| Subject: TSJ is rockin! More on the R-word inside |
Author:
Holly
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Date Posted: 12:28:09 01/07/04 Wed
In reply to:
Candy
's message, "This is pretty damn bad...." on 12:56:19 01/06/04 Tue
I'm done. I've pinned my T&B badge to the Christmas trash and sent it off to dumpster world, BUT, as much as I wish it weren't about Todd and Blair, I think this is a great story.
I think it's not only possible for a woman to be "raped" by a man who is not guilty of raping her, I think it happens more frequently than we would ever want to think it does.
Make no mistake - I am NOT NOT NOT making any excuses for anyone, but the issue in a lot of rape trials is not so much whether the woman actually consented to sex, but whether the man THOUGHT she consented and whether it was reasonable for him to think so.
Rape laws are written differently in different states, because it is such a difficult issue - and there are always competing policy concerns. In some states, if the man actually thought he had consent, he's not guilty. That's because we only want to punish people who do bad acts AND have bad intent. In some states, the man is guilty even if he thought he had consent if a reasonable person would have known that there was no consent. That's because (among other things) we don't like rapists, and it's really hard to disprove a subjective state of mind, so we don't want a guy who doesn't get it even when a woman is screaming and crying to go out and "get lucky" again.
The issues get even more muddled when you throw in things like who has the burden to prove what. Like, is lack of consent an element of the crime, which the prosecution has to prove beyond reasonable doubt? Or is consent a defense to the charge, which the defendant has to prove?
The legal shit never gets this deep unless the factual shit is something we're uncomfortable with and conflicted about.
And we're uncomfortable with this and conflicted about it because, as much as we do not like the crime of rape, we do not like how easy it can be to accuse someone of rape.
The history of rape prosecution is UGLY every which way you look at it, from the failure to include rapes committed during wartime or during a marriage in the definition of rape to the current trend toward refusing to look at the alleged victim's conduct in determining what REALLY happened.
Again, I'm NOT making excuses for ANY perpetrator, and my personal beliefs about what is and what is not rape have been aired many times on this board and elsewhere.
All I am saying is that it is both factually and legally possible for a woman (or man) to be FORCED, or to feel COERCED, to have sex by a person who REASONABLY thought the act was consensual. That's what makes this story interesting to me.
Unfortunately, I don't think that this is the kind of misunderstanding that sane people can put behind them and get back to the HOT SEX part of their former relationship. So, bye-bye T&B badge.
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