[i]Qui tacet consentire[/i] -- "Who is silent gives consent."
I firmly believe that if you don't make it abundantly obvious by word and deed that you are refusing consent, you should not be able to prosecute for rape and especially not sexual harassment. There was a recent case in which a couple had been together for over five years. They got drunk, went home, and fucked as usual. By her own admission, the girl didn't utter a peep the entire time and she certainly didn't resist his advances. A few days later she charged the boyfriend with rape. Naturally, he was dumbfounded. I don't know how far the case got, but that kind of thing is not acceptable.
As unfortunate as it may be, it's a truism that in sexual assault cases, it's the victim who's on trial, not the alleged perpetrator. Too many allegations have been proven false over the years for it not to be so.
"Nonstopdrivel" wrote:
Ok, with all due respect to Pope Boniface or whichever Latin jurist who coined the phrase, the bolded statement is bullshit.
It's up there with the presumption that "ignorance of the law is no excuse" in a nation that passes the equivalent of 250 new small-print books of laws every year.
Implying consent from silence has to be the exception, not the rule.
And rape is a far different cause of action than sexual harassment. Even if you accept the notion that sexual harassment should be considered a crime as opposed to a tort (which I personally think is debatable), they are very different crimes. The extent of the offense is greater (it's physical as well as mental anguish, it's bodily invasion as well as distress, it's an act of violence, etc.).
In fact, the "nonconsensual" part of the wrong in the two cases is itself different. What the alleged victim has to consent to is very different.
Moreover, the drunkenness of the victim is not just used as evidence of consent. It's used, and in fact this is its primary use by the defense, whatever they might say to the contrary to get it in as evidence, as a way of damaging the credibility of the main accusing witness.
It's the same reason the prosecutor will have the victim wear something sedate and girl-next-door whenever possible, or why the accused will invariably appear well-groomed and with professional haircut.
Remember, too, that the essence of rape is a crime not against the victim but against the community/state. It isn't just a matter of proving agreement by the two parties to what happened and why. It's a matter of proving whether the actions rise to an offense against society or not.
That rape will almost never get prosecuted unless the victim testifies doesn't change this fact. The prosecutor is not under oath to protect victims, the prosecutor is protecting the community. One member of a community cannot "consent" on behalf of the community to an action taken against the community.
But that to me isn't the strongest argument against widely defining "implied consent". The question of consent ought to be a matter of fact, not of law. Making it the latter is no more valid than saying "it shouldn't matter whether the victim is a prostitute or a goldigger or Mother Theresa".
If we say the question of consent should be implied, we're taking the question of credibility away from the very people the system sets it up for. The jury (or judge if the jury is waived).
The law doesn't even like to imply consent in contractual matters any more than it has to. It would be profoundly dangerous to do so with respect to crimes of violence.
Do I think people get wrongly accused? Yes. A lot. On this I agree with you. And don't get me started on how people approach sexual harassment.
But the solution is not to imply consent.
And do not be conformed to this world, but be transformed by the renewing of your mind, that you may prove what is that good and acceptable and perfect will of God.
Romans 12:2 (NKJV)