Consensual Sex and the definition of Rape

[TimG]

If you're not interested in honest debate, you should go back your men's group drum-circle and complain about how feminists are ruining civilization.

If you were actually reading my arguments you should have noticed that I express no outrage a feminists. My claims are simple: 1) it is dishonest to try to separate the campaign from the criminal definition of sexual assault. 2) the definition of sexual assault pushed in the campaign makes no sense in a court of law and, if actually enforced, would cause more injustice than it would resolve. Edited March 6, 2014 by TimG

[bleeding heart]

Well, I think we've established that I don't rate the first point at all, and that I agree with the second.

[Black Dog]

If you were actually reading my arguments you should have noticed that I express no outrage a feminists. My claims are simple: 1) it is dishonest to try to separate the campaign from the criminal definition of sexual assault. 2) the definition of sexual assault pushed in the campaign makes no sense in a court of law and, if actually enforced, would cause more injustice than it would resolve.

To the bold: the first part is simply not true, as the Criminal Code itself has a very broad definition of consent; the second part is debatable, to say the very least.

[Peter F]

I agree with Black Dog and the disputed students position. Consent must be continuous for once withdrawn the continuation of sexual congress is no longer consensual and therefore rape.

[Guest]

That consent should be continuous is not in question. The question is, how is continuous consent signified?

Does quiet enjoyment signify continued consent? I think it does. Anyone who has been in an actual relationship would agree, I assume.

[g_bambino]

Your male culture is disgusting and inhumane.

It's not his "male culture", it's that of some (most?) people who purport there's such a thing as "rape culture". Of course, of those people, one's definition of "rape culture" is not necessarily the same as another's. But, there are enough people who believe "male culture" is close enough to "rape culture" to get out and protest the foundation of men's centres on university campuses, wanting them barred because they are, in their minds, incubators of "rape culture".

[g_bambino]

I agree with Black Dog and the disputed students position. Consent must be continuous for once withdrawn the continuation of sexual congress is no longer consensual and therefore rape.

I don't think anyone has disagreed with that.

[Black Dog]

It's not his "male culture", it's that of some (most?) people who purport there's such a thing as "rape culture". Of course, of those people, one's definition of "rape culture" is not necessarily the same as another's. But, there are enough people who believe "male culture" is close enough to "rape culture" to get out and protest the foundation of men's centres on university campuses, wanting them barred because they are, in their minds, incubators of "rape culture".

I'm familiar with such debates, but I've never seen the "incubators of rape culture" claim made.

[bleeding heart]

I don't think too many people, feminists or otherwise, think "men's culture" (whatever that means) is equivalent to "rape culture."

As far as they exist, it is about like worrying about the influence of the Canadian Communist Party.

That is (and I'll include a small mea culpa here for being part of this discussion), this thread is entirely trivial. I'm surprised people are so aggrieved by the student groups' words.

I'll just add that, if "rape culture" is a silly notion, it pales in comparison beside Ms. Wente's "war on men"--a phrase which underscores her thesis, her very reason for writing the article, and so by extrapolation this entire thread.

If there's a "war on men," it's the first "war" in which most of the casualties are feelings of pique over a virtual non-issue.

[TimG]

as the Criminal Code itself has a very broad definition of consent;

273.1(1) Meaning of "consent" - Subject to subsection (2) and subsection 265(3),

"consent" means, for the purposes of sections 271, 272 and 273, the voluntary agreement

of the complainant to engage in the sexual activity in question.

(2) Where no consent obtained - No consent is obtained, for the purposes of sections

271, 272 and 273, where

a the agreement is expressed by the words or conduct of a person other than the complainant;

b the complainant is incapable of consenting to the activity;

c the accused counsels or incites the complainant to engage in the activity by abusing a position of trust, power or authority;

d the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or

e the complainant having consented to engage in the sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.

The criminal code makes it very clear that the "desire to not participate" must be expressed in words or actions (unless there is an abuse of trust). Nothing in the criminal code allows one to pursue charges by claiming that the complainant withdrew consent by failing to be sufficiently enthusiastic.

Edited March 6, 2014 by TimG

[Black Dog]

The criminal code makes it very clear that the "desire to not participate" must be expressed in words or actions (unless there is an abuse of trust). Nothing in the criminal code allows one to pursue charges by claiming that the complainant withdrew consent by failing to be sufficiently enthusiastic.

It also says (in a section you very conveniently left out) "(3) Nothing in subsection (2) shall be construed as limiting the circumstances in which no consent is obtained." In other words the list in section 2 is a case of "including, but not limited to." So it's entirely possible in theory that someone could pursue charges on that basis. The likelihood of that actually happening, let alone being successful in court, strikes me as extremely low.

Edited March 6, 2014 by Black Dog

[TimG]

In other words the list in section 2 is a case of "including, but not limited to." So it's entirely possible in theory that someone could pursue charges on that basis.

The spirit of the law is captured in the enumerated points. Edited March 6, 2014 by TimG

[Black Dog]

The spirit of the law is captured in the enumerated points.

Including, but not limited to.

[Black Dog]

Here's a good example of the grey area that exists between "yes" and "no".

In the summer of 2006, Hutchinson thought he could save his flagging relationship by getting his girlfriend pregnant. He surreptitiously poked holes in her condoms, and later urged her to start taking pregnancy tests. The second test came back positive.

It was only after the positive pregnancy test that Hutchinson admitted to the sabotage. Things did not turn out as he'd hoped — his Halifax-area girlfriend broke off the relationship, called police and had an abortion.

...

"What's important in this case is the issue of whether or not the very fact of poking the holes surreptitiously, using the condoms in sexual intercourse unbeknownst to the victim, if that is sufficient to remove consent," (the Crown prosecutor) said.

[TimG]

"What's important in this case is the issue of whether or not the very fact of poking the holes surreptitiously, using the condoms in sexual intercourse unbeknownst to the victim, if that is sufficient to remove consent," (the Crown prosecutor) said.

Ironically, a woman who does this to a man not only gets away with it but she can force the man to be an indentured servant for 18+ years. I guess the men who fell victim to this kind of crime would have been better off calling it rape. Edited March 6, 2014 by TimG

[Black Dog]

Ironically, a woman who does this to a man not only gets away with it but she can force the man to be an indentured servant for 18+ years.

Cite?

I guess the men who fell victim to this kind of crime would have been better off calling it rape.

Well, if this case stands up they are more than able to thanks to the precedent it sets. What's the problem?

Finally, I take it by your shift to "but but child support" that you've ceded the field on the law's broad view of what constitutes consent?

[TimG]

Finally, I take it by your shift to "but but child support" that you've ceded the field on the law's broad view of what constitutes consent?

No. All I am doing is pointing out the inherent sexism in attempts to twist the law beyond the original intent.

[Bryan]

-false allegations of rape, especially those that lead to charges (much less convictions) are a rarity.

False accusations are common enough to be a very real concern.

[g_bambino]

I'm familiar with such debates, but I've never seen the "incubators of rape culture" claim made.

Hm. I was sure I'd read the words "rape culture" in articles about opposition to men's groups on university campuses, but I can't find where. Regardless, in my research I came across what's tantamount to accusing these organisations of fostering rape culture; "justifies sexual assault" and "encourages sexual assault" are pretty well synonyms for perpetuating a rape culture.

On the agenda roster [of the national general meeting of the Canadian Federation of Students] is a motion to amend the "Sexual Assault and Violence Against Women on Campus" policy to account for the "increase in the presence" of men's groups on Canadian campuses.

According to the motion: "The groups... promote misogynist, hateful views towards women and ideologies that promote gender equity, challenges women's bodily autonomy, justifies sexual assault, and decries feminism as violent."..

The Women's Centre on [the Simon Fraser University] campus, further, said it would no support a men's centre that... "promotes the status quo, encourages sexual assault, or fosters an atmosphere of competition and violence."

Student union brands men's rights groups as 'hateful' clubs that 'justify sexual assault'

In this CityNews video can be seen protesters, one with face ubiquitously covered and a placard turning the acronym for men's rights association into "Misanthropic Rapist-supporting..." and one can only assume the unseen "A" was made to stand for "assholes" or something like that (something that can't be shown on TV, anyway). Then we see the UofT student union, like the CFU, condemning a men's rights activist as someone who "justifies sexual assault".

On the SFU women's centre's views on masculinity (or "male culture"):

Although the women’s centre’s coordinator declined to be interviewed, skepticism of the concept is evident in the centre’s FAQs... Masculinity, it says, “denigrates women by making them into sexual objects, is homophobic, encourages violence, and discourages emotional expression.”

A place just for men?

[guyser]

False accusations are common enough to be a very real concern.

Should be...."Actual Rapes Categorized as False accusations are common enough to be a very real concern" due to shoddy police work, a brutal system for the women to go through, lack of evidence and so on.

Obviously some are false, categorially so, but some are labled false when in fact they are nothing of the sort.

[Bryan]

Should be...."Actual Rapes Categorized as False accusations are common enough to be a very real concern" due to shoddy police work, a brutal system for the women to go through, lack of evidence and so on.

Obviously some are false, categorially so, but some are labled false when in fact they are nothing of the sort.

Both are a real problem.

[guyser]

Both are a real problem.

Yes

And some stats suggest the number of false rape charges are the same as the number that get put in the category as false when in fact they are not. The women dealing with the brutality of having to deal with police et al makes them decide to pull the accusation.

[bleeding heart]

Just so. We cannot automatically include "withdraws the complaint" as a "false allegation." And police and prosecutors themselves would make the same point.

[Black Dog]

Hm. I was sure I'd read the words "rape culture" in articles about opposition to men's groups on university campuses, but I can't find where. Regardless, in my research I came across what's tantamount to accusing these organisations of fostering rape culture; "justifies sexual assault" and "encourages sexual assault" are pretty well synonyms for perpetuating a rape culture.

In this CityNews video can be seen protesters, one with face ubiquitously covered and a placard turning the acronym for men's rights association into "Misanthropic Rapist-supporting..." and one can only assume the unseen "A" was made to stand for "assholes" or something like that (something that can't be shown on TV, anyway). Then we see the UofT student union, like the CFU, condemning a men's rights activist as someone who "justifies sexual assault".

On the SFU women's centre's views on masculinity (or "male culture"):

Ah SFU. IIRC Simon Fraser is notoriously loopy for these kinds of things.

In any case, I always find it comical that academic feminists and women and gender studies programs catch so much hell when their actual influence is insignificant outside of their own academic bubbles. These programs have been around for ages, yet mainstream feminism is at it's weakest point since I don't know how long.

Last point: the masculinity definition cited seems pretty outrageous...until you see it next to Argus's "men's culture" which includes ogling women (ie. making them into sexual objects) swapping racist or sexist or homophobic jokes and discouraging emotional expression as a sign of weakness. So if that's what man;y anti-feminists are self-identifying as part of their culture, maybe SFU is not so crazy? And hey maybe a men's centre is not such a bad idea if it were actually a place to discuss those issues and look at why they exist and what social and other structures reinforce it; it would probably line up with feminist ideas about the patriarchy and such. But if the campus MRA movement is any indication, I have a gut feeling men's centres in practice would be merely gathering places for bros in fedoras to gather and complain about women and feminists.

Edited March 7, 2014 by Black Dog

[Black Dog]

Re: the condom poker story I posted earlier, the SCC dismissed the guy's appeal today.

Here's part of the decision I think applies here:

The Criminal Code sets out a two-step process for analyzing consent to sexual activity. The first step is to determine whether the evidence establishes that there was no “voluntary agreement of the complainant to engage in the sexual activity in question” under s. 273.1(1) and it requires proof that the complainant did not voluntarily agree to the touching, its sexual nature, or the identity of the partner. If the complainant consented, or her conduct raises a reasonable doubt about the lack of voluntary agreement to the sexual activity in question, the second step is to consider under ss. 265(3) and 273.1(2) whether there are any circumstances that may vitiate the complainant’s ostensible consent or participation.