Debate: That sex without consent is always rape

[James R]

This is a team debate, conducted according to the [thread=76020]Standard Rules[/thread].

The debaters (who are the only people who may post in this thread) are:

For the affirmative: James R, Bells, Asguard
For the negative: Syzygys.

If you are a non-debater and wish to discuss the debate topic or the progress of the debate, you are welcome to use the [thread=82800]Discussion Thread[/thread].

The format and participants in the debate were agreed in the [thread=82760]Proposal thread[/thread].

Round 1 of this debate begins now. Posters from either team may post their introductory post below.

 

[James R]

The topic of debate is "That sex without consent is always rape".

I would like start by publically recording the fact that initially I issued a challenge to debate this topic to members Kadark and angrybellsprout. Both have declined to debate the topic. It is clear that Kadark believes that under certain circumstances sex without consent is permissible (see the Proposal thread, linked above). angrybellsprout, at the time of writing, has been unwilling to express agreement with the proposition that sex without consent is always rape. This means that his stance on the issue is unclear at present.

I invite readers to review the Proposal thread for this debate and draw their own conclusions about why these two posters declined to participate in this thread.

Now, to the topic.

------

I would like to open by citing the Crimes Act that applies in my own jurisdiction. That act does not exhaustively define "rape", but rather refers to the common law which is largely shared among Britain, the USA and Australia (which is where I live). However, the Act does say, specifically:

...it is also rape if a person [does certain acts involving introducing a part of his body or an object into the vagina, anus or mouth of another person] on becoming aware that the other person is not consenting to it being there or realising that the other person may not be so consenting.

It also specifically says that failing to withdraw a penis or other part of the body upon realising that consent may not be present is also rape.

I suspect that the law is similar in other jurisdictions. Therefore, with this legal definition I submit that I have substantially already won the argument that is the subject of this debate.

Clearly, the key elements of rape are insertion of a body part (e.g. penis or other body part or object) into the body of another person in the absence of their consent. Thus, sex without consent is, by definition, rape.

Moving away from a legal definition, let us look at a common dictionary definition of "rape":

rape (n.): The crime of forcing a woman to submit to sexual intercourse against her will.​

Again, we have the elements of sex and absence of consent. Thus, sex without consent, by common agreement of the definition, is rape.

I don't know that I need to say much more than this at this point. I must say that I find it almost incomprehensible that people like Kadark, and our esteemed opponent in this debate, Syzygys think that the point is arguable. Thus, I await Syzygys's argument.

I would like to end this first post by anticipating an argument that Syzygys raised in the Proposal thread:

I mean Joe has sex with a woman who is unconscious due to alchohol. He gently screws her with condom, no force, no disease passed. The woman will have no recollection of the event whatsoever and she wasn't a virgin to begin with.
There you have it, is that a rape or just a unauthorized use of her body?

Presumably, Syzygys will be arguing that this is not an example of rape, and attempt to distinguish it from "unauthorized use of her body".

It is enough, I think, to note that by both the legislative definition and the common dictionary definition I have cited, this example is indeed one of rape. There was sexual penetration; there is no consent.

If we are in any doubt about the moral implications of this example, consider the woman's reaction if she was later told about Joe's actions. Would she treat it like Joe borrowing her shovel without asking, as Syzygys seems to think? I don't think so.

Anyway, that's enough for an opening, I think.

 

[Asguard]

i was going to wait for the negative to respond first but if i do my team will steal all my points.

As "consent" in law and in ethics refers to INFOMED consent its appropriate that we take a moment to work out what exactly IS informed consent.


Informed consent is defined by wikipedia as

Informed consent

Wikipedia

Informed consent is a legal condition whereby a person can be said to have given consent based upon an appreciation and understanding of the facts and implications of an action. The individual needs to be in possession of relevant facts and also of his or her reasoning faculties, such as not being mentally retarded or mentally ill and without an impairment of judgment at the time of consenting. Such impairments might include illness, intoxication, insufficient sleep, and other health problems.

Some acts cannot legally take place because of a lack of informed consent. In cases where an individual is considered unable to give informed consent, another person is generally authorized to give consent on their behalf. Examples of this include the parents or legal guardians of a child and caregivers for the mentally ill. In cases where an individual is provided limited facts, serious ethical issues may arise. Examples of this in a clinical trial in medical research are anticipated and prevented by an ethics committee or Institutional Review Board.

Viewed 08/07/08 at 15:21

Now the laws which use this definition vary depending on the necessity of the area legislated so the crimes act for instance makes no mention of a guardian who is able to give consent. This is because the right to decide sexual activity remains the inherent right of ONLY the people involved.

Now consent doesn't nessarly have to be given as the people are removing there clothes. This maybe the case between partners in regard to sex while asleep or even drunk. HOWEVER this consent must be recent and you still bare the risk that the person may press charges post incident. This may also be an issue for people who chose to involve themselves in "rape fantasies where issues like "safe words" and what is allowed\forbidden maybe organised even weeks in advance

Though consent maybe accepted prior to the sexual act taking place refusal, is instantaneous and binding. No contract law will allow a sexual act to be forced on an unwilling participant. This refusal of consent doesn't have to be in the form of "no" either. In fact in the case of rape fantasy it maybe something completely unrelated like a persons name, a fruit or anything else which that couple feel comfortable using. In the case of a contract for sex a refund maybe given and enforced for services not rendered and it might be possible to sue for financial costs and damages (for example loss of income through a porn movie that never got made) however this remedy will always be financial rather than forced services

 

[Bells]

I would like to commence my opening argument in this debate with the definition of rape as it applies to the Criminal Code Act 1899, in the State of Queensland (Australia). Section 349 of the Code defines rape as:

349 Rape

(1) Any person who rapes another person is guilty of a crime.

Maximum penalty--life imprisonment.

(2) A person rapes another person if--

(a) the person has carnal knowledge with or of the other person without the other person's consent; or

(b) the person penetrates the vulva, vagina or anus of the other person to any extent with a thing or a part of the person's body that is not a penis without the other person's consent; or

(c) the person penetrates the mouth of the other person to any extent with the person's penis without the other person's consent.​

(3) For this section, a child under the age of 12 years is incapable of giving consent.

(Source)
​

The issue of consent appears to be a contentious issue in recent discussions on these forums. Consent under Section 348 of the Code is defined as:

348 Meaning of consent

(1) In this chapter, consent means consent freely and voluntarily given by a person with the cognitive capacity to give the consent.

(2) Without limiting subsection (1), a person's consent to an act is not freely and voluntarily given if it is obtained--

(a) by force; or

(b) by threat or intimidation; or

(c) by fear of bodily harm; or

(d) by exercise of authority; or

(e) by false and fraudulent representations about the nature or purpose of the act; or

(f) by a mistaken belief induced by the accused person that the accused person was the person's sexual partner.​

(Source)
​

Section 349 (2) states quite specifically that "carnal knowledge" and penetration without consent does amount to rape.

Is sex without consent always rape? By looking at the above definition of rape, one would have to say yes.

Lack of consent is a necessary component of rape. Under the Code for example, there are various circumstances whereby consent is deemed to not exist:


Submission is not consent

Just because someone submits, does not mean said submission is consent. For example:

“A complainant who at or before the time of sexual penetration fails by word or action to manifest her dissent is not in law taken to have consented” [R v IA Shaw [1996] 1 Qd R 641]​

It is not necessary that violence be involved

The complainant does not have to forcibly resist to constitute absence of consent [R v Pryor [2001] QCA 341]


Cognitive capacity to give consent

When we come to issues of inebriation, consent is also deemed to not exist if the complainant has been rendered insensible through intake of liquor is also deemed incapable of giving consent. [R v Camplin (1845)]. There is something to note when it comes to the consumption of alcohol, however. Consent is not always vitiated by excessive consumption of alcohol. It is vitiated if the complainant is in a drunken stupor and incapable of deciding to consent [R v Francis [1993] 2 Qd R 300]. The ability or capacity to consent be absent due to any mode of intoxication, be they drugs, anaesthetic, liquor.


But what of cases where the accused assumes to have consent? When can consent be deemed to be ineffective or be withdrawn? I will first touch on vitiating consent.

When can consent be deemed ineffective?

Consent may be vitiated by several means. For example, threat of, or actual infliction of violence (including to a third person), will render the consent to be ineffective. Consent may also be deemed ineffective if there an inability to understand or has a mistaken belief about the nature of act. For example, a music teacher telling his student that in order to improve their breathing, said student must be penetrated by the teacher, consent will be deemed to have been vitiated [R v Williams [1923] 1 KB 340].


Withdrawal of consent

A person may withdraw consent at any time. If the other person(s) does not cease and withdraw immediately, it is rape. It is quite simple in its meaning. In the case of Kaitamaki [1985] 1 AC 147, the accused failure to desist in the sexual act once he became aware that consent had been withdrawn was deemed to have been a rape.


In the instance of marriage or relationships

Is there such a thing as marital rape? The answer to that is yes. In the past, under Common Law, it was held that an implied term of the marriage contract was that the parties gave irrevocable consent to sexual intercourse. Therefore it was deemed impossible to rape spouse.

Statutes enacted in most countries and legal jurisdictions have overridden this precedent, however. In Australia for example, the case of R v L (1991) 174 CLR 379 overrides the Common Law precedent, having applied the statute, deeming consent to be revocable even while married and recognising the fact that a spouse can rape his or her spouse.

I would now like, as James has, to draw attention to a comment made by Syzygys, while discussions about the participants for this debate was underway. I am using Syzygys' comment and no one else's because he is the opposing debater in this current debate. Here is his hypothetical:

Let's say I, er... I mean Joe has sex with a woman who is unconscious due to alchohol. He gently screws her with condom, no force, no disease passed. The woman will have no recollection of the event whatsoever and she wasn't a virgin to begin with.
There you have it, is that a rape or just a unauthorized use of her body?
http://www.sciforums.com/showpost.php?p=1921589&postcount=134

He then went on to say that he has proven it is not always rape, by attempting to use the analogy of someone stealing his neighbour's shovel while said neighbour is away on holidays, but Syzygys viewed it not as theft, but as merely being an "unauthorised" use of the shovel, just as "Joe" used the woman's body. That a woman and a shovel were even used as a comparison is a subject for another debate, but Syzygys is wrong. "Joe" did not just borrow the woman's body for his sexual gratification. He raped her.

I think I, as well as James and Asguard, have proven that consent must be present during the whole sexual act. But what if, as Syzygys tries to claim, that she was unconscious due to the amount of alcohol she consumed and would not know or remember it in the morning? The answer to that is simple. If someone is unconscious, they are unable to consent. So in Syzygys' hypothetical, we have all the components which define a rape. A sexual penetration of another person without their consent.

Thus ends my opening argument of this debate.

 

[Syzygys]

I am reposting these from the discussion thread with slight corrections:

Here are a few problems to start with:

1. DEFINITION. What definition are we using?
2. GEOGRAPHY. Which country or state are we refering to, whose laws are being discussed here?
3. TIME. Are we talking about now, about Victorian England, etc. or universally?

1. The problem of the definition is twofold:

a. If we give a strict definition and we all agree to it, there is nothing left to debate. Analogy: Is a 2 dimensional shape consisting points with equal distance from a particular point is always a circle? If we give the definition of circle like this:"Circle is a 2 dimensional shape consisting of those points in a plane which are at a constant distance from a fixed point." When everyone agrees, there is no point in debating what the circle is.
My point here is that I need a little leeway with the definition.

b. James' usage of "always" in the moral question. If I can show at least one occasion when the sexual attack without consent could be considered something else rather than rape, the answer is no, and I win the debate.

#2 and #3 are selfexplanatory, so I don't need to explain them....

OK, I will give some definitions here, from my mind and Wikipedia:

Rape (1): sometimes called sexual assault, is an assault by a person involving sexual intercourse with or sexual penetration of another person without their consent.

Rape (2): physical attack when one is being forced against his/her will to engage in sexual activity.

I am open to other, similar definitions. Again, the problem is with #1 that there is nothing left to argue, as James' moral question is stated. Although here I am going to throw in one of my weapons:

Spousal rape! It all boils down to the definition of consent in the context of rape. Just about half of the world even today consideres MARRIAGE being an institution that gives long term consent to the spouse to use the other's body for sexual activities. Thus even if the husband forces the wife to have sex with him against her will, legally it can not be considered rape.

The grey area of the world is where spousal rape is not criminalized, thus by legal definition it is NOT a rape:

http://en.wikipedia.org/wiki/Image:MaritalRapeMap.gif

applies in my own jurisdiction.

I already addressed the geography problem earlier, I just would like to point out the silliness of your following conclusion:

Therefore, with this legal definition I submit that I have substantially already won the argument that is the subject of this debate.

It is kind of funny and a completely illogical conclusion that just because one, small part of the world your argument is supported, than it is supported everywhere, and it has to be "ALWAYS".

Counteranalogy: Is cannibalism wrong? Hey, in my part of the world it is a well established and sacred tradition so it must be OK everywhere and the answer is yes.

(again, we run into the problem of geography)

rape (n.): The crime of forcing a woman to submit to sexual intercourse against her will.

Although I said I would agree to other similar definitions, this one is very gender biased. man can be raped too...

Presumably, Syzygys will be arguing that this is not an example of rape, and attempt to distinguish it from "unauthorized use of her body".

Correct. As a lawyer I would argue that as long as the "victim" didn't suffer anything negative and doesn't even remember the action, it should be classified as something else, rather than rape.

It is enough, I think, to note that by both the legislative definition and the common dictionary definition I have cited, this example is indeed one of rape.

Again, here we get back to the definition problem, see my circle analogy. There is nothing left to argue about what a circle is...

I will introduce case studies later on where the act should be consider as something else...

Here I am going to post case studies (CS) that describe situations and we can refer to them later just by number.

Case study #1:

In a short story by Roal Dahl (I also heard similar stories actually happening) 2 friends agree to switch wives without their knowledge. To make it happen one friend grows a bear just like the other has and starts to smoke the same kind of pipe, etc. In short they make their physical appearance very similar. There is a weekend sleepover and they do the switch the sex happens in the dark, and of course there is no consents from the wives because they don't know it. The story ends when one of the wifes in the next morning turns to her husband and says:

"Honey, last night was the best thing ever happened to me."

Legally I would classify this as fraud or trickery and not rape, although if we go by the strict definition, it could be rape. Now if we use my #2 definition posted in post #2, there was no physical attack, just lack of consent. So according to that definition it wasn't rape.

Case study #2:

Jack and Jill are breaking up. They have been together for 2 years, but they have different views of their futures, so they just had an amiable breakup. Jack is moving out and comes up to the appartment to collect his belongings. They had a verbal agreement for a last goodbye sex. Jill just took a strong sleeping pill and is sound asleep. Jack comes in and finds a note saying "Take whatever you want." Jack decides to proceed to have sex with the sleeping Jill, because that's what he wanted. It is unclear that Jill would want to or not.

Was it rape or was it missunderstanding? It is not like Jill had any negative leftover from the sex because Jack was very tender, using protection, etc. and they had sex before with each other. The consent part is in the foggy area, because she did agree to a last turn in the hay...

Case study #3: Lord Cullington comes home from foxhunting in the year 1800 and although his wife is unwilling, he takes her by the force. Is it rape?

"Historically, many cultures have had a concept of a spouses' conjugal right [1] to sexual intercourse with each other. The proposition of Christian teaching's influence in Western culture need be considered, in particular, St. Paul's teaching, "Let the husband render to his wife the affection due her, and likewise also the wife to her husband. The wife does not have authority over her own body, but the husband does. And likewise the husband does not have authority over his own body, but the wife does. Do not deprive one another except with consent for a time, that you may give yourselves to fasting and prayer; and come together again so that Satan does not tempt you because of your lack of self-control." (1 Corinthians 7:3-5, NKJV). This can be seen in Common law, in force in North America and the British Commonwealth, where the very concept of marital rape was treated as an impossibility. This was illustrated most vividly by Sir Matthew Hale, in his 1736 classic legal treatise, Historia Placitorum Coronae, History of the Pleas of the Crown, where he wrote that such a rape could not be recognized since the wife "…hath given up herself in this kind unto her husband, which she cannot retract.""

This is my favorite for obvious reasons:

Case study #4:

"Lot left Zoar and retired with his two daughters to a cave in an adjacent mountain. In Gen. 19:30-38, Lot's daughters incorrectly believed they were the only people to have survived the devastation. They assumed it was their responsibility to bear children and enable the continuation of the human race. On two subsequent nights, according to the plan of the older daughter, they got their father drunk enough to have sexual intercourse with them. By him each became pregnant."

Was it rape or incorrect survival instinct with a little fraud thrown in??? There was no physical attack and Lot might have had consented later....

P.S.: This is the story I like to read it to my children from the Bible, specially with detailed descriptions...What's best than 3000 year old porn?

 

[Asguard]

[Moderator message: This post begins Round 2 of four debate rounds for this debate.]

To start with lets deal with marriage

acording to a search of the MARRIAGE ACT 1961 there is not one mention of sex

http://www.austlii.edu.au/au/legis/cth/consol_act/ma196185/

Marriage is defined as a legal contract which grants certian legal and finantial rights. These rights dont include concent to sexual activity, they mostly deal with superanuation, children, concent to medical treatment on a partners behalf ect. It is possable to marry someone and never ingage in sexual activity with that person, this includes on there weding night. In fact acording to this document

THE LEGAL REGULATION OF MARRIAGE

A paper delivered to the Law Students Society, Faculty of Law, University of Melbourne by the Honourable Alastair Nicholson AO, RFD, QC, Thursday 16 September 2004


Marriage Act, inability to consummate a marriage ceased to be a ground for making a declaration of nullity: see ss. 1 and 51 of the Family Law Act and ss. 23, 23A, and 23B of the Marriage Act.

Viewed 09/07/08 at 09:58

From this it is quite clear that marriage under law is sperate from sexual activity and doesnt form a contract for sex. Now as stated above it is concivable that sexual activity can be concented to in advance. Its concivable (wether legal or not) that a document could be drawn up to give advanced concent in specific circumstances. Wether this is currently legal or not is irrelivent it would still be concidered that the person has concented IF the document fell under the normal conditions, ie that the person was of sound mind and not under any form of duress. Still as posted by bells, this contract would be able to be revoked at any time including during the act itself. Under ethics this sort of concent is compleatly valid. The law may or may not agree but under principle based eithics advanced directives to be carried out in the event of incapacitation are an established principle (for example living wills and DNR's)

From your case study 1 clearly under the sexual assult act that bells posted this activity is illegal

348 Meaning of consent

(2) Without limiting subsection (1), a person's consent to an act is not freely and voluntarily given if it is obtained--

(f) by a mistaken belief induced by the accused person that the accused person was the person's sexual partner.​

It clearly falls under the definition of rape as defined in the crimes act.

Now to take another fictional senario there was an eposode of SVU dealing with this exactly. 2 identical twins (sister A and sister B) from the easten block came over to the US. One (A) married a guy and had a child and remained married, the other (B) didnt. Sister B ended up getting in so much trouble that a guy came to kill her but found sister A insted. When sister B found sister A's body she took sister A's life, including pretending to be the man's wife and the child's mother. When he found out he was utterly ruined because his wife was dead and her sister was raping him.

So in terms of harm yes your wives knew and there for it could be argued that they concented because they were not under the mestaken belife to the identity of there sexual partner, in my senario the husband most definitly WAS under a mestaken belife of to the identity of his partner and there for was raped.

as i have already delt with 3 of your senarios (case study 2 and case study 3 are delt with in the paragraph on marrage and advanced concent) so lets move onto case study 4

In the case of case study 4 we have a clear case of a breach of concent. The man was induced into a state to do something he would not otherwise have chosen to do. This would be the same as someone who was gotten drunk by a realestate agent in order to get a house sold from someone he knew didnt want to sell. It breaches both the ethics of informed concent and the laws relating to informed concent

For an ethical view point the best place to look is principle based ethics.
Principle based ethics are based on 4 ulitimate principles which cant be broken down into any of the other 4, these are: autonomy, beneficence, nonmaleficence, and justice

Autonomy is the most important when refering to sexual activity, this principle refers to the right to do as YOU desire with your own body.

Benificants states that you must act for the good of the person your acting for. Now in sexual activity this could be yourself and your partner but its balanced by the 3rd principle

nonmaleficence states FIRST YOU MUST DO NO HARM, in the case of sexual activity this mostly refers to doing, psycological harm however it can be used as an argument against BS&M. Personally i rate the psycological harm as being the higher principle because it joins with the principle of autonomy in this. In the case of BS&M there is a fair argument that the physical harm is overuled by the right to act as you see fit (the first principle) in regard to your own body.

Justice refers mainly to the law in this case, this means that laws MUST be consistant. For instance it cant be illegal for a women to refuse concent and expect to have this honored by the courts but a man who refuses concent has his assult ignored.

At this point i will yield the floor

 

[James R]

It seems I was too hasty to claim victory in this debate. I thank Syzygys for his post.

Actually, I suspected when I suggested the topic of this debate that I was making a rod for my own back by including the word "always". As Syzygys correctly points out, he needs only to come up with one example where sex without consent is not rape, and he has won the day.

Syzygys initially mentions three issues: definition, geography and time. As to definition, the affirmative side have provided several contemporary definitions of rape. I invite Syzygys to provide an alternative definition of "rape", if he thinks he can do better than the legislative examples we have cited.

Syzygys makes much of the issue of time, particularly that historically certain types of sex without consent (such as between a husband and wife) were not considered to be rape. That is fair comment, but in this case not within the parameters of the debate topic, which specifies that sex without consent is always rape. That is, we are not arguing that sex without consent was always rape in the past here. So, let us stick to the present for the rest of the debate, and put the past behind us. Besides, even if we were to consider the past, I would be inclined to argue that past rapes were just as much rapes as present rapes, despite the fact that they were not always labelled as such in the past.

Then we come to the issue of geography. I must concede the point that in some countries today, sex within marriage without consent, is not considered rape. I admit that I was thinking of modern, enlightened societies that recognise basic equality between the sexes and human rights, rather than backward regimes where women are still suppressed and treated essentially as the property of their husbands or fathers. Now, while I concede that in such nations sex without consent is not called rape, and no laws exist to prosecute it, nevertheless when a man has sex without a woman's consent (or vice versa), it is rape, no matter whether you call it that or not, and no matter whether the law recognises it or not.

Fundamentally, rape is a violation of personal autonomy, as my esteemed colleague Asguard has pointed out. It involves depriving a person of control over his or her own body. Looked at in this light, all four of Syzygys's case studies constitute rape. I will examine these in more detail below.

I think that Asguard has made the point that, at least in modern democracies, there is no contract for sex implied in a contract of marriage. In some nations the same cannot be said. But in such nations marriages are often arranged, so that autonomy is removed from a woman before sex even enters the picture. For the remainder of my posts in this debate, I will concentrate on societies that have benefited from Enlightenment thinking and so no longer treat women as chattels. This debate sprang from a discussion of rape in the context of western societies, so I propose to discuss it in that context.

Now, let me deal with Syzygys's comments in more detail:

As a lawyer I would argue that as long as the "victim" didn't suffer anything negative and doesn't even remember the action, it should be classified as something else, rather than rape.

I hope that Syzygys can clarify for me how it is that sex with an unconscious woman (for example) without her consent, means she doesn't suffer "anything negative". I argue that implied in the act is the negation of her personal autonomy. If you woke up one morning and were told that a person had had sex with you while you were asleep, without your knowledge or consent, how would you feel? I think most people would feel violated and resentful of the perpetrator. In short, they would consider themselves to have been raped.

Case study #1:

In a short story by Roal Dahl (I also heard similar stories actually happening) 2 friends agree to switch wives without their knowledge. To make it happen one friend grows a bear just like the other has and starts to smoke the same kind of pipe, etc. In short they make their physical appearance very similar. There is a weekend sleepover and they do the switch the sex happens in the dark, and of course there is no consents from the wives because they don't know it. The story ends when one of the wifes in the next morning turns to her husband and says:

"Honey, last night was the best thing ever happened to me."

Legally I would classify this as fraud or trickery and not rape, although if we go by the strict definition, it could be rape. Now if we use my #2 definition posted in post #2, there was no physical attack, just lack of consent. So according to that definition it wasn't rape.

A good test here would be to ask: what do you suppose the wives' reactions would be if they knew about the swap? I think they would be angry, at the very least, and would feel violated - raped.

Case study #2:

They had a verbal agreement for a last goodbye sex. Jill just took a strong sleeping pill and is sound asleep. Jack comes in and finds a note saying "Take whatever you want." Jack decides to proceed to have sex with the sleeping Jill, because that's what he wanted. It is unclear that Jill would want to or not.

Was it rape or was it missunderstanding? It is not like Jill had any negative leftover from the sex because Jack was very tender, using protection, etc. and they had sex before with each other. The consent part is in the foggy area, because she did agree to a last turn in the hay...

As I understand it, the law requires consent to each individual act of sexual penetration. There is no proviso that if you've had sex 100 times before, you have some kind of ongoing contract for sex any time without knowledge or consent. In this example, even if Jack and Jill had a prior "agreement" for sex, we must look at the tacit understandings in that agreement. Would Jill, if she was asked, say "Of course, I expected that he might have sex with me while I was unconscious. That's just fine, and part of our agreement"? I think not. I think Jill would feel violated - raped.

Case study #3: Lord Cullington comes home from foxhunting in the year 1800 and although his wife is unwilling, he takes her by the force. Is it rape?

I have already covered this in my discussion of history. In my opinion a rape is no less a rape because it happened 100 years ago, even if the law at the time did not recognise it as such. But this is irrelevant given that the topic that we are debating is phrased in the present tense.

Case study #4:

"Lot left Zoar and retired with his two daughters to a cave in an adjacent mountain. In Gen. 19:30-38, Lot's daughters incorrectly believed they were the only people to have survived the devastation. They assumed it was their responsibility to bear children and enable the continuation of the human race. On two subsequent nights, according to the plan of the older daughter, they got their father drunk enough to have sexual intercourse with them. By him each became pregnant."

Was it rape or incorrect survival instinct with a little fraud thrown in??? There was no physical attack and Lot might have had consented later...

I wonder what Lot's reaction was when he found out about the rape. Is that in your bible? I'm sure it is.

 

[Syzygys]

What the hell happened to my posts?? Is it those silly rules again? I hope someone saved them...

Anyway, if you play a Bill Clinton on me with defining what the verb *is* means, I could argue that the original question refers to the universal meaning of ALWAYS, thus we are discussing past, present and future. It something is always, it should have been in the past too. See the problem of time in my opening argument...

Case study #5: From the Mumbai Times:

"No charges against the Serial Pleasurer!

No charges were filed against the so called Serial Pleasurer, because none of her victims are willing to do so. In the infamous case of Sam, a secretary of Dr. Loveguru, the famous sexual psychologist, she gained unauthorized access to the files of his boss' clients and collected the names of women unable to orgasm. In a course of 5 weeks she kidnapped 6 of them, tied them down, and after a long nice bodymassage she brought them to multiple climaxes,digitally. After that she released them unharmed, but cured. Lawyers for Sam argued that she might be guilty of kidnapping but not rape, because she was just practicing medicine without a medical license. Several of the kidnapped women were also ready to defend Sam, including their husbands. The police say no harm, no crime, although they warned Sam not to do it again. Sam opened up a "healthclinic" treating women with orgasm issues with bodymassage. Her clinic is booked for the next 2 decades...."

 

[Bells]

Syzygys has brought up some interesting points in this debate. As James has pointed out, we on the affirmative side were of the assumption that this debate would be in light of more Western notions of rape and during the modern era, instead of looking and interpreting rape and consent from the past.

Now, Syzygys was given the task to prove that there are instances where a lack of consent does not equate to rape. His belief that he has won the debate could be correct. But there is one little niggling aspect of this debate that Syzygys may have overlooked. The first clues to this are in his own post:

Although here I am going to throw in one of my weapons:

Spousal rape! It all boils down to the definition of consent in the context of rape. Just about half of the world even today consideres MARRIAGE being an institution that gives long term consent to the spouse to use the other's body for sexual activities. Thus even if the husband forces the wife to have sex with him against her will, legally it can not be considered rape.

He is quite correct. In many parts of the world, consent is deemed to be implied upon the terms of marriage. Ergo, marital rape is impossible in such countries and legal jurisdictions. But here's the kicker. There is consent, legal and religious (especially in countries were the laws are dictated by religious beliefs). Said consent is deemed to exist within the realm of marriage. But I think Syzygys would find that said consent would be deemed to no longer exist during any period of separation or divorce. So if a spouse is separated from the other or divorced, the rape laws of that country would still apply. And yes, domestic laws of every country on this planet outlaws rape.

So while not every country on Earth recognises individual autonomy, especially in the case of women, while they are married, every country does recognise that rape is an illegal act, a sexual assault upon the body without the individual's consent. That said however, countries who do not recognise marital rape go by the assumption that consent is present because they are married. There might be exceptions to these rules, even in some countries that do not legally recognise marital rape. For example, in countries where Islamic law is in place, women raped by their husbands might still have some recourse, even if the law states it does not recognise marital rape.

In the context of jirah, it would appear so: where there is any physical harm or disease caused to a spouse, there may be a claim for jirah compensation. The law of jirah provides for compensation for physical harm between spouses, and supports Islamic legislation against domestic abuse. Even in these discussions of appropriate jirah compensation, the question of the injured party’s consent plays a central role.

(Source)
​

In looking at the laws in the West when it comes to marital rape, we in the West can say yes, women have individual autonomy and do have legal recourse if their husbands rape them. In other countries, this is not always the case, because marital rape is not deemed to exist. Why? Simply because consent is deemed to exist and continue for the term of the marriage itself. But there is still consent present, even in this archaic form. Outside of marriage, rape laws still apply. And in each jurisdiction, lack of consent is a prime factor.

Now onto further points made by Syzygys.

It is kind of funny and a completely illogical conclusion that just because one, small part of the world your argument is supported, than it is supported everywhere, and it has to be "ALWAYS".

Not illogical at all. Consent is always present. In countries where marital rape is not recognised, consent is still deemed to exist within the marriage itself. While individual autonomy in the marriage itself (primarily for women) does not exist, there is still a presumed and implied marital consent in regards to the sexual relationship of the couple.

And Syzygys is incorrect. Rape is rape everywhere in the world. That it is not recognised everywhere when it comes to marriage does not take away from the fact that every country has laws in place which deem rape to be illegal and in some instances, punishable by death.

Although I said I would agree to other similar definitions, this one is very gender biased. man can be raped too...

In this, I will agree with Syzygys. Men can be and are raped as well. Very few countries still base their rape and sexual violence laws to be gender specific so that it only applies to women.

Correct. As a lawyer I would argue that as long as the "victim" didn't suffer anything negative and doesn't even remember the action, it should be classified as something else, rather than rape.

How so? So if a child is raped as a 2 year old for example, that child grows up and does not remember it, does not mean it is any less of a crime against that child. The same applies to a person who is raped while unconscious. The rape itself is a negative, violent and forceful intrusion upon another person. Just because the person does not remember it the next day does not take away the fact that it is still an intrusion upon that person's body, which he himself alludes to in his original hypothetical:

I mean Joe has sex with a woman who is unconscious due to alchohol. He gently screws her with condom, no force, no disease passed. The woman will have no recollection of the event whatsoever and she wasn't a virgin to begin with.

Seeing that she was unconscious, she is unable to consent. And by any legal definition in every country on this planet, it is still rape. Lets not forget, that every legal jurisdiction has laws in place that deem rape, sex without consent, to be a crime.

Now onto his case studies.

Case study #1:

In a short story by Roal Dahl (I also heard similar stories actually happening) 2 friends agree to switch wives without their knowledge. To make it happen one friend grows a bear just like the other has and starts to smoke the same kind of pipe, etc. In short they make their physical appearance very similar. There is a weekend sleepover and they do the switch the sex happens in the dark, and of course there is no consents from the wives because they don't know it. The story ends when one of the wifes in the next morning turns to her husband and says:

"Honey, last night was the best thing ever happened to me."

Legally I would classify this as fraud or trickery and not rape, although if we go by the strict definition, it could be rape. Now if we use my #2 definition posted in post #2, there was no physical attack, just lack of consent. So according to that definition it wasn't rape.

You can look at it in any definition. It is still rape because the women have not consented. Definition #1 explicitly mentions consent, again an essential component of rape. Definition #2, he deems as being "physical attack when one is being forced against his/her will to engage in sexual activity". If we are to look at the definition of consent, we can see that it means to 'agree', or to give 'permission' to. This definition is broad and all encompassing. The broad legal definition of consent is:

1) n. a voluntary agreement to another's proposition. 2) v. to voluntarily agree to an act or proposal of another, which may range from contracts to sexual relations.

(Source)
​

Ergo, definition #2 reeks of lack of consent. A lack of agreement, or voluntary agreement. Again, we keep in mind that consent, ergo, agreement, is of primary importance to determining if it is indeed a rape. Definition #2 speaks for itself when it says that one is forced against their will. Hardly agreement, is it?

Therefore, his hypothetical, under either definition, still fails to be something other than rape. Because not only have both women not consented to the act (under definition #1), both were forced to engage in the sexual act without their knowledge (definition #2), which again, falls back onto the fact that neither agreed to the acts. Ergo, neither consented and yes, it is rape because they were forced into it without their consent.

Case study #2:

Jack and Jill are breaking up. They have been together for 2 years, but they have different views of their futures, so they just had an amiable breakup. Jack is moving out and comes up to the appartment to collect his belongings. They had a verbal agreement for a last goodbye sex. Jill just took a strong sleeping pill and is sound asleep. Jack comes in and finds a note saying "Take whatever you want." Jack decides to proceed to have sex with the sleeping Jill, because that's what he wanted. It is unclear that Jill would want to or not.

Was it rape or was it missunderstanding? It is not like Jill had any negative leftover from the sex because Jack was very tender, using protection, etc. and they had sex before with each other. The consent part is in the foggy area, because she did agree to a last turn in the hay...

It is rape. He admits that he is unclear that Jill would have wanted to have sex with him at the time or not. Jill was unconscious. While she may have agreed prior to his return to the home to have make-up sex, the fact that she was unconscious (or sound asleep), while being unsure of her consent at the present time.. again.. she did not consent to the act. She was unable to consent to it because she was deeply asleep. While they may have had an agreement for a last hurrah in the sack, they did not stipulate when it was to be. The fact that she had taken a sleeping pill and was asleep when he came back to collect his 'stuff' is indicative of the fact she did not intend for it to be at that point in time.

Case study #3: Lord Cullington comes home from foxhunting in the year 1800 and although his wife is unwilling, he takes her by the force. Is it rape?

"Historically, many cultures have had a concept of a spouses' conjugal right [1] to sexual intercourse with each other. The proposition of Christian teaching's influence in Western culture need be considered, in particular, St. Paul's teaching, "Let the husband render to his wife the affection due her, and likewise also the wife to her husband. The wife does not have authority over her own body, but the husband does. And likewise the husband does not have authority over his own body, but the wife does. Do not deprive one another except with consent for a time, that you may give yourselves to fasting and prayer; and come together again so that Satan does not tempt you because of your lack of self-control." (1 Corinthians 7:3-5, NKJV). This can be seen in Common law, in force in North America and the British Commonwealth, where the very concept of marital rape was treated as an impossibility. This was illustrated most vividly by Sir Matthew Hale, in his 1736 classic legal treatise, Historia Placitorum Coronae, History of the Pleas of the Crown, where he wrote that such a rape could not be recognized since the wife "…hath given up herself in this kind unto her husband, which she cannot retract.""

The fact that it was way back when, does not detract from the fact that he took her by force and without her consent. So yes, it is still rape.

Case study #4:

"Lot left Zoar and retired with his two daughters to a cave in an adjacent mountain. In Gen. 19:30-38, Lot's daughters incorrectly believed they were the only people to have survived the devastation. They assumed it was their responsibility to bear children and enable the continuation of the human race. On two subsequent nights, according to the plan of the older daughter, they got their father drunk enough to have sexual intercourse with them. By him each became pregnant."

Was it rape or incorrect survival instinct with a little fraud thrown in??? There was no physical attack and Lot might have had consented later....

Mistake is not an excuse. Lot was not of any mental capacity to consent to sex with his daughters (incest.. illegal..). Whether he might have consented later or not is not the issue. He did not consent to the acts prior to or during because he was incapable of consenting..

 

[Syzygys]

Moderator note: Round 3 of 4 rounds of this debate starts with this post

Ergo, marital rape is impossible in such countries and legal jurisdictions.

Then we can close on this highnote.

And yes, domestic laws of every country on this planet outlaws rape.

First, you again using the logic equivalent of "always" with the word "every". This is called overgeneralization. Are you 100% sure about this? Remember, I only need to find 1 country...

Second, the whole point is that in these countries the law doesn't recognize the possibility of a husband raping the wife. Nada. No possibilito.

There might be exceptions to these rules,

Whatever happened to "always" and "every"?

In other countries, this is not always the case, because marital rape is not deemed to exist.

Thanks, I agree and you just contradicted yourself a few paragraphs above with the "every".

How so? So if a child is raped as a 2 year old for example, that child grows up and does not remember it,

Good point, although I doubt it is possible to rape a baby without hurting him/her.

The rape itself is a negative, violent and forceful intrusion upon another person.

OK, you sure didn't read my case studies or those were not rape. CS #1 sure was not violent, neither CS #5. Thus they were not rape at least not by this definition, so I guess I won the debate again, because I proved in CS #1 that it is possible to have a sexual intercourse without consent and STILL not being a rape. By the way I tend to agree, that negativity and harm has to be there to be rape.

Agree?

Seeing that she was unconscious, she is unable to consent.

She did consent previously, although it is not clear she would have wanted or not at that moment.

And by any legal definition in every country on this planet, it is still rape.

By now I am sure you are able to tell that this is overgeneralization...

You can look at it in any definition.

You probably haven't noticed, by so far we haven't even agreed on a definition, which by the way should be the start of any decent debate.

It is still rape because the women have not consented.

Really? Where is your previous definition (with what I actually agree with) of negativity, violence and forcefullness? There was just SWEET lovemaking nothing of the above. So it must not have been rape!! I guess I declare victory. As a lawyer I would classify it as fraud or cheating or marital infidelity, not rape.

By the way in CS #1 there was consent. The women wanted to have sex, they were just missled whom they were having sex with. So there was consent and there was no physical or emotional enforcement, thus it must not have been rape!

While they may have had an agreement for a last hurrah in the sack, they did not stipulate when it was to be.

So Jack could have assumed easily that she is included in the "Take everything" note. It is a case of missunderstanding, not rape, and again, no harm, negativity or violence just sweet lovemaking which jill doesn't even remember or possibly mind...

The fact that it was way back when, does not detract from the fact that he took her by force and without her consent. So yes, it is still rape.

Except that it was not against the law back then. Remember not to use the word "always" that easily!

Mistake is not an excuse.

It is an explanation. James made the mistake of including the word "always" in the original question and that led to losing the debate...

P.S.: Fun facts concerning the "every country" tidbit: In Pakistan between 1979 and 2006 it wasn't a proven rape unless 4 male eyewitnesses testified that it happened....The same in many other Muslim countries observing Sharia laws, the legal definition is adultery, if the woman can not provide the 4 witnesses and can be punished in certain countries by death.

http://www.liveleak.com/view?i=dd2_1215168907

 

[James R]

What the hell happened to my posts?? Is it those silly rules again? I hope someone saved them...

They were merged into one post. Nothing was deleted. Anyway, to the debate...
-----------

I think we need to start distinguishing the legal question of whether sex without consent is rape at some particular time in some particular jurisdiction from the more general moral question of whether sex without consent is rape. Clearly, in a particular jurisdiction at a particular time, the legal question is often easily answered and there is nothing very interesting to debate. I submit that we have now dealt sufficiently with the legal question to establish that, at least in western democracies of the present day, sex without consent is always rape. So, let us move on.

Since my last post, Syzygys has introduced a new case study (#5), ostensibly a newspaper story from the Mumbai Time. However, I cannot find this story online. To me, it doesn't ring true. But, for the sake of argument, let us assume that it is true.

In a course of 5 weeks she kidnapped 6 of them, tied them down, and after a long nice bodymassage she brought them to multiple climaxes,digitally. After that she released them unharmed, but cured. Lawyers for Sam argued that she might be guilty of kidnapping but not rape, because she was just practicing medicine without a medical license. Several of the kidnapped women were also ready to defend Sam. ... The police say no harm, no crime, although they warned Sam not to do it again.

We have multiple crimes here, but let's stick to rape. I do not know what the law concerning rape is in India, and Syzygys has not said what the legal position was. However, it appears that none of the victims wanted to complain about their treatment. That does not, however, mean that they were not raped. There is no requirement for a conviction to actually be handed down for an act to be classed as rape. In fact, most people would agree that the majority of rapes are never prosecuted.

We must ask, then, what would have happened if one of the victims here had decided to press charges. Would they have been sustainable in a court of law? I submit that the charges would have been sustainable, provided that laws relating to rape in India are similar to those in the United States, for example. This was a clear case of sexual penetration without consent, which is the accepted definition of rape. The fact that the victims may have decided after the event not to have the perpetrator prosecuted does not reduce the fact that her acts were rape at the time of commission.

OK, you sure didn't read my case studies or those were not rape. CS #1 sure was not violent, neither CS #5. Thus they were not rape at least not by this definition, so I guess I won the debate again, because I proved in CS #1 that it is possible to have a sexual intercourse without consent and STILL not being a rape. By the way I tend to agree, that negativity and harm has to be there to be rape.

I refer Syzygys to the legislation cited above. Notice that actual bodily harm does not have to be proved to establish rape. Nor do negative feelings on the part of the victim, for that matter. The only legal requirements are that there be sexual penetration and a lack of consent by the victim. These requirements are clearly satisfied in all 5 case studies, so all of them amount to rape.

You probably haven't noticed, by so far we haven't even agreed on a definition, which by the way should be the start of any decent debate.

At this stage, I would like to offer a working definition of "rape":

Rape is sexual penetration without consent.​

Now, if this definition is accepted, the affirmative side automatically wins the debate. Clearly, I think this definition is reasonable. Obviously, Syzygys must argue that this definition is inappropriate. My challenge to Syzygys, therefore, is to produce his own working definition of rape that deals with all of his case studies in a succinct way, but which he thinks would still accord with the general public understanding of the concept of rape. I look forward to seeing his (brief) definition, if he can come up with one.

By the way in CS #1 there was consent. The women wanted to have sex, they were just missled whom they were having sex with. So there was consent and there was no physical or emotional enforcement, thus it must not have been rape!

What is contemplated by the term "consent" is not just any old consent, but informed consent. If somebody asks you "Do you want to have sex?" and you're not really paying attention and you say "Whatever", you haven't given informed consent. You're not really aware what you agreed to.

In the case of the mistaken identity in CS #1, there was similarly a lack of informed consent. The women may have theoretically consented to sex with their husbands, but they were not informed that they would not be having sex with their husbands. Therefore, informed consent became impossible, because they were not fully informed about what they were agreeing to. In the absence of informed consent, they were raped.

So Jack could have assumed easily that she is included in the "Take everything" note. It is a case of missunderstanding, not rape, and again, no harm, negativity or violence just sweet lovemaking which jill doesn't even remember or possibly mind...

Again, just to ram home the point: harm, negativity and violence are not required for rape to be established. All that is required is sexual penetration and lack of (informed) consent. Jill was raped because she was physically unable to consent at the time.

P.S.: Fun facts concerning the "every country" tidbit: In Pakistan between 1979 and 2006 it wasn't a proven rape unless 4 male eyewitnesses testified that it happened....The same in many other Muslim countries observing Sharia laws, the legal definition is adultery, if the woman can not provide the 4 witnesses and can be punished in certain countries by death.

The fact that the authorities do not recognise the rape is a legal matter in those countries. Let me introduce the moral issue, with one post left in this debate. I introduce case study number 6:

Anu is a Pakistani woman. One night, while returning home after dark, she is dragged into an alley by two men who she knows, who force her to have sex. The whole time, she shouts out "Don't hurt me! I don't want this" and so on, but they continue anyway. The next day, she complains to the local police. However, they say that under Sharia law the men cannot be prosecuted, since there were not four independent male witnesses and the men deny the rape. No court in the land would prosecute these men, they say.​

My question to Syzygys (and also for readers of this post): was Anu raped or not?

Was this not rape because there weren't enough witnesses?

I ask this as a moral question, not a legal question. Let us assume that legally, the law in Pakistan would say this was not rape. Could we say that morally, this was rape nonetheless? I say it was.

 

[Syzygys]

James' post boils down to one thing that I already mentioned as every debate's problem in my first post: The definition of the debatable material. If we don't agree on it, we might both be right simply because we talk about different things. My 2nd definition was something like a sexual attack against the attacked will. Although I would like to add that the attacked should be harmed in the process wither physically or mentally.(bells agreed with this) If there is no harm done or even gain (as in CS #5) I wouldn't necesserily consider it rape.

Now let's throw in 2 more case studies:

This one was already posted in the Discussion thread and it is a true story, I numbered it #6:

#6 (true story):

"In a rare rebuke, a bar association has criticized a judge for refusing to uphold sexual assault charges against a man who allegedly let friends rape a prostitute he had hired. The judge said she considered the case "theft of services."
Municipal Judge Teresa Carr Deni heightened the furor when she defended her decision to a newspaper. "She consented and she didn't get paid," Deni told the Philadelphia Daily News. "I thought it was a robbery."
Dominique Gindraw was accused of ordering the accuser at gunpoint to have sex with three men. But Deni dismissed the rape and sexual assault charges on Oct. 4. She upheld conspiracy, robbery, false imprisonment and other charges against Gindraw."

http://www.pantagraph.com/articles/2...a573177778.txt

Here I don't particulary agree with the judge, but I can see her point. Let's say there was no violence only after the sex when discussing the payment or lack of it, I would consider it a robbery or non-payment, since the prostitue was willing to get involved in the sex and there wouldn't have been violence prior or during the sex.

Case study #7:

This is a version of #1. Let's say Peter and Paul are identical twins who are married to Mary and Maury who are also identical twins. Through the years they always joked about accidentally ending up with the wrong spouse when one weekend it actually happened and they slept with the in-laws. Was it rape? Of course not, although the consent was clearly not given to the in-law. It was simple a case of mistaken identity and nobody's fault.

I will renumber James' case study to #8. I was thinking of introducing Sharia law anyway. I posted it in another thread that in Pakistan between 1979-2006 Sharia law was observed. According to it, legally it wasn't rape unless the victim could bring 4 witnesses, a very unlikely situation. And usually the woman got punished as an adulterer.

So a simple rape (morally) can be adultery or robbery by the law. Again, the problem of definition.

Here is one more case study #9:

Helen has been in coma for years. She is completely non-responsive. Her doctor is willing to try a new method, based on bringing the patient to climax to effect and try to get a response from her brain. They proceed and as they digitally massage her vagina and clitoris, her body climaxes. She also awakens during the process from her coma and she thinks she is being raped.

Was she raped without consent or was it a medical (lifesaving) treatment??? That's why I like in the definition the harm and negativity clause....

As a summary, the answer to the original question is an obvious no, because it is NOT ALWAYS a rape when having sex without consent. It can be several other things like mistaken identity, fraud, medical treatment, robbery,etc.
AS I mentioned 3 problems in the opening post, I showed that neither in TIME nor in different GEOGRAPHIC locations today certain sexual attacks were/are considered as rape, mostly in the case of spousal abuse.

As about the definition problem, the attacked person needs to be physically/emotionally attacked AND not giving consent at the same time.Both need to be present. In several of the case studies consent was given (although to the wrong person), but there was no physical force, thus even by definition it wasn't rape.

So I think I sufficiently proved that the answer to the original question is no.


P.S.: Again, lack of working definition is problem, that's why I don't like the anal rules of this forum, it can take more than 4 responses to agree on just what we are debating...

 

[Asguard]

First off i would like to apologise for the time it has taken me to get this responce done.


________________________________________________________________

Ok firstly i have very little to respond to Syzygys's post 3 because mostly its just a responce to bells post.

that being said i would like to comment on this portion:

P.S.: Fun facts concerning the "every country" tidbit: In Pakistan between 1979 and 2006 it wasn't a proven rape unless 4 male eyewitnesses testified that it happened....The same in many other Muslim countries observing Sharia laws, the legal definition is adultery, if the woman can not provide the 4 witnesses and can be punished in certain countries by death.

http://www.liveleak.com/view?i=dd2_1215168907

Im sorry but this doesnt prove that an incident ISNT rape, this just refers to the rules of evidence for criminal matters. Now we could debate the right or wrong of this but this debate is about sex and rape, not about the rules of evidence under sharia law vs the westminster system.

So at this point i will have to go onto your post 4

#6 (true story):

"In a rare rebuke, a bar association has criticized a judge for refusing to uphold sexual assault charges against a man who allegedly let friends rape a prostitute he had hired. The judge said she considered the case "theft of services."
Municipal Judge Teresa Carr Deni heightened the furor when she defended her decision to a newspaper. "She consented and she didn't get paid," Deni told the Philadelphia Daily News. "I thought it was a robbery."
Dominique Gindraw was accused of ordering the accuser at gunpoint to have sex with three men. But Deni dismissed the rape and sexual assault charges on Oct. 4. She upheld conspiracy, robbery, false imprisonment and other charges against Gindraw."

http://www.pantagraph.com/articles/2...a573177778.txt

Now this does seem to be an apaling misscarage of justice but it with all due respect this doesnt prove that its not a case of rape. A side note on this paticular case, in ethics we studied a case of a doctor who gave a gynicological exam without the concent of the pt. There was never an acusation that the doctor did this for sexual reasons, nor did the pt complain on sexual grounds yet he was still charged and convicted of sexual assult because the procidure had to with the pts genitals.

Now all this case proves is that some judges dont know the law as well as they should. As bells has said if you hold someone through threat of force and force them to have sex with you, thats rape under the law and under the moral definition that james has posted. In order for this to be theft alone the offender would have to have concentual sex AND THEN refuse payment (or steal the payment back)

Case study #7:

This is a version of #1. Let's say Peter and Paul are identical twins who are married to Mary and Maury who are also identical twins. Through the years they always joked about accidentally ending up with the wrong spouse when one weekend it actually happened and they slept with the in-laws. Was it rape? Of course not, although the consent was clearly not given to the in-law. It was simple a case of mistaken identity and nobody's fault.

I belive i have already delt with this, though i would note that the chances of this being a pure acident are VERY low. I have identical twin cousins and though they do LOOK alike i can always tell them apart. If i can tell my cousins apart im sure there husbands could tell wether they were sleeping with there wives or sister in laws.

I must aplogise but i am unsure which case study you are refering to of jame's so i will have to abstain from debating that one

Here is one more case study #9:

Helen has been in coma for years. She is completely non-responsive. Her doctor is willing to try a new method, based on bringing the patient to climax to effect and try to get a response from her brain. They proceed and as they digitally massage her vagina and clitoris, her body climaxes. She also awakens during the process from her coma and she thinks she is being raped.

Well firstly i would like to refer you to my coments about the doctor charged with sexual assult for giving an exam. Secondly if this was truly a medical procidure it wouldnt be classed as "sex" which means this is irrelivent to the debate. Lastly i will point out that even if this was done for medical reasons alone, if the doctor didnt recive the propper concent from either the guardianship board or the next of kin otherwise it still would be sexual assult


So unless i can work out what case study 8 is i will conclude that the negitive hasnt managed to prove that there is a case of non concentual sex isnt rape and therefor we win.

 

[Bells]

I see that Syzygys has responded directly to my previous post in this debate. Therefore, I shall respond to his points as they apply to this debate as a whole.

Syzygys made the following response to my comments about consent being implied in the terms of marriage, in countries where the law does not recognise marital rape. It must be noted that many of these countries also do not recognise the individual autonomy of women.

Then we can close on this highnote.

And my response to Syzygys will be to point out that consent is implied in the terms of marriage in these countries. Ergo, there is consent of some sort.

My next point had been to point out to Syzygys that rape is illegal and a crime in every country. He asserted that he needed to find only one country, but has failed to do so. Yes, rape is a crime in every country and in every legal jurisdiction. While some countries fail to recognise a woman's autonomy while married and therefore fail to recognise the fact that she has a right to say no to her husband, but in these countries, the implied marital consent will usually end at the time the married couple separate or divorce.

The exceptions to the rules, which Syzygys failed to take into account are that in some Islamic jurisdictions, for example, a woman who is raped and abused by her husband could seek compensation from him for his attack on her and that even in marriage, there is a recognition of consent.

Then we came to the case studies and examples used by Syzygys that if a woman is raped while she is asleep and/or unconscious and is unable to remember it, that no harm is done. As I pointed out, does this lack of memory apply if the victim is a child? Syzygys responded to that question with a statement that a child cannot be raped without causing it harm. As legal definitions of rape, posted at the commencement of this debate have shown, and as my esteemed colleague has pointed out, no harm needs to have been done to the victim for it to be classified as a rape. That consent was lacking is the most important factor. Syzygys is going with the argument that if she can't remember it, then she can't know about it, so it should all be fine. But that is still beside the point. Someone had sex with her, without her consent. Whether she remembers it or not does not take away from the pure and simple fact that she was raped.

OK, you sure didn't read my case studies or those were not rape. CS #1 sure was not violent, neither CS #5. Thus they were not rape at least not by this definition, so I guess I won the debate again, because I proved in CS #1 that it is possible to have a sexual intercourse without consent and STILL not being a rape. By the way I tend to agree, that negativity and harm has to be there to be rape.

What Syzygys fails to recognise is that someone had sex with the woman, without her consent. And yes, that is rape. Harm and/or negativity does not need to be present for it to be viewed or defined as rape.

She did consent previously, although it is not clear she would have wanted or not at that moment.

Which was not stipulated in the original hypothetical and it is beside the point. Syzygys answered for me. No, she did not consent at that moment, nor did he know whether she wanted to or would have. Ergo, there was no consent for that particular day and time. The fact that he was unclear about whether she would have wanted to or not at that moment speaks for itself.

Then of course, we have the wife swapping scenario. Where the husbands decided to play a trick on their sleeping wives and swap partners. The wives had no knowledge of this whatsoever. I pointed out to Syzygys that there was no consent, therefore the women were raped. He replied as thus:

Really? Where is your previous definition (with what I actually agree with) of negativity, violence and forcefullness? There was just SWEET lovemaking nothing of the above. So it must not have been rape!! I guess I declare victory. As a lawyer I would classify it as fraud or cheating or marital infidelity, not rape.

By the way in CS #1 there was consent. The women wanted to have sex, they were just missled whom they were having sex with. So there was consent and there was no physical or emotional enforcement, thus it must not have been rape!

The "lovemaking" can be as "sweet" as it can be. The women only consented to have sex with their husbands.. not with other men. Again, force and violence does not need to be present for there to be a rape. The men had sex with two sleeping women, without their consent. Whether the women wanted to have sex or not is beside the point. They wanted to and had consented to have sex with their own husbands. Since they had no knowledge of the swap before or as it happened, they could not have consented to have sex with the other men. And yes, this does amount to rape. Even in countries where marital rape is not recognised, this scenario would fall under the definition of rape... because the sex was with men outside of the marriage.. without the consent of the women.

The next scenario posted by Syzygys poses an interesting question. The couple who split up and had previously agreed to have a last romp in the sack as a goodbye gesture. Of course, when the man returns to pick up his things, he finds his ex fast asleep after having consumed sleeping pills. A note was left, stipulating he was to take everything he owned.

So Jack could have assumed easily that she is included in the "Take everything" note. It is a case of missunderstanding, not rape, and again, no harm, negativity or violence just sweet lovemaking which jill doesn't even remember or possibly mind...

It should be noted that the note stipulated "everything", not everyone. She was asleep and therefore, not in a position to consent. She did not wake up and consent to his having sex with her. Again, even in countries where marital rape laws are not recognised, this would be considered rape, because the relationship had ended, thereby ending any form of implied consent that may have existed, she was asleep and had not consented. And as has been pointed out on numerous occasions in this debate, force and violence does not need to be present. All that does need to be present is the lack of consent.

Then of course we have the hypothetical of the historical rape between the husband and wife.

Except that it was not against the law back then. Remember not to use the word "always" that easily!

We are arguing this in today's time frame. Today, he would have been found guilty of rape.

Hale’s History of the Pleas of the Crown was written during a time where women had very little rights. A time when a woman was deemed to be the property of her husband upon marriage. Do you think the laws and rights of women back then should be reflected in your argument in this debate?

In Warren v. State, 336 S.E.2d 221 (Ga. 1985), for example, the Georgia court suggested that Hale's comments about a marital exemption may have been based on the belief that the woman, upon marrying, became her husband's property:

The court posited that the “exemption” may also have been based on the medieval doctrine that a wife was her husband’s chattel and that forcible sexual intercourse was nothing more than a husband making use of his own property, or on the common law “unity in marriage” theory, holding that, for some purposes at least, the legal existence of a married woman was incorporated into that of her husband, and that, as there was but one legal being — the husband — he could not be convicted of raping himself.

Note 2, page 10
​

P.S.: Fun facts concerning the "every country" tidbit: In Pakistan between 1979 and 2006 it wasn't a proven rape unless 4 male eyewitnesses testified that it happened....The same in many other Muslim countries observing Sharia laws, the legal definition is adultery, if the woman can not provide the 4 witnesses and can be punished in certain countries by death.

And thank you for pointing out that Pakistan and other Muslim countries also has laws in place to prosecute rape.. Even if they are archaic, there are still laws in place that state rape or, more to the point, sex without consent, is a crime.

 

[James R]

Moderator note: This post begins Round 4 of the debate. The following posts (including this one) are the closing arguments.

I'd like to start by responding to Syzygys, then sum up briefly.

James' post boils down to one thing that I already mentioned as every debate's problem in my first post: The definition of the debatable material. If we don't agree on it, we might both be right simply because we talk about different things. My 2nd definition was something like a sexual attack against the attacked will. Although I would like to add that the attacked should be harmed in the process wither physically or mentally.(bells agreed with this) If there is no harm done or even gain (as in CS #5) I wouldn't necesserily consider it rape.

I think that defining rape as requiring harm is problematic. Obviously, there are many rapes in which no long-term physical harm comes to the victim. Take the date-rape examples in which the victim is drugged and raped while unconscious, with no lasting physical effects. To require physical harm to establish rape in such cases would be to make rape laws pointless. All an attacker would need to do to avoid conviction would be to show that no physical harm came to the victim. This goes against common sense.

So, another suggestion is that, while physical harm may not be required, mental harm might be required. Such a definition might seem reasonable. In the date-rape situation described in the last paragraph, the attacker might be convicted if the victim was traumatised on finding out that she had been raped. The problem with substituting mental harm as a criterion for rape instead of lack of consent is that mental states are largely invisible. It could be very difficult for a prosecutor in a court case to establish that the victim of a rape suffered mental harm beyond reasonable doubt. As things stand, it is hard enough to rebut an accusation by a defendant that the victim consented.

For these reasons, I think that the current legal definition of rape is a reasonable one: the absence of consent is a defining characteristic of rape.

#6 (true story):

"In a rare rebuke, a bar association has criticized a judge for refusing to uphold sexual assault charges against a man who allegedly let friends rape a prostitute he had hired. The judge said she considered the case "theft of services."

I would say this was a bad decision. I don't think it merits further discussion.

Case study #7:

This is a version of #1. Let's say Peter and Paul are identical twins who are married to Mary and Maury who are also identical twins. Through the years they always joked about accidentally ending up with the wrong spouse when one weekend it actually happened and they slept with the in-laws. Was it rape? Of course not, although the consent was clearly not given to the in-law. It was simple a case of mistaken identity and nobody's fault.

Many crimes require a particular intent on the part of the perpetrator. Crimes committed by accident or mistake are not always prosecuted (although that can depend on the particular crime, obviously).

If case study #7 ever came to court (which would be unlikely), then the relevant question would be: did the accused reasonably believe that the woman he was having sex with was his consenting wife? If the answer was "yes", it would be very difficult to sustain a charge of rape. If the answer was "no", of course, things could be very different.

Here is one more case study #9:

Helen has been in coma for years. She is completely non-responsive. Her doctor is willing to try a new method, based on bringing the patient to climax to effect and try to get a response from her brain. They proceed and as they digitally massage her vagina and clitoris, her body climaxes. She also awakens during the process from her coma and she thinks she is being raped.

Was she raped without consent or was it a medical (lifesaving) treatment??? That's why I like in the definition the harm and negativity clause....

As a technical matter, I would say "yes, she was raped" in this case. She did not consent to sexual penetration - in fact she was incapable of consenting. On the other hand, if this was really a life-saving treatment any sentence for rape might well be mitigated by the circumstances. And again, the chances of this reaching a court would be slim if the woman woke up and didn't want to prosecute.

But think about this a little more. This woman is in a coma. It follows that somebody, perhaps her husband, has the right to decide her medical treatment. If that is the case, we must look at the husband's consent, not the woman's. If he consented to the "treatment", then there can be no question of rape; if not, the doctor may be in serious trouble, as he would be for any other unauthorised treatment.

Finally, it is worth asking whether in this case the medical procedure amounted to "sex" at all. The intent was not sexual - it was medical.

Again, lack of working definition is problem, that's why I don't like the anal rules of this forum, it can take more than 4 responses to agree on just what we are debating...

Part of any debate is defining the topic. Both sides get to argue what the topic is about.
----

To sum up: I have argued that the current legal definition of rape as sexual penetration without consent is a workable and useful one that often produces fair legal outcomes, even if it is sometimes hard to rebut a claim that consent was present. Syzygys has proposed an alternative definition of rape that would require actual physical or mental harm, but I have argued that such a definition would produce manifest unfairness in outcomes - many rapists might get away scott free.

As a final matter, I would like to point out the bizarreness of most of Syzygys's case studies. As far as I can see, all of his situations are borderline cases which are seldom, if ever, likely to arise in fact. I suggest that the very fact that he needed to go to such lengths to invent cases to justify his suggested definition of rape is indicative of just how unworkable his definition is. In the ordinary course of events, the currently accepted legal definition of rape catches many, if not most, of the situations that common sense tells us are rape.

If nothing else, I hope that this thread has reinforced in the minds of any readers who were previously in doubt that sex without consent is a dangerous business for any perpetrator. If you do not obtain the consent of your sexual partner, you could very well be accused, quite fairly, of rape.

I would like to thank all the participants for a civilised and I hope useful debate.

 

[Asguard]

In summing up i would also like to thank both sides for a civilised debate, and i would like to end the debate as i started in definining concent.

As i have previously stated concent may in some circumstances be given in advance but must always be present, informemed, uncohersed and NON BINDING (in the sence that it can be revoked at any stage). These requirements are essential for any sexual contact to be ethical (under the 4 principles of ethics), let alone legal. There maybe occasions where concent is invalid (for instance statitory rape) or legally assumed (some countries marital rape) but nither of thse actually makes an action moral or immoral. For a sexual encounter to be moral it must involve informed (the person must understand the act and ramifications of the act, and know who they are with), uncohersed (no threat of force, actual force or other forms of cohersion) concent (they must agree to the act).

In summing up i would also like to touch on james's comments on case study 9. As i have previously stated, if this is truly a medical procidure then it falls under a compleatly different set of legislation, regulation and ethical codes, one of which is the right for next of kin (or a repersentive of the guardianship board) to concent to medical procidures on behalf of an incapacitated person. This case (if taken at face value) is as far away from "sex" as a gastrointestinal tube is from a 5 star meal. They are compleatly different and there for it is irrelivent to this debate. Now if the doctor did this WITHOUT concent from the next of kin then the doctor would be charged with sexual assult, or maybe even rape but this would still be based on the medical side of the crimes act (and related common law) rather than the side we are currently debating.

If however this was done to "cope a feel" from an incapacitated women then this clearly does fall under the range of this debate and also is clearly rape.

The last thing i would like to point out is the diffculty in using psycological harm as a basis for a criminal conviction of rape or sexual assult. If we were to use this defintion we would be unable to even say when a rape took place. For instance a person who is raped unconcious and filmed, 10 years from now they find this on utube, have they been raped 10 years ago or when they find the video?

If the police were to find a tape of a rape victom who didnt know they were raped and then find the victom is it the police who have raped them?

And last but not least a child who is raped but seems to suffer no phsycological damage until they themselves became sexually active, when were they raped?

These are the flaws in using this defintion and this is why a criminal defition of rape is seperate from a civil finding of "psycological harm".

So finally i would like to suggest that our estemed oponant has been unable to prove his case and there for the affermitive must take the day, that all sex without concent is rape.

I would like to thank not only my fellow paticipants but also those of you who have civialy paticipated in the atached discussion thread and those of you who have just chosen to read this thread on a very important issue

Thanks

 

[Asguard]

buckybeam this was a formal debate between the 4 of us, you post has been moved to the atached disscussion thread
http://www.sciforums.com/showthread.php?t=82800&page=8