Is this person guilty of rape?

[bigfield]

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

Depends which one complains to the university.

 

[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.

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?

There has to be a line somewhere. I'm not sure why you're hung up on 'the state' deciding what it is - anyone making the decision is going to run into people who disagree. My mother's side of the family comes from a part of the Deep South where 'anyone who can drive is fair game', which sounds reasonable until you realise that a 13-year old can get a learner's permit, and 12-year olds can get licenses for agricultural vehicles.

I'm not happy about them deciding what is and isn't rape. You're not happy about 'the state' deciding what is and isn't rape. The line is more-or less arbitrary, but it has to be set by someone, or else we're back to trying to read minds. You can't decide a court case on the facts if you deny the validity of all relevant facts.

 

[Rhea]

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?

The problem with reductio ad adsurdem is that it appears to show that you don't think there is ever anything inherently wrong (unacceptably risky) about a particular type of sexual act.

I disagree with that. I believe that sex with someone younger than puberty is INHERENTLY WRONG (unacceptably risky) and would completely agree with the state setting a limit.

Most of the limits set by the state are not arbitrary, they have an attempt at defining characteristics that defend the line. You obviously disagree with some of them, (all of them?) but it is not, factually, "arbitrary," since reasons are given for the choice of those lines.
- lack of mature thought process about consequences
- imbalance of power leading to unspoken coercion
things like that. We may not agree on whether those are strong enough to result in a defined crime, but they are not absent from the definition such as "arbitrary" would imply.

No it would not be okay for it to be arbitrary. It _is_ however, okay to make it based on averages and probability of negative outcome. Just as it is not _definite_ that yelling "fire!" in a theater will cause injury or death, it is likely enough to make a ban reasonable.

 

[Rhea]

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.

While I agree that calling inappropriate conditions of sexual activity "rape" may cause some confusion and perhaps even dilute attention to the more aggravated cases, we do already have many levels of rape in a legal sense that if people used the real legal language would show this.

But the situation in a school or prison still remains pretty inherently coercive and is appropriately prohibited, IMHO, just as sex with 10 year olds is and should be.

 

[laughing dog]

Clearly, unless this woman intended to rape the inmate, she is not guilty of rape.

 

[Derec]

There has to be a line somewhere.

Of course. The question is a) where to draw the line and b) how you do it. You can impose legal restrictions on sex without the state declaring certain people who are objectively capable of consent are incapable of doing so. Just like you can impose limits on minors drinking and smoking without declaring them incapable to consent to drinking/smoking and treating anyone who supplies them with alcohol/tobacco the same as if they had forcefed the stuff against the minors' will.

I'm not happy about them deciding what is and isn't rape. You're not happy about 'the state' deciding what is and isn't rape. The line is more-or less arbitrary, but it has to be set by someone, or else we're back to trying to read minds. You can't decide a court case on the facts if you deny the validity of all relevant facts.

Whatever the state decide should make some sense. This doesn't.

 

[Derec]

I disagree with that. I believe that sex with someone younger than puberty is INHERENTLY WRONG (unacceptably risky) and would completely agree with the state setting a limit.

First of all your puberty example is poor because that is sexual maturity and children younger than that objectively can't consent to sexual activity. However, ages of consent are much higher than puberty in the US, with many states setting it at 18. Saying a 17 year old is incapable of consenting to sex makes about as much sense as saying a prisoner can't consent to sex.

Something can be deemed risky or wrong enough to make illegal without at the same time absurdly declaring certain people who can consent to sex cannot do so. We prohibit minors or prisoners from doing all sorts of things but we do not (except for sex) state that they are incapable of consenting to these prohibited activities. We also do not treat people they do these prohibited things with as if they forced the minors/prisoners to do them. Introduce sex and public and the lawmakers lose all sense!

Most of the limits set by the state are not arbitrary, they have an attempt at defining characteristics that defend the line. You obviously disagree with some of them, (all of them?) but it is not, factually, "arbitrary," since reasons are given for the choice of those lines.

Age of consent (15, 16, 17, 18, where should be the line drawn? Why not 12 or 21?) is pretty arbitrary as is for example the drinking or voting age. And I accept the law must draw the line somewhere (although 18 is too old for sex and 21 is definitely too old for drinking) but what irks me is that they declare persons under that clearly arbitrary line as incapable of consent and everyone who violates it a "rapist".

- lack of mature thought process about consequences
- imbalance of power leading to unspoken coercion
things like that. We may not agree on whether those are strong enough to result in a defined crime, but they are not absent from the definition such as "arbitrary" would imply.

Most age of consent laws have an exemption for people close in age. That does make sense as policy but it makes no sense whatsoever under the idea that people under say 18 are incapable to consent. Surely if they are incapable to consent with a 25 year old they are incapable to consent with a fellow 17 year old and vice versa. Now I do realize that an age of consent must be met and that close age exemptions make sense but violators are nowhere near to being "rapists" and should not be treated as such.
Same with this prison employee. Should she be fired? Sure. Should she face some prosecution? Probably some misdemeanor offence. Is she a rapist and should she be prosecuted for rape? Certainly not!

No it would not be okay for it to be arbitrary. It _is_ however, okay to make it based on averages and probability of negative outcome. Just as it is not _definite_ that yelling "fire!" in a theater will cause injury or death, it is likely enough to make a ban reasonable.

But averages of probability of negative outcome does not render someone incapable of consenting to sex. As I said, setting age of consent at 16 makes sense but saying a 15 year old is incapable of consenting to sex doesn't. That's the difference.

 

[Derec]

But the situation in a school or prison still remains pretty inherently coercive and is appropriately prohibited, IMHO, just as sex with 10 year olds is and should be.

I disagree. A 10 year old is prepubescent and thus is reasonably not deemed capable of consenting to sexual activity. A prisoner can consent or deny consent.
That doesn't mean that there is not a case to prohibit guards having sex with prisoners but not because they can't consent. Which would make whatever the prohibition is something different than rape.

 

[Derec]

Clearly, unless this woman intended to rape the inmate, she is not guilty of rape.

Yes. Mens rea.

 

[Toni]

But the situation in a school or prison still remains pretty inherently coercive and is appropriately prohibited, IMHO, just as sex with 10 year olds is and should be.

I disagree. A 10 year old is prepubescent and thus is reasonably not deemed capable of consenting to sexual activity. A prisoner can consent or deny consent.
That doesn't mean that there is not a case to prohibit guards having sex with prisoners but not because they can't consent. Which would make whatever the prohibition is something different than rape.

Legally, a prisoner cannot give consent to sex with any prison employee.

 

[Rhea]

But the situation in a school or prison still remains pretty inherently coercive and is appropriately prohibited, IMHO, just as sex with 10 year olds is and should be.

I disagree. A 10 year old is prepubescent and thus is reasonably not deemed capable of consenting to sexual activity. A prisoner can consent or deny consent.
That doesn't mean that there is not a case to prohibit guards having sex with prisoners but not because they can't consent. Which would make whatever the prohibition is something different than rape.

FYI 10yo is not always prepubescent. It is indeed quite common for 10yos to have reached (but not finished) puberty, just as it was common as was my case to not reach puberty (start it) until after 15yo.

Early Puberty for Girls: The New “Normal” and Why We Need to be Concerned

“Normal” puberty onset can range from ages 8-13 and takes, on average, 1.5-6 years to complete.
[...]

Good documentation exists from the last century or so to establish that the average age of first menstruation in White U.S. girls has declined by several years, from an average of 17 to 13 years of age.

Which is why I said 10. There are many 10yos who are well along into puberty, but their brains and emotions are in no way ready to handle sexuality and that is why we deem them not mature enough to make an informed consent based on real consequences. They have no idea what that is all about.

The same can be very often true for 14yos. I have chaperoned enough of them to conclude it is right and proper to deem these kids not competent to consent to sex.

At 16yo, maybe half of them really know what's going on. But this makes them all easily exploited by an older person who definitely knows what's going on and can easily deceive them.

And so I agree with ages of 16yo, too. The exceptions of close in age make sense to me because they are likely developmentally similar and hence the emotional consequences are more likely (no guarantees, though!) to be faced in similar ways.

 

[Sabine Grant]

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

http://www.doccs.ny.gov/Directives/4028A.pdf

under Policy points to any Staff employee having sexual relations with a willing inmate as being "inappropriate behavior". Further, the paragraph refers to Section 130.05 of the Penal Law.

http://www.slc.edu/offices-services/security/assault/Penal_Law.html

A person is deemed incapable of consent when he or she is:
(a) less than seventeen years old; or
(b) mentally disabled; or
(c) mentally incapacitated; or
(d) physically helpless; or
(e) committed to the care and custody of the state department of correctional services or a hospital, as such term is defined in subdivision two of section four hundred of the correction law, and the actor is an employee, not married to such person, who knows or reasonably should know that such person is committed to the care and custody of such department or hospital. For purposes of this paragraph,“employee” means (i) an employee of the state department of correctional services who performs professional duties in a state correctional facility consisting of providing custody, medical or mental health services, counseling services, educational programs, or vocational training for inmates; (ii) an employee of the division of parole who performs professional duties in a state correctional facility and who provides institutional parole services pursuant to section two hundred fifty-nine-e of the executive law; or (iii) an employee of the office of mental health who performs professional duties in a state correctional facility or hospital, as such term is defined in subdivision two of section four hundred of the correction law, consisting of providing custody, or medical or mental health services for such inmates; or
(f) committed to the care and custody of a local correctional facility, as such term is defined in subdivision two of section forty of the correction law, and the actor is an employee, not married to such person, who knows or reasonably should know that such person is committed to the care and custody of such facility. For purposes of this paragraph,“employee” means an employee of the local correctional facility where the person is committed who performs professional duties consisting of providing custody, medical or mental health services, counseling services, educational services, or vocational training for inmates;

Reading the above, it appears that it is the status of detainees/inmates as persons committed "under the custody or care of" which justifies their falling under the listed category of "person deemed incapable of consent". I will assume that it is the unbalance of power between inmate and employee causing an exploitative situation on the part of the employee which is the root of the above "person deemed incapable of consent" no matter how such inmate would "willingly" (using quotes here as it was used in the Policy paragraph from my first link) participate/engage in sexual relations with an employee.

Unbalance of power is often what governs rules of conduct in the military where the military establishment will frown upon "fraternization" between an O rank (Officer) and enlisted. Same frowning will occur in businesses when an employee in a supervising/management position has sexual relations with a "sub" employee. Same frowning will occur when a College Faculty member has sexual relations with a student. Same frowning will occur when a high school teacher has sexual relations with a legal adult student. Basically, each time it involves one party considered in a position of power deemed to be susceptible to become coercive thus exploitative.