Thursday, October 2, 2008

Sex after 'no' is not rape if the woman's subsequent behavior manifests a willingness to have sex

The headline of the news story that follows is troubling. It suggests that a man got away with rape. The reality is that the evidence showed that after the accuser said "no," she behaved in a way that could have led him to believe she had changed her mind.

That's called "reasonable doubt," and it's sufficient to exonerate any defendant charged with any crime. Sadly, some in the radical feminist left don't believe in reasonable doubt when it comes to accused rapists.

The test to determine consent in the context of rape is whether a reasonable person in the position of the male would have believed that she consented, based on the totality of the circumstances, including her words and actions.

While boys need to be taught that if there is any doubt, they should not proceed with intercourse, the fact of the matter is that interpersonal relations are complex and every circumstance is factually different.

If it was reasonable for the man in the story below to have believed the woman had changed her mind, that's not sufficient to send him away to prison for years.

For example, a woman might playfully say "no" and then open her robe and fling herself on the guy. Then when they are about to have sex, she might teasingly close her legs in an "I'm playing hard to get" pose, inviting him to pry them open. (That sort of tease, for the uninitiated, has been going on since the beginning of time -- it is a manifestation of the larger gender roles each of us play: male as aggressor, female playing hard to get.) Then she might laugh and put her arms around him, clearly inviting sex. In that situation, would the guy be reasonable to assume she was inviting intercourse? In all likelihood, yes.

To suggest that "no" always means "no" regardless of what happens after it is uttered is naive in the extreme. It blinks at nuance and the complexities of interpersonal relations. It ignores that fact that a look, a nod, an embrace is often clearer than a teasing "no." Should we exclude all other evidence if an accuser testifies that at some point in time on the night in question, it doesn't matter when, she uttered "no"? In that case, all a jury would need to determine to decide if a rape occurred is that the accuser uttered "no" -- her subsequent actions over the next minutes or hours be damned.

And that would be the epitome of absurd. We owe it to innocent men to inject common sense back into these "'no' always means 'no'" discussions.

HERE IS THE NEWS STORY:

Saying no to sex not enough to secure rape conviction

A 22-year-old man who admitted that his accuser said no to having sex with him was acquitted of rape charges by a court in western Sweden.

The man told the court that the woman said no at least two times and that he had to force her legs apart when the two had sex, reports the newspaper Metro.

In explaining its ruling, the district court in Mölndal cited the fact that the woman had stripped down to a bra and panties and laid beside the man.

The court claims that she then behaved in a way that could have allowed the man to believe she had changed her mind.

The court also found holes in the woman’s story.

For example, she claimed to have received scratches and bruises, but doctors found none when examining her following the alleged rape.

In addition, the woman waited until the following evening to report the man to police.

The woman’s lawyer, Pia Liljeblad-Ryberg, feels the ruling is wrong.

“Madness,” she said following the court’s decision to acquit.The case will likely be appealed.

Link: http://www.thelocal.se/14100/20080903/