had the same rules. Prostitute runs the risk that the customer is a cop. If the customer is not a cop, customer gets sex, prostitute gets money, everyone happy. If customer is a cop, customer doesn't get sex, prostitute doesn't get money (gets busted instead). Them's the breaks.
Now the cops are changing the rules so prostitute loses twice: gives sex, doesn't get money. That's cheating.
Getting cheated by the cops seems gallingly unfair. Cops are supposed to play fair.
Exactly, the "helping" and "understanding" things are a real fucking trap. Why do you think I pride myself on being a fucking bitch who doesn't give a rat's ass about understanding other people's points of view?
Back to the prostitute / rape? thing. I'm really disturbed that I feel there is something wrong with that, and that it seems to be rape, but that I can't figure out how to explain that. It's like we have no social construct for even talking about these things from a point of view that recognizes that rape isn't a form of property crime.
I have no idea if it's relevant or not, but the arrests in question were, I believe, at a massage parlor. There's a good chance that the sex we're talking about here consisted of handjobs. It's not certain, but that seems like a reasonable premise. Doesn't excuse the behavior, of course, but my intuitive sense is that this would pose less of a psychological cost to the exploited woman than intercourse. Not being a woman, I'm not really in a position to make that call, but I'd be curious to know what other people think.
I may as well also note that the officers' rationale was that prostitution arrests are usually made by verbal self-incrimination; apparently the suspects in this case don't speak English. And (here's where the cops lose me), touching isn't enough to make an arrest under Virginia law. Not quite sure how that works -- is it because it's a massage parlor? A poorly written law? I don't buy it, but that was the sheriff's justification for the practice.
Changing the rules in mid-game is a sort of deprivation of autonomy. It leaves the other person thinking "wtf? this isn't what I agreed to. Where's my freedom of choice?"
When it's done to a group of people who are already powerless, by a very powerful entity, it seems even more unfair, more like abuse or rape.
The difference between lying about, say, your job to get sex and lying about whether you plan on giving the hooker money is that the lie about your job is a fun illusion to make it more likely she'll have sex with you, and more likely that she'll enjoy it in some weird kind of hey I'm fucking a pilot sense, when she does. When she finds out you're not a pilot, she may be pissed at you, but it doesn't actually abrogate her entire reason for having sex with you.
But a prostitute is getting nothing out of sex but the money; if you rob her of that there was no reason for her to do it. It's much closer to pjs's medication hypo in 55, though I disagree with his (her?) conclusions about the hypo. In a real sense, saying hey, I'll buy you medication if you fuck me is not really worse than any time anyone sees a prostitute--every time she could be doing it out of that much desparation, and every time the john could just give her the money instead of taking the sex. But not giving her the money afterwards is a moral breach of contract that my intuition says basically amounts to rape, and I think the cops' action is similar.
The difference between the cop taking a drug dealer's drugs is that the drug dealer didn't have a right to possession of drugs in the first place in the same way that the prostitute had a right to say what she did with her body.
The difference between the cop taking a drug dealer's drugs is that the drug dealer didn't have a right to possession of drugs in the first place in the same way that the prostitute had a right to say what she did with her body.
The difference between the cop taking a drug dealer's drugs is that the drug dealer didn't have a right to possession of drugs in the first place in the same way that the prostitute had a right to say what she did with her body.
Good point. Nicely put. That may help answer B: it's wrong because it cheats the prostitute out of something that's rightfully hers, the right to make her own choice about whom she'll have sex with. Or to. Whatever.
ow would one explain that in terms that would make sense, legally?
I doubt that one can, at least from a statutory perspective.
Another tangent (that doesn't really speak to the question at hand): if you hire somebody to perform in a porn film, then pay them less than was promised, you have a clear case of breach of contract, but not really of rape. I bring this up only to make the observation that, solely by virtue of filming it, it suddenly no longer falls under the prostitution statutes.
Making prostitution legal would solve this problem of course.
UK law, for example, forbids soliciting or the running of brothels and also forbids profiting from other selling sex e.g. pimps or brothel madams.
But if individual men or women want to enter into sex for money as part of a private arrangment with other people, it's not against the law. .
[I just checked this and found a leaflet for prostitutes briefing them on their legal rights]
Under UK law if a 'client' fails to pay after having sex with an escort or prostitute they *can* be sued - it is illegal not to pay.
However, under UK law non-payment doesn't render the sexual act rape after the fact nor does it constitute breach of contract. However, it does constitute 'obtaining services by deception' which is a different offence.
I'd say decriminalization rather than legalization--I suspect that truly legal prostitution is no friend to women.
Re. #89, even leaving aside the silliness of criminalized prostitution and the mare's nest of issues involved in legislating women's sexuality, I don't think it matters: she may not have the legal right to prostitute herself, but she *does* have the legal right to say yes or no--otherwise it would be impossible for men to rape prostitutes. Which, notwithstanding the difficulty of prosecuting such a crime, the law does acknowledge.
Actually, I think the filter works by the scorefile (correct term? You know, what slrn uses) and not the killfile principle, so probably something like:
Legalized prostitution does have some good benefits -- in Nevada, they haven't had one case of a legal prostitute contracting HIV. Weirdly, though, many of the women still have pimps in addition to the brothel owners.
98: I don't mean for here, but for my site (that uses MT-Blacklist). I have a friend with a dot-info site and he can't just put a straight link to his site when he leaves a comment, and I've promised for a long time that I'd figure out how to work around it..
Weirdly, though, many of the women still have pimps
That's the problem with legal prostitution. With decriminalization, you can still test for HIV, etc., but you're not just walking away from the real problems associated with prostitution as industry.
Changing the rules in mid-game is a sort of deprivation of autonomy. It leaves the other person thinking "wtf? this isn't what I agreed to. Where's my freedom of choice?"
In the hypothetical being discussed (cop has sex with prostitute and then arrests her after the sex act) what are we defining as "mid-game"? If he arrests her mid-coitus, I can see that as being rape of some sort, but I have a hard time with the idea that, if he arrests her after the sex act is over and done with, it retroactively turns the sex into rape. Deceptive and despicable, yes, but not rape.
105: You could still regulate the prositution industry with mandatory HIV tests and have it legal. Lots of things are entirely legal but heavily regulated.
97: right, whether the contract was legally enforceable is a red herring. The issue is whether the prostitute's bodily autonomy is breached, when it is when she's tricked into sex that she's not paid for.
Completely off-topic, but I'd just like to say that the smell of my neighbor's fireplace is wafting into my apartment and it's really, really nice. That is all.
Secretly I was hoping someone would ask about that ?<! bit in the regular expression so I could make an extremely forced joke about looking at behinds.
'Violated bodily autonomy' captures my intuitions well as far as determining what's special about tricking the ... trick-turner? (sry) as opposed to tricking the drug dealer. It's a more serious hypocrisy on the part of the cop.
I like Tia's and MHS exploration of what he calls "an autonomy crime," and it's compelling to me. But I can't think of it as rape.
To me, the essence of rape is force. The modern understanding, that rape is not about sex so much as about power, violence and domination, gets to the heart of it.
Here in Illinois, as in some states mentioned above, the common law crimes have been superseded by a criminal code, which defines every term it uses. Hence "rape" in a sense no longer exists; degrees of criminal sexual assault have replaced it. I am told, however, that when arguing to a jury, it is best to keep the common law elements in mind, and meet them too if you can, because despite jury instructions that's what people want to know. The most notorious of the elements of common law rape is that the woman must have "cried out" unless she can show that she couldn't.
But despite criminal codes, the essence of both the common law crime of rape and the idea which survives it ought to be force, I think. This carries us much farther than common law today: the most obvious uniquely modern instance is "marital rape," inconceivable in the past by definition, yet commonly accepted now.
Certainly there must be many instances where the harm, and the trauma, induced by the frauds and deceptions mentioned above are actually more devastating than forced sex might be in some circumstances. I'd love to see at least a civil action for that kind of violation, based not on property fraud but on the loss of autonomy. I'd like a hissing, execrating word for it too, something more than "assholery."
Depends on the definition of force. In the broad sense of 'reasonable ability to do otherwise', sure. In the narrow sense of, 'must have had imminent threat of physical violence' it seems far too narrow to encompass what should count as rape.
110: What if the cop intends to arrest her beforehand, but the sex is so amazing for him that he changes his mind, falls in love with her, and decides not to arrest her? That would not be rape, would it?
What if, two days later, he recosiders and then goes back to arrest her? Is that rape?
#116: See, I have a problem with the idea that rape depends on force; I think it should depend on consent. The "force" issue, imho, is too much like defining rape from the pov of the rapist, rather than from the pov of the victim.
Have any spammers used tinyurl to evade spam filters? It seems like such an obvious move I'd be surprised if it were not the primary usage of tinyurl.
Bitch, your "It's like we have no social construct for even talking about these things from a point of view that recognizes that rape isn't a form of property crime" sounded a little weird to me. Rape is frequently not discussed as a property crime -- though the older framework is to view it as a crime against the husband or father of the woman or girl (and I guess to pretty much ignore it when committed against a spinster) -- and though one does see it now viewed as an intrusion on the woman's proprietary interest in her body -- I think most often it is spoken of as a crime of violence and akin more to battery than to theft. The property-crime analogies seemed to come up because in this case the act under discussion is prostitution which involves an exchange of money so property seems to fit, and because the police were not (that I know) committing any battery against the women they were arresting.
Tinyurl seems like it would defeat the purpose of blog spammers - I don't think they spam blog comments to sell their products as much as to put a bunch of links to their site throughout cyberspace in the hope of raising their Google pagerank. If they linked via tinyurl, Google wouldn't be able to recognize the links.
Have any spammers used tinyurl to evade spam filters
That kinda defeats the purpose of comment spam, which is not to get people to click through (since almost nobody does), but to boost their site's google rank.
So, would that be a legitimate non-baby-Jesus-crying use of tinyurl: as a way to link to a site you want people to read but one that you don't want to help have a higher PageRank?
125: I also think rape depends on consent. That's why I don't see the hypothetical as rape: regardless of whether the cop decides to arrest her afterwards or not, she gave her consent to have sex with him (to the extent that her situation as a prostitute allows her to give consent.) If he arrests her afterwards, she can say "If I had known you were a cop and would arrest me afterwards, I wouldn't have consented," but she can't say "Now that I know you're a cop and I'm under arrest, I take back my consent to something we've already finished doing." Consent doesn't work that way.
#126: That may be true. I think I was conflating the common analogy between stranger rape and having one's wallet stolen ("if you're in a bad neighborhood...") and the way we often talk about prostitution as a contract for a sale of goods, or something. Sloppy statement on my part.
My problem with consent is the capacity it has to drag in all the trickery problems in the above discussion, because if you were tricked, then your consent wasn't valid, etc.
Although I don't see force as looking at it from the rapist's point of view, in a sense crimes have to be defined that way, because of the mens rea, the intent.
I realize my "force" is probably as elastic a concept as your "consent." When the hospitalized woman in a coma turns out pregnant, was she raped? We would all say yes, without knowing about the force, although I would say "forced" by definition, however gently. Clearly your "consent" is clearer there.
#130: But her consent isn't informed consent; basically what she's "giving" the cop is a freebie, because he's already gathered the "evidence" he needs for an arrest.
#133: See, that's why I like the "consent" standard. If you're tricked, the consent isn't valid. Therefore, the onus is on both partners not to lie their way into sex. It creates a pretty clear bottom line for what is and isn't acceptable, with none of this quibbling about "well, it's assholish, but it's not really rape..."
Of course, you'd have to get into discussions about which kinds of lies were significant, and which were minor, so it wouldn't be *that* clear. But I'm radical enough in my feminism to say that any standard that puts more burden on men in "gray" situations to make sure that there's consent, is a good one.
Re. "mens rea"--I'm totally not a lawyer and have only a foggy idea of what that means. But could the "intent" issue behind defining criminal intent extend to cover, say, "I intended to get laid, and didn't bother to obtain consent"? Or is that just completely outside the bounds of what mens rea means? I'm thinking of a property crime situation (maybe it's just me), e.g., doesn't it count as theft if one takes something without asking?
I agree with everything you say about what ought to be wrong, criminal, etc. Also about the higher standard for men.
But I want that to be different, or a superset of Rape, the crime of forcing sex.
Maybe just legal purism on my part, but the fact of how difficult it is to banish, or even alter the public understanding of common law crimes is what informs my preference here.
I don't like the consent standard because I find it too vague from the victim's point of view. Did I consent? Did I lead him on? What if I didn't say 'no' because I was scared? I was drunk, and I didn't say 'no' forcefully enough. Is it rape if we're both to young and stupid to understand the risks of unprotected sex, since we wouldn't have consented otherwise?
I think a weak force standard ('Did I have the ability to do otherwise?') is a little more clear, and for me captures the coercion/violence angle better. Consent always seems to veer into questioning the woman's agency.
Generally mens rea is whether you intended to commit particular acts, not what your goal was. I don't mean to get technical here, I meant to refer to the basic fact that criminal laws say if you do this, you will break the law and be punished. So they are addressed to the would-be criminal, and his pov.
So, if the law defines rape as "you didn't get consent," then not getting consent would constitute intent, yes? As opposed to the argument that mens rea *requires* that the victim's consent or lack thereof not be a factor, b/c it has nothing to do with the criminal's intent?
Cala, I don't see how consent problematizes agency. It privileges it: was I into it, or not? If I didn't say "no" because I was scared, then I didn't consent. If I said no, but weakly, I didn't consent. If I want to have sex, then I damn well need to own up to it. The consequence of this is that yeah, women will have to say "yes" instead of offering a weak no, or silence. I think that's a good thing.
But her consent isn't informed consent; basically what she's "giving" the cop is a freebie, because he's already gathered the "evidence" he needs for an arrest.
I agree. And it is indeed far more than just "assholish." But I still think that this is a very different sort of crime than that of forcing a woman to have sex when she does not consent at all, or forcing a woman to continue after she withdraws her consent, which is what I think of as "rape." I think calling this sort of deception "rape" unnecessarily muddies the waters.
Let me try again. Consent was always part of the definition of rape. It's a defense, e.g. Kobe Bryant. So a traditional definition would include "nonconsensual forced..."
So you want an umbrella moral/criminal concept to cover nonconsensual sex. And I'm probably in the minority in not wanting "rape" to be that. "Statutory" rape is an example that conforms to your expectations. Need not be forced, usually isn't, but the girl is not capable of consenting by definition.
#144: I agree, most people think of it as a different sort of crime. I'm saying, I find it problematic that we think that.
On the other hand, the "statutory" thing makes a certain kind of sense; I'm okay with the idea (which I think is what happens in practice) that there are "degrees" of rape, as in murder.
On the other hand, the "statutory" thing makes a certain kind of sense; I'm okay with the idea (which I think is what happens in practice) that there are "degrees" of rape, as in murder.
I want there to be a crime. I want it to cry to heaven.
However, we have an eight-hundred year history of a particular family of fact patterns, part of but by no means all of the things we mean to banish. Despite this, we hate this crime, and so we use its name for all the things we would proscribe, because of its emotive force. And as the "Statutory" example shows, this attempt to broaden the meaning wasn't invented in 1969.
I would keep the clarity, and the history, and hope something new would cover all the cases where consent was obtained by fraud. But I don't have the power to invent a crime whose very name the community hates and fears; only time and experience could do that. So maybe broadening rape is the way to go, even accepting not only the muddying of the waters, but the risk that the inclusion of tricked consent will attenuate our now clear horror at the violence, fear and trauma of the crime as it is.
All this confusion about rape is why states (including NM) have eliminated rape as a crime, and replaced it with Criminal Sexual Penetration (CSP). By physical force, threats of force, or victim physically or mentally unable to consent, 3d degree. Any of the above, plus causing personal injury, or aided and abetted by another, or armed with a deadly weapon, or in the commission of another felony, 2d degree. Any of the first, plus causing great bodily harm or great mental anguish, 1st degree.
From 125:
#116: See, I have a problem with the idea that rape depends on force; I think it should depend on consent. The "force" issue, imho, is too much like defining rape from the pov of the rapist, rather than from the pov of the victim.
In NM, it's both. From the committee comments to the Uniform Jury Instructions:
By force, 902: "The issue is not how much force or violence is used, but whether the force or violence was sufficient to negate consent. Physical or verbal resistance of the victim is not an essential
element.
By threats, 903: "The belief of the victim as to the ability of the defendant to carry out the threat is measured by a subjective standard. ... The victim's fear need not be reasonable, it must only be real"
And as to consent by deceit, NM says (903) "Promises to confer a benefit upon the victim ... would probably not be considered threats"
Personally, I'm comfortable with this scheme. We generally treat violent wrongs as worse than non-violent wrongs, even if the actual result is much the same. Pointing a gun at someone and threatening to shoot them unless they fork over their wallet is worse than a pickpocket lifting the wallet, or a con man scamming the same amount of money. Threats are violent, promises of a dream vacation in Hawaii aren't. I can't really explain why, but I think that's how it is.
Now, a story I heard from a Public Defender. I cannot personally attest to the truth. Nor do I know how it ended.
Client charged with Criminal Sexual Contact. Accused went to the maternity ward, put on the appropriate costume, and went from patient to patient. To each, he explained that he was the lactation technician, and needed to check their milk production. Which he did.
warning: I'm working from the 1998 Jury Instructions. They may have changed.
B, and anyone else who thinks what the cops did was rape: any sex with a prostitute during which the prostitute believes she will be paid and the john knows from the start that he isn't paying her is rape, because a material condition which led to the woman's decision to have sex was not in fact present? I actually think Tia does do a good job of distinguishing that from the pilot situation, and I've just changed my mind while writing this comment and am willing to call that rape. I don't see the cop situation as different from any john planning to not pay, though. It's going to (in New York) fall under either 130.20 (sexual misconduct) or 130.25 (rape in the third degree), if you can persuade a jury that she didn't consent, because her consent was conditional upon a condition which wasn't fulfilled, and the john should have known that she didn't consent.
I had an argument with a friend the other day about whether or not what the cops are doing could be considered rape. Anyone have an opinion?
Posted by bitchphd | Link to this comment | 02-19-06 2:02 PM
Maybe. They're agreeing to compensate them for the transaction and then not only not compensating them for it, but arresting them. So the condition on which the prostitute consented isn't met. Also, if a prostitute doesn't have meaningful freedom to withhold consent (unclear in this case), sex with her could be a kind of rape.
Posted by Tia | Link to this comment | 02-19-06 2:09 PM
See, that was my argument, too. My (asshole, in law school, we should all be scared) friend's argument was that the cop didn't *force* the hooker to fuck him, so it wasn't rape.
Posted by bitchphd | Link to this comment | 02-19-06 2:11 PM
B, is your question about a) legal or b) moral rape?
Also, do you think the situation is distinguishable from: Man X meets Woman Y at a bar. X lies about how successful he is at his job. Y's false belief about X's success plays some role in her decision to have sex with him.
Also, I think part of the answer is that because prostitution is illegal, a prostitute has no legally cognizable interest in being paid, but I'm sort of pulling that out of my ass.
Posted by washerdreyer | Link to this comment | 02-19-06 2:27 PM
Tricky question. I'm not sure whether it's rape so much as entrapment and breach of contract.
Posted by apostropher | Link to this comment | 02-19-06 2:30 PM
Maybe I should read the article before I venture an opinion.
Posted by apostropher | Link to this comment | 02-19-06 2:30 PM
I had an argument with a friend the other day about whether or not what the cops are doing could be considered rape.
Absolutely not. If I tell a woman that I love her and will marry her to get her into bed, and then I don't - you want that to be rape? It's definitely wrong, but it's not rape.
Also, if a prostitute doesn't have meaningful freedom to withhold consent (unclear in this case), sex with her could be a kind of rape.
This I buy as rape.
Posted by SomeCallMeTim | Link to this comment | 02-19-06 2:33 PM
not only not compensating them for it
If I'm reading the article correctly, the cases all involve encounters where the officers did pay for it.
Posted by apostropher | Link to this comment | 02-19-06 2:34 PM
I think they paid for it too, although presumably if the women were arrested, they didn't keep the proceeds.
Obviously, I don't mean rape in the legal sense--clearly, the cops' actions don't constitute legal rape, or at least, are highly unlikely to be prosecuted as such. My argument ran thusly: obviously it's entrapment and breach of contract. However, the "contract" being breached here isn't an exchange of goods; it's an exchange of money for sex (it's also a legally unenforcable contract, btw). I would argue that violating a contract in order to get laid is different in kind than violating a contract that's about goods or money, and I'm pretty sure that I would feel a lot more violated by being lied to and fucked than I would by being lied to and ripped off.
In the cops' minds, they *know* that the result of this exchange is going to be arrest: this, along with Tia's point about whether or not the right of refusal is really an option for hookers, means that there *is* an implicit threat of force behind the sex--whether or not the woman herself is aware of it. Hence, it's a little bit different from SCMT's "I lied to get a woman into bed" scenario, as should be obvious.
Having said that, I wonder about the scenario where person A lies to person B in order to fuck person B. Is that rape? In a legal sense, no. But in a moral sense....?
Posted by bitchphd | Link to this comment | 02-19-06 2:41 PM
I mean, obviously agreeing to fuck someone who is lying to get you to agree doesn't constitute informed consent. Yes?
Posted by bitchphd | Link to this comment | 02-19-06 2:43 PM
There was a case in Texas where a woman working for an investigative company befriended a man who was suspected of a serious crime and dated him, until finally he proposed marriage. But first he said, "There's something you have to know about me first...." and told her about his crime. The first chance she got she went to a phone booth and called the cops.
Posted by John Emerson | Link to this comment | 02-19-06 3:02 PM
Agreeing to fuck someone who is lying to you about, or omitting to mention, factors which either a) a reasonable person would weigh in deciding whether or not to have sex or b) the particular person lying or omitting has reason to know that you will be weighing, reasonably or not, does not constitute informed consent, and is therefore is in some as yet unspecified way wrongful, and might be rape.
Posted by washerdreyer | Link to this comment | 02-19-06 3:03 PM
Hence, it's a little bit different from SCMT's "I lied to get a woman into bed" scenario, as should be obvious.
It's not the least bit obvious to me, I'm afraid. In part that's because of this: there *is* an implicit threat of force behind the sex--whether or not the woman herself is aware of it. How can you threaten someone if the person is not aware of the threat?
Posted by SomeCallMeTim | Link to this comment | 02-19-06 3:05 PM
Informed consent isn't doing the work here. If I lie to my boyfriend, telling him I'm on the pill, knowing I forgot to take it and he wouldn't want to risk getting me pregnant, and we have sex, I don't think I've just raped him. If he lies and says he loves me to get me into bed, he's a jackass, but not a rapist. If I say I'm disease-free, etc.
Meaningful freedom to withhold consent, however, does seem to be doing the work here. If the prostitute can't say no because of her brothel, then it seems she's raped even if she's paid.
I don't think it counts as rape, even morally, unless the second condition is met. It may count as lots of other moral failings, though.
Posted by Cala | Link to this comment | 02-19-06 3:19 PM
14 gets it exactly right.
Posted by SomeCallMeTim | Link to this comment | 02-19-06 3:24 PM
#13: I think promising something that you then do not deliver is qualitatively different from not mentioning something that is a *conseqense* of whatever-it-is. So, for instance, if I promise to bring you flowers, and then don't, I'm a shit and a liar, and maybe I'm in breach of contract, if you made me dinner b/c I promised flowers in payment. But if you make me dinner b/c I promise to bring you flowers, and I show up with the flowers, but in your head you are thinking, "if that bitch shows up with flowers I will beat the crap out of her" then you are guilty of assault, no?
Posted by bitchphd | Link to this comment | 02-19-06 3:26 PM
You're guilty of assault for thinking 'she's a bitch'? What?
Posted by Cala | Link to this comment | 02-19-06 3:29 PM
You're guilty of assault for beating the crap out of her, no?
And surely it's got to matter that you're setting her up to do something *in order to* beat her up (or, in the cop scenario, to arrest her). If it's not rape, what is it?
Posted by bitchphd | Link to this comment | 02-19-06 3:54 PM
I think this analogy might violate a UN Convention on Torture.
Posted by apostropher | Link to this comment | 02-19-06 4:00 PM
This is a little more straightforward: if an undercover agent makes a drug buy, then arrests the dealer, is the agent guilty of theft?
Posted by apostropher | Link to this comment | 02-19-06 4:05 PM
The acts described by the police are not rape because (from the information available) they did not involve force, threat or intimidation in a legally cognizable sense. It could be entrapment if the officers made the offer of money (that is, if they actively induced the provision of sexual services for money) but the article does not seem to give any indication that this is what happened.
All that being said, it sure seems sleazy, unfair and pointless.
Posted by Idealist | Link to this comment | 02-19-06 4:14 PM
Only if the judge/jury is stoned.
The prostitutes are certainly aware that prostitution is illegal, and that their agreement exposes them to criminal liability. Risk of arrest is assumed by them, as is the possibility that their customers might turn them in.
Posted by Andrew | Link to this comment | 02-19-06 4:20 PM
Legally, they're not rape; I conceded that up front. But I think they are, nonetheless, rape in the sense of coerced sex, even if the coercion doesn't amount to pulling a gun on the prostitutes.
#20: What if the agent makes the buy, then shoots up before making the arrest?
Posted by bitchphd | Link to this comment | 02-19-06 4:27 PM
Doesn't really matter in terms of the theft question; the transaction itself is illegal.
Posted by apostropher | Link to this comment | 02-19-06 4:33 PM
Doesn't it matter in terms of the cop committing a crime?
Posted by bitchphd | Link to this comment | 02-19-06 4:34 PM
To the larger question, the officer would be guilty of illegal drug use, as they would be guilty of solicitation of prostitution.
Posted by apostropher | Link to this comment | 02-19-06 4:35 PM
B, since everyone agrees that it's bad, I think the argument about, "is it rape?" comes down to "Is it as blameworthy, should it be punished as severely, as paradigm cases of rape which we all have in the back of our heads?" My answer to that is no.
Posted by washerdreyer | Link to this comment | 02-19-06 4:39 PM
Apo, I disagree with 24, if the cop is shooting up it means he or she is taking possession of the drugs in his or her private capacity (ie., stealing them), as opposed to in his or her capacity as enforcer of the laws. Which makes it (morally) equivalent to any other kind of theft you care to discuss.
My commas usage in 27 is bad.
Posted by washerdreyer | Link to this comment | 02-19-06 4:42 PM
At that pont, though, it isn't theft from the user, but theft from the state. But point taken.
Tangential question: do pimps exist in the male sex-for-hire trade, or is that an institution more or less specific to female prostitution?
Posted by apostropher | Link to this comment | 02-19-06 4:44 PM
But if you make me dinner b/c I promise to bring you flowers, and I show up with the flowers, but in your head you are thinking, "if that bitch shows up with flowers I will beat the crap out of her" then you are guilty of assault, no?
Note, you don't actually say anyone was beating the crap out of anyone here. Hence my confusion. And you'd be guilty of assault in that case, where you beat her up, regardless of what you were thinking.
In any case, I think that the 'informed' part of 'informed consent', which I do think is a generally reasonable guideline, has been met here. It's not as though she was tricked, or didn't know what sex entailed, all of which would nullify consent. I see what you're saying - she *thought* she was consenting to a paid-for act, but she wasn't, and presumably wouldn't have consented otherwise. But in that case, there's lots of parallels that don't seem to amount to rape. ('If I have sex with him, he won't leave me.' 'If I have sex with her, she won't get pregnant.) I don't think a promise for exchange or reward after the fact nullifies anything here, and it doesn't seem itself to amount to coercion (although the rest of the brothel set-up might.)
This is 'do x and I'll do y', but it's an unenforceable contract because it's illegal. Morally, I don't know what it is besides despicable. Serious breach of promise? It doesn't seem to fit under the umbrella of rape, though, unless we widen the umbrella too much.
Posted by Cala | Link to this comment | 02-19-06 4:44 PM
I think WD has got it. It's an agency and embezzlement question.
When the cop shoots up, he's taking goods obtained in his capacity as an agent of the state and converting them to his own use. It's just like the cop who, arresting the burglar, seizes the stolen Rolex and decides to keep it for himself.
Similarly, the cop who pays the prostitute is obliged to sequester and preserve the fuck, so it can be sold at police auction.
Posted by Michael H Schneider | Link to this comment | 02-19-06 4:47 PM
I think I see what B's getting at. Is this right?
1. The woman in the brothel has to have sex with anyone with money, or she'll be beaten.
2. The cop knows this, and knows she'll have sex with him to avoid the beating.
3. The cop has sex with her anyway.
Not crazy to say it's rape, if that's what B means.
Posted by SomeCallMeTim | Link to this comment | 02-19-06 4:51 PM
I agree with 32, but in that case, the fact that the customer is a police officer is irrelevant. 32 is just saying that patronizing any prostitute is potentially a rape, correct? I would agree with that, but it's a non-sequitur if we're discussing why the police officers' actions were particularly reprehensible.
Posted by text | Link to this comment | 02-19-06 4:55 PM
Just to indulge in a bit of pedantophilia, assault is the threat of force. Any actual application of force is generally battery. Unconsented touching (application of force) is battery (civil, criminal, or both). Uninformed consent is ineffective consent, and thus the touching remains battery. Roughly speaking.
Obtaining something of value, in exchange for a promise which the promisor has no intention of fulfilling, is often a sort of fraud. It's a misrepresentation: the promisor knows the promise is false, and expects the other to rely on the promise to their detriment.
Posted by Michael H Schneider | Link to this comment | 02-19-06 4:55 PM
B. does raise two interesting questions (even if her analogies suck).
First, we know that what the cops did was bad. But was it bad simply because it involved arresting someone for providing a service that the arresting party enjoyed – i.e., bad because it constituted hypocrisy? Or was it bad because there is a special problem tied up with receiving *that* service under false pretenses?
Second, is fraudulently inducing someone to have a sex with you a species of rape? As a general matter, we define rape as having sex with someone who was not given the choice not to have sex with you, either because of the use of force or because the other party was incapacitated in some way (e.g., unconscious). We generally say that what is wrong about fraud is that it deprives the other party of the ability to exercise meaningful choice. Yet most of us don't want to say that lying to get sex is a form of rape. Is it simply a problem with our inability to draw bright lines in this area?
Posted by pjs | Link to this comment | 02-19-06 4:58 PM
If we want to discuss why the police officers' actions were particularly reprehensible, I think it comes down to a particularly egregious form of hypocrisy.
If the point is to arrest prostitutes, it is unnecessary to sleep with them. Also, if the point is to stop prostitution, arresting prostitutes is probably not the best method.
Therefore it seems like the point is to have sex with prostitutes under cover of law. And then arrest the prostitutes, just for fun. It smells of misogyny. The officers are punishing women for crimes that men are most responsible for, and in this instance, they themselves were responsible for.
And what if they shared something special?
Posted by text | Link to this comment | 02-19-06 5:00 PM
re: 34:
To be pedantic back: all true, but irrelevant because a cause of action will not lie where the claim is that the fraud or fraudulent inducement lead a person to commit a crime. The reliance was not reasonable as a matter of law.
re: 31 (the cop who pays the prostitute is obliged to sequester and preserve the fuck, so it can be sold at police auction.)
This comment vividly brings to mind the standard GI quip made to a buddy who asks if you need him to get anything for you while he is out:
"Yeah, get two blow jobs and bring me back one."
Posted by Idealist | Link to this comment | 02-19-06 5:01 PM
If the point is to arrest prostitutes, it is unnecessary to sleep with them
Not an attempt to defend, but the cops' argument is that they couldn't bust the operators of the establishments unless the money passed through to their hands as well.
Posted by apostropher | Link to this comment | 02-19-06 5:04 PM
Here's the thing, pjs: we're all frauds, more or less. Few of us fully accept our faults, and we all engage in puffery, sometimes subtle, and sometimes not so subtle, in persuit of friends and lovers.
Do we want to get in the business of parsing that out, treating some instances of personal puffery as crimes? Seriously, we have enough crimes. It's silly.
Posted by text | Link to this comment | 02-19-06 5:04 PM
Though, in 38, that doesn't prevent the state from lodging charges of maintaining a household to sell drugs.
Posted by apostropher | Link to this comment | 02-19-06 5:06 PM
#32 is right, but there's an extra step there, which is that the cop is fucking her with the intention of arresting her. It adds an extra level of despicability that I feel is, somehow, tatamount to rape, but I am having a really hard time explaining why.
So like the flowers/dinner/beating story, what I was getting at is that the beating would be assault in any case, but the manipulation of the woman into "causing" the beating by bringing flowers makes it something else. Abuse? Isn't domestic violence/abuse different from straight-up assault?
Posted by bitchphd | Link to this comment | 02-19-06 5:06 PM
40: "that doesn't prevent" s/b "that logic hasn't prevented"
Posted by apostropher | Link to this comment | 02-19-06 5:08 PM
38: since I haven't read the link, perhaps I shouldn't opine. Got to run, but I'll leave you all with a hypo:
If I promised my girlfriend pancakes, but did not make pancakes, lacking the batter, and if my girlfriend promised me waffles, but did not make waffles, lacking the initiative, and then we both had sex (with each other), and then my girlfriend thought "I'd like to beat him for refusing to make me pancakes," but she did not beat me, to my dismay, and if I thought "I'd like to perform a dutch oven," and I did perform a dutch oven, and if subsequently my girlfriend did beat me for having performed the dutch oven, and if, after that, we had a nice nap, please identify all instances of rape.
Posted by text | Link to this comment | 02-19-06 5:08 PM
34 is of course correct as as to the common law, and as to Tort law, at least the way I learned it. But if you look at, for instance, the New York Penal Code, the distinction is obliterated, as battery is never mentioned and things which were historically instances of battery are described as assault.
Posted by washerdreyer | Link to this comment | 02-19-06 5:09 PM
Does olfactory rape count?
Posted by apostropher | Link to this comment | 02-19-06 5:09 PM
Ok, I like #35 and #36. I think my problem is that it is obviously misogynistic; and it's using misogyny, somehow, to "get" sex. I don't think #39 is an adequate response: I'm not talking about criminalizing bullshit, exaggeration, or self-flattery.
I will admit that I'm saying that I have a fundamental problem with the idea that a substantive lie designed to "get" a woman (or a guy) to sleep with someone is just par for the course, or garden-variety assholery. It may not be something that, in day-to-day life, we should prosecute, but I think on an ethical level, at least, it's pretty close to rape. And I think that when the law is involved, as it is here with the cops, that somehow it is, or might as well be.
But my sucky analogies are not helping me explain to myself why.
Posted by bitchphd | Link to this comment | 02-19-06 5:14 PM
Thanks for the clarification, WD. I think that the NM statutes, the last time I looked, kept the distinction. NY is a fun place to visit, but I've never wanted to read the penal code.
Posted by Michael H Schneider | Link to this comment | 02-19-06 5:16 PM
On the topic of contracts and sex, I assume you all have seen this, right?
Posted by Becks | Link to this comment | 02-19-06 5:19 PM
Oh gawd. Now that guy *is* explicitly trying to make a "contract" that allows rape.
Posted by bitchphd | Link to this comment | 02-19-06 5:20 PM
Oh, you haven't? I figured everyone had seen it by now. I loooove the font.
Posted by Becks | Link to this comment | 02-19-06 5:21 PM
Now, if someone offered you that, why would you ever marry him?
Posted by SomeCallMeTim | Link to this comment | 02-19-06 5:21 PM
What do you think, Tim? Hell no.
Posted by Becks | Link to this comment | 02-19-06 5:22 PM
No, no, I had seen it. My comment was based on knowing *exactly* which link you were providing, without clicking.
SCMT, she didn't.
Posted by bitchphd | Link to this comment | 02-19-06 5:23 PM
It may be that the fucking cop, unlike the drug buying cop, is actually increasing the amount of crime. The aim of the law against selling sex is to eliminate the selling of sex. The aim of the law against selling drugs is to eliminate the use of drugs.
When the cop buys drugs, it gets them out of circulation. It means those drugs will never be used. It reduces (one hopes) the supply of drugs.
When the cop buys sex, and sex is delivered, that completes the wrong. It's not like the cop is preventing that particular fuck from being cut with flour and resold to schoolkids, who will then become sex addicts.
So we excuse the cop's possession and purchase of drugs, because it furthers the purpose of the law. There's no such excuse with prostitution.
There's also something wrong with cops getting, as a fringe benefit of their employment, something others are forbidden.
Posted by Michael H Schneider | Link to this comment | 02-19-06 5:23 PM
Here's a hypo that might clarify our intuitions. Suppose that a rich man says to a very poor woman: "If you sleep with me, I'll buy the medication that your son needs." And then she agrees. Is it more like rape if he doesn't buy the medication? Or does that not change things?
My sense is that, to the extent that this is like rape, it is because it involves taking advantage of a woman's desperation. The failure to follow through on the promise makes the act more despicable, but not more like rape.
Posted by pjs | Link to this comment | 02-19-06 5:23 PM
Agreed with all of that. But isn't there something else wrong specifically from the p.o.v. of the woman being prostitued? It's not just about her "goods"; it's about a wrong that's being done *to her*.
Posted by bitchphd | Link to this comment | 02-19-06 5:24 PM
#56 to 54.
Posted by bitchphd | Link to this comment | 02-19-06 5:25 PM
I wasn't asking if you would; I'm assuming you would maim the guy, and then leave. I'm wondering why she did. I can understand why people with kids stay married to assholes. I can't understand why they stay with them until that point. Or at least - don't marry him.
Posted by SomeCallMeTim | Link to this comment | 02-19-06 5:25 PM
B -
It says she's his wife.
Posted by SomeCallMeTim | Link to this comment | 02-19-06 5:26 PM
Mostly, I suspect, b/c they are seriously fucked up and have learned, somehow, to be "understanding" of bad treatment. See, e.g., this very wrenching confessional post from a blogger I really like.
Posted by bitchphd | Link to this comment | 02-19-06 5:28 PM
#59: I misremembered, I thought the deal was she was his fiancee.
I revert, then, to my explanation that a lot of women end up in seriously abusive relationships because they're trained to do so, somehow.
Posted by bitchphd | Link to this comment | 02-19-06 5:29 PM
48: "It is also misbehavior when you perform half-assed."
Posted by apostropher | Link to this comment | 02-19-06 5:30 PM
But isn't there something else wrong specifically from the p.o.v. of the woman being prostitued?
I suspect there is, but I can't clearly identify it, so I'm trying different approaches in the hopes of finding something that makes sense.
Posted by Michael H Schneider | Link to this comment | 02-19-06 5:32 PM
Me too, but all I keep coming up with is lame analogies.
Posted by bitchphd | Link to this comment | 02-19-06 5:32 PM
That document is pretty odd, but I suspect is more common in dom/sub relationships than those of us not in them realize. That guy sounds mighty disturbed from the rest of the story, however.
Posted by apostropher | Link to this comment | 02-19-06 5:35 PM
Women in relationships with abusive scumbags can have very messed up priorities. It's not a surprise that someone who has been told they are worthless and been subjected to abuse by someone who has systematically destroyed their sense of self-worth might find it hard to get out a relationship with someone who says they love them, and that they'll change, and that they only beat them because they were really provoked or because they are stressed, etc.
Especially if at other times the abuser can be tender and loving and may well be a genuine fuck-up that the abused person feels they ought to help.
Posted by Matt McGrattan | Link to this comment | 02-19-06 5:38 PM
Maybe is has to do with being cheated. Hypothesis: people feel cheated when they have a set of expectation of others' conduct, and someone changes the rules mid-game.
Assume: prostitutes do it for the money, not for fun.
Assume: for decades, the police/prostitute game has always had the same rules. Prostitute runs the risk that the customer is a cop. If the customer is not a cop, customer gets sex, prostitute gets money, everyone happy. If customer is a cop, customer doesn't get sex, prostitute doesn't get money (gets busted instead). Them's the breaks.
Now the cops are changing the rules so prostitute loses twice: gives sex, doesn't get money. That's cheating.
Getting cheated by the cops seems gallingly unfair. Cops are supposed to play fair.
Posted by Michael H Schneider | Link to this comment | 02-19-06 5:41 PM
Exactly, the "helping" and "understanding" things are a real fucking trap. Why do you think I pride myself on being a fucking bitch who doesn't give a rat's ass about understanding other people's points of view?
Back to the prostitute / rape? thing. I'm really disturbed that I feel there is something wrong with that, and that it seems to be rape, but that I can't figure out how to explain that. It's like we have no social construct for even talking about these things from a point of view that recognizes that rape isn't a form of property crime.
Posted by bitchphd | Link to this comment | 02-19-06 5:42 PM
re: 67
"Cops are supposed to play fair."
That may be an ideal but a lot of people experience cops being unfair on a pretty regular basis.
Posted by Matt McGrattan | Link to this comment | 02-19-06 5:44 PM
The "unfair" thing is a big part of it. But it's more than that--it's a specific kind of misogynistic, power-based unfairness.
Posted by bitchphd | Link to this comment | 02-19-06 5:44 PM
Happier thoughts for women.
Posted by SomeCallMeTim | Link to this comment | 02-19-06 5:44 PM
I have no idea if it's relevant or not, but the arrests in question were, I believe, at a massage parlor. There's a good chance that the sex we're talking about here consisted of handjobs. It's not certain, but that seems like a reasonable premise. Doesn't excuse the behavior, of course, but my intuitive sense is that this would pose less of a psychological cost to the exploited woman than intercourse. Not being a woman, I'm not really in a position to make that call, but I'd be curious to know what other people think.
I may as well also note that the officers' rationale was that prostitution arrests are usually made by verbal self-incrimination; apparently the suspects in this case don't speak English. And (here's where the cops lose me), touching isn't enough to make an arrest under Virginia law. Not quite sure how that works -- is it because it's a massage parlor? A poorly written law? I don't buy it, but that was the sheriff's justification for the practice.
Posted by tom | Link to this comment | 02-19-06 5:45 PM
71 - Although the article brags about USB compatibility, I would think you'd only want to hook that up to your laptop once.
Posted by Becks | Link to this comment | 02-19-06 5:46 PM
another half-baked thought:
Rape is an autonomy crime.
Changing the rules in mid-game is a sort of deprivation of autonomy. It leaves the other person thinking "wtf? this isn't what I agreed to. Where's my freedom of choice?"
When it's done to a group of people who are already powerless, by a very powerful entity, it seems even more unfair, more like abuse or rape.
Posted by Michael H Schneider | Link to this comment | 02-19-06 5:47 PM
I think that's getting really close.
How would one explain that in terms that would make sense, legally?
Posted by bitchphd | Link to this comment | 02-19-06 5:49 PM
How would one explain that in terms that would make sense, legally?
Uh, er, well, um ....... that's a very good question. Everyone should feel free to offer answers here, please?
Posted by Michael H Schneider | Link to this comment | 02-19-06 5:53 PM
The difference between lying about, say, your job to get sex and lying about whether you plan on giving the hooker money is that the lie about your job is a fun illusion to make it more likely she'll have sex with you, and more likely that she'll enjoy it in some weird kind of hey I'm fucking a pilot sense, when she does. When she finds out you're not a pilot, she may be pissed at you, but it doesn't actually abrogate her entire reason for having sex with you.
But a prostitute is getting nothing out of sex but the money; if you rob her of that there was no reason for her to do it. It's much closer to pjs's medication hypo in 55, though I disagree with his (her?) conclusions about the hypo. In a real sense, saying hey, I'll buy you medication if you fuck me is not really worse than any time anyone sees a prostitute--every time she could be doing it out of that much desparation, and every time the john could just give her the money instead of taking the sex. But not giving her the money afterwards is a moral breach of contract that my intuition says basically amounts to rape, and I think the cops' action is similar.
The difference between the cop taking a drug dealer's drugs is that the drug dealer didn't have a right to possession of drugs in the first place in the same way that the prostitute had a right to say what she did with her body.
Posted by Tia | Link to this comment | 02-19-06 5:54 PM
The difference between the cop taking a drug dealer's drugs is that the drug dealer didn't have a right to possession of drugs in the first place in the same way that the prostitute had a right to say what she did with her body.
Yes! Thank you!
Posted by bitchphd | Link to this comment | 02-19-06 5:59 PM
The difference between the cop taking a drug dealer's drugs is that the drug dealer didn't have a right to possession of drugs in the first place in the same way that the prostitute had a right to say what she did with her body.
Good point. Nicely put. That may help answer B: it's wrong because it cheats the prostitute out of something that's rightfully hers, the right to make her own choice about whom she'll have sex with. Or to. Whatever.
Posted by Michael H Schneider | Link to this comment | 02-19-06 5:59 PM
Mutual simultaneous enlightenment. Wow. Thanks, Tia.
Posted by Michael H Schneider | Link to this comment | 02-19-06 6:01 PM
ow would one explain that in terms that would make sense, legally?
I doubt that one can, at least from a statutory perspective.
Another tangent (that doesn't really speak to the question at hand): if you hire somebody to perform in a porn film, then pay them less than was promised, you have a clear case of breach of contract, but not really of rape. I bring this up only to make the observation that, solely by virtue of filming it, it suddenly no longer falls under the prostitution statutes.
Posted by apostropher | Link to this comment | 02-19-06 6:02 PM
Making prostitution legal would solve this problem of course.
UK law, for example, forbids soliciting or the running of brothels and also forbids profiting from other selling sex e.g. pimps or brothel madams.
But if individual men or women want to enter into sex for money as part of a private arrangment with other people, it's not against the law. .
[I just checked this and found a leaflet for prostitutes briefing them on their legal rights]
Under UK law if a 'client' fails to pay after having sex with an escort or prostitute they *can* be sued - it is illegal not to pay.
However, under UK law non-payment doesn't render the sexual act rape after the fact nor does it constitute breach of contract. However, it does constitute 'obtaining services by deception' which is a different offence.
Posted by Matt McGrattan | Link to this comment | 02-19-06 6:09 PM
I tried posting a link to the legal advice leaflet but it triggered the Movable Type spam filter.
Posted by Matt McGrattan | Link to this comment | 02-19-06 6:10 PM
If you email it to me, Matt, I'll add it.
Posted by apostropher | Link to this comment | 02-19-06 6:12 PM
You could make a tinyurl and post that, I think.
Posted by Becks | Link to this comment | 02-19-06 6:12 PM
I seem to be unable to find your email address - your 'name' links to your other blog.
Posted by Matt McGrattan | Link to this comment | 02-19-06 6:13 PM
Matt, can you email me the link so I can see if there's an overzealous regexp in the spam filter? kthxbye.
Posted by ben wolfson | Link to this comment | 02-19-06 6:14 PM
http://tinyurl.com/guoj7
Good idea.
Posted by Matt McGrattan | Link to this comment | 02-19-06 6:14 PM
the same way that the prostitute had a right to say what she did with her body
The asterisk is that, with the exception of a very few locales, she doesn't have the right to do that with her body in exchange for money.
Posted by apostropher | Link to this comment | 02-19-06 6:15 PM
Also, tinyurl considered "kind of useless".
Posted by ben wolfson | Link to this comment | 02-19-06 6:16 PM
[apostropher at apostropher dot com] and [apostropher at unfogged dot com] both work, but I see the issue has been resolved.
Posted by apostropher | Link to this comment | 02-19-06 6:17 PM
Also, tinyurl considered "kind of useless".
And it makes the baby Jesus puke.
Posted by apostropher | Link to this comment | 02-19-06 6:19 PM
Ah yes. All dot-info sites: banned!
Posted by ben wolfson | Link to this comment | 02-19-06 6:19 PM
And it makes the baby Jesus puke.
But it worked, didn't it!
Posted by Becks | Link to this comment | 02-19-06 6:20 PM
Ben, you're probably the go-to guy on this: is there a way to write a regex that would allow a specific dot-info site, but ban the rest?
Posted by apostropher | Link to this comment | 02-19-06 6:20 PM
(Knowing Ben, he's probably going to add tinyurl to the spam filter now just to prove a point.)
Posted by Becks | Link to this comment | 02-19-06 6:22 PM
I'd say decriminalization rather than legalization--I suspect that truly legal prostitution is no friend to women.
Re. #89, even leaving aside the silliness of criminalized prostitution and the mare's nest of issues involved in legislating women's sexuality, I don't think it matters: she may not have the legal right to prostitute herself, but she *does* have the legal right to say yes or no--otherwise it would be impossible for men to rape prostitutes. Which, notwithstanding the difficulty of prosecuting such a crime, the law does acknowledge.
Posted by bitchphd | Link to this comment | 02-19-06 6:24 PM
Actually, I think the filter works by the scorefile (correct term? You know, what slrn uses) and not the killfile principle, so probably something like:
.[]info 5
some-specific.[]info -5
would work.
Posted by ben wolfson | Link to this comment | 02-19-06 6:25 PM
Legalized prostitution does have some good benefits -- in Nevada, they haven't had one case of a legal prostitute contracting HIV. Weirdly, though, many of the women still have pimps in addition to the brothel owners.
Posted by Becks | Link to this comment | 02-19-06 6:26 PM
100! I hate things with bad or neutral benefits.
Posted by washerdreyer | Link to this comment | 02-19-06 6:29 PM
98: I don't mean for here, but for my site (that uses MT-Blacklist). I have a friend with a dot-info site and he can't just put a straight link to his site when he leaves a comment, and I've promised for a long time that I'd figure out how to work around it..
Posted by apostropher | Link to this comment | 02-19-06 6:30 PM
If not, though, then maybe this:
/http:\/.*(?
Where, of course, you would remove the "[]", since it's just there to make sure this comment itself gets through.
Posted by ben wolfson | Link to this comment | 02-19-06 6:31 PM
100 - Sheesh. I'm supposed to think before I comment now?
Posted by Becks | Link to this comment | 02-19-06 6:31 PM
Arg. Crap.
/http:\/.*(?<!\/yoursitehere)\.[]info/
With the same [] proviso.
Posted by ben wolfson | Link to this comment | 02-19-06 6:32 PM
Weirdly, though, many of the women still have pimps
That's the problem with legal prostitution. With decriminalization, you can still test for HIV, etc., but you're not just walking away from the real problems associated with prostitution as industry.
Posted by bitchphd | Link to this comment | 02-19-06 6:34 PM
Rape is an autonomy crime.
Changing the rules in mid-game is a sort of deprivation of autonomy. It leaves the other person thinking "wtf? this isn't what I agreed to. Where's my freedom of choice?"
In the hypothetical being discussed (cop has sex with prostitute and then arrests her after the sex act) what are we defining as "mid-game"? If he arrests her mid-coitus, I can see that as being rape of some sort, but I have a hard time with the idea that, if he arrests her after the sex act is over and done with, it retroactively turns the sex into rape. Deceptive and despicable, yes, but not rape.
Posted by My Alter Ego | Link to this comment | 02-19-06 6:39 PM
105: You could still regulate the prositution industry with mandatory HIV tests and have it legal. Lots of things are entirely legal but heavily regulated.
97: right, whether the contract was legally enforceable is a red herring. The issue is whether the prostitute's bodily autonomy is breached, when it is when she's tricked into sex that she's not paid for.
Posted by Tia | Link to this comment | 02-19-06 6:39 PM
OT... Mare's nest? Like horses? (The equivalent locution I've always heard is 'hornets' nest.)
Posted by Cala | Link to this comment | 02-19-06 6:40 PM
Completely off-topic, but I'd just like to say that the smell of my neighbor's fireplace is wafting into my apartment and it's really, really nice. That is all.
Posted by Becks | Link to this comment | 02-19-06 6:40 PM
#106: Yeah, but the point is the cop knows, and intends, to arrest her *before* the sex act. It's not retroactive nuthin'.
Posted by bitchphd | Link to this comment | 02-19-06 6:41 PM
All that glitters is a mare's nest, Cala.
Posted by ben wolfson | Link to this comment | 02-19-06 6:41 PM
I think "mare's nest" means "a thing that doesn't exist."
Posted by bitchphd | Link to this comment | 02-19-06 6:42 PM
Secretly I was hoping someone would ask about that ?<! bit in the regular expression so I could make an extremely forced joke about looking at behinds.
Posted by ben wolfson | Link to this comment | 02-19-06 6:43 PM
111 - I went to your link but I didn't feel anything.
Posted by Becks | Link to this comment | 02-19-06 6:44 PM
'Violated bodily autonomy' captures my intuitions well as far as determining what's special about tricking the ... trick-turner? (sry) as opposed to tricking the drug dealer. It's a more serious hypocrisy on the part of the cop.
Posted by Cala | Link to this comment | 02-19-06 6:45 PM
I like Tia's and MHS exploration of what he calls "an autonomy crime," and it's compelling to me. But I can't think of it as rape.
To me, the essence of rape is force. The modern understanding, that rape is not about sex so much as about power, violence and domination, gets to the heart of it.
Here in Illinois, as in some states mentioned above, the common law crimes have been superseded by a criminal code, which defines every term it uses. Hence "rape" in a sense no longer exists; degrees of criminal sexual assault have replaced it. I am told, however, that when arguing to a jury, it is best to keep the common law elements in mind, and meet them too if you can, because despite jury instructions that's what people want to know. The most notorious of the elements of common law rape is that the woman must have "cried out" unless she can show that she couldn't.
But despite criminal codes, the essence of both the common law crime of rape and the idea which survives it ought to be force, I think. This carries us much farther than common law today: the most obvious uniquely modern instance is "marital rape," inconceivable in the past by definition, yet commonly accepted now.
Certainly there must be many instances where the harm, and the trauma, induced by the frauds and deceptions mentioned above are actually more devastating than forced sex might be in some circumstances. I'd love to see at least a civil action for that kind of violation, based not on property fraud but on the loss of autonomy. I'd like a hissing, execrating word for it too, something more than "assholery."
Posted by John Tingley | Link to this comment | 02-19-06 6:45 PM
Were you under the impression that you were supposed to feel something? I'm confused.
Posted by ben wolfson | Link to this comment | 02-19-06 6:46 PM
117 - It was a really bad riff off of the "All that glitters" Don't mind me. I'm just commenting for my own amusement, as usual.
Posted by Becks | Link to this comment | 02-19-06 6:49 PM
Ben, you fixed my blacklist dilemma. Hooray for Ben!
Posted by apostropher | Link to this comment | 02-19-06 6:49 PM
Ben is the hero!
Posted by ben wolfson | Link to this comment | 02-19-06 6:49 PM
Depends on the definition of force. In the broad sense of 'reasonable ability to do otherwise', sure. In the narrow sense of, 'must have had imminent threat of physical violence' it seems far too narrow to encompass what should count as rape.
Posted by Cala | Link to this comment | 02-19-06 6:51 PM
110: What if the cop intends to arrest her beforehand, but the sex is so amazing for him that he changes his mind, falls in love with her, and decides not to arrest her? That would not be rape, would it?
What if, two days later, he recosiders and then goes back to arrest her? Is that rape?
Posted by My Alter Ego | Link to this comment | 02-19-06 6:53 PM
#121:
Give me a for instance.
And remember, I think these things are evil, I just want to keep "rape" simple, or at least as comprehensible as possible.
Posted by John Tingley | Link to this comment | 02-19-06 6:55 PM
recosiders s/b reconsiders
Posted by My Alter Ego | Link to this comment | 02-19-06 6:56 PM
#116: See, I have a problem with the idea that rape depends on force; I think it should depend on consent. The "force" issue, imho, is too much like defining rape from the pov of the rapist, rather than from the pov of the victim.
Posted by bitchphd | Link to this comment | 02-19-06 7:11 PM
Have any spammers used tinyurl to evade spam filters? It seems like such an obvious move I'd be surprised if it were not the primary usage of tinyurl.
Bitch, your "It's like we have no social construct for even talking about these things from a point of view that recognizes that rape isn't a form of property crime" sounded a little weird to me. Rape is frequently not discussed as a property crime -- though the older framework is to view it as a crime against the husband or father of the woman or girl (and I guess to pretty much ignore it when committed against a spinster) -- and though one does see it now viewed as an intrusion on the woman's proprietary interest in her body -- I think most often it is spoken of as a crime of violence and akin more to battery than to theft. The property-crime analogies seemed to come up because in this case the act under discussion is prostitution which involves an exchange of money so property seems to fit, and because the police were not (that I know) committing any battery against the women they were arresting.
Posted by Jeremy Osner | Link to this comment | 02-19-06 7:17 PM
Tinyurl seems like it would defeat the purpose of blog spammers - I don't think they spam blog comments to sell their products as much as to put a bunch of links to their site throughout cyberspace in the hope of raising their Google pagerank. If they linked via tinyurl, Google wouldn't be able to recognize the links.
Posted by Becks | Link to this comment | 02-19-06 7:21 PM
Have any spammers used tinyurl to evade spam filters
That kinda defeats the purpose of comment spam, which is not to get people to click through (since almost nobody does), but to boost their site's google rank.
Posted by apostropher | Link to this comment | 02-19-06 7:23 PM
So, would that be a legitimate non-baby-Jesus-crying use of tinyurl: as a way to link to a site you want people to read but one that you don't want to help have a higher PageRank?
Posted by Becks | Link to this comment | 02-19-06 7:23 PM
125: I also think rape depends on consent. That's why I don't see the hypothetical as rape: regardless of whether the cop decides to arrest her afterwards or not, she gave her consent to have sex with him (to the extent that her situation as a prostitute allows her to give consent.) If he arrests her afterwards, she can say "If I had known you were a cop and would arrest me afterwards, I wouldn't have consented," but she can't say "Now that I know you're a cop and I'm under arrest, I take back my consent to something we've already finished doing." Consent doesn't work that way.
Posted by My Alter Ego | Link to this comment | 02-19-06 7:27 PM
#126: That may be true. I think I was conflating the common analogy between stranger rape and having one's wallet stolen ("if you're in a bad neighborhood...") and the way we often talk about prostitution as a contract for a sale of goods, or something. Sloppy statement on my part.
Posted by bitchphd | Link to this comment | 02-19-06 7:30 PM
127 - 128: Oh yeah, duh.
Posted by Jeremy Osner | Link to this comment | 02-19-06 7:30 PM
#125
My problem with consent is the capacity it has to drag in all the trickery problems in the above discussion, because if you were tricked, then your consent wasn't valid, etc.
Although I don't see force as looking at it from the rapist's point of view, in a sense crimes have to be defined that way, because of the mens rea, the intent.
I realize my "force" is probably as elastic a concept as your "consent." When the hospitalized woman in a coma turns out pregnant, was she raped? We would all say yes, without knowing about the force, although I would say "forced" by definition, however gently. Clearly your "consent" is clearer there.
Posted by John Tingley | Link to this comment | 02-19-06 7:30 PM
#130: But her consent isn't informed consent; basically what she's "giving" the cop is a freebie, because he's already gathered the "evidence" he needs for an arrest.
Posted by bitchphd | Link to this comment | 02-19-06 7:31 PM
133 -- so you're saying somebody had sex w/the comatose woman in the hospital? I'd say that was rape, yeah. Who was it, the internist?
Posted by Jeremy Osner | Link to this comment | 02-19-06 7:32 PM
It was a man, or a woman with a syringe.
Posted by John Tingley | Link to this comment | 02-19-06 7:35 PM
#133: See, that's why I like the "consent" standard. If you're tricked, the consent isn't valid. Therefore, the onus is on both partners not to lie their way into sex. It creates a pretty clear bottom line for what is and isn't acceptable, with none of this quibbling about "well, it's assholish, but it's not really rape..."
Of course, you'd have to get into discussions about which kinds of lies were significant, and which were minor, so it wouldn't be *that* clear. But I'm radical enough in my feminism to say that any standard that puts more burden on men in "gray" situations to make sure that there's consent, is a good one.
Posted by bitchphd | Link to this comment | 02-19-06 7:36 PM
Re. "mens rea"--I'm totally not a lawyer and have only a foggy idea of what that means. But could the "intent" issue behind defining criminal intent extend to cover, say, "I intended to get laid, and didn't bother to obtain consent"? Or is that just completely outside the bounds of what mens rea means? I'm thinking of a property crime situation (maybe it's just me), e.g., doesn't it count as theft if one takes something without asking?
Posted by bitchphd | Link to this comment | 02-19-06 7:39 PM
#137
I agree with everything you say about what ought to be wrong, criminal, etc. Also about the higher standard for men.
But I want that to be different, or a superset of Rape, the crime of forcing sex.
Maybe just legal purism on my part, but the fact of how difficult it is to banish, or even alter the public understanding of common law crimes is what informs my preference here.
Posted by John Tingley | Link to this comment | 02-19-06 7:42 PM
I don't like the consent standard because I find it too vague from the victim's point of view. Did I consent? Did I lead him on? What if I didn't say 'no' because I was scared? I was drunk, and I didn't say 'no' forcefully enough. Is it rape if we're both to young and stupid to understand the risks of unprotected sex, since we wouldn't have consented otherwise?
I think a weak force standard ('Did I have the ability to do otherwise?') is a little more clear, and for me captures the coercion/violence angle better. Consent always seems to veer into questioning the woman's agency.
Posted by Cala | Link to this comment | 02-19-06 7:43 PM
Generally mens rea is whether you intended to commit particular acts, not what your goal was. I don't mean to get technical here, I meant to refer to the basic fact that criminal laws say if you do this, you will break the law and be punished. So they are addressed to the would-be criminal, and his pov.
Posted by John Tingley | Link to this comment | 02-19-06 7:56 PM
So, if the law defines rape as "you didn't get consent," then not getting consent would constitute intent, yes? As opposed to the argument that mens rea *requires* that the victim's consent or lack thereof not be a factor, b/c it has nothing to do with the criminal's intent?
Cala, I don't see how consent problematizes agency. It privileges it: was I into it, or not? If I didn't say "no" because I was scared, then I didn't consent. If I said no, but weakly, I didn't consent. If I want to have sex, then I damn well need to own up to it. The consequence of this is that yeah, women will have to say "yes" instead of offering a weak no, or silence. I think that's a good thing.
Posted by bitchphd | Link to this comment | 02-19-06 8:08 PM
We discussed the consent/agency thing while you were gone, B.
Posted by teofilo | Link to this comment | 02-19-06 8:14 PM
But her consent isn't informed consent; basically what she's "giving" the cop is a freebie, because he's already gathered the "evidence" he needs for an arrest.
I agree. And it is indeed far more than just "assholish." But I still think that this is a very different sort of crime than that of forcing a woman to have sex when she does not consent at all, or forcing a woman to continue after she withdraws her consent, which is what I think of as "rape." I think calling this sort of deception "rape" unnecessarily muddies the waters.
Posted by My Alter Ego | Link to this comment | 02-19-06 8:14 PM
Let me try again. Consent was always part of the definition of rape. It's a defense, e.g. Kobe Bryant. So a traditional definition would include "nonconsensual forced..."
So you want an umbrella moral/criminal concept to cover nonconsensual sex. And I'm probably in the minority in not wanting "rape" to be that. "Statutory" rape is an example that conforms to your expectations. Need not be forced, usually isn't, but the girl is not capable of consenting by definition.
Posted by John Tingley | Link to this comment | 02-19-06 8:18 PM
#144: I agree, most people think of it as a different sort of crime. I'm saying, I find it problematic that we think that.
On the other hand, the "statutory" thing makes a certain kind of sense; I'm okay with the idea (which I think is what happens in practice) that there are "degrees" of rape, as in murder.
Posted by bitchphd | Link to this comment | 02-19-06 8:24 PM
On the other hand, the "statutory" thing makes a certain kind of sense; I'm okay with the idea (which I think is what happens in practice) that there are "degrees" of rape, as in murder.
I agree.
Posted by My Alter Ego | Link to this comment | 02-19-06 8:32 PM
I want there to be a crime. I want it to cry to heaven.
However, we have an eight-hundred year history of a particular family of fact patterns, part of but by no means all of the things we mean to banish. Despite this, we hate this crime, and so we use its name for all the things we would proscribe, because of its emotive force. And as the "Statutory" example shows, this attempt to broaden the meaning wasn't invented in 1969.
I would keep the clarity, and the history, and hope something new would cover all the cases where consent was obtained by fraud. But I don't have the power to invent a crime whose very name the community hates and fears; only time and experience could do that. So maybe broadening rape is the way to go, even accepting not only the muddying of the waters, but the risk that the inclusion of tricked consent will attenuate our now clear horror at the violence, fear and trauma of the crime as it is.
Posted by John Tingley | Link to this comment | 02-19-06 8:42 PM
All this confusion about rape is why states (including NM) have eliminated rape as a crime, and replaced it with Criminal Sexual Penetration (CSP). By physical force, threats of force, or victim physically or mentally unable to consent, 3d degree. Any of the above, plus causing personal injury, or aided and abetted by another, or armed with a deadly weapon, or in the commission of another felony, 2d degree. Any of the first, plus causing great bodily harm or great mental anguish, 1st degree.
From 125:
#116: See, I have a problem with the idea that rape depends on force; I think it should depend on consent. The "force" issue, imho, is too much like defining rape from the pov of the rapist, rather than from the pov of the victim.
In NM, it's both. From the committee comments to the Uniform Jury Instructions:
By force, 902: "The issue is not how much force or violence is used, but whether the force or violence was sufficient to negate consent. Physical or verbal resistance of the victim is not an essential
element.
By threats, 903: "The belief of the victim as to the ability of the defendant to carry out the threat is measured by a subjective standard. ... The victim's fear need not be reasonable, it must only be real"
And as to consent by deceit, NM says (903) "Promises to confer a benefit upon the victim ... would probably not be considered threats"
Personally, I'm comfortable with this scheme. We generally treat violent wrongs as worse than non-violent wrongs, even if the actual result is much the same. Pointing a gun at someone and threatening to shoot them unless they fork over their wallet is worse than a pickpocket lifting the wallet, or a con man scamming the same amount of money. Threats are violent, promises of a dream vacation in Hawaii aren't. I can't really explain why, but I think that's how it is.
Now, a story I heard from a Public Defender. I cannot personally attest to the truth. Nor do I know how it ended.
Client charged with Criminal Sexual Contact. Accused went to the maternity ward, put on the appropriate costume, and went from patient to patient. To each, he explained that he was the lactation technician, and needed to check their milk production. Which he did.
warning: I'm working from the 1998 Jury Instructions. They may have changed.
Posted by Michael H Schneider | Link to this comment | 02-19-06 11:34 PM
B, and anyone else who thinks what the cops did was rape: any sex with a prostitute during which the prostitute believes she will be paid and the john knows from the start that he isn't paying her is rape, because a material condition which led to the woman's decision to have sex was not in fact present? I actually think Tia does do a good job of distinguishing that from the pilot situation, and I've just changed my mind while writing this comment and am willing to call that rape. I don't see the cop situation as different from any john planning to not pay, though. It's going to (in New York) fall under either 130.20 (sexual misconduct) or 130.25 (rape in the third degree), if you can persuade a jury that she didn't consent, because her consent was conditional upon a condition which wasn't fulfilled, and the john should have known that she didn't consent.
Posted by washerdreyer | Link to this comment | 02-20-06 12:22 AM
Hm. No one ever responded to w/d. No, I don't think it's closer to rape if a cop does it than any other john. But it is more hypocritical.
Posted by Tia | Link to this comment | 02-21-06 7:45 AM
Hooray!
Titties!Attention!Posted by washerdreyer | Link to this comment | 02-21-06 3:56 PM