Is this person guilty of rape?

[Rhea]

So I am sensing from this thread that there is little to no controversy over the idea that:

When a person is in a position of possibility of coercion that could result in lack of truly free will to consent, then another person who has some control over them at that time is wrong to have sex, even if the subject seems to really want it, because it is just too fraught with the possibility of abuse to condone?

And there's no controversy over what we see here?

The prisoner might really actually WANT the sex, and it is still correct to charge and convict the civilian employee with RAPE because even if the prisoner actually wants the sex, it is an inherently coercive situation and should not be condoned at all.

And we seem to all agree on that?

If there is dissent and I misinterpreted, or if there are additional opinions, please post.

 

[Loren Pechtel]

Looks like the woman was an employee at the correctional facility. I wonder if the law in question was meant to protect inmates from being coerced into sex by people who could potentially affect their imprisonment?

I think this is exactly the purpose of the law Achwienichtig

Exactly. Consent was not possible, she knew it. Guilty.

 

[Metaphor]

So I am sensing from this thread that there is little to no controversy over the idea that:

When a person is in a position of possibility of coercion that could result in lack of truly free will to consent, then another person who has some control over them at that time is wrong to have sex, even if the subject seems to really want it, because it is just too fraught with the possibility of abuse to condone?

And there's no controversy over what we see here?

The prisoner might really actually WANT the sex, and it is still correct to charge and convict the civilian employee with RAPE because even if the prisoner actually wants the sex, it is an inherently coercive situation and should not be condoned at all.

And we seem to all agree on that?

If there is dissent and I misinterpreted, or if there are additional opinions, please post.

I think that sums it up. It's the same reason psychologists and psychiatrists are not supposed to have sex with their clients, even if both parties really, really want it.

 

[aeebee50]

It will be interesting to see how this plays out. Prosecutors are not worried about over crowded prisons or concerns for the inmates.

 

[Achwienichtig]

This policy creates a powerful incentive for the employee to make a false rape accusation against the prisoner.

What are they going to do to the prisoner? Put him in prison?

The law also gives the employee an incentive to not have sex with inmates. All prison policy prohibits staff from putting themselves in a vulnerable place with an inmate. Any place where two people can have unnoticed sex is certainly a vulnerable place.

A prison is a place where every person's whereabouts are accounted for, 24 hours a day. If an employee made a false rape accusation, it's unlikely to stand up to the slightest examination.


True prison sex story:

I have a friend who worked as a psychologist for the State Department of Corrections. His job was to provide evaluations of inmates and what therapy could be offered. One day he gets a request from an inmate for an appointment. The inmate says, "A guard is forcing me to have sex with him."
"There's not much I can do for you, without some kind of proof or a witness," he tells the man.

A week later, there is another request. "I have your proof," the inmate says.
"What kind of proof would this be?"
"I saved the semen." The inmate produces a cellophane cigarette pack wrapper from his pocket.
"Just put it on the desk. I'll have to talk to my boss." The inmate is a little upset. This is the days before DNA analysis was cheap and easy.
"You can't prove it's his semen. It could be anyone's." The inmate is still unhappy.
"What if I bite his cock off? Would that be proof?"
"Yes," the psychologist admits. "That would be proof."

Two nights later there is an incident at the prison. A guard claims an inmate stuck his arm through the bars and stabbed him in the crotch. While the guard is in the prison infirmary, being treated for a laceration to to his penis, a crew of other guards search the inmates cell, and in the process beat him severely. The prison doctor has seen a lot of knife wounds and a lot of bite marks. He knows the difference. A clerk reports the injured guard came to him and asked to borrow a pocket knife, minutes after the time the attack occurred. He used the knife to cut his pants before reporting the attack.

The inmate was transferred to another facility. The guard was tried and convicted of sexual assault, at a trial where the cigarette pack of semen was placed in evidence.

For some strange reason, I find this story inspiring. Maybe it just satisfies my sense of justice.

 

[doubtingt]

So I am sensing from this thread that there is little to no controversy over the idea that:

When a person is in a position of possibility of coercion that could result in lack of truly free will to consent, then another person who has some control over them at that time is wrong to have sex, even if the subject seems to really want it, because it is just too fraught with the possibility of abuse to condone?

And there's no controversy over what we see here?

The prisoner might really actually WANT the sex, and it is still correct to charge and convict the civilian employee with RAPE because even if the prisoner actually wants the sex, it is an inherently coercive situation and should not be condoned at all.

And we seem to all agree on that?

If there is dissent and I misinterpreted, or if there are additional opinions, please post.

No, I dissented from this view when I said :

IOW, the employee is guilty of violating a law designed to prevent potential rapes, but may or may not have engaged in actual rape in any objective or psychological sense of term that goes beyond a legal technicality. A state could easily claim that no one can consent to sex with a person of their same gender, making all homosexual sex "rape" in the same sense that this is rape as a matter of contrived legal definition.

In the absence of any evidence that force or threat of force and abuse was used to extract sexual favors, then it has nothing in common with actual rape and more in common with non-sexual acts such as a guard accepting financial payments from a prisoner. It is a mistake to categorize it as rape, and should be categorized as a separate crime specific to relations with prisoners in which it is illegal to engage in any form of relationship with a prisoner in which the prisoner supplies any material goods, services, or favors outside of any officially duties sanctioned by the facility.
Whether an individual did consent in a particular situation is a matter of psychological fact and psychological science, not a matter for the law to invent its own unscientific, non-psychological definition of consent that completely ignores any relevant facts related to potential consent in individual cases. The behaviors and actions relevant to evidence of actual consent are the same regardless of whether the person is in prison or not. If we decide that a prison employees official role in controlling and coercing prisoner behavior makes the opportunity too great for doing so to gain personal favors, sexual or otherwise, then we can make a law forbidding these, but it is separate from rape laws, so there is no need to invent a special definition of "consent" or invent an absurd notion that it is impossible for a prisoner to consent to anything. Of they can, including sex, but we simply decide that their consent is irrelevant and that it is illegal to have even consensual sex with a prisoner, just as it is illegal to accept money that a prisoner gives, even if "willingly".
Note that the law in question make the employee guilty of a crime, regardless of whether the prisoner presses charges or ever says they were coerced.
Do you and others here agree that sexual relations with a prisoner should be blanket illegal, no matter what the prisoner does or says, and even if the prisoner says it is consensual?
IF yes, then that shows that this is not about whether the actual act was rape and it is not the the person did not consent, but that their consent has no relevance because the law is not punishing rape, it is punishing misconduct and the violation of a law designed to prevent rapes in clearly and objectively defined situations in which coercion is highly probable. Note that the transparent attempt to use this as a set-up for the issue of intoxicated sex fails miserably, because those situations utterly lack the key component emphasized in my prior sentence of being clearly and objectively defined situations. With the prisoner, nothing about the subjective mental state and ability of either party consent is relevant and neither party need have awareness of these things to have knowledge that what they are doing is illegal. All that is relevant to defining the act as illegal and all that the parties need to be aware of to know their actions are illegal at the time is the simple, clear, objective, and unambiguous facts that one party is a prisoner of the state and the other party is an employee of the state. IOW, absolutely no subjective judgment or interpretation comes into play in either the participants knowledge that they are engaged in something illegal or in the courts determination that an illegal act was committed. The only way that intoxicated sex could be at all similar to this would be if, like the prisoner law, the law made the subjective state of mind or actual capacity to consent of the victim completely irrelevant to the illegality of the act. The defendant would need access to facts as clear-cut and objectively observable without need of interpretation as a prison employee would have that the person they are having sex with is a prisoner. Nothing with intoxicated sex meets this level that is true of prisoner sex, and the only thing remotely close would be sex with a completely unconscious person. Note that, as I've pointed out numerous times, there intoxication is actually not relevant at this point, because it is the clear-cut and reliably determined state of unconsciousness that matters while the cause of that state (whether drugs, sleep, head trauma, coma, or death) is superfluous to whether it was a crime. Relation to the prisoner situation also requires that the act be a prosecuted crime, no matter what the victim said or did before or after the act. IOW, even if a victims swears in court and shows evidence that they consented to sex while they were unconscious both before and after the sex, the other party is still prosecuted by the state.

 

[Nexus]

but it is separate from rape laws, so there is no need to invent a special definition of "consent" or invent an absurd notion that it is impossible for a prisoner to consent to anything.

Its not a new special definition of consent. Its just borrowed from sex with minors type consent. Are you opposed to statutory rape laws as well?

 

[Rhea]

Thanks for the clarification. That is useful discussion. I was not setting up my comment to relate to drunken sex, ftr. I was interested in the replies I read above as they would relate to many kinds of rape and non-consensual sex; including the bondage thread and spousal rape.

You bring up some interesting points. Because for many of us, ongoing consent _IS_ a clearly defined point. And you seem to be saying that it is not? I see that you are saying what makes this clearly defined is that there is objective evidence like employment and incarceration records. So maybe that makes the discussion lead to how to define consent in such a way that it actually means something to get it.

It is also interesting to the discussion how you say this has less similarity to rape and "more in common with non-sexual acts such as a guard accepting financial payments from a prisoner." Which makes some sense since it was (apparently) consensual and therefore doesn't feel right as "rape", but then it commodifies sex, which makes it like a favor or a trade rather than an actual sex act as this one apparently was, leading us back to a situation with risk of abuse, not necessarily actual abuse.

 

[doubtingt]

but it is separate from rape laws, so there is no need to invent a special definition of "consent" or invent an absurd notion that it is impossible for a prisoner to consent to anything.

Its not a new special definition of consent. Its just borrowed from sex with minors type consent. Are you opposed to statutory rape laws as well?

The law with minors is part of a general legal principle disregards minor's consent in general for a wide range of activities. It is not that they are in actual fact incapable of consent, that is a scientific question not a legal one and the science doesn't support such a notion, but rather that the law does not allow them to consent and treats the fact of whether they did so as irrelevant to the crime. Minors cannot legally consent to medical procedures, to joining the military, to making major purchases, going on a school field trip, participating in organized sports, or even to going for a ride with a neighbor across state lines. The actual psychological state of the child and whether they could have consented psychologically and even if they made an objectively rational choice is simply not relevant. The crime is not determined by the mental state of the minor, but upon the clear and objective fact of their physical age which nullifies their consent as being sufficient basis to engage in a number of activities with them. The fact that the crime is determined upon such an objective basis that ignores state of mind and any overt indicators of consent before, during, or after the act is something that makes it similar to a prisoner situation, which is what makes them both extremely unlike notions of "too drunk to consent". With both prisoners and minors, their consent, no matter how real and objectively true is simply treated as irrelevant. This is how they are drastically different from rape in which consent is the most central important fact and thus evidence as to the existence of consent is of central importance. That is why it is nonsensical and illogical to label these as "rape", even though it is sensical to define them as crimes. Can the law label it "rape"? Of course, the law can label jay-walking a form of rape and then by legal definition that is an act of rape even if it has nothing in common with the other acts also labeled rape.

The prisoner and minor situations differ drastically from rape of a non-incarcerated adult, but also differ from each other. The general discounting of minor's consent essentially strips them of their rights of self-determination and to control their own actions. So, unless you want to argue that this general disregard of rights applies equally to prisoners, then it is a false equivalence and it is not the same principle at work. With prisoners the disregarding of their consent is far more narrowly focussed upon situations in which they are engaged in activities with a person that give that person some form of personal reward. Unlike minors, prisoners consent is treated as relevant and sufficient if their is no clear personal gain to prison employees, such as decided to have a medical procedure, to watch an R rated movie, to play sports, etc.. IOW, as adults they have more rights of self determination than we give minors. We only disregard their consent when it is to engage in a act that would give personal gain to a prison employee. In contrast, if I put together a baseball game and some kid says they want to play, their consent is irrelevant to any injury they suffer. It is an adult that is criminally liable for them (either me or their parents if they consented to their child playing), even if the adult gets no personal gain whatever out of the activity.

In sum, sex with prisoners and minors are crimes (and should be), but are not inherently acts of rape in any sense logically or psychologically related to non-consensual sex with an adult. They are "rape" only as a matter of legal definition, which means nothing more than that a law maker wrote the word "rape" next to a description of these act, just as they could do to make anything they want "rape". Sex with minors and prisoners are crimes, not because they are acts sex without consent, but because the opportunity for them to be coerced and unconsented sex is unacceptably high, so we make the activity in general a crime regardless of whether it was sex without consent. Even though this robs prisoners and minors of their right to self-determination and to have their consent recognized by the law, we are willing to do this because we do not generally do not acknowledge equal rights for prisoners and minors, and for minors we don't want them engaged in sex even if they want to and enjoy it.

 

[Nexus]

So basically you have a problem with the law calling it a type of rape? I agree statutory rape and as Whoopi Goldburg might say "rape rape" are different things. But it doesn't seem like a huge issue to me in terms of misleading legal semantics.

 

[doubtingt]

So basically you have a problem with the law calling it a type of rape? I agree statutory rape and as Whoopi Goldburg might say "rape rape" are different things. But it doesn't seem like a huge issue to me in terms of misleading legal semantics.

The problem is that just like in all situations where semantics used recklessly, loosely, and without logical consistency, then what is true about one situation gets wrongly applied to other situations. If the law is going to say that "rape" is illegal, then it must have a clear and consistent definition of what "rape" is, not just "rape is whatever we arbitrarily attach to the word rape in a legal document". Otherwise there is no principled consistency in the application of the law and no possibility of rational discourse in whether a particular act should or should not also be made illegal based on its similarity to what is already defined as illegal. Understanding that sex with a prisoner is not sex without consent (i.e. rape) but rather a crime in which it is illegal to have sex with that person even with their consent is important. It helps prevent us from wrongly thinking that this law depends upon using the particulars of the situation to infer consent and the validity of that consent, such as is done by a "too drunk to consent" law. Thus, clear definitions prevent the wrong inference that this laws lends any support whatever to "too drunk to consent" laws, when in fact it is a contrasting example that highlights why "too drunk to consent" laws are so problematic by comparison.

 

[doubtingt]

You bring up some interesting points. Because for many of us, ongoing consent _IS_ a clearly defined point. And you seem to be saying that it is not?

I am saying that it is a clear cut fact that you are having sex with a person in a prison, in their cell, in their uniform, and that this is something that can be directly observed with near to perfect reliability and validity across an infinite number of observers. Thus, the law can define the act in terms of these objective facts and the court can be certain that in every case the parties as clear and certain knowledge that they were engaged in the act that define the act as illegal. What allows for this certainty is precisely that consent has nothing to do with it and the state of mind of either party has zero relevance to whether a crime was committed. It is impossible to know the state of mind of someone with any certainty, beyond maybe that they are completely unconscious.

I see that you are saying what makes this clearly defined is that there is objective evidence like employment and incarceration records. So maybe that makes the discussion lead to how to define consent in such a way that it actually means something to get it.

I think my point is that it is impossible to define "consent" in anywhere near as objective a manner, especially if one is seeking to exclude acts that would otherwise meet that definition but do not when done while in some subjective state of mind that can never be directly observed. IF the definition has any clarity and objectivity it would need to rely upon clearly observable facts that 100% of observers would agree on as being either valid "consent" or not.

It is also interesting to the discussion how you say this has less similarity to rape and "more in common with non-sexual acts such as a guard accepting financial payments from a prisoner." Which makes some sense since it was (apparently) consensual and therefore doesn't feel right as "rape", but then it commodifies sex, which makes it like a favor or a trade rather than an actual sex act as this one apparently was, leading us back to a situation with risk of abuse, not necessarily actual abuse.

Exactly. An act being illegal because it poses a risk of a harmful criminal act that is otherwise hard to enforce is NOT AT ALL THE SAME as an act being illegal because it is that very harmful criminal act. It is dangerously authoritarian to make an act criminal just because it is sometimes used to cause harm. When we do so, we must have a crystal clear definition of the act that makes it certain when the act is occurring to both potential defendants and to the courts. "Too drunk to consent" doesn't come close to that.

 

[Togo]

I think the problem here is more that you're stuck on consent as a psychological state. Some kind of measure of how you feel. It isn't, in law, for any kind of rape. It's a state of accepting what is going on while being aware and informed and in a position to say no. It's rape to have sex with minors prisoners or drunk people because they aren't in a position to say no.

Whether someone is in that situation is a matter of fact, and what is going on inside their head is irrelevent. It's nothing to do with potential risk, nothing to do with avoiding potentially bad situations, nothing to do with a special circumstance, nothing to do with how they feel about it. Prison sex is rape in exactly the same way as drunken rape, or false identity rape, or rape involving intimidation or mild violence.

 

[Derec]

Given the extraordinary levels of evidence many seem to require for criminal conviction by the state (or even just expulsion from a school) in other rape cases, I wonder if anyone will think this person might be guilty:

A Horseheads woman is facing rape charges after police say she engaged in sexual conduct with a prisoner at the Southport Correctional Facility.

Horseheads-based New York State Police say Betsy Kennedy-Scholl, 36, had sexual contact with an inmate at the facility on multiple occasions during a period from November 2012 to January 2013.

Under state law, prisoners can’t consent to sexual activity.

http://www.the-leader.com/article/20140620/NEWS/140629938/1998/NEWS

No, I do not think she is guilty of anything approaching rape. I have real problems with laws that declare classes of people (teenagers, prisoners, those that have consumed alcohol) unable to consent by fiat despite their objective ability to consent.

Now firing her for having sex with someone she had considerable power over would be ok, but it doesn't come anywhere close to rape.

 

[Derec]

Looks like the woman was an employee at the correctional facility. I wonder if the law in question was meant to protect inmates from being coerced into sex by people who could potentially affect their imprisonment?

Probably so. But it can be handled without cheapening the term "rape" and declaring people that are capable of consenting as incapable by governmental fiat.

- - - Updated - - -

This wouldn't be a question if the guard were male and the prisoner of either sex.

Unfortunately you are right. Just like with teachers, there is a definite double standard against males.
That said, regardless of the gender of the guard it's not automatically rape just because the other person was a prisoner.

 

[Derec]

Legally, yes.

He can't consent legally, no different than a child who can't consent legally.

So, yes, he was raped.

Saying a 17 year old automatically can't consent is as idiotic as saying a prisoner can't consent. That there is a law against it is in principle no different than passing a law that declares pi equal to 3.

- - - Updated - - -

Someone who just had a few drinks, but can uphold their end of a conversation, IMO, can give or refuse consent.

You'll find a lot of disagreement to that here and among college administrators.

 

[Derec]

When a person is in a position of possibility of coercion that could result in lack of truly free will to consent, then another person who has some control over them at that time is wrong to have sex, even if the subject seems to really want it, because it is just too fraught with the possibility of abuse to condone?

Wrong. The sex would be wrong and should be actionable but it is definitely not rape.
On the other hand, according to feminist orthodoxy, she could have claimed she was in fact raped if she only had the foresight to get drunk before the sex.

If there is dissent and I misinterpreted, or if there are additional opinions, please post.

There you go.

- - - Updated - - -

I think that sums it up. It's the same reason psychologists and psychiatrists are not supposed to have sex with their clients, even if both parties really, really want it.

That is treated as a professional conduct violation, not rape. Same thing should apply to guards or teachers. Let's not conflate actual rape with any inappropriate sex.

 

[Derec]

Are you opposed to statutory rape laws as well?

I am definitely opposed to calling it rape if the minor actually (if not legally) consents. Age of consent is also too high (18) in many states. There is also the thing that if say a 15 year old is held as capable of consenting with a peer than he or she should be deemed capable of consenting, i.e. deemed of sufficient mental development to agree to sexual activity, period. There is certainly room to make 40 year olds having sex with 15 year olds illegal, but not because that is automatically "rape".

 

[Tom Sawyer]

That's a good question. What if a drunk prison guard has sex with a prisoner? Which one is more evil?

 

[Derec]

I think the problem here is more that you're stuck on consent as a psychological state. Some kind of measure of how you feel. It isn't, in law, for any kind of rape. It's a state of accepting what is going on while being aware and informed and in a position to say no. It's rape to have sex with minors prisoners or drunk people because they aren't in a position to say no.

So would it be ok for the state to make up any arbitrary definition of consent? Raise age of consent to 30 or say that no one can consent to sex with a person more than 5 years older or younger. Declare that noone with BAC above 0.01% is capable of conenting. Declare (as has been said) that no one can consent to sex with members of the same sex or more than one person at a time or anything other than unprotected missionary with lights out? Since you think "consent" is whatever the state arbitrarily says it is rather than any objective state of mind, you should be fine with these definitions right?