Rape flowchart.

[luislsacc]

Hold on, since when is coercion always bad *dodges rotten tomato*.

There are many situations in which some forms of coercion are totally okay ( lots of if's back there). Not considering sex, usually, so this is a bit of a thread de-railer, but people have already started making statements towards coercion in general and even though I can understand that mostly refer to the issue of rape, I think either confusion could show up, or the conversation can be lost in the details, and a bit of re-treading on specification is worth avoiding days of flame war.

Genreally, coercion is alright ( well, more legally speaking, it doesn't exempt the person from earning the title "asshole" from people personal moral standpoints) when the threat, or means of coercion, are legitimate and not illegal. For example, if someone says "sell your building or I'll kill you" is most definitely not okay, but "sell me your building or I'll tell city hall about its hazardous structural integrity and you'll have to eat the costs for demolition" is okay - the person will always either sell the building or have to hire a demolition crew, but the other person isn't doing anything wrong. If you know a building to have bad structural integrity, you should tell city hall about it ( the figure of city hall is used for the convenience of people around the world, as I'm not sure that's who you report to everywhere in the world).

Threatening to break up with someone isn't illegal or even illicit. Even if the situation is high-stress, or the person being threatened depends on the other, it doesn't matter - these types of interpersonal relationships only exist as long as both people are willing to remain there. Once again, the other person might be an asshat, but they're not a rapist, nor should they be unable to do it.
Of course, the question becomes, how do you distinguish a licit threat from an illicit one? Usually the criteria is that if there is no imminent danger to the wellbeing of the person or others, then the threat isn't significant. Then the question turns to "alright, when is the danger imminent?", to which the easiest criteria is, would it be possible to, between the time of the threat and its supposed realisation, ask for help from a proper authority? "Have sex with me or I'll kill you." is a significant threat. "Have sex with me or I'll wait for your family to come home and kill them" is also a significant threat. "Have sex with me or I will visit your child, when you're not with him tomorrow." is a fucked up threat, but if the person isn't in a situation to force you to have sex otherwise, you can always call the police, so the threat becomes that much less significant. That being said, even these things are up for argument, which I hope happens, as I think that threat number 3 is still fucked up, and the person that makes it should still see jail time.

[RyukaTana]

I agree, there is definitely a reason to differentiate between rape, and what is a criminal act. If someone has sex with you and you did not consent to it, you were raped. However, if Person B goes to Person A's room with them, and Person A starts taking off their clothes, and Person B does the same, and Person A made no threats of violence or similar coercion; then they have good reason to believe Person B is a willing participant. If someone else threatened Person B, or they felt peer pressure, that isn't a criminal act on Person A's part (in this case, I'm speaking ethically, not based on what the law deems acceptable).

I'll admit Person B was raped, and if they show signs of notable discomfort, Person A should absolutely stop, but that doesn't mean Person A should be charged with any sort of criminal behavior.

This is all hypothetical, but hypothetical behavior is still important, innocent people should never be convicted. Innocent people should DEFINITELY never be convicted for something this heinous.

[crayzz]

For example, if someone says "sell your building or I'll kill you" is most definitely not okay, but "sell me your building or I'll tell city hall about its hazardous structural integrity and you'll have to eat the costs for demolition" is okay - the person will always either sell the building or have to hire a demolition crew, but the other person isn't doing anything wrong.

I don't think the legality of that is straightforward; one might be ok with it morally, but I think, under some jurisdictions, it would constitute a criminal or civil offense.

Threatening to break up with someone isn't illegal or even illicit.

Legality of the threat in and of itself is a red herring: threatening to fire someone is usually legal. Threatening to fire someone unless they have sex with you is generally recognized as attempted rape. The only question is whether or not the act undermines the ability of the victim to freely consent. Saying that emotional coercion is coercive is pretty much tautological. The question is whether or not the act (threatening to break up) can constitute coercion. Two things seem clear to me:

a) The act is an obvious attempt at coercion.
b) Depending on the person, it may actually be coercive.

There has been no agreement to have sex, Other Person presumably does want to have sex, you do not, Other Person does not know you do not want to have sex. I have to agree with the flowchart here. In the scenarios I can think of that could follow this path I can't find ways to blame Other Person. Can anyone else?

My problem is that formulation allows people to simply assume you consent. England does this well: one must take reasonable measures to ascertain consent.

[trevel]

For example, if someone says "sell your building or I'll kill you" is most definitely not okay, but "sell me your building or I'll tell city hall about its hazardous structural integrity and you'll have to eat the costs for demolition" is okay

That would be blackmail, which is very frequently illegal.

There has been no agreement to have sex, Other Person presumably does want to have sex, you do not, Other Person does not know you do not want to have sex.

It gets murky if you add "you do not know that Other Person wants to have sex".

I consider a category of ex post facto consent; it's generally a bad idea to rely on, but comes up more often in actual relationships -- like being woken up by oral sex. You certainly didn't consent to it -- you are asleep and legally unable to consent -- but your lover probably thinks you'll consent to it when you wake. This is probably true if your relationship already includes oral; this is probably not true if it's your stalker/ex.

WAY too much sex relies on ex post facto consent, particularly around puberty. People try things, and find out AFTERWARDS if they are okay, because we're apparently more scared of talking about what we want to do then we are about accidentally raping someone. (Which is why I applaud yes-means-yes campaigns. It also helps that consent is really sexy if you do it right.)

And it reminds me of an interesting story of consent that, as far as I can tell, actually happened:

One time a man woke up in the middle of sex with his fairly new partner. This is not something they had discussed before, and not something that he was okay with. (I.e., no ex post facto consent) He was understandably traumatized over it: after all, according to the legal definition, he woke up in the middle of his own rape.

However: the man in question has sexsomnia, which means that he initiates sex while asleep -- which is exactly what had happened there. He, while asleep, initiated sex -- his partner WAS in the mood for it, and it escalated until he woke up. His partner did not realize he was asleep; they understandably took initiated sex to be consent.

Which doesn't eliminate the trauma of being raped, of course. Waking up in the middle of unwanted sex is not particularly delightful. But while he was raped, there does not appear to be a rapist in the story -- if anything, he raped himself.

Also, I'm fairly sure Max has sexsomnia, or has at least claimed that she has it on at least one occasion.

Regarding getting rides:

Scenario: You're walking down the side of deserted road in Iowa in the early spring, and a pickup truck with a gun rack pulls up beside you; the driver kicks open the passenger door, glares down at you and through gritted teeth says "GET IN." in forceful tones. You get in.

Did you consent?

[crayzz]

I consider a category of ex post facto consent; it's generally a bad idea to rely on, but comes up more often in actual relationships -- like being woken up by oral sex. You certainly didn't consent to it -- you are asleep and legally unable to consent -- but your lover probably thinks you'll consent to it when you wake.

Interesting thing: technically, in Canada, that shit is illegal, on a 6-3 supreme court vote. Now, really, there's not much significance to that: if you aren't, in fact, raping your partner, they likely have no reason to go to the police on you. Even if they do have reason to go to the police on you, unless you admit to it (which you might, since you probably consider that sort of thing innocuous) there's not much in terms of evidence.

However: the man in question has sexsomnia, which means that he initiates sex while asleep -- which is exactly what had happened there. He, while asleep, initiated sex -- his partner WAS in the mood for it, and it escalated until he woke up. His partner did not realize he was asleep; they understandably took initiated sex to be consent.

Not the first time I've heard of that happening.

[RyukaTana]

I'm not sure where you're stance is, trevel. You sound like you're offering a counterpoint, but your story seems to support the idea of rape without a liable rapist.

Also, more sex should not rely on ex post facto consent, but that doesn't mean no sex should rely on it. I would happily enjoy waking up to my partner giving me a blowjob, and I'd definitely encourage it. I'd probably enjoy it if it were a very attractive stranger. The former is at least a reasonable thing to expect and enjoy, and yeah, I should probably just make that clear ahead of time. That said, if you wake up to sex you don't want, from someone you regularly have sex with, and when you tell them to stop, they stop, I'm pretty much not going to give a fuck about your trauma.

This is one of the big issues with rape. Everyone assigns the word some dire awful value, and that just doesn't apply in all cases. Just because you're traumatized, doesn't mean anyone else is at fault. If I broke up with a girl with whom I had been in a serious, long-term relationship, she might be traumatized. I would still not be liable for criminal activity. Sometimes trauma is absolutely the problem of the recipient and the recipient alone. In fact, whether or not the victim is traumatized is not even the fucking point.

If a person breaks into someone's home and violently fucks them, I don't care if the 'victim' was a Sado-masochist and enjoyed it. The first person is still a rapist, and they are a highly dangerous individual, and they need to be dealt with. Alternatively, a person who engages in somniphilia with their long-time sexual partner and it turns out they weren't on board, fucked up, but they aren't a criminal unless they refuse to stop or do it repeatedly. Communication is a two way street, and if there's a long-term agreement in place, then you are absolutely under a burden to make it clear that agreement is not valid (temporarily or otherwise) or make adjustments to it.

There are always circumstantial caveats to these things. What if the first scenario was actually planned out ahead of time? Okay, then it's not rape, and I don't care what fantasies you play out. I don't even care if one of those people is killed if they consented to it and it can be proven.

[Tem]

The problem is that rape is essentially hearsay. It's not like murder, for instance, where you can point to a dead body and say "This person has been murdered!" -- the debate is generally not whodunnit but "did it happen"? And because rape generally happens in private and most rapists aren't considerate enough to film it for the prosecutors, it comes down to "she says she was raped, he says it was consensual."

Oh, men still get away with murdering women, but at least no one tries to tell the victim that she isn't dead. They just try to convince everyone else that he "didn't mean it", even if he shot multiple times through a locked door to make sure she is dead.

The problem with this flowchart is: It is not a flowchart for judges: "Was she raped according to the law". It is not a flowchart for victims "Should you go to the police and endure the hate that will be poured on you by everyone, or is it better to just say nothing because the law doesn't think it's rape anyway?".

It is a flowchart that tells victims of rape that they weren't raped, and that is so wrong that I can't even. A person doesn't need a flowchart to find out whether she was raped. She might need one to detect whether she has any hope of getting the rapist convicted, but that is NOT THE SAME THING!

Everyone is all about "innocent until proven guilty" if it is the rapist. But a rape victim is considered "guilty until proven innocent". And that is just plain wrong.

Edit: And "I didn't know she didn't want to have sex" is nonsense. It is not the natural state of women to want a penis in their vagina. Therefore, the question any sensible human being ought to ask is "Does she want to have sex with me?" not "Is she the sole exception to the natural law that all women want my penis in their vagina?"

And don't dare any man cry "sexism!" - the stupid "I didn't know ..." argument is almost exclusively used by men. Who are the majority of all rapists, too. That's the way it is, and if you don't like it, then change it. Denying it won't help anyone.
Also, I used PIV as example in order to better expose the ridiculousness of the whole idea. A man might assume that a woman desires so have her clitoris touched by him (I don't say he should, but it would at least be somewhat credible), but he can not seriously assume that she wants to be exposed to risk of pregnancy and a variety of STDs, not to forget urinary tract infections, by his sticking his penis into her, even though she never said so.

[Nepene]

Genreally, coercion is alright ( well, more legally speaking, it doesn't exempt the person from earning the title "asshole" from people personal moral standpoints) when the threat, or means of coercion, are legitimate and not illegal. For example, if someone says "sell your building or I'll kill you" is most definitely not okay, but "sell me your building or I'll tell city hall about its hazardous structural integrity and you'll have to eat the costs for demolition" is okay - the person will always either sell the building or have to hire a demolition crew, but the other person isn't doing anything wrong. If you know a building to have bad structural integrity, you should tell city hall about it ( the figure of city hall is used for the convenience of people around the world, as I'm not sure that's who you report to everywhere in the world).

To use an analogous situation to Luislsacc's, is it ok threatening to reveal someone's sexuality to their homophobic family if they don't have sex with you?

No, that's also blackmail. You shouldn't be menacing someone with you doing something harmful to them.

Suppose instead you are a doctor and you know a person has an std, can you threaten to justly reveal that to a future partner if they don't have sex with you?

I'm not entirely sure of the law here, but there would be serious professional ethics issues and I'd argue it should be illegal to not tell others of a dangerous infection as long as they have sex with you.

With a breakup, you are doing an entirely legal and unethical activity that doesn't obviously harm people.

I consider a category of ex post facto consent; it's generally a bad idea to rely on, but comes up more often in actual relationships -- like being woken up by oral sex. You certainly didn't consent to it -- you are asleep and legally unable to consent -- but your lover probably thinks you'll consent to it when you wake. This is probably true if your relationship already includes oral; this is probably not true if it's your stalker/ex.

Personally I have explicit talks about this scenario with partners and pre-agree what is ok or what is not. What would people here think about someone awake explicitly and enthusiastically saying that doing it while asleep is acceptable?

On the issue of firing, it's generally considered to be illegal to harass someone because of someone's sex. That includes asking someone to have sex with you, or making some employment bonus dependent on sex. Threatening to do something illegal to a person if they don't sleep with you is a clear threat and I would see it as rape.

Scenario: You're walking down the side of deserted road in Iowa in the early spring, and a pickup truck with a gun rack pulls up beside you; the driver kicks open the passenger door, glares down at you and through gritted teeth says "GET IN." in forceful tones. You get in.

Did you consent?

Is consent really an issue for getting in cars? Anyway, if they're not shouting or such I wouldn't really see this as non consensual. I wouldn't really trust them. Some people just sound really threatening. That's their normal tone.

[RyukaTana]

Everyone is all about "innocent until proven guilty" if it is the rapist. But a rape victim is considered "guilty until proven innocent". And that is just plain wrong.

No, it's called burden of proof, and it is on the accuser. Everyone is NOT all about 'innocent until proven guilty', as I discussed before, plenty of people are saddled with a reputation for heinous crimes solely because they are tried, regardless of the outcome or if any evidence is even given. There are assholes on both sides of the fence.

Yes, real rape victims are blamed for stupid shit, but that doesn't make them the sole victims of a broken system. It doesn't make it okay to ignore the other heinous shit that happens to people. It doesn't excuse innocent people having their lives destroyed.

Edit: And "I didn't know she didn't want to have sex" is nonsense. It is not the natural state of women to want a penis in their vagina. Therefore, the question any sensible human being ought to ask is "Does she want to have sex with me?" not "Is she the sole exception to the natural law that all women want my penis in their vagina?"

And don't dare any man cry "sexism!" - the stupid "I didn't know ..." argument is almost exclusively used by men. Who are the majority of all rapists, too. That's the way it is, and if you don't like it, then change it. Denying it won't help anyone.
Also, I used PIV as example in order to better expose the ridiculousness of the whole idea. A man might assume that a woman desires so have her clitoris touched by him (I don't say he should, but it would at least be somewhat credible), but he can not seriously assume that she wants to be exposed to risk of pregnancy and a variety of STDs, not to forget urinary tract infections, by his sticking his penis into her, even though she never said so.

Are you saying no women ever want penises inside them? Are you saying a woman has never said 'yes' when she didn't want it? Are you saying there are no non-verbal cues? If not, then there's a FUCKING GREY AREA!

[vvn]

Regarding getting rides:
Scenario: You're walking down the side of deserted road in Iowa in the early spring, and a pickup truck with a gun rack pulls up beside you; the driver kicks open the passenger door, glares down at you and through gritted teeth says "GET IN." in forceful tones. You get in.

Did you consent?

I assume you implying the person felt coerced, and if you claimed to have felt coerced, I would certainly believe you in this situation. (Simply being told to do something is coercion to some degree.) I could add background to your scenario that could go both ways. I could add follow up action that goes both ways. I would guess that this alone would not constitute kidnapping. Now, if instead of GET IN, the driver told you to do something involving sexual penetration, I would say it's rape.

However, this avoids the issue I was having trouble with. On the flowchart there is the final question, "Did the other person know you were having sex against your will?" (Even though on the previous question desire to have sex is not significant.) I was trying to imagine a situation where I could be having sex with someone that does not want to have sex, but I don't know they don't want to have sex.

Both of these scenarios beg the question, "What do we not know about this situation?" They are seemingly contradictory, so there must be something that we don't know about to explain what is happening.

In the ride case (These are my opinions, I am not a lawyer.):
- Rider arrived with Driver. Rider and Driver just had a big argument. Rider left to walk home. Driver is gruff due to the fight. Rider decides getting the ride home is ok. Driver simply takes Rider home. Kidnapping? No.
- Rider knows driver to have a temper. Has been threatened before. Expects to get beaten if Drivers directives are not followed. Kidnapping? Yes.
- Rider gets in car, but Driver goes somewhere Rider doesn't want to go, and won't stop to let Rider out of car. Kidnapping? Yes.
- Rider gets in car due to fear of Driver. Driver doesn't know gun rack and demeanor have caused fear. (Or, even if Driver recognizes the fear, intends no harm.) Driver takes Rider to desired location without incident. Kidnapping? No.
- etc.

If we run the scenarios above through the flowchart, the outcome is correct each time. If I make up scenarios involving sex and run them through the flowchart, I also get the correct outcome. (Specifically looking at that last question.) So, I feel pretty good about the flowchart. But, am looking for a scenario that does not come out right.

It is a flowchart that tells victims of rape that they weren't raped, and that is so wrong that I can't even. A person doesn't need a flowchart to find out whether she was raped. She might need one to detect whether she has any hope of getting the rapist convicted, but that is NOT THE SAME THING!

Some people do need a flowchart.
I give an example from personal experience. I had a couple of young girls working for me, doing construction clean up and maintenance. After a job that got everyone covered in dust, I used the compressed air to blow the dust off myself and allowed others to do the same. At one point I told one of the girls to close her eyes to let me blow dust off her face, which I did. I then asked "Doesn't that feel better?" Her response was "I feel like I was raped." I was understandably taken aback, and said "Well, we won't do that again." Some weeks later we were taking a lunch break and the girls were chatting between themselves. Same girl made a comment that "her friend was raped." My brain went to full alert, and we started asking what happened. Turns out it was some minor issue that did not involve sex in any way. Her friend and I explained that this was not rape. Apparently her internal definition of "rape" was simply "something bad." I am glad it never caused a misunderstanding that involved the police.

Aside from extreme cases like this one, I think the flowchart is a good thing for young people who are just entering the dating pool. It's good to know what is and isn't OK at a time when hormones and confusion are in overabundance. This flowchart is a good tool in that educational process.

Also, if you have a scenario where it "tells victims of rape that they weren't raped." please share. That is what I am after.