if Kobe Bryan ignored her pleas to stop, should he be guilty of rape?

[Pure]

yes, sun, perhaps too picky with etoile. but not a few bdsm folks have suffered charges because they were told 'no' --mistook it or ignored it--and proceeded.

her phrase 'inside a bdsm context', as used for contrast, suggests that commonsense and common meanings don't apply. but they do.

i wasn't discussing the specifics of any of etoile's relationships. if that's how she took it, i'm sorry.



PS, Sun where do you stand on the 'change of mind in the middle of intercourse issue? Can/should it lead to a rape charge?


---
etoile said, originally:

Outside of a BDSM context, no means no. That's all there is to it. A victim has the right to change his/her mind at any point during a sexual encounter.

Inside a BDSM context, we have things like safewords and SSC and RACK etc.

 

[sunfox]

No, I don't think changing your mind mid-coitus should mean you can slap the guy with a rape charge.

However, I do think he should stop if she says stop, even in the middle of the main event. I don't think it's kind to do that, but it's her right, just as it's the guy's right to bitch about it, so long as he stops when indicated to do so.

As an option, the couple is in the middle of consensual sex, and she starts to get raw. It hurts. She says stop. He doesn't.

I wouldn't call it rape.. I'd call it assault, but either way, he should respect her and stop.

Otherwise, don't go whining when you're up on charges.

 

[Etoile]

Thank you for the support, sunfox - I truly appreciate it. Your post was very well-put!

Now as for you, Pure...don't play stupid. We all know you're not.

I wasn't referring to words, Pure. I wasn't referring to the word no at all. I was referring to removal of consent. But gee, "removal of consent means removal of consent" sounds pretty ridiculous. "No means no," on the other hand, is a common catchphrase widely used by women's rights groups and anti-rape groups.

Let me rephrase my original statement:

Outside of a BDSM context, removal of consent is definitive - easy to give and easy to understand.
Inside a BDSM context, things are a little murkier because non-consent may be part of the game, enjoyed by both players. Maybe somebody likes being forced. Maybe somebody is in a Master/slave relationship and has given blanket consent and is not expected to remove that consent at any time. In fact, removal of consent in a BDSM context comes more often outside a sexual encounter, as in "I'm leaving you" or words to that effect. People involved in BDSM are expected to be sane and play safely. They are expected to be aware of risks. (SSC and RACK, get it?)

Is that bloody well clear enough for you, Pure? Jeez.

 

[Pure]

Hi Etoile,
Thanks for clarifying and expanding. I know you were being brief, but because I'm very picky, I couldn't resist.



I know difference you're talking about, but I personally think you vastly exaggerate it. For instance.

Outside of a BDSM context, removal of consent is definitive -easy to give and easy to understand.

This is simply not true, with all due respect. I don't suppose you saw or read about the Kennedy Smith rape trial.

Another interesting case, 'change of mind, mid intercourse' worked its way all the way to the California supreme court.



http://talkleft.com/new_archives/001333.html

[Most judges agreed (that the woman withdrew consent, and that that being during intercourse was irrelevant; hence there was a rape), but one woman judge dissented and raised some good points, not unlike sunnie's above]:

[The writer of the article is speaking]
17. The Lone dissenting Justice , Janice Rogers Brown, wrote:

"The majority provided no guidance about what constitutes withdrawal of consent and what amount of force turns consensual sex into rape. The majority relies heavily on [the defendant's] failure to desist immediately, but it does not tell us how soon would have been soon enough. Ten seconds? Thirty? A minute? Is persistence the same thing as force? And even if we conclude persistence should be criminalized in this situation, should the penalty be the same as for forcible rape?"

In her dissent, Justice Brown accused the majority of ignoring "critical questions about the nature and sufficiency of proof in a post-penetration rape case" and argued that prosecutors should still have the burden of proving beyond a reasonable doubt that a victim clearly communicated withdrawal of consent, and the perpetrator exercised some degree of force.
She noted that the victim in John Z. had enjoyed the sex, had simply said she had to go and had never overtly told John Z. she didn't want to keep having sex.

"The majority finds Laura's 'actions and words' clearly communicated withdrawal of consent in a fashion 'no reasonable person in defendant's position' could have mistaken," Brown wrote. "But Laura's silent and ineffectual movements could easily be misinterpreted. And none of her statements are unequivocal."

-----
There are hundreds of blurry rape cases, including so called 'date rape' where *neither the giiving, nor the possible *withdrawing of consent is 'easy to understand.'

Indeed if you've followed college campuses attempts to deal with the consent problem, some of the more PC ones have insisted on the male's receiving explicit, even written agreement. All of which is just not like 'real life.'

As to the bdsm side of your explanation, I won't get into that; I'll mainly stick, here and now, to the muddy 'vanilla' side, and the points above. I agree in part, but would add that if one's partner 'breaks role' and says "lemme the hell outta here", one ignores it at one's peril (i.e, if one has tuned out all but the agreed 'pineapple' safe word.)

best,
J.

 

[sunfox]

Thank you for the support, sunfox - I truly appreciate it. Your post was very well-put!

Not a problem. I knew what you meant... and you would be one of the last on this board that I would see as posting spuriously/without understanding the point of the question.

 

[Pure]

hey, what's with 'spuriously'. if you mean me, I don't even like westerns.



btw, i quite admire etoile

Sunnie said,
//and you [etoile]would be one of the last on this board that I would see as posting spuriously/without understanding the point of the question. //

 

[sunfox]

hey, what's with 'spuriously'. if you mean me, I don't even like westerns.



btw, i quite admire etoile

I meant Etoile, not you. And English riders use spurs too, ya know.. though they're not generally the painful, sharp kind.

 

[julia so sweet]

i dont know the particulars of this situation, not having been in the room with them. but i have heard of many cases of professional athletes or musicians or movies stars "raping" girls. and guess what!? most of the time they are guilty but they honestly dont know they are. they truly believe that because 99.9% of all girls submit to their will then those who say no are just adding rape fantasy to the play or say no so the guilt will be on his shoulders not hers in his mind.

nuff said, she sat down demurely and stared at her upturned hands.

 

[Etoile]

hey, what's with 'spuriously'. if you mean me, I don't even like westerns.



btw, i quite admire etoile

Aw, thanks!

 

[sweetnpetite]

In cases of rape, the power to decide weather to call it rape or not obviously falls with the woman. A prudent man would do well to err on the side of causion.

Even if it's BDSM, the woman can say she wasn't playing. That's why trust is important in BDSM, not just for the sub, but exp. for the dom.

It may be unfair- but most of the advantages are afforded to the male in a sexual situation, the female has the last word- veto power if you will.

Sexist pig that I am- If she says rape then it's rape. A woman takes certain chances when she sleeps with a man (that she'll get pregnant, that her reputation will be ruined, ect) and a man takes a chance that the woman will see the act as an assult. If a woman would say it's rape for spiteful or gready reasons then the man didn't know her well enough before he took the chance and jumped in the sheets with her. Especially if your rich and famous. The more you have to loose, the more cautious you should be.

Men and women- sleep with who you want, when you want, but don't be a fool. There are dangers all around.

 

[catalina_francisco]

I do not see why there is so much discussion about when it is rape or not, when a person be it male or female says no, it is rape, whenever at whatever time or moment the no is said. Consent is removed so it then becomes non-consensual sex.

In any case here is some interesting news links about it.

http://www.cbsnews.com/stories/2003/07/30/national/main565870.shtml

For the interested in Data and research about rape I recommend the following book:

Rape Law Reform A Grassroots Revolution and Its Impact by Cassia Spohn (University of Nebraska at Omaha, USA) and Julie Horney (University of Nebraska at Omaha, USA)

Some interesting facts about rape out of the Statistical Abstract of the United States 2003
http://www.census.gov/prod/2004pubs/03statab/law.pdf

Forceful rape victims in 2001: 90,491

Out of every 100.000 females in the USA 62 are raped every year and this data does not take into account the age of the victim. The stricter we can make the laws the better, one of the biggest problems we have with rape is this old fashioned quintet fashion of the word No meaning something else but No. Even after years of campaigning there are people who still seems to think that No means something else.

To the men under us who have problems seeing where the issue lies the following comparison.

You have been thrown into jail for drunk driving, when in jail after a couple of weeks of celibacy your cell mates starts looking better and better. Then while being drunk from the illegally made booze, you agree to be taken from behind. You are lead to the courtyard and in the cold air you start to sober up and then realize what you just have agreed to and you try to back out of it, but your partner being 6 foot 4 and 300 pounds does not seem to agree with you and even after you saying NO over and over again. Well I am sure that the rest of the story is clear.

Francisco.

 

[Pure]

Francisco said, (example story for poll, below)

I do not see why there is so much discussion about when it is rape or not, when a person be it male or female says no, it is rape, whenever at whatever time or moment the no is said. Consent is removed so it then becomes non-consensual sex.

In any case here is some interesting news links about it.

http://www.cbsnews.com/stories/2003...ain565870.shtml

Thanks for the link for Illinois. The California and Illinois legal situations had been mentioned in this thread, and probably you saw that. The former was critiqued by a judge involved, what did you think of that?

As to your story, it's upsetting, but takes the easy way out. Here's an alternate story, of a scene I think has happened many times, except for the final call.

-----
Changing:

(c) pure. 2004.


It is a strange town, far from home. After renting a hotel room, Jonas is suddenly struck by very lonely feelings, especially since he had to leave without saying goodbye to his fiancee. He tries to call her, but can't get through. His sister is next, but Jonas only gets her machine. _It's social night at the church, that's right_ he thinks. He goes to a bar. Jonas is unaware it's mostly frequented by gay persons; at some point, he does realize this, but is a little inebriated, and it no longer matters.

A handsome fellow seems very interested in talking to him, and hearing about his loneliness. The fellow says, "I'd like to come back to your hotel room with you; let's have a few more drinks in private." Jonas agrees, and back at the apartment, the conversation and drinking continues.
"I miss my friends so much," he reiterates.

"Let's lie back, just cuddle on the sofa here. I won't do anything you don't want."

They do that, and Jonas likes the cuddling from behind, and feels the fellow's erection. He does nothing. Then his belt is being loosened. The fellow's hands are stimulating Jonas' cock, and it responds, and he is feeling aroused and very safe.

"If you want things to stop, just say so," says the fellow, while masturbating him. The fellow removes Jonas' pants and underwear, and says, "I'm going to take you, but I'll use lots of lubrication." Jonas says nothing, but holds still and feels the cock gradually penetrate his anus. It's slow enough so he can relax. "Are you OK? says the fellow.

"Yeah," says Jonas, "You won't hurt me?"

"Of course not."

It's all very new, and he reacts to the continued masturbation and thrusts back onto the fellow's cock.

"You're very hot," says the fellow.

Jonas is struck by this remark. First he's complimented, then he thinks, _Hey this guy is gay, and HE's finding me hot. Maybe I'm gay too._ The pleasant sensations become worrisome, and he struggles a bit, which brings about more penetration and deeper intercourse.

"I like this," says the fellow, getting enthusiastic in his bumfucking.

_This is happening too fast. I don't want to be gay_ thinks Jonas. "Please ease off, " he says. The thrusting has reached a very excited level. "You'll be OK," says the fellow, "I'm going to come and so will you."

"Stop!" says Jonas, but he's in a tight embrace; "Stop," again, but within 30 seconds the fellow is coming, and seconds later Jonas himself comes to the frantic masturbation and anal penetration.

He dissolves in pleasure, and pushes the shameful thoughts aside. There's relief and relaxation as the fellow's cock is withdrawn. They rest for a while in each other's arms, then the fellow takes leave, asking, "Are you OK?"

"Kinda confused. But yeah."

"We fit well; you're not hurt?"

"No."

"I remember the first time. I was confused too. You'll be OK.
C ya," the fellow says.

The next morning, Jonas is no longer high and his bum is a little sore. He calls his older sister on the phone. She says, "I'm just going to church, shall I give your love to Cheryl?"

"I was in a gay bar, last night," he says.

"Oh my," she says. "But knowing you, you went by accident, right?

"Yup."

"Bet you got out in a hurry, stud!" she jokes. "Gotta go. Come home soon. I'll tell Cheryl you're fine. You _are_ fine, aren't you?

"Yeah."

"We miss you!"

"Me too." Click.

Jonas thinks, _Cheryl. How could I forget about her. What have I done. I'm not gay. I did not want that. I tried to stop it_ . He picks up the phone, dials 911, and says "I was raped by a gay man while I was drunk."

---
You are the jury. Should the fellow be convicted of rape?

 

[Pure]

Sweet said,

Sexist pig that I am- If she says rape then it's rape.

Fortunately, as with children, the tide has begun to turn, and fair assessements of allegations are occurring. DNA has exonerated many persons so accused. several old cases with children, esp. around certain daycare situations, have been thrown out; innocents released from prison.

J.

PS I tend to agree with Julia about many college and pro athletes; quite a number have prospered through aggression (on the 'dating' scene). Possibly they don't know the law. Possibly they don't care (since no consequences ever ensued).

 

[bridgeburner]

Etoile said:

Outside of a BDSM context, removal of consent is definitive - easy to give and easy to understand.

I would argue that it's just the opposite. BDSM has rules and guidelines that are widely recognized among the community --- even among those who are new to it. Those rules and guidelines will vary from couple to couple or scene to scene, certainly, but blithely ignoring a safeword is not an accepted BDSM practice.

The vanilla world doesn't have any safewords because "no" doesn't always mean "stop right this instant". You have to say it loud enough in the right tone of voice and with the proper expression on your face while making the appropriate physical gestures --- and what is "right" or "proper" or "appropriate" in any given situation is as individual as the people involved.



-B

 

[Pure]

Here is the full text of the California case, involving 'withdrawal of consent'

http://caselaw.lp.findlaw.com/data2/californiastatecases/s103427.pdf

In re John Z 03 CDOS 129

The dissent at p. 11, of Judge Brown (a woman), is fascinating.

J.

 

[catalina_francisco]

There are many who actually believe that some rape victims have enjoyed being raped, that if you have orgasmed or shown physical signs you enjoyed the sexual act it is not rape. There are many rape victims that because of the shame attached to it will not come forward, they are afraid that others will think they have enjoyed the act of being raped. Some rape victims even convinced themselves that they were not raped or that they have given consent because they became sexually/physically aroused, had an erection, ejaculated during the sexual assault or came.

Coming, having an erection or ejaculate is a normal, involuntary physiological reaction, not an emotional or psychological one. This is not a sign that a victim wants to be raped or sexually assaulted, or that the survivor enjoyed the traumatic experience. Sexual arousal does not mean there is consent.

The victim in this story had been feeling lonely, had some drinks and yes during the rape he was sexually aroused. However he clearly removed the consent, making this non-consensual sex, he might have enjoyed it, he might be gay or have sexual feelings towards other men, it is all irrelevant, he removed consent making it rape. The perpetrator of the rape heard his victim shout STOP, he saw the removal of the consent and decided to continue and have his own pleasure, and the fact that his victim had a sexual reaction does not liberate him from his responsibilities.

The story seems to bring forward the point that as long as your victim enjoyed the sex, it is not rape. Enjoying sex, cumming is a physical reaction and it does not justify any non-consensual sexual act.

Francisco.

 

[catalina_francisco]

on page 5 : As will appear, we conclude that the offense of forcible rape occurs when, during apparently consensual intercourse, the victim expresses an objection and attempts to stop the act and the defendant forcibly continues despite the objection.

on page 1: We agree with Roundtree and the Court of Appeal in the present case that a withdrawal of consent effectively nullifies any earlier consent and subjects the male to forcible rape charges if he persists in what has become nonconsensual intercourse.

In fact this is a very interesting link, thanks Pure. The verdict is very clear on the standpoint of the law concerning consensual and non-consensual sex.

page 11: To the extent the majority holds the clear withdrawal of consent nullifies any earlier consent and forcible persistence in what then becomes nonconsensual intercourse is rape, not assault and battery as the Court of Appeal held in People v. Vela (1985) 172 Cal.App.3d 237, 243 (Vela), I concur in that portion of its reasoning.

Even the only judge who did not agree with the majority agrees with the fact that consent can be retracted at any time making the act non-consensual. The only disagreement basically argued by BROWN, J was about the removal of the consent, and if that was clearly done or not. However we should not forget this is one vote against five.

Francisco.

 

[Pure]

Don't get me wrong. I'm with Brown (and the judges in the majority), that if the initiator of intercourse has gotten initial consent, that this isn't automatically, irrevocably extended. (After all where would it end? some guys extend it to the next few dates!) And if there are active efforts (after penetration and during intercourse) to stop the proceedings, efforts met with and nullified by force, then you have a rape.

But in the gray cases, I'd say you have certainly a wrong, perhaps a crime: not rape, but something like 'bodily trespass', or a kind of second degree assault.

(Where John Z fits, I'm unsure; though overall, since he followed up on his buddy, who WAS charged and convicted, I find him despicable.)

Think of rape as like 'break and enter' or 'burglary.' But if the person is invited into your home, and wont leave, that's something else, though a crime; the police may come and remove them, but the charge is more like trespass.

 

[SweetErika]

there must be some mid intercourse(change of mind) rape cases. i wonder how they've gone.

I don't know how they've gone legally since most people don't report or prosecute, but here's how it goes in real life (excluding BDSM situations):
-You're attracted to and probably trust the person.
-You consent to sexual activity and sex.
-At some point, you change your mind and want the person to stop because it doesn't feel right or hurts terribly.
-You say no or stop.
-The person does not stop.
-You're confused and thinking, "I consented at first, so it couldn't have been rape. No one will believe me."

Was it rape? IMHO, the litmus test is to see the effects on the victim. People who are raped generally carry this burden for the rest of their lives...the guilt and psychological/emotional effects are profound (not the case with consentual sex). Additionally, being raped by someone you trust and consented to originally carries extra guilt..."I agreed to it in the first place, so it really was my fault."

 

[Pure]

Erica, you quote me from 5-18, prior to my postings about such cases, prior to discussion of these cases of rape arising after initial consent. Did you read that or any of the links?

Perhaps if the California and Illinois legal changes, including changes in interpreting the laws, were better known, some of these survivors (to forcible continuation of intercourse) would be more assured that they were raped, and maybe less inclined to blame themselves. Note that the Calif. decision expressly condemned the 'lesser outrage' view.

One positive side of the Kobe case, may be further clarification (right now the facts are somewhat unclear to me).

J.

 

[SweetErika]

Pure- I know it's against the law to continue after a person has said no or stop, but that doesn't necessarily change the societal perception (hopefully it will someday). Thanks for your research and well-rounded postings. Some of the comments on this thread speak to that.

I didn't mean to quote you out of context, I simply wanted to give some of the unenlightened readers/posters a different perspective to ponder. It's a lot easier to judge people and situations when you haven't been there yourself.

 

[bridgeburner]

I'm a bit troubled by several suggestions that the litmus test for whether a particular sexual incident qualifies as rape is how bad the victim feels.

I have a friend who considers herself a rape victim. She tells people she was raped. She often reacts to situations as if they distress her because of this rape. She names her rapist and is quick to tell people who mention his name that he's a rapist.

Only she wasn't raped. She was involved in an improv role-play in an acting class with 15 other people present. It was well-lighted and everyone was clothed and her improv grew as much out of her instincts and actions as those of her partner. She was never groped or fondled in actuality. Never forced to anything. To put it bluntly her claim is complete bullshit.

How she does or does not feel about the incident is something that, of course, no one but she knows the truth of. Those of us who know her can only take her at her word that she feels emotionally and psychically damaged as a result whatever doubts we might have about the truth of her emotional claims.

On the other hand, I have another friend who actually was raped by a guy who gave her a ride home. She was pissed off and scared and humiliated by how stupid she felt she'd been to accept a ride from a guy she didn't know well, but she didn't feel personally diminished by the rape. She didn't have nightmares or crying jags, didn't fall into a depression, didn't have sexual difficulties because of her rape. It was a horrible thing that happened but she moved on.

Does the fact that she isn't emotionally tormented by the rape mean it was less of a crime?

Individuals respond differently to different situations. The emotions of the victim are certainly important but they are not the basis from which our penal code should be derived.

In the case of Bryant's accuser, I don't know all the specifics of the incident. Likely no one but Bryant and his accuser ever really will. The case should be decided on the objective specifics, however, not the emotions attached to it. Certainly if they engaged in consensual sex and then the woman changed her mind and clearly indicated withdrawal of consent then Bryant is guilty of a crime if he did not comply.


-B

 

[SweetErika]

You're right, everyone reacts differently to rape. My point was simply that when an activity is consentual on both sides, most reasonable people do not feel bad or violated. So the victim's perspective is important in conjunction with the facts of the situation. Your first friend (who was not raped) is clearly not very mentally or emotionally stable and the facts of the situation support that conclusion. Your second friend (who was raped) has been impacted and hurt in SOME way (maybe you can't see it from the outside or, as you suggested, she's healed), plus the facts support her claim that it was rape.

No, the fact that she didn't have the exact same reaction as other women or doesn't appear "emotionally tormented" doesn't make it less of a crime. That's why the facts are an important component legally.

 

[Pure]

I think bridgeb. made some excellent points. I would add that of course crimes *get* defined because persons get pretty upset and/or outraged at things; as for instance, getting robbed.

That's the genesis of a law.

That said, in a given case, "I'm upset, so it was rape." is on the same level as, after signing a business deal and losing money. "I'm upset, so I was robbed [defrauded, stolen from, etc.] And I want charges laid."

A person can get taken advantage of, in the second case; they have been, as we say 'fleeced.' But there may be NO crime--no possible criminal charge--, if the other parties didn't deceive (this is the old problem of the 'fine print' of the contract).

Similarly, 'seduction' is mostly OFF the books, as far as crimes go--with a few exceptions like, for captains of a ship. Plying someone with modest amts of wine, and lots of flowers is fair play.

At one time, making a false promise of matrimony was a crime. I'm not sure about that now; it may be on the books, but unenforced. The idea is you get the woman to have sex, through (falsely) promising marriage. Do people think this should be a crime?

Of course there are all kinds of false promises, e.g., "I'll make you a star." With which (false) promises can one say a crime gets committed (if sex is obtained, thus) ??

This gets to a point that bridgeb has often made: "How paternalistic do you want the state to be?" I.e., should citizens or women be treated like children-- say, who are incapable of reading and understanding contracts, loan conditions and terms of repayment, etc.?

OTOH, some actors, like insurance companies, make it impossible for any average reader and citizen to see what the agreement includes or excludes. And the law recognizes 'unconscionable contracts' (where you've signed away your house in exchange for a movie ticket).

 

[bridgeburner]

Erika,

My point was simply that when an activity is consentual on both sides, most reasonable people do not feel bad or violated.

I'd like to be able to agree with you, but I haven't found that to be a hard and fast rule especially for those in the 15 to 25 range. People have sex for a variety of reasons and particularly when it comes to youngish females there is a lot of baggage that often accompanies the sex act.

Plenty of people consent to things that they later wish they hadn't. People change their minds all the time or circumstances change and feelings along with them. The problem, however, is when people change their minds long after it's too late for anyone to change the event.

That's why the facts are an important component legally.

The facts are the only important component legally. If the facts don't support a rape charge then there shouldn't be one regardless of how either party feels about the incident. Emotional trauma can be determined in a civil suit for damages, but the decision of whether or not a crime has been committed should be based on nothing except the coldest, hardest facts that can be found.

-B