I don't know, but I'll be happy to blame this Swedish court for every woman that loses an election today.
Yes, let's hold liberals in other countries responsible for our own local misogynistic voters. That's the ticket.
You don't get to play games you haven't talked about first. This reads clearly as rape to me.
2: But we can't let the politically correct liberals in this country off the hook.
How can you have know you are having consensual "rough sex" with somebody you just met and who never said yes?
3 is an excellent point. I don't know why I was assuming there'd been a dom-sub-rough aspect to the Tindr connection.
The problem is that she doesn't know if she's dealing with a rapist or a reasonable guy.
No! The same guy can be both a few minutes apart. Rape is an action, not a status.
General, mistaken belief of consent is not a defense in the United States, although a prosecutor might not take cases that have this kact pattern. . In at least some states, reasonable but mistaken belief of consent can be a mitigating factor that would reduce a sexual assault charge from e.g. 1st degree to 2d degree.
"I thought she was play-acting rough sex," if accepted as a defense, creates a pretty wide loophole for all sorts of rape-y misbehavior. Anything at that level certainly places an extra presumption of early verbal consent being needed. On the other hand, she went along with it, including initiating nudity, for a long time, then finally said "no" and he stopped. Sexual relations are complicated.
Jeepers, how hard is it to ask someone if this is what they want?
3 seems to me a very cultural thing. There are places where the games are so well understood that consent is only ever tacit. The business of verbal explicitness is new and not universally adopted. Without knowing anything of the background: what they had talked about on Tinder; what they talked about in his flat, and so on -- in short their ages and expectations from the date -- it's really hard to make a decision about whether he should have known better.
The court did have access to that material and I haven't read the raw judgment, if it's published.
["Rough sex" was my interpretation, not in the report. I still think it's fair. In any case, she moved his hands away from some places, andf then he put them back, but she did not say no verbally and did take her top off.]
I think that in the absence of contrary verbal communication (or written, I guess), pushing away somebody's hands is pretty clear rejection.
11: "There are places where the games are so well understood that consent is only ever tacit"
Also known as "no means yes". That dog don't hunt no mo'.
Also: "if she thought she was being raped, why didn't she fight back?"
Maybe because she didn't want to risk being beaten to within an inch of her life by a man twice her size? Compliance in no way implies consent when the threat of force is very real.
I mean, FFS (not that I know anything about this, but hell, it's a staple of TV) BDSM always involves safe-words. FFS. FFS. It's -negotiated- beforehand. No evidence of that here. This is straight-up rape. Nothing "careless/inattentive" about it.
No! The same guy can be both a few minutes apart. Rape is an action, not a status.
I totally failed to write what I meant to write in my head. What I intended to convey is:
The problem with armchair analyses that expect her to just forcefully say no is that she doesn't know if she's dealing with a rapist or a reasonable guy.
I think I lost track of the point I was in the midst of making when I wrote that.
Oh, actually it changed even more post-hoc - originally I wrote "lunatic or reasonable guy".
She was terrified by this and stopped resisting - at which point he stopped fucking her.
Nworb sees this a proof that the guy genuinely thought that she was consenting and her resistance was part of the play. But I had a different possible explanation -- once she stopped resisting, he wasn't aroused.
The odds that I am going to internally explode in rage before the end of this thread go approximately to 1, so I probably shouldn't be commenting, but:
The problem with armchair analyses that expect her to just forcefully say no is that she doesn't know if she's dealing with a rapist or a reasonable guy.
It's more than this. It's not like people who are trying to get someone to back off, or who are noticing that someone is already ignoring them, are these hyperrational prediction agents who are deliberately choosing the strategy designed to maximize their safety. The situation is extremely stressful and violating and can evoke a wide variety of emotional and physiological responses up to and including submission and defeat, dissociation, and freezing. It isn't always easy to say no directly.
It was so validating the time I was actually in a situation with a couple in which the man was all over me and I was trying to get him to stop. The woman who was also in the room could clearly tell that I wanted it to! It *wasn't* that mysterious, even if I was a little indirect. All of my words and facial expressions were communicating discomfort. I said many things like "I need to slow down." She said, out loud, "she's making no faces." (And I was also saying words.) But at the same time I am sure that if I had managed to robotically say something like, "THIS IS AN ASSAULT IN PROGRESS. STOP TOUCHING ME. I DO NOT CONSENT TO BEING TOUCHED," I would have been able to get him to stop, because sure, this kind of man doesn't want to think of himself as a rapist. But the response that would, in hindsight, have stopped it isn't always accessible in the moment. It might be hard for you to understand this if you haven't experienced it.
Nworb sees this a proof that the guy genuinely thought that she was consenting and her resistance was part of the play. But I had a different possible explanation -- once she stopped resisting, he wasn't aroused.
Also, it might be true that he genuinely thought that, because there is a substantial population of men who are highly skilled at making themselves believe that a woman wants something when there's any exploitable ambiguity, even if that ambiguity is five minutes since the last time he heard the word no. It may be *simultaneously* true that he's thrilled by extracting something by manipulation and force in another part of his consciousness.
The odds that I am going to internally explode in rage
Tia, I'm sure a lot of people, reading this, feel exactly the same way.
Was this a judge trial or a jury? At any rate whoever was making the decision had way more info than the article and barring any evidence of bias I'm inclined to trust their judgement.
The existence of this as a crime is unambiguously a good thing. Whether their justice system is fair is a separate question, but we don't say murder should be legal in the US just because our legal system has problems.
Of course issues of sentencing guidelines are fraught and complicated and I don't know enough to know how the punishment fits into their standards and whether it's reasonable.
Tia: I don't mean to cause explosions of rage. I may very well be wrong in my reactions to this story and I have tried to excerpt all the relevant evidence from the report I have. Your story is entirely convincing about why women can't say what the law, so to say, expects them to.
Oh, don't worry, I haven't yet exploded in rage. BUT I WILL. (uh, read the last with some sense of humor/irony about myself.)
It's just that the last time I actively participated in a long thread about this (under a temporary pseud in the gswift "false accusation" conversation) some dudes showed up to say stuff like taking off your pants is strong evidence of consent to unprotected intercourse (for a virgin!). I still regret not being meaner about that.
21: it will have been a judge with a panel of assessors at that level. I agree that they had information we don't and I also am inclined to trust their explicit statement that this would not have been a crime until July this year, when the law changed.
The relevant change was from the test of whether in fact he knew or cared that she was not consenting to whether he should have known.
Tia's 19 is relevant here -- the implicit claim is that some men cannot know because they are so good at fooling themselves. On reflection, I think she's right. (There's a long story to illustrate this which I may put into another comment.)
None the less, it was opposed by the Swedish Lawyers' organisation (which is headed by a woman) and similar laws have been rejected in Norway and Finland. I need to look again at the lawyers' objections.
These two questions are worth separating:
1a Ought society declare this sort of behavior a crime?
1b Has society in fact declared this sort of behavior a crime?
It seems to me like possibly the answer to 1a is yes and to 1b is no, and it's pretty sketchy to imprison someone for something like that or discover that it's a crime by finding someone guilty of it. Much less sketchy to consider it a tort of some kind.
On sentencing, seems like one plausible way to deal with the problem of people deliberately skirting the zone of ambiguity is to have escalating penalties for repeat "gray area" offenders. Has this been tried anywhere?
Doesn't US law "solve" this question by having laws that do more or less criminalize the behavior described, but then having investigation, prosecutions, and cases vary wildly in how they treat them?
also going to explode, probably. there's no conceivable way you could think someone you just met on tinder is into rough sex without, like, checking first. this is just as rapey as can be.
Also, I think NW is misconceiving the point of the negligence standard -- you're thinking of it as criminalizing conduct that is genuinely a good faith mistake. What it sounds like to me is recognition that "I made a good faith mistake" is a defense that it is going to be almost impossible to disprove beyond a reasonable doubt in a lot of circumstances. But that in most of those circumstances, the defense is either consciously dishonest, or at least super self-interested.
So, the law says that having sex with someone is a very dangerous thing to do if you're not super clear about consent. If you think you're in one of those social circles where unspoken consent for rough sex is a thing? Go for it, if you're really really sure your unspoken communication is correct. If you get it wrong, though you're going to jail.
Think of negligent homicide. It is perfectly possible to want to shoot an apple off someone's head without wanting to hurt them, just because it would be a great stunt. But if you shoot them in the face, you've committed a crime even if you never meant to do something bad -- the only people who are permitted by the law to do that sort of thing, are people who are actually skilled enough not to hurt anyone doing it.
Having rough sex without clearly negotiated verbal consent is the equivalent of aiming a gun at an apple balanced on your friend's head. If you make an honest mistake and it all goes bad, no one cares -- all the responsibility is yours.
30.1 Or people who do it in Mexico and then go back to the United States.
Eh, this just sounds like rape to me.
As others have noted above, if you're playing games, you need to have some agreed-upon rules.
Also also -- NW, you misread the article. You said the court found that he made a sincere mistake. But here's the language you quote:
The court held that "in the light of this background, and of their Tinder messages after the event, ... it is not proven that at the time of the event X understood that there was a high risk that [she] didn't consent, nor that he was indifferent to the question of whether she consented."
This seems like a roughly typical rape case with the lesser charge leading to an unusual result: a conviction. I may be wrong, but this guy's defense seems entirely typical - I thought she was into it, she didn't say no properly, she was a slut, on and on in so many cases. This charge seems to address that sort of defense and make acquaintance rape/date rape cases easier to try and convict.
Misunderstandings around sex certainly happen, but I think a misunderstanding so egregious it leads to rape charges is not a good faith mistake where everyone behaved well and deserves the benefit of the doubt.
OK. I was wrong about this particular case. You [plural] have persuaded me. LB's "loophole" theory is probably the correct explanation. I will bear all this in mind when talking to people about it in Sweden.
And thanks, genuinely, to all the people who disagreed and did not explode.
I still think the law has worrying aspects, though. It seems part of a broader redefinition of rape as "sex that one party doesn't really want to have". There is a case for criminalising all such behaviour (and a case against doing so, based around the complexities of consent) but the old definition of rape was something much closer to "sex compelled by violence or the credible threat of violence". Bundling them all together doesn't seem to be helpful and will certainly not be friction free.
Argument in favour of doing so: that we wish to extend the penumbra of horror and shame that surrounds violent rape to all kinds of other behaviours in order to discourage them.
Argument against doing so: there really are different degrees of consent; almost all human relations involve a power imbalance and quite often people themselves don't know if they are consenting, or how much. It's not clear that bad sex should be a criminal offence.
[earlier this month I translated a 4,500 word essay by one of the women who fucked Jean Claude Arnault, the Swedish Academy rapist, and one way of reading it is a long interrogation of herself about whether and why she had really consented -- there was no physical force involved, and no threat of it. It was a bad, horrible, decision of hers to take off her clothes and fuck him when he asked, but unlike the crimes for which he has been convicted, I don't think it would have been a criminal offence under any definition of rape.]
I don't find "are we going too far?" fretting very helpful in the absence of evidence of actually going too far. See also #metoo. It is reflective of a deeply instinctual urge to worry about the well-being of the more powerful the instant we have started to rebalance the scales.
Relatedly, some feedback on your language: "sex that one party doesn't really want to have" This reads as trivializing. Try: sex that one party has not consented to. Your evidence or reasoning for your claim that "bundling them all together doesn't seem to be helpful" is that people often don't know how much they are consenting, or how much. What is an example of someone who was maybe somewhat ambivalent (a) deciding to press rape charges and (b) getting a conviction? You think that might happen under this law? On what basis? (And really, in the absence of explicit negotiation, it's not clear how choking someone isn't a severe threat, and doesn't make this "violent" rape, to use your distinction.)
It's not clear that bad sex should be a criminal offence.
Who is saying it is? You provide no instances of this coming close to happening. In the absence of an instance of bad sex being criminalized, this is also extremely trivializing. More feedback: as an ex used to say, quoting Homer Simpson: "urge to kill ... rising."
You reference an introspective essay about the internal experience of a woman who had sex with a rapist. She didn't provide pursue rape charges that were illegitimate, you yourself say he wouldn't have been legally liable for this encounter, so this is evidence that ... ambivalence exists?
Finally, your every use of the word "fuck" here is squicking me out, particularly in the post -- "fucking without due care and attention"/"passionate fuck". It also reads as trivializing, and as an overly familiar description of what was certainly traumatic (in the instances where you use it to describe a non-consensual encounter) or at least a word that belongs to a person describing their own encounter (the woman who wrote the essay).
Piling in after Tia, who I agree with -- I gave my reasons above for why I don't think the Swedish law you're concerned about is a problem, and it sounds as if you were generally convinced by everyone's comments to that effect. Asking 'could we end up going too far along these lines' doesn't seem like a useful line of inquiry in the abstract, if you're not thinking about some particular law enforcement measure that you're concerned about coming to pass.
Broadly, you say you're worried about criminalizing sex that "one party doesn't really want to have". Assuming the normal constraints of the criminal law (that you need to have some level of mens rea: someone who justifiably (which excludes this defendant) believed that the sex they were having was consensual isn't in jeopardy) what's the worry? What is the social good you see in preserving the ability of one person to have sex with another person who doesn't want to have sex without fear of consequences?
In general, and barring a few special cases (someone actively trying to get pregnant but not desiring the necessary sex; I suppose sex workers could come into this category sometimes) if someone is having sex that they don't want to be having, something very bad and damaging is going on. Changes in attitudes and laws that make this less likely to happen seem to me to be a good thing, and I'm going to worry about ill-effects from such changes only when they're described concretely in a way I understand.
Apologies for the use of "fuck", first.
But I don't want to use "consent" as a term because I don't think it's precise enough. The model where "consent" covers all the problems is two autonomous people negotiating from conditions of equal power and desirability but many, perhaps most, human relations are not like that. There are power imbalances built in. "sex that one party has not consented to" is a phrase that just paves over all those difficulties.
You correctly understand me as saying that people often don't know how much they are consenting, or how much. and then you want an example. I can only stipulate because the law is new, at least in Sweden, and there has been only one case brought under it, which we are agreed ought to have counted as rape in any circumstances. (And, I concede again the point that in this case the new law is kind of irrelevant because, whatever the court says, it ought on the evidence before us to have counted as rape under the old law too. This is LB's argument above.)
But, and given that this is stipulation, here's an example of the thing that troubles me about the new law: suppose X, the woman who had sex more-or-less voluntarily with JCA, had come to the conclusion afterwards that she hadn't really consented. Certainly, by her own description, she behaved without enthusiasm. If today's law had been in place, would this retroactive conclusion have made his actions criminal? And, conversely, if she decided in retrospect that she had consented, would that make his actions acceptable? It certainly makes them legal.
I don't think her deliberations afterwards change the morality of the situation. What he did was wrong and exploitative, whether or not she realised it. But moving this reasoning into the law, or perhaps just calling it "rape", does worry me. Not, I think, because I want to preserve the freedom of goatish old men to prey on young women, but because it makes the definition of the crime depend on the victim's state of mind and not just the perpetrator's. This points to the pertinent difference between negligent homicide, and this law: in the first two cases, there is a clear physical wrong done. In the law under discussion, the harm done is at least partly dependent on whether the victim recognises it as such.
And in some sorts of abuse cases, we do allow this sort of retrospective reconsideration: "I went along with it at the time but now I see it was abusive" would presumably be a completely valid argument in a case of child abuse / underage sex. But with a 21-year-old? With a 35-year-old? At what stage should the law say "You made a bad decision with the help of a bad man, but this is not a legal problem"? You may think the answer is "never", of course.
You may say that I am still siding with the powerful against the powerless; that power lies precisely in the ability to over-ride weak and feeble signals and not to have to care about them. But the Swedish law deals with signals which are ambivalent and which can be misinterpreted in good faith. If this is to be more than a tactical manouvre (the LB explanation) then we are back in the situation where someone can commit a crime without either intending to or knowing that this is what they have done and which is summoned into being by the reaction of another participant after the event. That does seem wrong to me.
[Again, the obvious countermove is to say that such a position could never come up in real life. In that case there is no point in passing a law against it, surely. But I think the example I came up with above is fairly realistic].
One way round this would be to pass a law that said "all sex is illegal except that which takes place with enthusiastic consent between adults". Then you could have a set off offences graded according to how far they deviated from this ideal. I'm sure that the lawyers could shoot holes in that plan.
So, your entire issue is that it's a problem to make conduct criminal if there was no way for the actor to know that anything wrong was happening? I wholeheartedly agree.
When you can point to some criminal justice reform in that area that makes that likely to happen, I will join you in worrying about it. I don't see that risk from the Swedish law you describe, which seems to me to sensibly criminalize being reckless about consent.
39:
I went along with it at the time but now I see it was abusive" would presumably be a completely valid argument in a case of child abuse / underage sex.
In the US under-age sex is often a strict-liability crime. In Massachusetts anyone under the age of 16 who has sex (very broadly defined - intercourse, fellatio, cunnilingus et al. - has been raped. Not knowing the age of the victim is not a defense. Mens rea is irrelevant. Theoretically, two 15-year-olds having sex are raping each other. It's unlikely that it would be prosecuted, but it fulfills the elements of the crime.
Differences in age are treated as aggravating factors. A greater than 5 year difference in age merits a longer sentence, and a greater than 10 year difference gets an even longer sentence.
And my belief that the Swedish law (as you've described it -- I don't know a thing about it first-hand) is justified is not limited to the case where the rapist's defense is consciously false. If someone is going around choking women and having sex with them as they push him away, under the belief that women generally are likely to enjoy non-consent role-play without prior verbal negotiation? Even if his mistake is sincere, I'm happy to send him to jail for it, because that is a set of beliefs that I think society is justified in defining as wrong enough that being mistaken on that basis doesn't relieve you of criminal responsibility for your actions.
But, and given that this is stipulation, here's an example of the thing that troubles me about the new law: suppose X, the woman who had sex more-or-less voluntarily with JCA, had come to the conclusion afterwards that she hadn't really consented. Certainly, by her own description, she behaved without enthusiasm. If today's law had been in place, would this retroactive conclusion have made his actions criminal? And, conversely, if she decided in retrospect that she had consented, would that make his actions acceptable? It certainly makes them legal.
I didn't read this article, obviously. It would not surprise me if, with some time, the woman who wrote it comes to understand the fact that she wrote a 4500 word essay saying she hadn't been raped as an elaborate defense against the understanding that she had been raped. It really depends on the particulars of what "behaved without enthusiasm" means, as well as the particulars of his behavior, which you are in possession of, and I am not. It is in fact the nature of this experience that denial is often a first response to it. This can be true even when the experience is especially "violent". If having a first impulse to deny that you have been raped means the crime of rape cannot exist, then a lot of intimate partner rape will not exist. There is no reason why the legal system cannot rely on evidence from the accused and the victim's behavior to decide whether the belief that someone consented was reasonable. Yes, whether charges will get brought will depend on the victim's state of mind. That's true of many DV cases already. Lots of negligence is essentially relying on luck. Some people who are negligent get lucky, and don't have to suffer the consequences of their negligence because they do less concrete harm. Some people who are negligent don't.
Someone did something to me once that was potentially life-threatening (and in fact did injure me somewhat) and it took me years to be able to say that it was rape. (I did let him know that I was extremely upset about it right afterward.) He would have (and did!) claimed a cheery good-faith misunderstanding that I consented to this non-negotiated, extraordinarily painful, life-threatening act that he initiated by surprise when I was face down and unable to understand what was happening; he was a gaslighting piece of shit who abused more than one of his partners (I heard from one of them). A world that sends him the message that this behavior is prosecutable, given that these are the tools we have to communicate extreme social censure, is better than one that doesn't.
LB: agreed that the mens rea excludes the Stockholm defendant.
And I am not trying to "preserve the ability of one person to have sex with another person without fear of the consequences even when the other person doesn't want it"
The tricky bit about this law seems to me that it criminalises the ability of of one person to have sex with another when neither of them really knows whether this is entirely consensual. I repeat, I think it is morally wrong or at least distasteful to go ahead in that situation. I am unhappy that it should be criminal as well.
I am not unhappy at all to criminalize the act of going forward with sex with a partner that you do not know to be consenting, even if there's room for the possibility that they might be consenting (allowing for problems of proof as to state of mind of the rapist. Someone who justifiably believed their partner was consenting shouldn't be in trouble. Therefore a law that criminalized sex with a partner who had well-concealed reservations would be a problem, but I haven't seen such a law suggested.)
This does not seem to me to impinge on any part of anyone's sex life that's worth preserving. I am not certain why you're unhappy about it.
NW, for rape (whether "negligent" or "traditional") to become a criminal case, theoretical woman X has to do a lot of hard and unpleasant things. I don't know about other places, but in the US, she probably needs to go to a hospital to have an invasive exam. She needs to go to police and report it. There needs to be reasonable proof that what she says is true. She needs to meet with prosecutors and have her life pretty seriously disrupted. She needs to attend court dates and take off work. Pursuit of legal remedy is a pretty large burden, and many women who are raped do not oursue this avenue. I can't imagine this different charge would put many men in jeopardy, but it might ease the burden of proof for the woman to get justice. By the time a case like this gets to court, I have to assume that the victim has gone through quite a gantlet of unpleasantness. I don't think there's much incentive to pursue criminal charges for retroactively deciding whatever sex you had was not something you consented to.
And if we're worried about liars who can just say they weren't consenting when at the time they really really were? Liars can lie regardless of what the standard is, they just have to tell different lies.
40: yes. That is my entire issue.
42: when you put it like that, yes.
43.1 It is more complicated than that. The episode happened around 20 years ago. I don't think he could have been prosecuted at the time. He took advantage of her in all sorts of ways, but she went along with it. Yes, whether charges will get brought will depend on the victim's state of mind. That's true of many DV cases already. Lots of negligence is essentially relying on luck. Some people who are negligent get lucky, and don't have to suffer the consequences of their negligence because they do less concrete harm. Some people who are negligent don't. That is a chilling perspective.
43.2 This is horrible and I am shocked and sorry.
Further, if a woman is pursuing this charge, how wrong did that sex have to be? Coercive? Threatening? Intimidating? I'd say all of those should be illegal. "I didn't know she was drunk" isn't a good defense, and like BG says, "I didn't know she was underage" isn't either. Why wouldn't "I didn't know she didn't want to" be similar? I mean, there are grey areas, sure, and humans are complicated, but your faith in women and the legal system to distinguish rape from regrets seems pretty low.
That is a chilling perspective.
Fuck. Off.
Explosion well and truly happened.
Negligence means you are taking a risk, you nimrod. Sometimes the risk doesn't have negative consequences you don't get punished. What part of this don't you understand?
I mean, in the actual world it's more like, the risk has negative consequences all the time and you don't get punished. But you know, abstractly.
48.1 and 48.2: I don't speak for all feminists or for all anti-rape activists. But I am 100% willing to say that sex where the defendant had a justifiable belief that the accuser was consenting should not be criminal. And I am pretty sure that if you phrase the question in those terms -- or to flip it, was the defendant negligent (in that he lacked justifiable belief in consent) -- most people advocating for this sort of change in the law will agree that a defendant who was not negligent and did have a justifiable belief in the accuser's consent should be at no risk.
When you find either a law that criminalizes sex where the defendant justifiably believed their partner was consenting, or someone clearly advocating for such a change in the law when you put it to them in those terms? Come back here and I'll join you in the opposition.
But I am 100% willing to say that sex where the defendant had a justifiable belief that the accuser was consenting should not be criminal
Sure. And nothing about the victim's state of mind determining whether charges are brought changes whether the accused's belief is justifiable, or changes whether a negligence standard can be based on the full set of observable behaviors.
It really seems like NW's primary worry is that for some case of negligent rape, in which the victim communicated non-consent to the perpetrator and/or the perpetrator did something intensely risky that did not give the victim a chance to communicate, there is another possible world in which all parties did similar things, but the putative victim decided she was okay with it, either because she really was okay with it or because she's internalized victim-blaming and -shaming ideology or she's still emotionally attached to the perpetrator, or whatever. And it's some kind of injustice to the rapist that that possible world exists, and he might have gotten away with it in that one. (Though really, in this one, he is overwhelmingly likely to go unpunished.) This supposed injustice exists even though the victim took whatever steps to communicate non-consent that she did, and even though the perpetrator acted negligently in whatever way he did.
Tia, I know perfectly well what negligence means. What I understood the comment to be saying is that whether a domestic abuser gets punished is largely or often a matter of luck. I find that a chilling, or discouraging, or sobering -- what word you like -- way to look at the world. I'm not saying that it's untrue. But the idea that blind luck determines whether you are caught and punished is not how I would prefer to think about serious crimes. That's all I thought I was saying.
I don't move in circles where domestic violence is known to happen. [My ex wife had a cousin whose wife threw him down a flight of stairs but no one knew until she was dead]. I have once in my life, when I was 18, come across a case of it, which I reported to the police. It is a crime which - far more than rape - I expect to be reported. So I am genuinely shocked to hear it treated as something where luck plays such a part.
I apologize, then, for misunderstanding you. I am highly activated by these conversations and it takes a lot of effort to plod through all this concern for these hypothetical men who are so mystified by how it is one might make an effort to establish that their partner is consenting to sex, when there are actually existing women (really, people of all genders), who are very little protected by the legal system or any other mechanism.
But the idea that blind luck determines whether you are caught and punished is not how I would prefer to think about serious crimes. That's all I thought I was saying.
But it does - for all serious (and non-serious) crimes.
It isn't solely luck, of course. Some crimes have a far higher arrest rate because the investigation gets more resources - murder, for example. Some criminals are more competent than others, and that makes a big difference. And so on. But, yes, a big part of it is luck.
The first sentence 55 is not what I meant or wrote. You describe straightforward rape under the old law. Victim communicates non-consent; aggressor ignores this, or manipulates the situation so that the victim cannot communicate. Both these things are clearly wrong and illegal. I don't disagree at all about those cases.
But the whole point of the "negligent" law is that it assumes the aggressor has a sincere but unjustified belief, even though they are aware of the importance of consent. That's the bit of the judgment that sparked me off. You can bulldoze the argument off the side of the road by saying this could never happen in real life, or vanishingly seldom. Aggressors might lie and claim they had misunderstood "ambivalent signals" but they couldn't do so in good faith. That is I think LB's position and she has persuaded me. But it is the (non-existent) situation that the law in Sweden now claims to deal with.
49: all the forms of sex you describe should be illegal. And probably you're right that I have an unjustifiably low view of the legal system and (earlier) underestimate the cost to a woman of even reporting it. That's wrong and I'm sorry. I don't look at the system in Sweden and think that it is institutionally biased against women. I might very well do so here, or in large parts of the USA.
53: I think we have comity. Any disagreement could only down to the meaning of "justifiable" and that's only available in particular cases.
Aggressors might lie and claim they had misunderstood "ambivalent signals" but they couldn't do so in good faith. That is I think LB's position and she has persuaded me.
I specifically disavowed this in 42 -- that is, I don't give a damn if a man has a good faith belief that his Tinder date wants to engage in rape-role-play without verbal negotiation beforehand. (I think such a good-faith belief is unlikely, but I also don't care.) Someone who's hurting people on the basis of such good-faith beliefs, I see no injustice in sending them to jail, just as there is no injustice in punishing someone for shooting his friend in the face even if he honestly believed he was a good enough shot to narrowly miss.
Tia, I apologise, too, for trampling on your activations. It was not intended. I wish I hadn't done so. I should have been more careful and understood that something which was an intellectual knot to me would not be approached from that angle by people with other life experiences.
60: in the context of the Stockholm case, yes, you did say that this was an unjustifiable belief, even if sincere. And that's fine. It was. Sincerity was irrelevant.
I had thought you suggested in an earlier post that the purpose of the law change could be to eliminate the defence of sincerity in cases where it appeared more relevant.
I don't understand you. In 59, you attribute the position that good-faith error about consent is impossible to me. That is not my position. My position is that there is no injustice in punishing someone even for a good-faith error if that error was made negligently or unjustifiably.
People are weird, and make all sorts of good-faith errors. There's probably someone out there with a good-faith belief that driving through a suburban neighborhood with his eyes shut is a is a reasonable thing to do for fun. I still want him jailed if he runs a kid over.
In real life, I think bad-faith errors about consent are wildly more likely than good-faith errors. But my opinion about the defensibility of the Swedish law does not rest on that likelihood.
59
But the whole point of the "negligent" law is that it assumes the aggressor has a sincere but unjustified belief, even though they are aware of the importance of consent.
I hesitate to get involved, but I don't think this is right. The way I read the description of the Swedish case, the issue is precisely that guy wasn't aware of the importance of consent, or wasn't adequately aware. He wasn't thinking about consent until the lack of it was really, really shoved in his face. I think it's OK to make that a crime, and it has nothing to do with a lot of the hypotheticals here.
The first sentence 55 is not what I meant or wrote. You describe straightforward rape under the old law.
Except that I don't. There's all sorts of variation in communicating non-consent, and you yourself at least seemed to think that a freaked out response that didn't include an utterly explicit continuous forceful verbal no might not be what the law expects in 22. I am actually unaware of laws on the books that establish clearly that it could be a crime to surprise someone. No one seemed to think the young Mormon man who penetrated his virgin partner in the car before she could say anything about it had committed a crime.
People can claim all sorts of good faith misreadings. They can even at least partially believe themselves. Of the six men who have either decided to penetrate me when the last verbal instruction they heard was no, or who should have just presumed non-consent to something that could seriously hurt me (the guy in 43), in only two cases did the fact pattern totally exclude the possibility of him telling a story about why he thought it would be okay, maybe three and honestly the third is dicey. If these men get to use their testimony about their state of mind and anything potentially ambiguous that happened, then it's that much harder to ever make a rape case. I would like the world to communicate to these men that concocting a fantasy about what their partners are thinking, rather than inquiring, is a grave error with consequences to them. Claims about what they thought are much less important than what they did, and what their victim did. It can be for a court to decide if the victim's communication was such that confidence in their consent was reasonable, or if the accused did something to prevent their uncoerced communication, in the very unlikely event that charges ever get brought.
In short, I agree entirely with LB.
66.1: Didn't everyone except one person think he committed a crime, at least potentially?
67: that's not how I remember it but I'll reread the thread at some point to check.
I'm looking at the thread now. My recollection of it is correct. Some links.
the old definition of rape was something much closer to "sex compelled by violence or the credible threat of violence"
I don't think historical definitions deserve any inherent respect in this domain.
That was back when I went to the bar more often.
I went to the thread in 69 and searched for my name to remind me of what my take had been, and came across this comment from lurid:
essear, breaks are healthy, and I'm now also furious with whatever departments these are on your behalf. I also think you can leverage this to get a more abject apology from heebie for the post earlier today, although it was worth it for comments 18 & 20 there, no?
and I was totally horrified. I had no memory of doing something offensive or of apologizing after.
Then I went and found the earlier post and lurid was totally teasing me.
I don't think I said it wasn't a crime -- I said that you can't get a conviction if he says she consented and she doesn't describe some facts that make his stated belief that she had consented completely unreasonable. The burden is on the state to prove lack of consent (or negligence, under this law) beyond reasonable doubt. Juries are unpredictable, and the way he tells his story about why he thought she'd consented might be so unbelievable that they just wouldn't have any doubt. That'll be the unusual case -- especially because the defense isn't going to want to put the perp on the stand if he's that bad.
And if I had a time machine, I'd go back to 2014 and tell myself to think a little harder about my comments in that thread.
I was really off topic, unlike today.
by which i mean tell 2014 me to stfu
I didn't really mean to come back to this, but a short list of factors making for misunderstanding seems possible to draw up.
1) [my fault] the case I cited did not turn out to illustrate the law change I was interested in: the longer we discussed it, the clearer it became that it should have been counted as a rape under the old definition (at least according the the facts we have) and so did not illustrate the point about negligence. It just happened to be the one cited in the law journal I read and so I assumed it was clearly relevant.
2) [I should have foreseen this] No one else here can go back to the Swedish sources and therefore cannot see the difference between the old and new definitions of criminal negligence. I wrote it up at length from a doctoral thesis on this change and then decided it was an unprofitable rabbit hole.
3) [no one's fault] There is a huge disparity of sexual experience here and so of baseline assumptions and perspectives. Tia mentions six occasions on which she has endured unwanted penetration. I have had two sexual partners in the last 30 something years and no assaults were involved. I have only consciously known two rapists - one a Glasgow gangster, and one a trainee police constable in North Wales - both more than 40 years ago.
And, just for clarity: the issue Cyrus raises is explicitly taken up in the reported judgment as one of being inadequately aware of the need for consent, not of being ignorant of it.
I'm afraid no one else can talk about this with you, if you're the only one who can read the relevant materials. I will say that I would be completely shocked if Sweden has criminalized sex whether the accused rapist is found to have a justified belief that the accuser consented to the sex. That would be a bad law, and while there have certainly been strange and bad laws in the past, I'm not going to believe in this one without seeing some evidence for it.
Let's all learn Swedish. That way, we'd be able to listen to ABBA in the original.
LB I'll write to you off blog if you'd like with the fruits of my researches but as I now understand it that's not what has happened even though the law can be read that way.
It is, as I said, complicated, and produces a situation in which Sweden now recognises four different forms of criminal intent: roughly conscious/deliberate, implied, indifferent (as in, not caring at all about the consequences of the action), and finally "negligent".
The introduction of this fourth category came after the supreme court ruled that in a he said/she said rape case, the balance of probabilities that he was lying about his intentions did not amount to proof beyond reasonable doubt and overturned the conviction.
So they brought in this fourth sort of intent to cover the cases where they want to say "We can't prove the lying bastard knew what he is lying about knowing, but he should have done" (and it's implied that he could, if he cared, have found out.).