Author Topic: Rape or Consensual Sex?  (Read 30644 times)

charles

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Rape or Consensual Sex?
« on: June 26, 2009, 12:36:47 am »
Redirecting this from the main forum. The question has arrised of "when is sex consensual or rape?"

We begin with alcohol as a culprit for causing women to consent or fail in their objection to sexual intercourse but others may bring in the old argument over an archaic law that still exists in some countries which specifies that a man can force intercourse with his wife and not be charged with rape.  Others might attack those girls that cry wolf who, like the girl who had 56 stars tattoed into her face, regret their actions after the fact and call the man who simply woed them a rapist who forced or took advantage of them to relieve themselves of some unfathomable guilt they feel over the event or to simply get attention.  More still might tackle the age old question on if a grown man can be raped by a woman.  Finally there's the special case of statutory rape in cases where an underage partner is involved but consented.

Here's my personal thought/responses:

For me it's a matter of "Mens Rea" on the accused rapist as to wether or not he's guilty.

End result, if the guy effectively knew or had indication that what he was doing was wrong or considered wrong, then he's of a guilty mind and should be convicted.

But proving his negative intentions is the tricky part and in all things that are doubtful we must revert to the old rule.  Innocent unless proven guilty beyond reasonable doubt.  But, of course, in the extreme cases, such men can usually be caught if they're repeat offenders with the same M.O. as enough flaky and circumstantial evidence can work against them.

The same can be said for women.  Despite whatever we may say about the man's "readiness for action" indicating consent, if the woman had indication that the man was objecting or would object to the sexual treatment then she had an understanding that what she was doing was wrong.  The obvious exclusion here is seduction, where a woman, despite a guilty mind, should not be convicted for simply seducing a man to willingly engage in sexual relations (much like a man should not be lynched for woeing a woman for the same).

Seduction is very seperate from brute force, fear, and drugging or alcohol in that it's coercion or maybe bribing as opposed to blackmailing or threatening.  But that, of course, raises further issues if lies were used in the coercion which I'm completely uncertain about addressing.
« Last Edit: June 26, 2009, 12:39:49 am by charles »
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CrystalDragonSpaceMarine

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Re: Rape or Consensual Sex?
« Reply #1 on: June 26, 2009, 10:35:44 am »
As far as laws go, I believe rape/sexual assault should only apply when:

1) Someone forces someone else into a sexual act against their will, through physical force. Also, this should count under duress, like someone holding a gun to your head, or to someone else's.

2) Someone performs sexual acts with an unconscious person.




But I do not think it should apply to trickery/deception that doesn't involve outright blackmail. To do such is wrong, no doubt, but there is no possible way you can legislate it, as fun as it would be to live in a society where any man who promises a girl he'll stay with her and then leaves after a one-night-stand can be executed.

Emp_Dragon

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Re: Rape or Consensual Sex?
« Reply #2 on: June 26, 2009, 01:26:08 pm »
Well, as soon as one part is unable to say yes or no and isn't actively making their wishes known by physical guidance, anything done to that person is criminal by default.

And if it's been established that some kind of sexual activities has taken place, I think it should be up to the accused to prove consent. I hold this oppinion for a few different reasons, firstly it's because the penalties for rape is seldom even comparable to the level of mental destruction wrought by the crime.
Secondly, it would be a damned good incentive for those guys who in today's society can get away with not using their brain to think, hopefully even twice.
Thirdly, it might lead to a positive side effect of fewer accidental pregnancies and/or a slower spread of veneric diseases.

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Re: Rape or Consensual Sex?
« Reply #3 on: June 26, 2009, 03:10:01 pm »
And if it's been established that some kind of sexual activities has taken place, I think it should be up to the accused to prove consent.
That seems like it would create an awfully easy way to blackmail someone, or just get 'em locked up, depending on your level of random vindictiveness. Simply sleep with them, then deny you ever gave consent and boom!
You can't look dignified when you're having fun.

Valenthesial

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Re: Rape or Consensual Sex?
« Reply #4 on: June 26, 2009, 03:26:39 pm »
For me it's a matter of "Mens Rea" on the accused rapist as to wether or not he's guilty.
End result, if the guy effectively knew or had indication that what he was doing was wrong or considered wrong, then he's of a guilty mind and should be convicted.

What about people with different morals than your own? An accused may not feel guilty even after he butchers children. There are psychopaths in the world, as well as simply different cultures/beliefs about the right and wrong.
Therefor I believe the rules about this one should be more clearly defined and objective than the accused subjective ideas of right or wrong (even if in most cases the rapist most likely KNOWS he's doing something wrong).

As far as laws go, I believe rape/sexual assault should only apply when:
2) Someone performs sexual acts with an unconscious person.

I mostly agree with you. But back to the issue of drugs/alcohol - there are many stages between fully coherent consciousness and complete unconsciousness.
- A person may be in a stage where he(/she) can stagger/stand on his(/her) legs, but may not talk.
- A person may be in a stage where he have blurry sight.
- A person may be in a stage where he may not remember his where he parked his car, where he is, or even his own name.

Think for instance about medical drugs that allow local anesthetize for operations, psychic drugs used for mind illnesses, trauma after a car accident etc etc.
I'm deliberately using examples in which the victim did not even CHOOSE to get to that stage. However, his state still applies even when it was deliberate as in when becoming drunk.

I personally think that if a person is unable to express agreement with her own voice, performing sexual act with her can be considered an act of rape, should she wake up and claim it was against her will.

Well, as soon as one part is unable to say yes or no and isn't actively making their wishes known by physical guidance, anything done to that person is criminal by default.

And if it's been established that some kind of sexual activities has taken place, I think it should be up to the accused to prove consent. I hold this oppinion for a few different reasons, firstly it's because the penalties for rape is seldom even comparable to the level of mental destruction wrought by the crime.
Secondly, it would be a damned good incentive for those guys who in today's society can get away with not using their brain to think, hopefully even twice.
Thirdly, it might lead to a positive side effect of fewer accidental pregnancies and/or a slower spread of veneric diseases.

Well, when I saw your first sentence, I was about to wholeheartedly agree with you. However, reading further, I find your opinion the farthest away from what I would call just.

"I think it should be up to the accused to prove consent" = equals guilty until proven otherwise, absurdly contradicting basic human rights - a man is innocent until proven otherwise. Since there is obviously no way to PROVE consent, unless you sign up on paperwork before you are making love with your partner or have witnesses to the act, you would end up in jail if your partner accused you - whether it was originally consensual sex or not.
As a direct result, your partner have the full opportunity to blackmail you into anything (marriage, money etc) with the threat of sending you to jail.

"reasons: firstly it's because the penalties for rape is seldom even comparable to the level of mental destruction wrought by the crime."
Have you considered that perhaps the logical conclusion from this would be to RAISE the penalties for rape, rather than decide that EVERY sexual encounter is indeed rape? It's a different debate entirely what is the appropriate punishment, and it's completely irrelevant to WHAT is rape.

"reasons: it would be a damned good incentive for those guys who in today's society can get away with not using their brain to think, hopefully even twice."
Again, largely irrelevant to the question "when is sex consensual or rape?", it seems that in your opinion in order to civilize the evil male-kind, a sexual encounter can be called a "rape" or a "consensual sex" in retrospect.

"reasons: it might lead to a positive side effect of fewer accidental pregnancies and/or a slower spread of veneric diseases."
Well, on that I could agree with you, there would be FAR less pregnancies in the world, accidental or otherwise if that was the law :P
But also, I would suggest that we should change the law completely:
A sexual encounter is considered rape if the terms below are not fully met:
1)A certified doctor will make a full examination of the participants beforehand, as well as be present in the sexual act, so he can monitor it to be as healthy as possible.
2)A certified lawyer must sign the participants on their agreement to enact in a sexual encounter, and that they are both fully coherent and willing. He can also monitor the sexual act, to make sure neither side changes his mind DURING the act.

I sincerely hope that your opinions on the matter came just because you did not think about this subject before you posting that reply.
You are entitled to believe as you desire, but please consider my words. We are not in the dark ages at this time, and I really hope we won't get back there again.

charles

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Re: Rape or Consensual Sex?
« Reply #5 on: June 26, 2009, 04:00:58 pm »
And if it's been established that some kind of sexual activities has taken place, I think it should be up to the accused to prove consent. I hold this oppinion for a few different reasons, firstly it's because the penalties for rape is seldom even comparable to the level of mental destruction wrought by the crime.
Secondly, it would be a damned good incentive for those guys who in today's society can get away with not using their brain to think, hopefully even twice.
Thirdly, it might lead to a positive side effect of fewer accidental pregnancies and/or a slower spread of veneric diseases.

Excuse me Miss, can you please sign this consent form for me before we proceed?
Excuse me Miss, can you please pose for a photograph of us both horny and happy before we proceed?

Sorry but I don't believe in labelling any guy as a sex offender and jailing them for years by default when accused.  Heck, my mother was picking pumpkins one day and got wacked in the eye by one that was thrown to her unexpectadly.  Had a beautiful bruise in her eye.  Maybe she could have charged my father with assult.  Lets see him prove it wasn't him if he hadn't been told about the incident.

Comparison of punishment VS anguish of the rape victim?  This does not come into account when determining guilt or innocence, only sentencing can be determined by the damage caused.

Incentive for guys who don't think twice??? Not understanding you there.  Are you trying to use rape laws to give guys the equivalent of the inhibitions that women feel about casual sex?

Fewer teen pregnancies and spread of sexual diseases???!!!  Are you saying we should use RAPE laws to help prevent teen pregnancy???

Again, I'm reminded of the girl who recently had 56 start tattoed into her face and cried afterwards that she had fallen asleep and the artist had continued without her consent.  We all looked at this crying, young girl with stars across half her face and believed there was no way she would have wanted the stars.  Then we saw the tattoo artist, completely covered in tattoes with rings through his lips, nose and ears (together with God only knows what other parts) and implants in his eyebrows.  We thought for sure that this freakish man had applied all the stars without consent, not comprehending that few would want to look as he does... then the girl confesses that she lied after her father became angry and suddenly we all realise we've been duped by her cry story into believing her a victim.

Innocent until proven guilty beyond reasonable doubt is an important part of criminal law.  Civil law is different since both sides need to prove one way or another.  The french proved with their gullotine that this is an important part of the law.  Sorry but I see the use of rape laws to create a more sexually discrete or suppressed society as a perversion of laws designed to protect women from the true predators out there.

There are other countries out there who simply have separate laws for prohibiting extramarital and premarital sex and if thats what you're hoping to prevent then these are the laws you need to push.  Although it is my understanding that separate laws exist which require a man or woman to inform a sexual partner of any STDs they carry or potentially carry, before engaging in sexual relations with that partner.

For me it's a matter of "Mens Rea" on the accused rapist as to wether or not he's guilty.
End result, if the guy effectively knew or had indication that what he was doing was wrong or considered wrong, then he's of a guilty mind and should be convicted.

What about people with different morals than your own? An accused may not feel guilty even after he butchers children. There are psychopaths in the world, as well as simply different cultures/beliefs about the right and wrong.
Therefor I believe the rules about this one should be more clearly defined and objective than the accused subjective ideas of right or wrong (even if in most cases the rapist most likely KNOWS he's doing something wrong).
Depending on the level of psychopath they may be considered innocent by reason of insanity.  This is part of "Mens Rea" in the law as obviously the insane are incapable of a guilty mind (but still sent to a mental institution until deemed safe to return to society... if they ever are).  It's tragic for the victim, etc, but these people exist and are incapable of comprehending their actions, much like a 5 year old might not comprehend the difference between pointing his toy gun at someone and his father's colt .45

In cases of simple different beliefs you'll find that although many believe they have the right to do this or that, they still know it's against the law and not deemed acceptable.  Many people believe they can handle higher speeds in certain roads marked for lower speeds but they still know they're speeding and breaking the law despite what they may believe they can fairly handle.
« Last Edit: June 26, 2009, 04:11:21 pm by charles »
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Valenthesial

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Re: Rape or Consensual Sex?
« Reply #6 on: June 26, 2009, 05:14:41 pm »
For me it's a matter of "Mens Rea" on the accused rapist as to wether or not he's guilty.
End result, if the guy effectively knew or had indication that what he was doing was wrong or considered wrong, then he's of a guilty mind and should be convicted.

What about people with different morals than your own? An accused may not feel guilty even after he butchers children. There are psychopaths in the world, as well as simply different cultures/beliefs about the right and wrong.
Therefor I believe the rules about this one should be more clearly defined and objective than the accused subjective ideas of right or wrong (even if in most cases the rapist most likely KNOWS he's doing something wrong).
Depending on the level of psychopath they may be considered innocent by reason of insanity.  This is part of "Mens Rea" in the law as obviously the insane are incapable of a guilty mind (but still sent to a mental institution until deemed safe to return to society... if they ever are).  It's tragic for the victim, etc, but these people exist and are incapable of comprehending their actions, much like a 5 year old might not comprehend the difference between pointing his toy gun at someone and his father's colt .45

In cases of simple different beliefs you'll find that although many believe they have the right to do this or that, they still know it's against the law and not deemed acceptable.  Many people believe they can handle higher speeds in certain roads marked for lower speeds but they still know they're speeding and breaking the law despite what they may believe they can fairly handle.

Umm. You're giving a good argument here.
I suggested a psychotic criminal just to emphasis the point that the offender did not consider it wrong but was still deserving of a punishment.
You are right that by law, people who are considered mad are not capable of a guilty mind and would not be punished for that crime. I might not disagree with that (especially on irreversible life changing offenses such as rape or murder) perhaps somewhat because I have some issues against criminals getting away with murders/rapes/other heinous crimes with the "get out of jail free card" of claiming insanity. But that is really outside the discussion we've started here I think.

Let's skip the actual mad people and psychopaths (and whether they deserve punishment or just hospitalization and trying to cure them) for now and think of an offender with a clear mind, who has a subjective different belief on what is right or wrong.

Let's assume for the example that the accused is originating from a foreign country/culture, where that act is not considered an offense (let's exaggerate and say that woman have no rights there, or that woman who dress provocatively "deserves" to be raped or something crazy like that in his country).

Now:
Example 1: The accused performed the offensive without any knowledge that it is forbidden/illegal in the country. He believed fully he is doing a lawful thing, and was only told afterwards when he was accused that he has committed an offense. Thus he did not have guilty mind during the crime. (Ignorantia legis neminem excusat - being ignorant of the law is of no excuse - is largely irrelevant here. the argument is about the guilty mind, read on...)

Example 2: The accused performed the offensive with knowledge that it is forbidden/illegal in the country. Still, He believed fully in his heart that what he is doing is morally right. Thus he did not have guilty mind during the crime.

What do you feel about each of those examples? what does your "guilty mind" rule say about each of those cases? I for one, would like the country's law to throw that person to jail in both examples, regardless of guilty mind.

What I'm trying to reach in those examples, is that I have my subjective beliefs on what is right or wrong.
Even if my moral code or the country's law (which is also a subjective moral code, only one that is accepted locally by more people than just myself) are only subjective, I wouldn't want ANYONE to be able to escape judgment according to the accepted law, whether he believes in it or not.
Therefor the "guilty mind" concept you're suggesting still sounds rather unreasonable to me on rape accusations.

What if the victim feels abused and the accused don't feel he have committed any crime?

Laws on this matter should in my opinion be as clear, coherent and finite as possible, making it impossible (or at least close to it) to commit an offense WITHOUT knowing you are committing one AND making it punishable when you are breaching the announced and accepted "code of conduct" for the matter, disregarding your personal beliefs on the subject.

btw: the conceptual "guilty mind" is speaking of whether you INTENDED to do it or not when speaking about murder. It is fairly different when something like a rape/consensual sexual act is considered, as one person may think it's "ok" while the other one does not.

P.S.
Totally agree with you regarding Emp_Dragon's reply.

Emp_Dragon

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Re: Rape or Consensual Sex?
« Reply #7 on: June 27, 2009, 12:32:54 am »
Yes, the second part wasn't contemplated thouroughly. Besides, I was overly tiered when i typed it just before heading to bed after a long day working overtime.

The first point still stands, but what I was trying to adress with the second statement is that an unacceptably large percentage of these crimes never get investigated enough to lead to a conviction. In Sweden, it's no more than 20% of reported rapes that even reach trial and in courts there are a lot of unwarranted focus on the victims history and circumstances while the accused is more or less unquestioned to the same degree. And in Sweden, only witnesses and the victim is requiered by law to speak the truth, a perpetrator can lie his ass off and risk nothing.
Those factors makes it likely that a lot of the women (&men) who are victims of sexual crimes hesitates to report the crime until physical evidence has degraded too much to be useful or even refrain to report it at all to avoid a second and third violation of their already weakened self by the institutions that's supposed to be protecting them.

Valenthesial

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Re: Rape or Consensual Sex?
« Reply #8 on: June 27, 2009, 01:13:40 am »
Yes, the second part wasn't contemplated thouroughly. Besides, I was overly tiered when i typed it just before heading to bed after a long day working overtime.

The first point still stands, but what I was trying to adress with the second statement is that an unacceptably large percentage of these crimes never get investigated enough to lead to a conviction. In Sweden, it's no more than 20% of reported rapes that even reach trial and in courts there are a lot of unwarranted focus on the victims history and circumstances while the accused is more or less unquestioned to the same degree. And in Sweden, only witnesses and the victim is requiered by law to speak the truth, a perpetrator can lie his ass off and risk nothing.
Those factors makes it likely that a lot of the women (&men) who are victims of sexual crimes hesitates to report the crime until physical evidence has degraded too much to be useful or even refrain to report it at all to avoid a second and third violation of their already weakened self by the institutions that's supposed to be protecting them.

I completely agree.

"unacceptably large percentage of these crimes never get investigated enough to lead to a conviction"
True. As it usually comes to word vs. word without any actual evidence, it is in many times really hard or downright impossible to reach a conviction. However, I think that sometimes the police/prosecution aren't doing enough digging or not taking sexual offenses seriously enough. Some more investment in this area could lead to far better results. As long as we do not reach a point where a non guilty person gets convicted.

"unwarranted focus on the victims history and circumstances while the accused is more or less unquestioned to the same degree."
This sounds unfair.
Mostly, I believe that the trial in those cases (along with the accusation even) should be all done behind closed doors until the end of the trial, with a strict censorship on the media until the accusation is proved in court to be true or not satisfactory for a conviction (aka innocent, I refrain from using this as it's possible for lack of evidence to let go of guilty accused). If this is followed, it should minimize the negative effects on the victims.
Also, I see no reason why not to question the accused thoroughly (also behind closed doors, to minimize the negative effects should he be found innocent) as it does easily lead to his way of thinking (the guilty mind mentioned earlier by charles comes to mind).

"And in Sweden, only witnesses and the victim is requiered by law to speak the truth, a perpetrator can lie his ass off and risk nothing."
Now this sounds a downright stupid law in my opinion, which should probably be changed. (Note that you're living in a Democratic country and you can easily write your opinion, gather signatures and bombard the Senators' mailboxes with your opinion, if nothing else. who knows, maybe it'll eventually move something.)

The accusing party MUST speak the truth, that's for sure, as a false accusation can shatter a person's reputation, have him lose his job, and completely destroy his life. it is not less than an offense against him (in case IT IS false).
However, why would the accused NOT expected to speak the truth? If you give a false statement in front of court, at least in my opinion, you SHOULD be punishable for this alone, whether you are guilty of the original crime or not. At least that's the case with law here (Israel), though you have "the right to remain silent"  and not convict yourself in police investigations, which is also downright hilarious imo.
Nevertheless, I never saw the prosecution actually charging someone with speaking FALSE in court, even if it is considered a punishable offense (up to 7 year in jail by my local law), as it is considered completely impossible to prove that you have intentionally lied and not just "thought that's what you saw" etc. That fact makes it a completely useless law at least as of today.

I think that if both parties in court would FEAR being caught lying and would be forced to think before they speak, therefor speaking ONLY the truth (at least on objective facts, it's hard to enforce speaking the truth on a question like: "what were you thinking back then" as nobody can claim you're lying even if you are), we would be far better off. Lying in court should be punishable with high penalties.

"even refrain to report it at all to avoid a second and third violation of their already weakened self by the institutions that's supposed to be protecting them."
Well, again totally agree. Hence my suggestions on making it as equal as possible in court, as well as keep it completely behind closed doors which is never fully done today (somehow it ALWAYS leaks to the press, and the press are never being charged with publishing against censorship laws and causing a horrible violation for both the accused and the accuser - one of them being mostly/fully innocent).

Emp_Dragon

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Re: Rape or Consensual Sex?
« Reply #9 on: June 27, 2009, 11:16:37 am »
What I was thinking about in stating unwarranted focus on the victims history and circumstances was that it's often portrayed in the press how mainly the defendants lawyer attempts to displace the guilt issue onto the victim by asking irrelevant questions regarding clothing habits, dating habits and such while no questions are raised regarding the accused's attitude towards the victim's general social group or gender, something that would be a lot more relevant since rape isn't really about sex but about power and taking/ re-taking control of a percived threat to the perpetrator's ego.

CrystalDragonSpaceMarine

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Re: Rape or Consensual Sex?
« Reply #10 on: June 27, 2009, 12:36:51 pm »
What I was thinking about in stating unwarranted focus on the victims history and circumstances was that it's often portrayed in the press how mainly the defendants lawyer attempts to displace the guilt issue onto the victim by asking irrelevant questions regarding clothing habits, dating habits and such while no questions are raised regarding the accused's attitude towards the victim's general social group or gender, something that would be a lot more relevant since rape isn't really about sex but about power and taking/ re-taking control of a percived threat to the perpetrator's ego.

Yeah, but that's how lawyers spin it, y'know?

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Re: Rape or Consensual Sex?
« Reply #11 on: June 27, 2009, 12:40:05 pm »
It might be, but it shouldn't be allowed to spin it that way.

charles

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Re: Rape or Consensual Sex?
« Reply #12 on: June 27, 2009, 04:39:55 pm »
Let's skip the actual mad people and psychopaths (and whether they deserve punishment or just hospitalization and trying to cure them) for now and think of an offender with a clear mind, who has a subjective different belief on what is right or wrong.

Let's assume for the example that the accused is originating from a foreign country/culture, where that act is not considered an offense (let's exaggerate and say that woman have no rights there, or that woman who dress provocatively "deserves" to be raped or something crazy like that in his country).

Now:
Example 1: The accused performed the offensive without any knowledge that it is forbidden/illegal in the country. He believed fully he is doing a lawful thing, and was only told afterwards when he was accused that he has committed an offense. Thus he did not have guilty mind during the crime. (Ignorantia legis neminem excusat - being ignorant of the law is of no excuse - is largely irrelevant here. the argument is about the guilty mind, read on...)

Example 2: The accused performed the offensive with knowledge that it is forbidden/illegal in the country. Still, He believed fully in his heart that what he is doing is morally right. Thus he did not have guilty mind during the crime.

What do you feel about each of those examples? what does your "guilty mind" rule say about each of those cases? I for one, would like the country's law to throw that person to jail in both examples, regardless of guilty mind.

What I'm trying to reach in those examples, is that I have my subjective beliefs on what is right or wrong.
Even if my moral code or the country's law (which is also a subjective moral code, only one that is accepted locally by more people than just myself) are only subjective, I wouldn't want ANYONE to be able to escape judgment according to the accepted law, whether he believes in it or not.
Therefor the "guilty mind" concept you're suggesting still sounds rather unreasonable to me on rape accusations.

What if the victim feels abused and the accused don't feel he have committed any crime?

Laws on this matter should in my opinion be as clear, coherent and finite as possible, making it impossible (or at least close to it) to commit an offense WITHOUT knowing you are committing one AND making it punishable when you are breaching the announced and accepted "code of conduct" for the matter, disregarding your personal beliefs on the subject.

btw: the conceptual "guilty mind" is speaking of whether you INTENDED to do it or not when speaking about murder. It is fairly different when something like a rape/consensual sexual act is considered, as one person may think it's "ok" while the other one does not.

Example 1: Jailed as a result of the Ignorantia legis neminem excusat you mentioned.  However, I think (not sure here) that the law does take the accused's and victim's belief backgrounds into consideration as mitigating evidence for sentencing.  Although it would have to be a culture belief for victim as well (and even then, I'm not sure of any judge who really does take this into account).  As for the guilty mind, the offender still understands that they are forcing themselves sexually upon the victim, against their will.

Example 2: Again, illegal and they knew it, even if they believe otherwise on moral grounds. Although if their state of mind is due to insanity (e.g. "God told me to, so she could give birth to the messiah!") then it's off to the loony bin instead.

Again, the perpetraitor understands that they are forcing themselves sexually upon the victim, against their will, or they are manipulating the victim's will with drugs or alcohol.  The difficulty for the prosecution in those drug and alcohol cases, is proving the intent.  Generally they can only rely upon the history of both victim and accused to show the victim would not have willingly taken the substances, or the accused has a history of pushing them onto women for sex.


@EMP_Dragon/Valenthesial:  The difficulty with closed door cases, is that while it protects both victim and perpetrator from trial by media, it also prevents other possible victims or character witnesses from coming forward to testify on either side's behalf (e.g. someone who knows the girl bragged about sex with the accused or another victim who can give strength to the case).  When you say the lawyer shouldn't be able to "spin it" with asking the victim about their attire and personal sexual habbits, the truth is they should be able to quesiton those things as they're trying to show that the sex was consensual while the prosecution is trying to "spin it" the other way by showing the victim as the virgin Mary who would never consent to the intercourse.  When physical evidence can only show that sexual intercourse occured between the two, it can be a case of the accuser stating it was rape while the accused states it was consensual.  The two statements contradict and cancel each other out so its a matter of showing their character to try and prove it one way or another and if the prosecution is to rely on that for a conviction, then the defence should have the right to cross examine the accuser and present evidence that suggests or shows otherwise.

It's an unfortunate thing thats eventuated from girls out there who have cried wolf and falsely accused men of rape or sexual assult, but the victim does need to be questioned and investigated to a certain extent.  When we're talking about any criminal case, we're not only talking about the reported pain and anguish caused to the accuser but about taking away the liberties of the accused if they're convicted of that crime.
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Re: Rape or Consensual Sex?
« Reply #13 on: June 27, 2009, 09:04:54 pm »
When you say the lawyer shouldn't be able to "spin it" with asking the victim about their attire and personal sexual habbits, the truth is they should be able to quesiton those things as they're trying to show that the sex was consensual while the prosecution is trying to "spin it" the other way by showing the victim as the virgin Mary who would never consent to the intercourse.  When physical evidence can only show that sexual intercourse occured between the two, it can be a case of the accuser stating it was rape while the accused states it was consensual.  The two statements contradict and cancel each other out so its a matter of showing their character to try and prove it one way or another and if the prosecution is to rely on that for a conviction, then the defence should have the right to cross examine the accuser and present evidence that suggests or shows otherwise.

It's an unfortunate thing thats eventuated from girls out there who have cried wolf and falsely accused men of rape or sexual assult, but the victim does need to be questioned and investigated to a certain extent.  When we're talking about any criminal case, we're not only talking about the reported pain and anguish caused to the accuser but about taking away the liberties of the accused if they're convicted of that crime.

Your above statement is a perfect illustration to why I think there is too much focus on the victim, in my eyes, there is no need to portray the victim as a virgin Mary. But there should instead be a lot more interest in focusing on the accused's background and culture. Eg. is (s)he known to pull sexist jokes now and then? Would the personality of the accused allow for him(her) to take a no for an answer? Has (s)he had similiar incidents in the past? How does the perpetrator act under negative peer preassure? and so on. The reason for this is that sexual criminals are in nine out of ten cases habitual offenders. As long as they see it as a quick fix for their self-image issues to force themselves on another, they will keep doing it.

As for closed doors, I'm not that positive. As long as the Identity of the accused, the victim or any witnesses isn't released or leaked to the press before the trial has run it's course I see no reason for locked doors. (though that means no photography of any kind in courts) And there should be serious penalties for any press agent or otherwise who even attempts to find out and/or publish the identity of anyone involved in the trial as well as for anyone leaking such info.

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Re: Rape or Consensual Sex?
« Reply #14 on: June 27, 2009, 09:16:06 pm »
Personally, I think the character of a person shouldn't enter any sort of legal argument.

"Yeah, this guy is mean, sexist, power-hungry, OF COURSE he's a rapist."

"Well, this guy is good, respectable to women, has good self esteem, he'd never rape ANYBODY."

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Re: Rape or Consensual Sex?
« Reply #15 on: June 27, 2009, 10:50:25 pm »
But the character and history is imperiative to know if you want a fair sentence. There is no use sending a habitual rapist to prison for x number of months/years, they will just be at it again as soon as they get out and most likely they'll be more brutal then since they might feel a need to get revenge at society for beeing sent to prison because of some dumb bitch who didn't know her place.

That kind of habitual criminal needs to be sent to a mental institution where they can be treated or if that's impossible kept isolated from society indefinitely.  Or just put down like a rabid mutt.

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Re: Rape or Consensual Sex?
« Reply #16 on: June 27, 2009, 11:23:27 pm »
But the character and history is imperiative to know if you want a fair sentence. There is no use sending a habitual rapist to prison for x number of months/years, they will just be at it again as soon as they get out and most likely they'll be more brutal then since they might feel a need to get revenge at society for beeing sent to prison because of some dumb bitch who didn't know her place.

That kind of habitual criminal needs to be sent to a mental institution where they can be treated or if that's impossible kept isolated from society indefinitely.  Or just put down like a rabid mutt.

Yeah, but the only information you should be able to use for such purposes is whether or not they committed the same crime before.

Otherwise, how do you judge? "Oh well, this guy raped a girl once and he's kind of shady, so let's just kill him so he can't do it again!"

Such judgmental attitudes would only lead to trouble.

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Re: Rape or Consensual Sex?
« Reply #17 on: June 28, 2009, 01:40:53 am »
That's why civilized nations don't have the death penalty. And at a mental institution they would be locked up until confirmed rehabilitated or stay until natural death.

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Re: Rape or Consensual Sex?
« Reply #18 on: June 28, 2009, 07:09:21 am »
Thats one of the things I love about Mental Institutions as opposed to Jail terms.  Jail keeps you for a specified amount of time.  Mental Institutions keep you until experts think you're no longer a danger to society.  For those who work at it and reform quickly, it's a shorter term, but for those who resist or avoid rehabilitation it can be a much longer stay.

On the victim and accused's history.  In my opinion, both need to be examined if evidence is lacking.  In a case where the perpetrator is accused of getting the victim drunk to engage in sexual intercourse, If the victim is well known as a heavy drinker then that should be taken into account.  But on the reverse side, if the perpetrator is known for encouraging girls to drink heavily while tea-tottering to have his way with them, then that also comes into account.  Usually the serial rapists are the best to catch as they're repeat offenders and despite a lack of evidence with only he said, she said, it can mount up to a conviction with multiple victims.  Its the single case offenders can slip through more often, but because they're usually not predatory in nature it's usually a fairly rich case for physical evidence since they wouldn't have planned out the rape and how to get away with it.
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Re: Rape or Consensual Sex?
« Reply #19 on: June 28, 2009, 08:58:06 am »
But on the impulse side, the rapist is usually someone in the fringe of the victim's social circle and that's where it's least likely to be reported since the victim tends to just want to forget or is blaming him/herself for not seeing it coming and not beeing clear enough or hinking they sent mixed signals and so on.
« Last Edit: June 28, 2009, 09:00:07 am by Emp_Dragon »

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Re: Rape or Consensual Sex?
« Reply #20 on: June 28, 2009, 09:40:52 am »
Again, the perpetraitor understands that they are forcing themselves sexually upon the victim, against their will, or they are manipulating the victim's will with drugs or alcohol.  The difficulty for the prosecution in those drug and alcohol cases, is proving the intent.  Generally they can only rely upon the history of both victim and accused to show the victim would not have willingly taken the substances, or the accused has a history of pushing them onto women for sex.

Well, I can easily agree with this definition.
My source of arguing with your guilty mind logic was this:
Quote from: charles
End result, if the guy effectively knew or had indication that what he was doing was wrong or considered wrong, then he's of a guilty mind and should be convicted.
From the above, I understood your concept as having guilty mind being the accused ACCEPTING that what he was doing is wrong/considered wrong during the act, which is something that might not happen, although the accused DOES deserve punishment.

Basically, what you are saying is that the perpetrator understands it was not consensual - it is rape. If the perpetrator believes it is consensual - it is not. 
And on that, I wholeheartedly agree. (yes, there if a first time for everything  ;D)

Quote from: charles
@EMP_Dragon/Valenthesial:  The difficulty with closed door cases, is that while it protects both victim and perpetrator from trial by media, it also prevents other possible victims or character witnesses from coming forward to testify on either side's behalf
[/quote]
It is indeed true that more evidence can be gathered by publishing, however in those type of accusations, the accusation itself is published BEFORE any initial evidence is gathered, as the only evidence is the actual sexual encounter. This leads to "judgment by the media" and includes the suspect's name. On cases that the accused is found innocent, he still faces being shunned by society, already lost his job and so on.

Is the chance of making it easier to prove guilt truly worth the damage done to innocents in case a guilt was not proven? Note that there is damage done to BOTH sides (the probing questioning done to the accuser was mentioned heavily by Emp_Dragon), and you must agree that at LEAST one of those sides is indeed innocent on the matter - and therefor should not be hurt by the court.

I ask myself, which is worse? Hurting an innocent by accident, or Letting a guilty go by accident? I wouldn't know, but I feel that the current balance between the chances of those things to happen just isn't right in rape cases.

I really think that if the whole issue would have been handled behind closed doors, more victims would be able to gather the courage and report it, as well as the number of false accusations would decrease (or at least the severity of damage to the falsely accused would decrease). Both of those effects are positive.
Don't take me wrong: making it all behind closed doors does not mean not inviting witnesses or character witnesses. It also does not mean that the prosecution should not investigate thoroughly. But publishing the accused and accuser's details or statements in court before, during or after the sentence should be strictly forbidden.
This way we will minimize the public effect on court, as well as the damage done to the involved individuals.


Quote from: charles
Thats one of the things I love about Mental Institutions as opposed to Jail terms.  Jail keeps you for a specified amount of time.  Mental Institutions keep you until experts think you're no longer a danger to society.  For those who work at it and reform quickly, it's a shorter term, but for those who resist or avoid rehabilitation it can be a much longer stay.
Quote from: Emp_Dragon
... And at a mental institution they would be locked up until confirmed rehabilitated ...
That's why I hate Mental Institutions so much, or at least the legal authority they hold as a replacement to prison. I have no faith at all in those so called "experts" that use unproven theories based on experimental data to decide whether a person is "sane" or not, or cure it.

Let's say an accused is an Expert himself on this subject. He can use his knowledge to fake insanity symptoms and 1 month after he is sent to Mental Institution he can stop showing those signs.
Being sent to a mental institution rather than to jail is just a "free ticket out of jail" like in monopoly games. at least in my opinion.
This allows an easy type of defense for lawyers, and some of them just specialize in this kind of defense for serious crimes such as murder.

Another point is that the damage that was done to the victim is not reversed by the fact that the offender rehabilitated.
It is indeed to society's interest that a sick person will be cured (mental illnesses as any other illness)  but I do not believe that a person being sent to jail is JUST to prevent him from further doing harm. It is also to punish and take a toll on him in comparison to the damage he has caused to society (or another person as in this case).

In my opinion, whether he understood it as being an offense or not, it should not be taken into account, just like not knowing the law doesn't prevent you from being punished (Ignorantia legis neminem excusat). The end result is the same - the victim suffered a penalty already.

A madman who should be jailed for 15 years due to a rape, but instead is sent to a 3 years into mental institution, should be sent into 12 years jailtime when he becomes sane, to repent on the crimes he did.

You can claim I'm racist or inhuman to people with mental illnesses, but I am indeed towards a person so mad that a court (and those experts you mentioned) would consider too blind to understand that Murder or Rape are wrong and should not be done.
I simply do not believe they should be walking in the streets and threaten me with their presence, or that they deserve any special rights in case they have caused damage to others.

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Re: Rape or Consensual Sex?
« Reply #21 on: June 28, 2009, 09:47:15 am »
On the victim and accused's history.  In my opinion, both need to be examined if evidence is lacking.  In a case where the perpetrator is accused of getting the victim drunk to engage in sexual intercourse, If the victim is well known as a heavy drinker then that should be taken into account.  But on the reverse side, if the perpetrator is known for encouraging girls to drink heavily while tea-tottering to have his way with them, then that also comes into account.  Usually the serial rapists are the best to catch as they're repeat offenders and despite a lack of evidence with only he said, she said, it can mount up to a conviction with multiple victims.  Its the single case offenders can slip through more often, but because they're usually not predatory in nature it's usually a fairly rich case for physical evidence since they wouldn't have planned out the rape and how to get away with it.

And again, I agree. but why take it into the newspapers or tv? work a bit harder and collect the evidence.
The people you interviewed for evidence went to the media? have the media face a censorship law that prevents them from publishing material pre-trial on any sexual offense. what would they do? make an article on "how nice person X is" as a defense?

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Re: Rape or Consensual Sex?
« Reply #22 on: June 28, 2009, 10:59:32 am »
Well, the thing is, inprisonment doesn't work as a deterrent and it doesn't work at forcing the cons to 'think about what they have done'. The human mind simply doesn't work like that, and deep down anyone with a bit of creative mind can reason themselves to that conclusion with time.
Punishments what so ever doesn't work on anyone who doesn't accnowledge themselves as having done anything wrong.

As you also stated, there are flaws in the way mental institutions are run today. That is a problem, and it needs to be resolved since it conflicts with the primary obligation of any elected government: To keep their citizens safe and free in body and spirit. And as long as those flaws aren't resolved and fixed, the citizens won't feel safe and thus won't be free.

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Re: Rape or Consensual Sex?
« Reply #23 on: June 28, 2009, 11:20:54 am »
Well, the thing is, inprisonment doesn't work as a deterrent
I Disagree. Try to reduce the penalties for rape (Aka less prison time, or no prison time) and you'll see how much of a deterrent it truly is.

It obviously isn't a 100% recipe, and there will always be people willing to risk it (the chance to get away with it lowers the deterrent's effect), suffer the consequences (which just means you'll need a scarier and longer period of time to deter) or even do not think of the consequences in the heat of the act (but then again, the more serious the consequence is, the less likely you'll forget it. not a 100% recipe, but think of how many people would rape if it was punishable by a life sentence?).

and it doesn't work at forcing the cons to 'think about what they have done'...
Punishments what so ever doesn't work on anyone who doesn't accnowledge themselves as having done anything wrong.

Repenting is nice, if you already FEEL guilty and believes what you have done is wrong. but the imprisonment itself doesn't only serve as a time to think about the act. It is used:
1. To ward off hazards from society, locking them up away from people they can hurt. (With the right of "liberty" of the imprisoned being deemed less important than the right of "security of person" of the people he has attacked).
2. To deter others from doing the act.
3. To deter the same person from repeating the act and rehabilitating him.
This does not necessarily means he will repent, but even that he'll A. not be willing to risk it another time, B. not be willing to suffer the consequences another time or C. won't lose it in the heat of the act another time. This also DOES NOT guarantee that it'll work. if he'll repeat the act, he'll be in jail again, doing at least uses 1 & 2.
4. To lesser extent to partially return his debt to society.
« Last Edit: June 28, 2009, 11:24:14 am by Valenthesial »

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Re: Rape or Consensual Sex?
« Reply #24 on: June 28, 2009, 05:32:07 pm »
Is the chance of making it easier to prove guilt truly worth the damage done to innocents in case a guilt was not proven? Note that there is damage done to BOTH sides (the probing questioning done to the accuser was mentioned heavily by Emp_Dragon), and you must agree that at LEAST one of those sides is indeed innocent on the matter - and therefor should not be hurt by the court.

I ask myself, which is worse? Hurting an innocent by accident, or Letting a guilty go by accident? I wouldn't know, but I feel that the current balance between the chances of those things to happen just isn't right in rape cases.
Again, a hard one to measure either way.  I'm not happy with how the media operate on these things.  They aren't after putting out an objective view, they're after selling papers and for that, they put forward an opinion to stir the masses by simply stating facts and leaving others out which would give a more measured view.

I'd almost love a law that requires media to devote equal air-time or page-space to reporting an accused's innocence as they do the trial. *lol* pipe dream.

That's why I hate Mental Institutions so much, or at least the legal authority they hold as a replacement to prison. I have no faith at all in those so called "experts" that use unproven theories based on experimental data to decide whether a person is "sane" or not, or cure it.

Let's say an accused is an Expert himself on this subject. He can use his knowledge to fake insanity symptoms and 1 month after he is sent to Mental Institution he can stop showing those signs.
Being sent to a mental institution rather than to jail is just a "free ticket out of jail" like in monopoly games. at least in my opinion.
This allows an easy type of defense for lawyers, and some of them just specialize in this kind of defense for serious crimes such as murder.

Heh, I don't think Insanity is used and faked nearly as easily as TV shows make it out to be.  Most of the mental illnesses are long-term ones that should have showed symptoms over a long period of time.  An expert might be able to feign symptoms after the act but their history would show a normal life up to that point.

I don't think Mental institutions are a replacement for jails, but I do like the thought of a system that focuses on restoring a criminal to a state where they are safe to re-enter society as opposed to simply removing them from society for a fixed period.  As it currently stands, a self confessed serial rapist who finishes their jail time, can carry on about how they're likely to do it again and there's nothing the law can do since they've served their time.  Granted, you might have some minimum times for various crimes despite any rehabilitation but no maximum and such a system would encourage not only the criminals to work on their behaviour, but the government to put more focus on rehabilitation, lest their jails simply fill with criminals stuck there for longer periods because they haven't rehabilitated.

Another point is that the damage that was done to the victim is not reversed by the fact that the offender rehabilitated.
It is indeed to society's interest that a sick person will be cured (mental illnesses as any other illness)  but I do not believe that a person being sent to jail is JUST to prevent him from further doing harm. It is also to punish and take a toll on him in comparison to the damage he has caused to society (or another person as in this case).

Eye for an eye. Tooth for a tooth. The old ways have been abandoned as today's system is supposed to be about protection of the public, not punishment.  Certainly the threat of prosecution with jail time is there to act as a deterrant, but once the criminal is in there, they seem to have no real incentive to seek rehabilitate themselves.  Knowing that they'll face a life of petty jobs anyway, thanks to their criminal record and extended time out of the workforce, they have plenty of encouragement to learn the various tricks of the trade from other criminals and venture into theft, murder and other crimes with contacts to various other crims they've either met while in the slammer or heard about from others.  The system just seems to take in Grey Nurse Sharks and spit out Great White Sharks back into society.

A madman who should be jailed for 15 years due to a rape, but instead is sent to a 3 years into mental institution, should be sent into 12 years jailtime when he becomes sane, to repent on the crimes he did.
You can claim I'm racist or inhuman to people with mental illnesses, but I am indeed towards a person so mad that a court (and those experts you mentioned) would consider too blind to understand that Murder or Rape are wrong and should not be done.
I simply do not believe they should be walking in the streets and threaten me with their presence, or that they deserve any special rights in case they have caused damage to others.


My Granny ran a hospital for children with severe mental disabilities, but she also dealt closely with the adult hospitals that many of these children transferred to as they grew older.  These people aren't released quite as easily as you might imagine.  The understanding with these people is that they are mentally incapable of understanding the wrong of their crime just as with my example of the 5 year old and his father's Colt .45 as opposed to a toy gun.  What the institutions work on, much like you would with the 5 year old, is teaching the person to understand that the action they undertook is indeed wrong and should not be repeated.  Many mentally disabled people are taken into the institutions for short periods and released again over time (something they must do due to shortages of facilities) but those who commit a serious crime are kept for much longer and their release is not common, or handled lightly unlike the others who have not yet shown themselves to be a threat to society.
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Re: Rape or Consensual Sex?
« Reply #25 on: June 28, 2009, 06:34:25 pm »
Well, the thing is, inprisonment doesn't work as a deterrent and it doesn't work at forcing the cons to 'think about what they have done'. The human mind simply doesn't work like that, and deep down anyone with a bit of creative mind can reason themselves to that conclusion with time.
Punishments what so ever doesn't work on anyone who doesn't accnowledge themselves as having done anything wrong.

As you also stated, there are flaws in the way mental institutions are run today. That is a problem, and it needs to be resolved since it conflicts with the primary obligation of any elected government: To keep their citizens safe and free in body and spirit. And as long as those flaws aren't resolved and fixed, the citizens won't feel safe and thus won't be free.

Yeah, but it's all we really got.

I'm sure stringing them up by their figgins, slitting their abdomens open and having a large man molest their innards with a pike, in public, might do a bit more to deter it, but that's all political incorrect in post-medieval societies.

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Re: Rape or Consensual Sex?
« Reply #26 on: June 29, 2009, 03:15:43 am »
Now, a fitting consequence for those too dangerous to ever be released that wouldn't cost as much of the tax funds in the long run is to copy a practice from at least one Sci-fi universe that's practically possible today: Make them into industrial servitors. Eg. lobotimization and replacing of limbs with mechanical protheses ending in tools controlled via a neuro-digital interface. Ending up with semi-sentient docile cyborgs.

And that's not politically correct either but it's more useful than an execution.

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Re: Rape or Consensual Sex?
« Reply #27 on: June 29, 2009, 07:51:17 am »
*meh* we might need a seperate topic on punishments, rehabilitation and deterrants if we keep at this.

Back to the question.  When is Sex Consensual and when is it Rape?

Heck, how about the good old one of a client not paying a sex worker for "services rendered" after the fact?  Can she claim rape against a guy who doesn't pay up?

Not to mention Statutory rape when an adult man or woman has "consensual" sex with an underage TEEN.

And can a man claim rape against a woman?
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Re: Rape or Consensual Sex?
« Reply #28 on: June 29, 2009, 08:10:14 am »
A seperate topic about punishments and such will result in a gruesome and gory thread with punishments described in detail. The measures of punishment is different to each person and would lead in a battle between mid-evil followers (like moi :-*) And people that prefer a decent punishment that lives up the the modern standards of a decent civilisation

But i have to agree with Charles, we'd better stay on topic and not let our emotions go to the dark area they want to go.

On that note, yes a man can be raped by a woman. It's sexist to say that it can't happen.

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Re: Rape or Consensual Sex?
« Reply #29 on: June 29, 2009, 08:21:26 am »
In the first of those cases I'd say it's at the same level as running from the tab at a restaurant. (Assumed it's one of the rare volountary sex workers in a nation where prostitution is legal both ways)

In the second case, it's more complicated. There it's got more to do with the immensely flawed assumption (that's not as common over here in europe) of 'children' beeing asexual and uninquisitive until they turn 18 where they are suddenly expected to be adults in every meaning of the word. If there has been any kind of underhanded 'tactics' by the adult involved in how the situation came to be where the sex happened, I'd say it's criminal. Otherwise I'm not so sure.

Last situation, there is a reason I have tried beeing consistent in using "(s)he" when speaking of a perp. Of course a man can claim rape against a woman, though unfortunately men is even more rarely belived if they do report it, and mockery is known to have occured.