"Unmarried People Can't Commit Domestic Violence"

[sallycinnamon78]

This is... words fail me.


Domestic Violence

The ruling stems from a case in which a man was accused of slapping and pushing his live-in girlfriend.

The attorney for the man argued that the domestic violence charge against him should be dismissed because the new gay marriage ban prohibits any state or local law that would "create or recognize a legal status for relationships of unmarried individuals."

The judge then reduced the charge to a misdemeanor assault charge.

Prosecutors are appealing the ruling.
http://incestabuse.about.com/gi/dyn...orleanschannel.com/family/4314147/detail.html



Domestic Violence Statistics related to violent crimes.
Domestic Violence Statistics pertaining to violent crimes against women vs. those against men:

* Violence by an intimate partner accounts for about 21% of violent crime experienced by women and about 2% of the violence experienced by men.
* In 92% of all domestic violence incidents, crimes are committed by men against women.
* During 1992 approximately 28 percent of female homicide victims (1,414 women) were known to have been killed by their husbands, former husbands or boyfriends. In contrast, just over 3 percent of male homicide victims (637) were known to have been killed by their wives, former wives or girlfriends.
* Women were attacked about six times more often by offenders with whom they had an intimate relationship than were male violence victims during 1992 and 1993, the Department of Justice announced.
* While women are less likely than men to be victims of violent crimes overall, women are 5 to 8 times more likely than men to be victimized by an intimate partner.[/quote][/b]

 

[melon]

Well, that's what people get for voting for "Defense of Marriage" acts.

Melon

 

[sallycinnamon78]

Defense of Marriage acts? I don't know what that is.... I don't want to be ignorant about stuff like this, so would you explain it to me?

oh, hang on... it does seem rather obvious now, having related your post back to my first one. Never mind.

(thoroughly confued due to no sleep for 3 days, so forgive me if I'm not making much sense here)

 

[BVS]

Talk about coming back to bite you in the ass...

Now I do think it's ashame that some may suffer due to being made an example of, maybe something good will come out of this.

 

[nbcrusader]

Why is domestic violence a separate crime?

Hitting someone is hitting someone.

Period.

 

[BAW]

Why is domestic violence a separate crime?

Hitting someone is hitting someone.

Period.

No, its not the same at all.

For too many years, domestic violence was ignored or not taken seriously. The dynamics behind domestic violence are not the same as somone engaging in a bar fight or slugging someone on the street. It needs to be handled differently, which is why it carries different penalties than other types of violence.

 

[Irvine511]

Why is domestic violence a separate crime?

Hitting someone is hitting someone.

Period.

why is child abuse different from slapping an unknown 6 year old?

i think it comes down to the familial bonds, via marriage or otherwise, and the fact that the two people might be financially intertwined making it next to impossible for one partner to leave the other. many women have nowhere to go, there may be kids involved, and thus the domesticity of the violence makes it different than a mugging, say.

on a side note, some of the worst cases of domestic violence are male-male couples. when a man beats his wife, there's a tendency for her to simply take it (or to take that gun and blow his brains out). whereas in a male-male couple, the men usually fight back, so you have two men fighting for their lives and the violence can escalate to levels not usually found in a heterosexual couple.

 

[nbcrusader]

No, its not the same at all.

For too many years, domestic violence was ignored or not taken seriously. The dynamics behind domestic violence are not the same as somone engaging in a bar fight or slugging someone on the street. It needs to be handled differently, which is why it carries different penalties than other types of violence.

I agree. Unfortunately, it has a history of "tolerated" hitting.

 

[Teta040]

Ohh boy.

Talk about a "gray area"..it's like trying to argue a married person can be legally "raped" by their spouse and sue for damages.

I am SO not going here

 

[pax]

Ohh boy.

Talk about a "gray area"..it's like trying to argue a married person can be legally "raped" by their spouse and sue for damages.

I am SO not going here

Are you saying that a married person can't be raped?

 

[Moonlit_Angel]

The attorney for the man argued that the domestic violence charge against him should be dismissed because the new gay marriage ban prohibits any state or local law that would "create or recognize a legal status for relationships of unmarried individuals."

Wow. Just another reason to add to the list of why those kinds of bans are uber stupid. That seriously really sucks. The poor girl.

Angela

 

[sallycinnamon78]

Are you saying that a married person can't be raped?

No Pax - Teta was on about the fact that, until fairly recently, a woman did not have the legal right to refuse her husband sex, as she supposedly gave that up when she married.

The age old 'woman as a piece of property' garbage. Here in the UK, that law did not get changed until the mid 1990s. I think most of Europe changed their laws on this earlier - I hope so anyway. As usual, Britain was several decades behind everyone else (still is too).

It's harking back to the 10th century and, personally, I find it to be a ridiculous, disgusting, and sickening reflection of just how fucked up our society has been from the year dot onwards.

To illustrate my point: there was one case a couple of years ago, where a woman was gang raped by her husband and a group of his friends. This worthless arse had previously told his friends that this was a game, and that although the woman would scream and act frightened, they should do what they wanted to anyway, because he had arranged this with her.

Believe it or not, a huge debate followed as to whether this could really be classed as rape. The defence made a big deal of the SUPPOSED 'fact' that the perpetrators genuinely believed (allegedly) that the woman had consented to this and that she liked rough sex as part of her rape fantasies.

They proposed that this woman was not raped or assaulted, despite her screaming, howling protests and her attempts to defend herself.

Anyone else feeling sick as a pig?

 

[Moonlit_Angel]

No Pax - Teta was on about the fact that, until fairly recently, a woman did not have the legal right to refuse her husband sex, as she supposedly gave that up when she married.

Wow.

That's also uber stupid. Honestly, where do some of these laws come from?

Originally posted by sallycinnamon78
To illustrate my point: there was one case a couple of years ago, where a woman was gang raped by her husband and a group of his friends. This worthless arse had previously told his friends that this was a game, and that although the woman would scream and act frightened, they should do what they wanted to anyway, because he had arranged this with her.

Believe it or not, a huge debate followed as to whether this could really be classed as rape. The defence made a big deal of the SUPPOSED 'fact' that the perpetrators genuinely believed (allegedly) that the woman had consented to this and that she liked rough sex as part of her rape fantasies.

They proposed that this woman was not raped or assaulted, despite her screaming, howling protests and her attempts to defend herself.

Anyone else feeling sick as a pig?

Yes. Ugh, that's so dumb. What a fuckin' creep the guy is-if I were the girl, I'd divorce him. I hope she did. Who won in that case?

Angela

 

[sallycinnamon78]

Wow.

That's also uber stupid. Honestly, where do some of these laws come from?

Yes. Ugh, that's so dumb. What a fuckin' creep the guy is-if I were the girl, I'd divorce him. I hope she did.
Angela

I'd have killed the bastard, let alone divorced him!

Who won in that case?

Here's the entire magazine article for you.

Sex crime and punishment
by Sara Hinchliffe

Reproduced from Last Magazine, Summer 2000

One of the proposals most likely to emerge from the ongoing Home Office review group on sexual offences is that the Morgan principle - the defence to rape of an 'honest though mistaken' belief in consent - ought to go. This principle is in line with a range of moves to tighten up the law on rape. Feminists and critical lawyers have argued that Morgan makes it easy for men to be acquitted when accused of rape - as Jane Ussher puts it, 'all the man has to say is "I thought she wanted it really" and the law may be lenient'.

If that were the case, the Morgan principle would indeed seem shocking. But this principle, arising from a case from 1963 which was finally resolved in 1998, is more complex than that. Morgan, an RAF pilot, and three friends had been out looking for women. They were unsuccessful, and Morgan invited his friends to come home to have sex with his wife, telling them that her signs of resistance were not to be interpreted as lack of consent. According to Morgan, his wife liked kinky sex and the struggle contributed to her pleasure. In fact, Mrs Morgan offered considerable resistance to the men who in turn used considerable force. The friends were convicted of rape, Morgan with aiding and abetting (since under British law he could not then be convicted of raping his wife) - the jury considered their story 'a pack of lies' and convicted all four.

The men appealed against the direction of the trial judge that 'their belief in her consent must be reasonable'. The objective (reasonable man) test is applied in a variety of criminal cases. The men argued that they had held an honest belief that she had consented. The court of appeal dismissed their case, but gave leave for further appeal to the House of Lords on the question 'whether in rape a defendant can properly be convicted notwithstanding that he in fact believed the woman consented, if such belief was not based on reasonable grounds'. The Lords agreed that the appeal should fall, but also held that an honest, though mistaken belief in consent - however unlikely a reasonable man would be to hold such a belief - was a defence to rape.

One American academic argues that a crime of negligent rape should be created to deal with men who behave badly during sex
The Lords' decision was based on the importance of mens rea (guilty mind or criminal intent) in rape. They held that the act of rape is defined not just by the woman's lack of consent to sex (the actus reus) but by the man's intention to commit it (mens rea): the prosecution has to prove both elements beyond reasonable doubt. They concluded that either the defendant needed to know that the woman did not consent, or that he was reckless as to whether she consented or not in order to be convicted. As Lord Hailsham explained this decision:

'Once one has accepted...that the prohibited act in rape is non-consensual sexual intercourse, and that the guilty state of mind is an intention to commit it, it seems to me to follow as a matter of inexorable logic that there is no room either for a "defence" of honest belief or mistake, or of a defence of honest and reasonable belief or mistake. Either the prosecution proves that the accused had the requisite intent, or it does not.'

Since its inception, the Morgan principle has invited a host of objections. Feminists have been concerned at the way that what happens in the woman's mind - that she did not consent to sex - is disregarded by the Morgan mens rea requirement, and argue that the Morgan principle therefore privileges the standpoint of men over that of women. As Natasha Walter points out, even if the jury agrees that the woman did not consent they can still acquit:

'while female speech is marginalised in the courtroom, the defendant's speech is privileged. If a man can show that he might well have believed the victim was consenting - reading screams as squeaks of pleasure, or resistance as play - he will be acquitted even if the jury believes that the woman was not consenting.'

The law has proven itself entirely capable of dealing with 'Adonis' - who cannot believe any women would reject him
This is particularly offensive to those who wish to privilege the subjective experience of women in rape trials, and who reject the tradition of according the defendant the balance of doubt.

A further argument against Morgan is that it allows men to behave in an unacceptable manner, which the law should attempt to correct. For leading feminist academic Sue Lees, the definition of 'normal sex' encompasses a male view of women acquiescing to sexual use by men'. Lees objects to the fact that the law does not punish men for failing to behave politely in sexual matters: 'even if a man fails to read the woman's signals and to mutually negotiate sex, this need not be seen as rape.'

American academic Susan Estrich argues that a crime of negligent rape should be created to deal with men who behave badly during sex: 'A man who voluntarily sheds his capacity to act and perceive reasonably should not be heard to complain here - any more than with respect to other crimes - that he is being punished in the absence of choice.'

Many of these objections seem understandable, particularly for those horrified about the impact of rape upon women and the number of rapists who appear to 'get away with it'. Why, then, should any reasonable person concerned with women's rights want to stand up for Morgan?

The law does not privilege the interests of men above those of women. It 'privileges' the defendant
Because concern for the victims of rape, in this case, is leading to a situation where civil liberties are being assaulted and patronising ideas about women enshrined. This is something that should concern advocates of women's rights every bit as much as defence lawyers.

Morgan prioritises the importance of criminal responsibility, for which mens rea is shorthand. For those who are responsible for their actions - who have chosen a particular course of action - the consequence of a criminal conviction is punishment. The law holds that such blame and censure are only appropriate if the offender was morally responsible for his behaviour. Moral responsibility is attributed to those who understand the social norms to which they are subject and can understand and accept responsibility for wrongdoing. Political freedom assumes that people should be free from punishment unless they voluntarily choose to break the law. The concept of criminal guilt and therefore of responsibility are based on a conception of the rational agency of the individual who makes a choice to commit crime.

Individuals may act recklessly (in rape without caring whether the woman consented, or without considering it in the first place, which is considered to be the same as intending to have sex without consent and therefore criminally blameworthy), or negligently (failing to exercise care as would a reasonable person). Negligence is not generally regarded as a criminal matter since it involves no mens rea. Without such criminal intent, traditional reasons for convicting somebody of a criminal offence become nonsensical. Punishment is meaningless if the defendant did not intend his actions; deterrence makes no sense since the defendant did not foresee the outcome of his action; there is no considered behaviour which would benefit from rehabilitation; and what point would there be in retribution against somebody who has not chosen their actions?

In this light, the legal objections to Morgan fall. It is not the case that rape is differently treated from other offences against the person. In all such crimes, the lowest standard is one of recklessness. There is in general no crime of negligence in offences against the person; the law demands that there be intention before convicting.

According to Andrea Dworkin, 'Romance is rape embellished with meaningful looks'

There are some exceptions: for example, homicide. Murder is homicide with 'malice aforethought'. In some cases of homicide where there is no intention (manslaughter), the law holds the individual responsible - such as where there has been 'gross negligence'. But it would be bizarre to institute a crime of gross negligence rape. Unlike homicide, sex cannot be entered into accidentally or negligently. Sex is defined by the way it is carried out - on the basis of a conscious decision. The law recognises implicitly that unlike a homicide, where there is a dead body to account for, the sex act in itself is not harmful.

Put more strongly, mens rea is the basis of society's condemnation of the guilty. If a man can be convicted of rape without intent - in other words through mistake - then how can we hold him responsible for his actions? How can we condemn him for not acting otherwise? The principle of human agency - of making choices and being held accountable for them - is the basis both of innocence and of guilt.

Critics of the Morgan principle are at best mistaken, and at worst disingenuous, if they argue for changes in rape law through claiming that it is tried differently from other offences against the person. More such amendments to the law would separate rape even further from other offences. Too often victims of rape are told that it is an offence different from any other. The implication is that it is impossible to recover from rape. The mounting number of special measures used to try rape can only contribute to the perception that it is an extraordinary crime, and to the particular types of guilt and trauma associated with rape victims. It would be far more helpful if rape were brought into line with other offences against the person - when, however terrible the assault, it is tried in the same way without establishing new legal approaches.

The argument of feminist critics like Sue Lees is essentially that rape should be a crime of strict liability - where what matters is only the woman's lack of consent, and no criminal intention need be proven. This argument goes contrary to the principle that individuals should only be punished where they have deliberately broken the law, and that punishment should be reserved for those who have acted freely: unless a man has the capacity and a fair opportunity to adjust his behaviour to the law its penalties ought not to be applied to him. By punishing where there has been a choice to do wrong the law acknowledges this and offers members of society the right to self-determination. The law recognises the importance of self-determination by refusing to apply the penalty of imprisonment in strict liability cases.


The law has proven itself entirely capable of dealing with 'Adonis' - who cannot believe any women would reject him. Adonis is likely to be convicted on the basis of recklessness (not caring) whether or not the woman consented. Men have been properly convicted in the absence of mens rea on the basis of intoxicated mistake, for example. The Morgan verdict, where the jurors (and all higher courts) agreed that the men's story was 'a pack of lies', indicates that juries are quite well able to draw just conclusions on the basis of the evidence. In this case they concluded that the men lied about their honest belief in Mrs Morgan's consent, and that they had intended to rape her.

It may appear absurd to hold that a man should - in fact must - be acquitted if he did not intend to rape, even if the jury agrees the woman did not consent. Rape (and particularly acquaintance rape) is certainly a crime that is hard to prove. But this is for good reason. The law does not privilege the interests of men above those of women. It 'privileges' the defendant only in the sense that he is protected from unjust accusation, from being deprived of his rights as a citizen, by the burden of proof rule and the protections granted to the defence. It is the prosecution that has to prove, beyond reasonable doubt, both that the complainant did not consent and that the defendant intended to rape her.

Feminist critics of the law should bear in mind the importance of such assumptions about the capabilities of defendants, for women can also be defendants. The law's assumption that all adults have a sense of agency and responsibility is important for men and women alike. Too often the debate on rape law reform calls for special protections for rape victims, primarily women. This risks treating them less like citizens, equal to men, and more like children in child sex abuse cases, who are shielded from courtroom confrontation.

The feminist case for rape law reform is often - implicitly or explicitly - based on the idea that sex and rape, particularly as defined by law, bear a distinct similarity to one another. As Catharine MacKinnon has argued, backed by Andrea Dworkin ('romance is rape embellished with meaningful looks'), and others, many feminists appear to believe that what we would commonly understand as normal sex should be subject to legal penalties - that the law should act to promote particular types of sexual behaviour. Sue Lees argues that the law should promote 'communicative' sex - and therefore that it should penalise the non-communicative. She claims that 'calling rape violence fails to address the coercive nature of some male sexual behaviour'. The radical argument that rape and sex are similar has become increasingly popular among British feminists and appears to be finding increasing favour in official political and legal circles. Lorraine Kelly and Jill Radford claim that the law's distinction between rape and sex is problematic since it 'suggests that clear distinctions can be drawn between violence and non-violence and thereby between abusive and "normal" men'.


But the law correctly recognises that having sex is no crime. The definition of rape codifies this by foregrounding the notion that the rapist is one who intends to commit a crime, rather than a sexual act. Rape is defined in law by the intent (or knowledge) to commit rape on a woman who does not consent. The law is framed in this way precisely to ensure that rape is distinguished from sex; it says that the enthusiastic seducer is not punished for rape. The law refuses to punish mistakes, lack of courtesy or even aggression in personal relationships. Its purpose is to punish men who force women to have sex against their will.

Essentially, the law works on the basis of an assumption of women's responsibility and agency in sexual matters. It assumes that women are able to - and therefore must take responsibility for - making it clear what they want. The law currently says that where women do so, and men coerce women (whether violently or not) into sex, then they are guilty of rape. The law distinguishes between coercion and seduction. Coercion is criminal because it means intent; seduction is simply that - persuasion. Seduction may turn into rape, but only if the woman makes her wishes clear - and the law recognises women's agency in making it clear that she needs to do so.

It is important to see rape as a violent assault, qualitatively different from our normal sexual experiences, however unsatisfactory they may be. This is a view still supported by Germaine Greer, who argues that there should be no specific crime of rape, and that it should be prosecuted as assault. Yet it is a deeply unpopular view among those feminists today, who, like Lees, want to argue that much heterosex is problematic and abusive.

A range of once-radical feminist ideas - the suspicion of heterosex; the demand that women should always be believed and that they never lie about rape; the notion that the law should be more interventionist in policing men's behaviour - are increasingly influential within the New Labour administration. These ideas have been seized upon by policymakers, and politicians, and have created a climate increasingly hostile to civil liberties and to the most basic ideas of human responsibility. Demands to increase the conviction rate in rape cases (to lock more men up on less evidence) through a more inquisitorial approach to rape trials have become commonplace. New precedents are being set, which call into question the central idea of equality before the law for men and women. Those of us prepared to put our heads above the parapet and ask some basic questions ought to start doing so.

Reproduced from Last Magazine, Summer 2000

 

[jessi-ma-ca]

Are you saying that a married person can't be raped?

a married person can be raped... no menas no... therfore if a spouse refuses to have sex with there partner and they force themselves, it can be rape.

this is once again a grey area. its the same with date rape.
there has been speculation by judges that you are permitted to treat you spouse with 'roughter than usual force' in respect to marital relations.

 

[jessi-ma-ca]

the principle of an "'honest though mistaken' belief in consent " spoken about in the above article is idiotic... in australia one just needs to prove that there was no consent, this does not have to be communicated to the offenders. it is determined by behaviour etc. i havent done criminal law for a couple of years(cause im a law student), but this has my interest, i may just have to dig up my notes

whatever the law is here, that american principle is stupid. it just creates a loop hope which rapest can use to get off.

 

[sallycinnamon78]

the principle of an "'honest though mistaken' belief in consent " spoken about in the above article is idiotic... in australia one just needs to prove that there was no consent, this does not have to be communicated to the offenders. it is determined by behaviour etc. i havent done criminal law for a couple of years(cause im a law student), but this has my interest, i may just have to dig up my notes

whatever the law is here, that american principle is stupid. it just creates a loop hope which rapest can use to get off.

Exactly. In the UK, less than 10% of rape cases that come to court result in conviction.

So - according to the "justice" system here: 90% of women who report rapes are lying.

 

[jessi-ma-ca]

im not sure id go as far to say that the court says that the 90% of women are lyers, remember these cases are here before a jury. if there is any doubt... they cant convict. furthermore often ppl do not want to convict ppl of such a harsh crime, thus the offender may not be convited for rape, but may be convicted for criminal assault etc...
it is by no means perferct.
but the system goes back to the underpining idea that it is better to let criminals go than convict an inocent man. but it is finding the blannce between the offenders rights and the rigths and safty of the victim, and the community....

its a tought game!