![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
pecuniumThe case in Illinois, where the defense wanted to force the complaintant to watch, in painful detail, a tape of the assualt being prosecuted, has been resolved.
After the defense went over the tape, painting the girl as willing, basically because she wasn't fighting, the accused was acquitted.
This doesn't preclude (I think) further prosecution, as she was 16 at the time, and Ill. has 17 as the age of consent (unless the person is in a position where they are custodially supervised, in which case they are not able to give consent to any person who is more than 17, and in a supervisory position).
What is sad, and perhaps scary about this isn't just that the tape seems to make it clear the woman wasn't capable of giving consent, but that Illinois is thought to have one of the best rape laws in the nation, because it specifically states that a single statement of consent is not open ended.
Given that that anyone who (2) commits an act of sexual penetration and the accused knew that the victim was unable to understand the nature of the act or was unable to give knowing consent; is guilty of rape in Illinois, and she passed out, at which point she was past being able to consent; the verdict almost baffles me.
I say almost because the defense used the tape to portray her as a woman of loose morals, in essense to say she, by virtue of having been flirtatious, of having been seen to kiss someone, to stroke his head, forwent the option of not having sex; even if she was insensible, and that attitude (that she asked for it, that she, "led them on", that she ought to have, "expected it," and you name it) is still widespread.
There's still one of the accused who is at large; he's fled the country, to avoid prosecution (this is presumptive of a guilty mind). I don't know if the facts of his case are such that he can't really claim she was consenting before the tape started to roll (there is no explicit consent given on tape, the victim says she doesn't recall anything from at least a few minutes before the taping began... this was the basis of the defense wanting to grill the woman as the tape was played... she might recall having consented... even though the latter aspects of the statute imply that consent fades when someone becomes unable to give informed consent. That's a difficult thing, but I think only in the context of an established relationship. Sex with someone who's really drunk might not be my cup of tea, but I think it possible for standing consent to exist when the players know each other well. For kids at a party... not so much).
This is horrid. It goes with the Italian court saying it's not such a big deal to have sex with your underaged niece because she wasn't a virgin, so she is less deserving of protection.
It goes with this seegment from "The News Hour" where one of the legislators in S Dakota is explaining his opinions on abortion.
Newshour: Napoli says most abortions are performed for what he calls "convenience." He insists that exceptions can be made for rape or incest under the provision that protects the mother's life. I asked him for a scenario in which an exception may be invoked.
[State Senator]BILL NAPOLI: A real-life description to me would be a rape victim, brutally raped, savaged. The girl was a virgin. She was religious. She planned on saving her virginity until she was married. She was brutalized and raped, sodomized as bad as you can possibly make it, and is impregnated. I mean, that girl could be so messed up, physically and psychologically, that carrying that child could very well threaten her life.
Now, you ask me, his exception is inconsistent. If he thinks abortion is murder, it doesn't matter what the reason, only mortal peril for the mother matters (to take it to the logical extreme, a reductio ad absurdam such a case only merits abortion if 1: the death will occur before the fetus is viable 2: the mother is certain to die, and 3: (though this one is debatable) only if the mother won't be able to get pregnant again.
I'm not even going to go into the religious aspect of Napoli's argument... though it ties in with what he said later, about the community forcing unwed mothers to marry the fathers.
So there you have it, unless she was " brutally raped, savaged. The girl was a virgin. She was religious. She planned on saving her virginity until she was married. She was brutalized and raped, sodomized as bad as you can possibly make it," she isn't entitled to an abortion.
Why? Because she had sex. Looking at court cases like this one (and the mistrial in Orange County, and the other case, I forget where, where a developmenally disabled girl in a wheelchair was asaulted, and the males acquitted) it also looks as though barring a rape as over the top as he says (where does the sodomizing come into play? It isn't as if any of the acts the law calls sodomy lead to children... that's part of why some people say they ought to be illegal, it's why others says doing them doesn't count as losing one's virginity), it wasn't really rape.
After the defense went over the tape, painting the girl as willing, basically because she wasn't fighting, the accused was acquitted.
This doesn't preclude (I think) further prosecution, as she was 16 at the time, and Ill. has 17 as the age of consent (unless the person is in a position where they are custodially supervised, in which case they are not able to give consent to any person who is more than 17, and in a supervisory position).
What is sad, and perhaps scary about this isn't just that the tape seems to make it clear the woman wasn't capable of giving consent, but that Illinois is thought to have one of the best rape laws in the nation, because it specifically states that a single statement of consent is not open ended.
(c) A person who initially consents to sexual
penetration or sexual conduct is not deemed to have consented
to any sexual penetration or sexual conduct that occurs after
he or she withdraws consent during the course of that sexual
penetration or sexual conduct.
Given that that anyone who (2) commits an act of sexual penetration and the accused knew that the victim was unable to understand the nature of the act or was unable to give knowing consent; is guilty of rape in Illinois, and she passed out, at which point she was past being able to consent; the verdict almost baffles me.
I say almost because the defense used the tape to portray her as a woman of loose morals, in essense to say she, by virtue of having been flirtatious, of having been seen to kiss someone, to stroke his head, forwent the option of not having sex; even if she was insensible, and that attitude (that she asked for it, that she, "led them on", that she ought to have, "expected it," and you name it) is still widespread.
There's still one of the accused who is at large; he's fled the country, to avoid prosecution (this is presumptive of a guilty mind). I don't know if the facts of his case are such that he can't really claim she was consenting before the tape started to roll (there is no explicit consent given on tape, the victim says she doesn't recall anything from at least a few minutes before the taping began... this was the basis of the defense wanting to grill the woman as the tape was played... she might recall having consented... even though the latter aspects of the statute imply that consent fades when someone becomes unable to give informed consent. That's a difficult thing, but I think only in the context of an established relationship. Sex with someone who's really drunk might not be my cup of tea, but I think it possible for standing consent to exist when the players know each other well. For kids at a party... not so much).
This is horrid. It goes with the Italian court saying it's not such a big deal to have sex with your underaged niece because she wasn't a virgin, so she is less deserving of protection.
It goes with this seegment from "The News Hour" where one of the legislators in S Dakota is explaining his opinions on abortion.
Newshour: Napoli says most abortions are performed for what he calls "convenience." He insists that exceptions can be made for rape or incest under the provision that protects the mother's life. I asked him for a scenario in which an exception may be invoked.
[State Senator]BILL NAPOLI: A real-life description to me would be a rape victim, brutally raped, savaged. The girl was a virgin. She was religious. She planned on saving her virginity until she was married. She was brutalized and raped, sodomized as bad as you can possibly make it, and is impregnated. I mean, that girl could be so messed up, physically and psychologically, that carrying that child could very well threaten her life.
Now, you ask me, his exception is inconsistent. If he thinks abortion is murder, it doesn't matter what the reason, only mortal peril for the mother matters (to take it to the logical extreme, a reductio ad absurdam such a case only merits abortion if 1: the death will occur before the fetus is viable 2: the mother is certain to die, and 3: (though this one is debatable) only if the mother won't be able to get pregnant again.
I'm not even going to go into the religious aspect of Napoli's argument... though it ties in with what he said later, about the community forcing unwed mothers to marry the fathers.
So there you have it, unless she was " brutally raped, savaged. The girl was a virgin. She was religious. She planned on saving her virginity until she was married. She was brutalized and raped, sodomized as bad as you can possibly make it," she isn't entitled to an abortion.
Why? Because she had sex. Looking at court cases like this one (and the mistrial in Orange County, and the other case, I forget where, where a developmenally disabled girl in a wheelchair was asaulted, and the males acquitted) it also looks as though barring a rape as over the top as he says (where does the sodomizing come into play? It isn't as if any of the acts the law calls sodomy lead to children... that's part of why some people say they ought to be illegal, it's why others says doing them doesn't count as losing one's virginity), it wasn't really rape.
![[identity profile]](https://www.dreamwidth.org/img/silk/identity/openid.png){kind=small}
no subject
Date: 2006-03-06 05:24 pm (UTC)The whole message is more evidence of the real movement of the religious right- return uppity women to the kitchen and wedlock-approved bedrooms.
you need to read Amanda's post at Pandragon, which best expresses my thoughts on this. She's right on the money about the real agenda in this country.
no subject
Date: 2006-03-06 05:42 pm (UTC)no subject
Date: 2006-03-06 05:48 pm (UTC)Different statute, but same jurisdiction. I agree that statutory, as a lesser included, would have seemed a nice piece of insurance, but the counter-argument would be the same one a prosecutor makes when he doesn't include manslaughter in a murder two case... he doesn't want to give the jury an out, in what seems a slam dunk.
The feds got a different bite at the apple in the King case, but I don't see a federal case to be made of it, and this DoJ wouldn't chase it, even if there was one.
TK
no subject
Date: 2006-03-06 05:50 pm (UTC)no subject
Date: 2006-03-06 05:59 pm (UTC)eek.
no subject
Date: 2006-03-06 06:02 pm (UTC)Rape is one of those things we refuse to deal with. We see it as a case of either the stranger with a gun (not a very common form of rape) in which case it's horrible, and the guys who hear about it want to string him up, or we treat it as a case of confusions, and misunderstandings.
"It wasn't rape, it was just bad sex" as Katie Roiphie put it. Sometimes she's right. There are cases of buyer's remorse, and cases where the sex wasn't really consensual, but not really rape (in the strictest of definitions I had a girlfriend who raped me, a lot, because she thought that any night we spent together had to have sex. There were nights I wasn't in the mood, but gave in to make her happy).
In the context of a relationship, those sorts of situations don't always rise to rape.
And that's a grey area I don't know how to solve.
But outside cases like that, consent has to be freely given, and by someone in a state to give it, or it's rape.
But lots of guys have done things which might be rape, if one looked at things that way. Most guys, however, don't think of themselves as rapists, so they minimize it, and they put ridiculous burdens on the women of the world (don't go out alone, don't drink, don't let yourself be in a situation where someone might think you are easy, and the list of ways to, "protect yourself," goes on).
If we prosecuted rape as aggressively as we prosecute crack cocaine, we'd see fewer cases where the victims are taped, and the attackers are acquitted.
It's like hate groups, the lack of resistance to them is seen as complicity, and agreement.
Sadly this isn't the same, because the people on juries like this aren't being silent, they are saying it isn't really rape.
The more I think about it, the more I like the Vagina Dentata the woman in S. Africa designed.
TK
no subject
Date: 2006-03-06 06:13 pm (UTC)TK
my anonymous bad
Date: 2006-03-06 06:48 pm (UTC)I used to have my LJ set so it never logged out, but something changed and I need to fix it. I sometimes find myself perusing my freinds list thinking I am logged in, when in fact, obviously, I am not.
:)
sorry about that, forgive me.
:)
so, if she didn't know about the taping,.. isnt' THAT illegal? I may be behind on these things, but it certainly seems like it should be illegal to tape that kind of thing without consent of all parties.
Re: my anonymous bad
Date: 2006-03-06 07:02 pm (UTC)I can, however, address the general issue of photography: If you are in a public place you can be photographed. You have no right to absolute privacy, and you can't stop someone from taking your picture, videotaping you, etc..
What they can't to, absent your consent (with a few exceptions, mostly for new agencies, or newsworthy events) is profit from your image without your consent.
So, in broad terms, if she was in a public place (e.g. a party) and the owner of the premises didn't prevent such filming, then the filming of her having sex, aking silly faces, playing cards, sleeping in the corner, isn't, automatically, illegal.
TK
no subject
Date: 2006-03-06 07:29 pm (UTC)no subject
Date: 2006-03-06 11:17 pm (UTC)But lots of guys have done things which might be rape, if one looked at things that way. Most guys, however, don't think of themselves as rapists, so they minimize it, and they put ridiculous burdens on the women of the world (don't go out alone, don't drink, don't let yourself be in a situation where someone might think you are easy, and the list of ways to, "protect yourself," goes on).
Thanks for putting your finger on what I think frustrates a lot of women.
DV