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Putting Time Limits on Rape

Time Magazine has an article about the differing laws in various states on whether a man can be convicted of rape if the female consents, and then during intercourse, she changes her mind.

The answer depends on where you live. The highest courts of seven states, including Connecticut and Kansas, have ruled that a woman may withdraw her consent at any time, and if the man doesn't stop, he is committing rape. Illinois has become the first state to pass legislation giving a woman that right to change her mind. But in Maryland--as well as in North Carolina--when a woman says yes, she can't take it back once sex has begun--or, at least, she can't call the act rape.

The Maryland case is under appeal.

If the law doesn't recognize a woman's right to say no during sex, [victims' rights advocates] say, there is no recourse for a woman who begins to feel pain or who learns her partner isn't wearing a condom or has HIV. Those who are wary of these measures say they're not arguing against having a man stop immediately when a woman no longer wants to have sex, but with how to define immediately.

That is totally illogical to me. If it starts to hurt, or there's no protection, and he doesn't pull out, it may be unwanted sex at that point but it's not rape. Let's not trivialize real rape to accomodate definitions of consensual sex gone awry. Make up a new crime for that if it's going to be illegal. But to brand someone as a sex offender for life, require sex offender registration, submit them to possible life sentences? Come on.

More...

I also don't agree that the problem is with the word "immediately." It's with the communication of the initially consenting person's demand for cessation. Only if the demand for withdrawal was clearly and unequivocally communicated to the partner, who then forcibly continued, should it be construed to be forced or unwanted sex. I wrote more about that here.

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    actually, this is the consequence of lazy (5.00 / 1) (#3)
    by cpinva on Tue Feb 06, 2007 at 04:05:52 PM EST
    legislators. they want to appear tough, law & order kinda guys, but are too f*ing lazy to do the heavy lifting required. it's far easier to just throw together some half-assed law, and then let those "activist" judges have at.

    really, they win both ways: they can claim that isn't what they meant, when what they meant is nowhere to be found in the legislation they actually passed. and, they can lay the blame for "misinterpretation" of the law on "activist" liberal judges, who should, by god, be replaced with good, god-fearing, conservative "activist" judges!

    when the dust settles, the average constituent just hasn't a clue what their elected representative is really up to, but they know it's good, because their boy/girl tells them so.

    writing a law that said exactly what it means is damn hard work, and not nearly as much fun as a 30 second sound bite. don't expect one anytime soon, from any state legislative body, or congress.

    out of curiousity, what's it called if, just as the guy is orgasming, the woman says to stop? further, if the guy isn't wearing a condom, wouldn't that be sort of obvious, before penetration? as well, is "btw, i'm HIV positive" a sweet nothing normally whispered into a partner's ear, while in deep coitus?

    dammit, people want to know!

    conviction seems unjust to me (5.00 / 1) (#7)
    by zaitzefftheunconvicted2 on Tue Feb 06, 2007 at 10:30:46 PM EST
    Have you folks seen the article in Time or at time.com about the rape case and the appeal and the withdrawal of consent?
    http://www.time.com/time/magazine/article/0,9171,1584786,00.html?cnn=yes
    a guy and a gal are making out and he begins the process of intercourse and he has inserted his penis into her vagina.  Now, at this point, she asks him to stop, and he does so within seconds and withdraws.

    He is convicted of rape, but the case is on appeal and the appeals court has ruled in his favor, but the state is still fighting.

    The article says that during deliberations, the jury asks the judge "if it was rape if a female changed her mind during the sex to which she consented and the man continued until climax. The judge said it was for them to decide."

    However, I believe the answer should have been, "Usually, no."  The reason is that most men ejaculate within 90 seconds of insertion and they are not in control of ejaculation and no one responds immediately to any instruction.

    I was in a car accident once in which a fellow had made a left turn directly in front of oncoming traffic and it turned out that the oncoming traffic was me.  

    How many seconds was it before I hit the brakes?  The issue never came to court.
    Was it more than one and less than 10?  Probably.  Was it minimal reaction time?  No.  Was I expecting such an action on his part?  No; I could hardly believe it.

    Personally, I don't see a rape conviction in this case as just.  The time for the woman to have said no was either before the making out began, or before insertion.  Once insertion had taken place, she was liable for some possible movement after she said "stop" and he stopped.


    You make a lot of sense, but (none / 0) (#1)
    by scribe on Tue Feb 06, 2007 at 03:37:56 PM EST
    the problem with gradations like you propose is that every rape case will wind up with the defendant claiming "she said yes, we started, and then she decided to say no".  You may be forgetting that one of the primary achievments of the womens' movement was rectifying the horrific burden previously placed upon rape victims, by making it easier to bring the charge and see it through.  If we go the way you propose, in a year or two, we're back to 1966 and going through the victim's entire sexual history to humiliate her - "you tramp - bringing this poor upstanding young man before this court because you and your too-short skirts decided to tease and tantalize him beyond the limit any man could bear and then break his chops and reputation with a rape charge."

    And prosecutors will overcharge the poor and dark, and bargain down (or charge down) the rich and white, and just make a bad situation worse.

    The same error which drives the Iraq misadventure, the concentration and torture camps, the capital punishment "must kill more" imperative, and Megan's Laws and their expansions (pick a law with some girl's name - it's almost certainly some "Get Tough on Crime" measure) is driving the banishment of sex offenders and offender lists - the desire for retribution and to put as many people under the whip (of the criminal justice system) as possible.  Were that not the case, how can one explain the "every federal arrestee must now give DNA, regardless of guilt or innocence" law?

    The solution is not to accept the frame of having and living with sex offender lists (which inevitably expand), but rather to restore some level of sanity to the whole criminal code, and get off the idea that by making something a crime and locking the perp away we will do anything more than provide lifetime employment for those desperate enough, or cruel enough, to choose prison guard as a profession.

    Someone in my acquaintance is presently undergoing detox from an addictive substance, which he took to balm the emotional pain of his wife's untimely death.  When he ran out and went into withdrawal, all the pain he buried was still there, waiting for him along with the jones.  Prison, listing and humiliating, ruining lives and banishment are no different - they are an oxycontin buzz for a society which really needs to heal its soul.

    Just like the Duke hoax (none / 0) (#12)
    by Abdul Abulbul Amir on Wed Feb 07, 2007 at 08:06:03 AM EST
    And prosecutors will overcharge the poor and dark, and bargain down (or charge down) the rich and white, and just make a bad situation worse.

    That seems stuck in a time warp.  Sorry, political hay these days is made showing mercy to minorities and throwing the book at the "privileged" class.  BTW, what were the sentences for the hate crimes just recently in California where a group of black teens beat the snot out of three white women?

    Parent

    the problem with Duke lacrosse as an (none / 0) (#20)
    by scribe on Wed Feb 07, 2007 at 01:52:57 PM EST
    example is fourfold.

    First, there was an existing town v. gown dynamic, heightened by the perception on the part of "town" that "gown" was quite wealthy and not afraid to lord it over them, i.e., resentment.  Second, there was an election coming up, for someone who was only newly an incumbent (The hardest election to win is the first re-election....), so there was incentive to push for every vote.  Third, the prosecution got out in front of itself and took a dubious case then, having nailed its colors to the mast, couldn't back down.  Had Nifong kept his mouth shut and not pressed for indictments in time for the election, he may have been able to build a case which would not collapse under the (minimal) weight of sunlight.  Finally, Duke lacrosse is the exception that proves the rule.  Were criminal justice administered in a race-neutral and class-neutral way, it would likely not have received the same level of attention it did.

    Parent

    What the heck's the difference (none / 0) (#2)
    by nolo on Tue Feb 06, 2007 at 04:01:56 PM EST
    Between unwanted sex and rape?  Seriously.

    The difference is a few seconds... (none / 0) (#4)
    by 1980Ford on Tue Feb 06, 2007 at 04:13:42 PM EST
    No kidding. We should all carry stopwatches during sex. Read the opinion.

    I think this case is counterproductive to the feminist cause. This man stopped as feminists have argued for years that he should, but evidently it took 15 or so seconds instead of 0 seconds. How realistic is that?

    Parent

    I have read the opinion (none / 0) (#5)
    by nolo on Tue Feb 06, 2007 at 04:44:09 PM EST
    By which I presume you mean the Maryland court of appeals opinion that reversed the rape conviction in the case where the defendant had withdrawn within 15 seconds.  And the problem with the opinion is not what you think it is.  After all, the Maryland Court of Appeals reversed the rape conviction.  The reversal, however, was not based on a finding that a man should be given a reasonable time in which to to comply when consent is withdrawn.  It was based on the proposition (apparently cribbed from old common law principles) that consent, once given, cannot be withdrawn at any point during sex.

    This is a problem, regardless of how sympathetic the underlying case was.  What the opinion established is that in Maryland, a woman who has consented to have sex can never revoke her consent.  This is not a good thing, and I do not think it is counterproductive to the feminist cause to say so.
     

    Parent

    clarifying (none / 0) (#8)
    by zaitzefftheunconvicted2 on Tue Feb 06, 2007 at 10:42:32 PM EST
    No, a woman who has
    1. consented;
    2. permitted or encouraged the insertion of the penis into the vagina;
    3. permitted or encouraged the motions of intercourse to take place;
    and
    4) decides that continuing isn't a great idea and so says "Stop"

    can't complain that the fellow in the heat of passion--and perhaps highly focused on other things--took a few seconds before responding.

    She willingly took a certain "risk" when she allowed the penis to be inserted and that "risk"
    (what some would call a reasonable expectation) included that the man would move back and forth and that the man would ejaculate.  In this case, however, he did not ejaculate.  

    Parent

    And that is what makes this a bad case... (none / 0) (#9)
    by 1980Ford on Wed Feb 07, 2007 at 12:53:50 AM EST
    It is too ambiguous. Granted, there should be a reasonable understanding and the law will have to address it. But this wasn't the best case to decide that. The court, I think, opined that given the statute as written, they had to reverse the conviction and they strongly invited the legislature to revise/modernize the code. It is very, very rare for the code to work in the defendent's favor.

    The interesting question will be, how will the legislature word a statute? How will they arrive at a reasonable period of time? In seconds? How can anyone know exactly how many seconds have passed? Is it even reasonable to demand a cease and desist within X seconds? Would Y seconds be more reasonable? If the man says to stop, and the woman doesn't stop within X seconds, does she commit rape?

    Parent

    I don't think either of you read the opinion. (none / 0) (#13)
    by nolo on Wed Feb 07, 2007 at 09:28:39 AM EST
    Nuff said on that.

    Parent
    English Common Law (none / 0) (#6)
    by Carolyn in Baltimore on Tue Feb 06, 2007 at 06:28:21 PM EST
    Actually this case happened because of MD law is based on olde English Common Law - which considers that bursting the cherry is the damage and once done, the woman is f***ed anyway.
    In the MD case the sex was coerced from the get-go - she consistently attempted to say no before sex started. So it was never truly consensual.
    Obviously MD has to change this law.

    She "attempted to say no"? (4.00 / 1) (#10)
    by 1980Ford on Wed Feb 07, 2007 at 12:56:08 AM EST
    What does that mean and what is your source?

    Parent
    i think a huge part of the problem here (none / 0) (#11)
    by cpinva on Wed Feb 07, 2007 at 01:24:50 AM EST
    is the (likely failed) attempt to legislate what is, in essence, a biological function. the biological function i refer to is not rape, but rather consensual intercourse.

    i have a sneaking suspicion, with absolutely no empirical data to support it, that the vast majority of these kinds of cases are going to be between two people who do not regularly have sex with each other. not necessarily strangers mind you, just that they don't have the kind of ongoing sexual relationship that a married couple, or long-term lovers would have.

    this is an important, yet completely overlooked factor. people in ongoing sexual relationships are better able to stop when asked to, than those that aren't. why is this, you ask? simply put, it's the "excitement" factor. having sex with a relatively, or totally new partner, is far more exciting, than is sex with a regular partner. not better, just more exciting.

    it's likely to be far more difficult to stop on a dime, with a new partner, than one you're used to. yeah, i know it sounds sexist, but it's a fact of life. you can't legislate away facts of life.

    it's been tried, and found wanting.

    You can stop sex on a dime (none / 0) (#14)
    by nolo on Wed Feb 07, 2007 at 09:33:37 AM EST
    If you think it's important enough.  How many of you (by which I mean you guys) would find it hard to stop in mid-stroke if, for instance, you heard your partner's boyfriend or husband at the front door yelling "Honey, I'm home?"

    My bet is you'd have no trouble at all.  In fact, my bet is that you'd be capable of levitation at that point.

    Parent

    stopping on a "dime" (none / 0) (#16)
    by zaitzefftheunconvicted2 on Wed Feb 07, 2007 at 10:04:48 AM EST
    the "ability" to start or to stop anything "on a dime" depends a great deal upon a variety of other factors:
    1. a person's perception that the need to stop or start is serious rather than minor;
    2. a person's current focus of attention;
    3. the volume with which the sound is made indicating to stop or start something;
    4. a person's degree of suggestibility
    and many other factors.

    *

    For entertainment in years past, some people would go to nightclubs and see stage hypnosis.  A person would be hypnotized and "caused" to believe a number of things and to be acting in ignorance of his surroundings and other factors.

    Some persons are believed to be more suspectible to hypnosis and some less.  In any case, those hypnotized have their attention and awareness fixed upon some other object or source, being directed their by the hypnotist.  Things may go on around the one hypnotized to which he betrays no apparent conscious or unconscious reaction.

    However, the fact you seem to be ignoring is that states similar to hypnosis happens to some persons at times when they are not under hypnosis per se.  Call them trances, visions, waking dreams
    or what have you.  It doesn't matter.  It has happened to me more than once while I was in meditation--and not while I was having sex.  However, I am quite confident that for many people, similar states would occur while they are having sex.  The fact that you haven't experiencing them doesn't mean that they don't exist or that they are not being experienced by other persons, some of whom are engaged in sex while they occur.

    Being brought out of the altered awareness and forced to pay attention to the other world, the more real world, is a surprising jolt and doesn't happen always "immediately," any more than waking up from a dream.  

    The point is that, for some persons, for many acts of sex, sex itself puts them out of ordinary awareness, and that is part of what makes sex sex.
    The way you are writing of sex and the ease that men or everybody should be able to stop on a dime--well, is this simply evidence that you have never practiced meditation much or experienced its results?


    Parent

    I'm a buddhist (none / 0) (#17)
    by nolo on Wed Feb 07, 2007 at 11:12:09 AM EST
    and the meditation I practice and know of is about mindfulness, not cutting yourself off from what the heck is happening.  But let's set that aside.  I think the most critical thing you said is that the ability to stop on a dime depends very much on "a person's perception that the need to stop or start is serious rather than minor."  Exactly.  If you take the need to stop seriously, you can stop.  If you don't, well, then I guess you "can't."

    Parent
    needing to stop (none / 0) (#21)
    by zaitzefftheunconvicted2 on Wed Feb 07, 2007 at 07:49:49 PM EST
    Most people, when or after they have begun the process of sexual intercourse, have already decided that there is little or no need to stop.  Their mind is set that way.

    Don't you realize that sex and worry don't go together and that sex and anxiety don't go together?  Sex and worrying about how one will do on a mid-term exam don't go together.  Sex and setting one's mind on the track of paying attention to see if the female is changing her mind after insertion--what sort of sex is that?  Sex while thinking about baseball?  Sex while thinking about football?  Sex while thinking about something else--almost anything else--rather than enjoying the sex?  Why should a woman who has consented to sex and consented to insertion and the beginning of the process of intercourse have a simultaneous claim that the man while in his sexual acts be paying attention to something else?

    suppose there were a WWI or WWII fighter pilot involved in a dogfight with another plane in some war or battle.  His attention is now fully or nearly completely focused on staying alive, avoiding the enemy's bullets and firing something to kill the enemy.  And on the radio he gets some order he wasn't expecting to get.  In fact, he wasn't expecting any instruction at all at that particular time.  Will he obey and respond immediately?  No.  Chances are--the first time he hears the unexpected order he wouldn't have been paying attention to it enough to know what it said and he would have to ask to have it repeated.
    He say, "Please repeat," or whatever fighter pilots say.  If the order was unusual or strange, he'd repeat it back and make sure he'd heard correctly.

    And, that is exactly the situation you have when in the process of sex, after making out, after consent for insertion and insertion and the acts of intercourse and the man or woman says, Stop.

    Now, if he is a modern fighter jet and he has computers which are keeping him alive and he is just along for the ride, he might respond quickly to a strange order and he might not.  I don't know.


    Parent

    sex and worry, sex and anxiety (none / 0) (#22)
    by nolo on Wed Feb 07, 2007 at 08:57:38 PM EST
    Maybe no.  Sex and mindfulness?  Maybe yes.

    Parent
    oh, and by the way (none / 0) (#23)
    by nolo on Wed Feb 07, 2007 at 08:59:44 PM EST
    You said,

    Why should a woman who has consented to sex and consented to insertion and the beginning of the process of intercourse have a simultaneous claim that the man while in his sexual acts be paying attention to something else?

    To which I say, what else is he paying attention to besides the woman?

    Parent

    my bet is (none / 0) (#15)
    by cpinva on Wed Feb 07, 2007 at 09:56:05 AM EST
    if you were really into it, you wouldn't even hear him. hence, the basic plotline of so many tv dramas. lol

    slippery (none / 0) (#18)
    by eric on Wed Feb 07, 2007 at 12:18:02 PM EST
    Last weekend, my wife and I went out to get groceries.  After we were done, she decided unilaterally to go to the mall.  I protested, but she, nonetheless, drove to the mall while I was trapped in a moving car.

    Was I kidnapped?

    reminds me of the recent stories (none / 0) (#19)
    by nolo on Wed Feb 07, 2007 at 12:43:19 PM EST
    involving women whose parents kidnapped them because they didn't approve of their daughters' wedding or childbearing plans.  As I recall in both cases, the kidnapping started with a shopping trip in which the woman went voluntarily with her parents.

    So yeah, an originally voluntary trip can turn into a kidnapping.

    Parent

    sex and altered states of consiousness (none / 0) (#24)
    by zaitzefftheunconvicted2 on Thu Feb 08, 2007 at 01:54:00 PM EST
    I did some basic browsing on the Net yesterday after one of my posts.

    It is pretty easy to find the following information, documented by university professors
    or academic studies:

    1) persons who are hypnotized show an absent or diminished pupil contraction response.  That is, if you have hypnotized a person, you can shine a flashlight into his eye or eyes.  The result when the individual is in normal consciousness is that the pupils contract to reduce the light coming in.  If the person is hypnotized, this response will be entirely absent in some individuals or diminished, in others.  See
    http://en.wikipedia.org/wiki/Hypnotism

    2) Charles Tart of the UC, Davis wrote

    There are enormous individual differences in the particular configuration of our ordinary d-SoC, differences, which are generally not too noticeable because we are trained to behave in similar, socially acceptable ways. Similarly there are probably enormous differences in the particular manifestations of the sexual d-SoC across individuals. Indeed, there might be several discrete sexual states of consciousness possible for a given individual, or depth levels within such d-SoCs (see Tart, 1972a; 1975). For example, the d-ASC experience during orgasm can be extremely different from the d-ASC of high sexual arousal prior to orgasm. Because of these individual differences, we must be careful about generalizations, although lack of knowledge about individual differences forces me to speak generally at this time. . .

    As an extreme, a man and woman may be engaged in sexual intercourse, but the physiological sensations each one receives feed almost immediately into ongoing fantasy structures so that each is lost in his or her own internal world . . .
    http://www.paradigm-sys.com/ctt_articles2.cfm?id=70

    There is some website I am not finding this instant that says that pain or pleasure can be intense and to the point that it overwhelmed other "stimuli."  And, if pleasure can be intense enough to overwhelm other stimuli, then, it can also be intense enough to impede reaction to it.

    more information re altered states (none / 0) (#25)
    by zaitzefftheunconvicted2 on Thu Feb 08, 2007 at 02:26:00 PM EST
    http://www.altered-states.net/barry/newsletter156/index.htm

    Causes other than religious beliefs, such as illnesses and accidents, can result in altered states of consciousness or mystical experiences.

    Emanuel Swedenborg (1688-1772)

    Emanuel Swedenborg (1688-1772), the Swedish scientist and scholar, also claimed to have experienced mystical experiences in the form of dreams. These episodes began at the age of fifty-six. In these dreams he traveled to spiritual planes such as heaven and hell where he claimed to have spoken with Jesus, and God, and spirits of the dead which he referred to as angels. Also, he claimed to have seen the order of the universe. He continued spending most of the remainder of his life taking these spiritual journeys usually in a light sleep or trance which sometimes lasted as long as three days. As a result of these trips his spiritual views differed greatly from orthodox Christianity. His views were published in several books.

    Edgar Cayce (1877-1945)

    Edgar Cayce (1877-1945) sometimes called the "sleeping prophet" gave prophetic, healing, and karmic readings in a light-sleep state similar to that of Swedenborg. Cayce put himself into a hypnotic trance while lying down and then gave personal readings. He helped heal many persons this way by describing their ailments and then prescribing what the person should do in the form of treatment. He gave many karmic readings telling about the lost continent of Atlantis and other ancient places. Frequently when giving solitary readings Cayce would have the person taking down his reading tap him to prevent him from going into a deeper sleep.

    http://www.hermes-press.com/Perennial_Tradition/altstates.htm

     In 1956, James Olds reported on research in which he had electrically stimulated the brains of rats. Implanting electrodes in rats' pleasure center of the brain, he attached a device that allowed the rats to activate the electrical impulse. He found that the rats would become so obsessed with self-stimulation that they would literally starve to death. . .

    various simple studies show that simple distractions such as tuning a radio or talking on a cell phone may increase reaction time by as much as 50% . . .

    http://www.msnbc.msn.com/id/11829018/from/RSS/

    "This study joins a growing body of research showing that 'freeing up the hands' does not result in faster brake response times," said Jonathan Levy of the University of California, San Diego.

    The reason, according to a study last year, is that the human brain struggles to look and listen at the same time. . .

    I could find more of these, but it is time to go to lunch.  For me, the point is that, the act of sex is liable to delay a person's reactions to some stimuli and some sexual states would in fact prevent a person from paying attention altogether.

    Draw the line for me (none / 0) (#26)
    by Kaethe on Thu Feb 15, 2007 at 09:15:06 AM EST
    If it starts to hurt, or there's no protection, and he doesn't pull out, it may be unwanted sex at that point but it's not rape.

    At what point does it change from unwanted sex back into rape?  According to the Maryland decision, consent, once given, can never be taken back.  So, if a man starts choking his partner, or decides to penetrate her in some place or way she has not consented to, like say, with a broken bottle, or a burning cigarette, she cannot withdraw her consent.  It'll be interesting to see how that plays out.  If a woman has consensual, even willing sex with her partner, and he decides to share her with twelve of his closest friends, would that initial consent render his actions legal?  I would also like to know what you consider the difference is between "unwanted sex" and "rape".  For most people, I would guess that "unwanted sex" is something you don't mind too much whereas "rape" is the sort of thing you go to the ER for.

    The particular horror of this case, overlooked in your statement, is that the rape victim's consent was meaningless.  She had just been raped by another man (convicted), and was only saying "yes" under coercion:  specifically in response to the statement "I don't want to rape you."  These facts are agreed to by both sides.  Maryland found in favor of the defendant, overturning his conviction, because he managed to scare the victim into saying yes.  Had he held a gun to her head and asked if he could have sex with her, would that "yes" be any more valid?