Your second paragraph is something I have been wondering myself and is therefore an excellent question
I am not so sure about your first paragraph. If someone punches me I have the right to define if it was assault or not. If they punch me in anger I know it was. If they punch me and it is an accident but they are swinging wildly as they rounded a corner, I am still going to say they assaulted me. If they were walking on a deck and it gave way and they flailed their arms trying to catch their balance but their hand hit my face I am not going to think I was assaulted.
I am a firm believer in intent being a mitigating factor and only the victim can often tell what the intent was.
I donāt believe we have a ārapeā epidemic BoxChecker2. I believe the number probably has been quite static if not declining. We donāt have statistics that are reliable to assign a number. I donāt āknowā if we need to put more career ārapistsā in jail or if we need a better system to catch the whatever percentage is out there. I only care about women who make up stories, that is against the law. I donāt care particularly how non-outright-lying women want to āclassifyā the degree of their alleged assaults or if they donāt want to classify it at all they all have the right to report or not.
Itās hard to trust claims of a ārape epidemicā when itās so very apparent how few people actually know what ārapeā is. For example, people here were talking about the Bowdoin ārapeā when Maine has no rape statute. āRape,ā or āsexual assaultā in some states, is a particular thing. It exists when its elements are met, not when a given person feels like it does. No one would suggest that robbery depends on your subjective emotional state, so why would anyone think rape does?
@TV4caster and others, in all likelihood, in none of those 5 situations would charges be brought unless there was hard physical evidence (evidence of violent assult and struggle/physical trauma) brought to the attention of police pretty much right away or the guy admitted culpability.
Otherwise, it just becomes he said/she said.
Which is why rape convictions are so low compared to what women actually report in surveys.
Look, Jameis Winston could get away with what he did, and thatās probably par for the course.
I think people know what rape is and I donāt think people think RAPE is subjective whether you call iit rape or sexual assaultā¦and in almost every state it includes force or in many states someone being passed out or totally drunk off their proverbial butt or drugged or with a mental history that qualifies them as unable to make decisions. Itās all this other noise if allegedly unwanted sexual activity not involving being passed out or force that people are labeling rape. The Bowdoin incident did not include force or drugs and probably does not even meet the test for the most severe sexual misconduct in Maine.
She can tell her story again in the light of day and he will tell his and the process will go forth. Unfortunately heās now labeled a ārapistā by the news media and the vast majority of the public will think he knocked her over the head and carted her off to his den to forcibly rape her, and the beat goes on. Itās going to take a cataclysmic shift in perception to get people to think that rape does not include force and to accept that two people who have a few drinks, take off their clothes and get into a single bed together might evolve into a ārape.ā It hasnāt been that many decades since āweā as a nation even got the terminology to expand enough to include married folk, divorced folk, dating folk, same sex, and a dozen other categories of people who are actually āforcedā into a sexual act. So keep 'on using the word and best of luck in the re-education efforts.
I believe from one of northwestyās links, might have been saintfanās, over 90 percent of the college guys donāt know what rape is. (At least at Tulane-Loyola) Many, maybe most female college students donāt know either.
With education, I am pretty confident there will be fewer rapes. The serial rapists will do their thing. A few guys knowing the definition of rape wonāt care.
But some guys will care and change their behavior which will lead to fewer rapes.
@PurpleTitan: Prosecutors bring āhe said, she saidā cases all the time.
@momofthreeboys: I honestly donāt think most people know what ārapeā is. People have some base, general idea, but you canāt prosecute someone based on a personās subjective definition. Nevertheless there are all sorts of calls to prosecute for ārape.ā Youād only get those if people thought their definitions were the actual definitions, which they usually are not. Hence, most people probably donāt know what ārapeā is.
@dstark: It may interest you to know that prosecutors rarely charge based on dictionary.com.
We are talking about reducing incidences rape and sexual assault involving students both as victims and perpetrators not necessarily increasing prosecution.
@dstark: In fairness to me, you added that part in after Iād drafted the post.
Yes, prosecutors bring conflicting testimony cases all the time. Thatās most informant cases, for example. Sex cases are also commonly about conflicting testimony. Most charged defendants settle and you never hear about it.
I smiled at that one, too, dstark. People absolutely know what rape isā¦they just donāt know what it is when two people drink, take their clothes off, grind away with each other with no witnesses.
Prosecuters arenāt bringing he said she said sexual assault cases to trial all the time. There has to be other evidence. Right? Maybe an informantā¦
@momofthreeboys, I agree with Demosthenes49 about peopleās knowledge of what rape is. Thatās why I was smiling.
Why do I agree? Because people donāt know what rape is.
People have a basic understanding of what rape is. That amateur understanding is not sufficient in the tricky cases, like the Bowdoin example formerly posted. If you actually read the statute in question there, the Bowdoin case does not meet Maineās definition of sexual assault. Nevertheless, plenty of people are crying ārape.ā How do you reconcile that clear error with the claim that people really do know what ārapeā is?
@dstark: Yes, I am a lawyer. Iām not really sure how to substantiate this though. Iāve been on the defense team in sex cases? The vast majority of cases never go to trial (95% or so settle) so prosecutors generally donāt have to worry about juries. Similarly the penalties are so large that defendants would rather take an easy deal than risk it all. Prosecutors definitely sometimes decide not to charge defendants in close cases, police close investigations, people stop cooperating, etc., but prosecutors do bring testimony cases.
@Demosthenes49, you donāt have to substantiate anything. I take you at your word.
I guess my issue with what you said is āall the timeā. That is pretty vague.
Prosecuters donāt take most sexual assault cases, right?
NY Times published an article after the Winston case started. In the FSU area, 55 alleged sexual assault victims went to the police, prosecuters took 2 cases. There is a book published called Missoula. Prosecuters take very few cases.
My point is what we read and are told all the time is prosecuters only like to take cases they can win. It is very difficult to win acquaintance rape cases and he said she said cases so prosecuters donāt take those cases.
I am reading what you wrote āProsecuters bring he said she said cases all the timeā as a contradiction to what I am told and what I read.
To me, a he said she said case is just that. One personās account against another. No evidence. No witnesses. Are prosecuters really bringing these cases all the time? What does all the time mean? Occasionally? 1 out of 200 cases?
I did use the term rape when talking about the Bowdoin case, as that is the term the young woman herself, the police, and the news articles use. Of course, you are rightāMaine doesnāt have a rape statute per se.
If I am interpreting your posts correctly, you donāt think the Bowdoin case, assuming the facts in the news articles are accurate, constitutes sexual assault, but you do think it constitutes unlawful sexual contact. Is that correct?
I think the Bowdoin case is a difficult one. It involves less he said/she said than most, because according to the news accounts, the young woman herself says she did not say no, she did not try to fight him off, he did not try to pin her down.
Iām not an attorney in Maine. Iām not a criminal attorney. Expressing this solely from a citizenās point of view, I think I would have a reasonable doubt about his guilt if the question is whether he reasonably assumed she impliedly acquiesced because she didnāt say or do anything to stop him. Picking her up, carrying her into the bedroom, depositing her onto the bed and penetration probably took at least 2 minutes. Does the failure to object mean that she āimpliedly acquisced?ā And does that phrase mean the same as consented? I donāt think so; you seem to think it does in the first quote above.
Of course, if he is indicted attorneys will be looking for case law interpreting that phrase. But would most young men view that as implied acquiescence?
@dstark: I absolutely hate when people have to take me at my word. If I knew a way to substantiate I would. My apologies that I cannot think of one.
I have no idea whether most sex cases result in charges. Iām sure someone has gathered statistics on that issue though, so Iāll take a look and see if I can find them. All I can say is that in the jurisdiction in which I worked in criminal law (a college town), it was not uncommon to see he said/she said sex cases.
@jonri: I am not a Maine lawyer so this is my relatively amateur opinion, but I think the sexual contact statute may apply but the sex assault statute probably does not. I actually looked into Maine case law a bit, which is surprisingly shallow on consent in rape cases (lots on consent in property cases though), but in any event whether there was implied consent is a jury question.
