Reader Jeff Semenak, who lives in Lansing, reports that the Lansing State Journal courthouse notes occasionally mention that someone has been convicted of “seducing an unmarried woman.” I checked and indeed found over 30 such notes from 2002 to 2008.
The statute, Michigan Penal Code § 750.532, provides,
Any man who shall seduce and debauch any unmarried woman shall be guilty of a felony, punishable by imprisonment in the state prison not more than 5 years or by fine of not more than 2,500 dollars ….
One story on the subject, John Schneider, It’s a Crime, Lansing State Journal, Feb. 15, 2000, at 1B, reports that,
[A]ssistant Ingham County Prosecutor Sam Smith … explained that in the case that appeared in the newspaper, simple seduction wasn’t the original charge. The man was charged with a more serious offense. The seduction plea became, as Smith put it, the “resolution” to the case. That’s most often how it’s employed, Smith said — as a “reasonable resolution.”Smith stopped short of saying that consensual sex between consenting unmarried adults would never be prosecuted as a crime, but admitted it would be rare. Of course if one of the parties is married, the crime becomes adultery, but that’s rarely prosecuted, either, Smith said.
But this still strikes me as wrong. Say someone refuses to accept such a “reasonable resolution” and pleads not guilty, perhaps because he claims the sex was consensual and that he shouldn’t have to go to jail for it. Nothing in the law keeps the prosecutor from charging the person both with the more serious offense (presumably rape) and with seduction, so that even if the jurors accept the man’s story, they’ll still convict him of seduction.
I don’t think we should put our trust in the noblesse oblige of prosecutors when it comes to sex crimes any more than when it comes to speech crimes. Seduction shouldn’t be criminal just so that prosecutors find it easier to reach plea bargains in rape cases. Otherwise, why not just make all sex — or for that matter all breathing — a crime? That will make it even easier for prosecutors to reach a “reasonable resolution” plea bargain whenever they think a defendant is guilty of a crime (a sex crime or otherwise) but doubt that they’ll be able to prove it.
Ken Brooks says:
The law is void on its face as a violation of the First Amendment free associational rights. Tough nuggets if it was due to a plea. The indiviual can attack it and not only over turn his criminal conviction but then follow-up with a civil suit to recoup the expense of his trial
June 8, 2010, 8:22 pmRodger Lodger says:
The New York Court of Appeals held years ago a defendant could plead guilty to attempted reckless manslaughter, a manifestly “impossible” crime. The post here is just a fancy attack on plea bargaining. Maybe plea bargaining is bad, but if so, not because of the problems with the crime of seduction.
June 8, 2010, 8:26 pmKazinski says:
How is criminal seduction compatable with Lawrence? Can the woman be simlarly charged for seducing an unmarried, or married man?
June 8, 2010, 8:27 pmrjs says:
In 1991, the Michigan Court of Appeals, in passing, called the statute an “antediluvian felon[y].” People v. Douglas, 191 Mich. App. 660, 663.
June 8, 2010, 8:29 pmShelbyC says:
Sounds like a flagrant case of anti-straight discrimination as well.
June 8, 2010, 8:30 pmGlenn Bowen says:
Only seduce married women- no jail time, and they’re so appreciative.
June 8, 2010, 8:31 pmttc says:
I guess that means you can’t claim desuetude against that law.
“Nothing in the law keeps the prosecutor from charging the person both with the more serious offense (presumably rape) and with seduction, so that even if the jurors accept the man’s story, they’ll still convict him of seduction. ”
Criminal law aint my thing, but wouldn’t the charge of seduction merge into the rape or whatever charge?
Or is there an option that jury could find a lesser included office like manslaughter vis a vis murder?
June 8, 2010, 8:38 pmGuy says:
I think the argument would be that they want to channel heterosexual couples into marriage, an argument that makes no sense for homosexual couples in jurisdictions where they aren’t allowed to marry at all. So it would turn on the oft-debated question of just what standard of scrutiny Lawrence actually applied. For your second question, I would think if there is no corresponding crime for women seducing men there would be an equal protection problem, but sexual legislation is iffy with respect to equal protection for gender (I remember Justice Scalia expressing skepticism during the oral argument in Lawrence that it’s unconstitutional to provide a stiffer penalty penalty for raping women than raping men, he seemed to think it absurd that a state couldn’t provide different penalties in that way).
June 8, 2010, 8:39 pmOwen H. says:
When PA made allowing minors access to alcohol a felony, the law originally did not include a religious observance exception. At first, everyone said that no one was going to prosecute over wine at a Seder, until one yahoo prosecutor from the sticks said he would.
Trusting prosecutors not to use the full extent of the powers given them is foolish at best. Ken Starr thought he had been given too much power, but went ahead and used it as much as he could anyway.
June 8, 2010, 8:56 pmHieronymous says:
When will these prosecutors hurry up and indict that notorious lothario and cad, Don Juan!? He’s been at it for for 400 years.
June 8, 2010, 8:58 pmSuperSkeptic says:
I agree with the commenter(s) above who note that this is simply a downside to plea bargaining in general, but I have another complaint: Just who is responsible for cleaning this crap up? Are we to perpetually rely on the Courts to twist constitutional doctrines, in myriad ways, with all their resulting sorts of side effects (and benefits, too, no doubt) and absurdities in order to obviate antideluvian laws, particularly those regulating social norms? The rushed efforts to conjure up a doctrine to give the death blow to this law has me wondering just whose job this is after all, the courts or the legislatures? Of course, this would be less of a concern if they weren’t enacted in the first place, but one can dream, I suppose – at least of something more efficient and just than this.
June 8, 2010, 9:13 pmChrisTS says:
Rodger Lodger:
It is not the ‘impossibility’ of the offense but the wrongness of treating consensual sex as criminal – wrong on so many grounds – that make using it as a plea bargaining tool objectionable. One could believe this and not hold that all plea bargaining is unacceptable.
June 8, 2010, 9:15 pmGuy says:
I agree, I don’t think plea bargaining is wrong, but I don’t think an unconstitutional (assuming for the sake of argument that this law is unconstitutional) prosecution can be defended on the grounds that it is a consequence of plea bargaining because it warps the bargaining process to have it available. The same goes for undesirable, but constitutional laws. I do think there is a Constitutional problem if a law is only ever enforced as a result of plea bargaining, and the law is never actually applied in other cases.
June 8, 2010, 9:20 pmwm13 says:
What if the legislature established a series of crimes involving sex which was not affirmatively and expressly consented to by the female partner (or by one of the partners, period)? That I think would capture essentially all of the cases in which statutes of this nature are applied. Surely such a statute would be Constitutional–there isn’t a Constitutional right to have sex with an ambivalent partner, is there? And it would meet feminist concerns of the Catharine MacKinnon variety.
June 8, 2010, 9:25 pmShelbyC says:
No, but I’d imagine that there’s a right to have sex without consenting affirmatively or expressly. Who invited the government into the bedroom anyway?
June 8, 2010, 9:29 pmSuperSkeptic says:
Prosecutors would run amok, being thus given such tremendous charging power, as what was formerly one crime is now 15 or 20 crimes. I see more downside here than upside.
June 8, 2010, 9:29 pmAnon Y. Mous says:
I would guess that they are not plea bargaining down rape, at least not “rape rape”. It more likely used to plea bargain down statutory rape. Especially if the girl is close to the age of consent, this would be a way for the prosecutor dispose of the case short of giving the perp a walk.
June 8, 2010, 9:30 pmSuperSkeptic says:
Nanny-Framers.
June 8, 2010, 9:30 pmFederal Farmer says:
“… the court found him guilty of the lesser, ridiculous charge of…”.
June 8, 2010, 9:30 pmGuy says:
I don’t know about “affirmatively and expressly” but I think it is appropriate to place a burden of proof on the person who wants to show it was consensual. But whatever that burden of proof should be, it should be in the legislation, not created by prosecutorial discretion.
June 8, 2010, 9:33 pmJeff S. says:
This is unusual as well since, even though the girl gives consent (age 16 in Michigan), until she is 18 her parents can file the complaint. Also, for those who want to go after married gals in Michigan…
Nothing like prosecutorial discretion, eh ?
June 8, 2010, 9:33 pmSuperSkeptic says:
Nothing like absurd laws…
June 8, 2010, 9:38 pmMichael says:
As a Michigan criminal defense lawyer, I see the point in theory. But, man oh man, defense lawyers like these seduction laws and similar minor offenses just as much or more than prosecutors. Defendants play with major fire when dealing with sex crimes, even ones that may me dicey for the prosecution to prove. Often everyone is happy to walk away with such a plea. I know many defendants who would gladly plead guilty to breathing in a heartbeat.
Not that we should always condone results because defendants are afraid or happy with compromise results, but it is worth considering how happy they are. Very happy.
Except the ones who complain anyway, even though they just avoided years and years, and maybe life, in prison.
June 8, 2010, 9:43 pmLaura(southernxyl) says:
I don’t like to see the blurring of the line between consensual sex and rape.
Look at this story. After the first paragraph, the term “rape” isn’t used. Is there a term for having sex that isn’t either interchangably used with rape, or that doesn’t have other bad connotations like the f-word and screw? Somebody in a previous thread kept talking about being “sex-positive” – what verbiage can you use that’s consistently sex-positive for the female half of the human race?
So going back to the original topic – if we have to dance around whether an act was rape or rape-rape by using stupid words like seduction, maybe we do need to go back to the drawing board and TRY to get some consensus about what is and is not okay. And then write that into law.
June 8, 2010, 9:46 pmShelbyC says:
I’m not sure I see the point in a plea deal that allows someone to walk with a minor conviction instead of spending years and years in prison. I’d think any sane person would take such a deal rather than go to trial, regardless of guilt. If they did something that they should go away for years and years for, put ‘em away. If they didn’t, let ‘em go.
June 8, 2010, 9:47 pmChrisTS says:
Guy:
Right. I think this could [should] at least be grounds for a claim of desuetude. Somehow, “We never really prosecute for this activity, we just use the offense as a plea tool” does not seem like honest live prosecution.
June 8, 2010, 9:47 pmLaura(southernxyl) says:
Shelby, you are not thinking like a defense attorney.
June 8, 2010, 9:48 pmShelbyC says:
Yeah, it’s more a criticism of procecutors. I understand why defendants take these deals.
June 8, 2010, 9:51 pmChrisTS says:
Laura(southernxyl):
I think the case you linked to qualifies as rape, even if voluntarily desisted in [so to speak]. Our ever more draconian ‘sex-offender’ laws make anyone not wanting to ruin a kid’s life look to a lesser – and irrelevant – charge.
Statutory rape is a different naming problem: there is consent, but one party is too young to consent legally. Of course, the legal age is created to protect those genuinely too young to consent in any meanigful sense.
I think it would be preferable to reframe statutory rape with an eye to the relative ages of the parties. 25 year ol and 15 year old? That is problematic in ways that the [average] 16 and 17 year olds case simply is not.
And, sure, a different noun, not just a modifier.
June 8, 2010, 9:55 pmLaura(southernxyl) says:
Chris, around here, it’s not just the age of the younger party, it’s the relative age of the two people that determines statutory rape.
June 8, 2010, 10:02 pmLaura(southernxyl) says:
As for that case, I don’t see how a man can “have sex with” a woman who doesn’t want to. What’s that “with” about? Maybe he’s doing sex to her. But then we still don’t have a term for true consensual sex that doesn’t also mean rape or something else bad.
June 8, 2010, 10:04 pmFederal Farmer says:
Favorite Michiganer pickup line: “Hey baby, wanna do some hard time?”
June 8, 2010, 10:08 pmRicardo says:
So why not just allow people to plead guilty to “mopery with intent to creep”? I read this as a straightforward attack on laws that no one should ever be arrested for violating.
June 8, 2010, 10:18 pmBiolawguy says:
We seem to essentially have “justice by prosecutorial discretion” on so many levels. With so much over-criminalization coupled with huge (and high!) sentencing ranges for so many crimes, prosecutors seem to have just incredible leverage in plea bargain negotiations. (I think I favor banning plea bargains, as I believe such leverage is likely unconsitutional.)
I saw on Bill O’Reilly a few weeks ago that a woman was given life – that’s LIFE – in prison for letting a 13 year old boy touch her breast. Bill’s response was that HE would’ve only given her 10 years! There is simply no proportionality when it comes to “culturally-sensitized” issues…
June 8, 2010, 10:18 pmChrisTS says:
Ah. GOtcha. Well, I suppose ‘have sex’ is the genus, and rape, consensual sex, etc. are the species?
June 8, 2010, 10:19 pmBiolawguy says:
“I think it would be preferable to reframe statutory rape with an eye to the relative ages of the parties.”
Yes, this makes a lot of sense, and is typically not given enough weight today.
Of course, for non-minors, this would be inappropriate, as consenting adults have every right to engage in large-age-difference relationships.
June 8, 2010, 10:24 pmCareless says:
Don’t most states have “Romeo and Juliet laws” for these cases?
June 8, 2010, 10:26 pmGov98 says:
Why oh why should prosecutors take the blame? Why not the voters who vote for politicians who always add to the burdens on people but never lighten them (like the pharisees). Yet the majority does, and then libertarians blame prosecutors. Always someone else to blame but one’s self.
Until you have a case where it’s certainly triable if not highly likely for conviction, and the defendant has little or no record and yet is facing somewhat stiff penalties and had the defense counsel and yourself rifle through the Penal Code for something that fits it seems hard to criticize. It’s not the prosecutor’s fault when a crime fits that isn’t registerable so its jumped on, that’s just the way pleas go sometimes.
June 8, 2010, 10:31 pmDavid Chesler says:
Nothing in the law keeps the prosecutor from charging the person both with the more serious offense (presumably rape) and with seduction, so that even if the jurors accept the man’s story, they’ll still convict him of seduction.
This occurred in New Jersey. From memory (all of you lawyers have Lexis-Nexis, you find it, maybe c. 1980, and I think I came across it looking at the cases that held BDSM was illegal in Massachusetts [this was before Paddleboro, which didn't change anything anyway]) someone was charged with prostitution, or paying for sex, and argued that it was consensual, and the prosecutor turned around and said “Then it’s fornication.” I think this fornication happened in a car.
June 8, 2010, 10:38 pmGov98 says:
2000 yrs ago dealing with out of control lawgivers:
1Then Jesus spoke to the crowds and to His disciples, 2saying: “The scribes and the Pharisees have seated themselves in the chair of Moses; 3therefore all that they tell you, do and observe, but do not do according to their deeds; for they say things and do not do them. 4“They tie up heavy burdens and lay them on men’s shoulders, but they themselves are unwilling to move them with so much as a finger.
June 8, 2010, 10:39 pmSaul says:
ShelbyC: Yeah, it’s more a criticism of procecutors. I understand why defendants take these deals.
So a prosecutor should not do a plea deal where everybody who actually has a stake in the incident walks away happy? Instead, the prosecutor is supposed to either dismiss outright or go to trial b/c somebody has a theoretical disagreement with the statute?
June 8, 2010, 10:45 pmJesse Wilkins says:
IANAL and don’t even play one on TV, but the reason given sounds to me very much like the tickets I’ve gotten over the years for speeding. In CO they’ve generally been 6-19 miles over the limit with an assessment of 3-4 points against my license if I go through the process. OTOH, if I accept the standard plea bargain/settlement/whatever it is, it’s a 2-point “driving defective vehicle”. My vehicle was of course not defective, but that’s the standard entry in the DMV for a pleaded (pled?) ticket. So I wonder if this is the same for e.g. public nudity or sexual assault where the facts didn’t stand up in court – the plea includes this lesser, antiquated, obsolete charge which for whatever reason is still on the books.
June 8, 2010, 10:50 pmLaura(southernxyl) says:
It probably depends on who “everybody” is. I’ve read enough cases where families of victims of murder were outraged by the plea bargains the perps got, and the prosecutors acted all suprised that they even said anything.
June 8, 2010, 10:52 pmCavan says:
A Prosecutor’s job is simply to advocate for the People, no more no less. If the people, who’s will is expressed by the statute, want adultery and seduction to be a crime, then so be it. If it’s unconstitutional–and I don’t think it is–then let the judiciary decide that, and prosecutors will honor it.
The argument that sex between consenting adults is a privacy right protected by the Constitution is a stretch given the ubiquitous presence of anti-prostitution laws. Its even more of a stretch given that sexuality is one of the first things regulated by any society that ever regulated anything.
June 8, 2010, 10:52 pmShelbyC says:
Correct. Procecutors are not supposed to be making people happy, they’re supposed to be figuring out who needs to be unhappy and making them unhappy, and leaving everybody else alone. To be clear, I’m talking about deals that result in probation or something when the defendant risks going away for a few years with no deal. It’s hard for me to believe that such an outcome can ever be just, it’s hard for me to imagine a defendant (innocent or guilty) turning down such a deal. If a procecutor thinks somebody needs to go to jail, he should try to put him in jail. If he thinks the guy should go free, he should let him go. But the shouldn’t threaten him with jail to get him to accept probation.
June 8, 2010, 10:54 pmG.R. Mead says:
I don’t see the problem that most people seem to have with of this class of crimes: Illegitimate intimate relations — Capital offense (rape); non-capital felony of adultery; misdemeanor of seduction/ alienation of affection.
Let’s be real — if illegitimate sexual conduct as a class of conduct has no consequences — then why is there a crime of rape? Might as well make it a variation of simple battery — but we all know it is far more serious and has far more consequences, and so we have the crime of rape.
But the same logic of greater seriousness applies at lower levels of sanction and say what you will the traditional common law had a far more sanguine view of human nature and the proper channeling of sexual relations as they affect civil society.
For those who take the puristy individualistic bent — society ceases if it is not propagated, so a compelling reason exists to regulate in this area. At least as much interest exists in protecting the interest of society in free but true speech as for, say, punishing civil fraud as illegitimate false speech, as for punishing illegitimate intimate relations. The illegitimacy of these acts is based in the same orientation toward things that are true of human nature — sex controls and deeply influences the conduct ( for better or worse (yes, yes)) of people beyond the immediate parties — if you doubt this tell the father of a good-looking eighteen year old ( or her presnet boyfriend or husband that you are about to shtup her and see what happens.
Sex makes babies (a new person bound in law to the parties) — even contraceptive sex — much to the chagrin of those who assume (falsely) otherwise. Regardless what the ads lead you to believe. 97-98% effectiveness in, oh, say 100 such events in a year is an average of two or three pregnancies a year (Depo). Reality is closer to 92% in typical use of the most popular forms of pill and 75% for condoms) Do the math — that is an objectively significant issue (pun intended). Even the Democratic party SAYS it want to reduce the “need for abortion” so the admission is plain that this IS a matter of public policy on BOTH sides of the aisle.
Now we are just haggling about the price…
We are past the point of regulating SOME measure of illegitimate conduct of this type (and clearly we are — in bold terms — rape not the least, viz. statutory rape and child porn). The question is thus one of only of degree not of kind, and thus should be based on objective measure of effect and need for social (and thus ultimately, legal) regulation over the incidents of the act (and not the mere doing of the act itself), i.e — time, place and manner restraints (and let’s add, say, legal competence in parties). Why are not seduction, adultery, rape, statutory rape and child pornography simply regulations of the same sort?
No one can credibly argue that sexual relations are not socially regulated, so why, objectively, stop at the bar — and why in the world substitute plainly unjusticiable concepts as a rule of decision — like subjective views of “the right to define one’s own concept of existence?” No one defines their own concept of existence — each human being exists as a particular genetic development in a particular culture in an particular historical era in a particular geographic circumstance — we all get to either work with or run from all of the above as the positive and negative aspects of our inherent liberty — but we don’t get to define them — none of us are free to do that.
Supporters of libertine sexuality should be mindful that desuetude is a “living” concept also — even under the phantasmagorical plurality of Stevens’ waxing dreamy in Casey: It appears that opponents of radical libertinism need merely to achieve a generational duration for their own position and even Casey‘s expansive conceptual sweep, sweeps back with just as much double-edged force:
The rule is good for a generation — at most. An “evolving” legal realist Constitution has no inherent heading — and not the slightest teleogical certainty of a given destination — it merely depends on who can appoint the judges long enough.
Guess who is predominantly having those “generations”? Hint — not supporters of the “reasoning” of Casey — and very likely supporters of laws such as the crimes of seduction and adultery.
June 8, 2010, 11:09 pmneurodoc says:
If we are not talking about statutory rape, in which consent is not a defense, then where in the United States of America must a defendant accused of nonconsensual sex put on proof that it was in fact consensual before the prosecution has made a prima facie case against them? I thought a criminal defendant was always free to remain silent and figuratively sit with their arms crossed, safe in the knowledge that they should be acquited without ever putting on a case if the prosecution didn’t make that prima facie case against them. And is it a matter of the “burden of proof,” which is always the criminal standard of guilty beyond a reasonable shadow of doubt isn’t it, or is it a matter of who has the burden of proof, that being the prosecution until such time as it shifts to the defendant, if it ever does?
June 8, 2010, 11:09 pmGov98 says:
Correct. Procecutors are not supposed to be making people happy, they’re supposed to be figuring out who needs to be unhappy and making them unhappy, and leaving everybody else alone. To be clear, I’m talking about deals that result in probation or something when the defendant risks going away for a few years with no deal. It’s hard for me to believe that such an outcome can ever be just, it’s hard for me to imagine a defendant (innocent or guilty) turning down such a deal.
Possible Case:
Defendant steals $7 worth of stuff from Wal-Mart…Defendant has a robbery from about 12 years ago which he did 3 years State Prison on. Had some other misc. stuff after release like Driving on a Suspended License or some other time.
NOW…Crime PC 666 Petty Theft with Prior…is a possible Felony and the Robbery doubles the exposure to 6 yrs. State Prison at 80% (5 actual years).
Should he a. Do 5 years with no deals because he’s legally ineligible for probation and because of his record probably will get at least the middle or aggravated term because he’s a repeat offender
or b. do a chunk of time in County Jail and be done with the case
or c. something entirely different
It probably depends on who “everybody” is. I’ve read enough cases where families of victims of murder were outraged by the plea bargains the perps got, and the prosecutors acted all suprised that they even said anything.
One hopes in the vast majority of pleas (it should be all) that the victim believes that the outcome is just. It doesn’t always happen, but of course some believe that the defendant should get the death penalty for stealing their car. You hope to do the best you can. At the same time, some victims have been revictimized by prosecutors being less than hard working…life is a huge balancing act, and most of us are just trying to do our best.
June 8, 2010, 11:09 pmRicardo says:
Maybe, but you don’t need that argument here. The law only applies to men and not to women. That seems like a pretty straightforward violation of equal protection. If the law applied to both equally, then there is the obvious problem that date rape victims could be charged with seduction if police or prosecutors believed the sex was consensual. Given the choice of throwing out the law or looking like Saudi Arabia, I think the State of Michigan would go with the former.
June 8, 2010, 11:18 pmShelbyC says:
You tell me. If he should do five years, put him away for five years, or maybe give him a deal for 4 years or something.
If you don’t think he should do 5 years, and only think he should do a month in county or something, don’t threaten to put him away for 5 years, give him maybe two months in county with a plea offer of one month.
June 8, 2010, 11:19 pmLaura(southernxyl) says:
Neurodoc, I think guy’s talking about situations where the man says he started having sex with the woman and she didn’t really try very hard to stop him, so it must have been consensual. When from her point of view, he was a lot bigger than she was, and she thought that resisting would only result in more injury.
I will mention again Kobe Bryant’s “apology”:
Here.
What does consent really mean, and how does the man know he has it? I’m using this asymmetrical language because physiology makes the logistics of a woman raping a man improbable.
June 8, 2010, 11:20 pmGov98 says:
I’m not sure I see the point in a plea deal that allows someone to walk with a minor conviction instead of spending years and years in prison. I’d think any sane person would take such a deal rather than go to trial, regardless of guilt. If they did something that they should go away for years and years for, put ‘em away. If they didn’t, let ‘em go.
So now you see how someone could walk away with a minor conviction (petty theft) even if they did something that they should go away for years and years for.
In my mind it’s because the should of the law are different than the shoulds of life. I think he should do based on his record about 4 months of time in county.
But is he exposed to 5 actual years in custody…Yes…Does anything need to be said at all for the defense counsel to be aware of that fact…No.
June 8, 2010, 11:31 pmGuy says:
I meant some burden shifting is acceptable, I don’t think there is a due process problem in having the prosecution prove that sex took place, then have the other person avow it was not consensual, constitute a prima facie case, at which point the defendant has the affirmative defense of showing consent. I don’t know if that’s good policy, but I don’t see a serious problem Constitutionally.
June 8, 2010, 11:33 pmFederal Farmer says:
I’ll accept improbable, but with the caveat that an erection does not guarantee consent, though it might imply it.
June 8, 2010, 11:37 pmLaura(southernxyl) says:
Can we stipulate that arousal in the woman doesn’t guarantee consent either?
June 8, 2010, 11:40 pmpublic_defender says:
The professor writes:
On the other hand, the defense might accept such a plea bargain because the defense is afraid that the prosecutor could actually prove rape to a jury. It might be also be a compromise to avoid sex offender registration consequences but to leave a felony on the defendant’s record.
Plea bargains can be abused, but pleading out to a lower charge (sometimes a charge that has nothing to do with the facts) sometimes results in a more fair verdict than an all-or-nothing jury trial. It’s a necessary safety valve. Sex offense cases are often he-said-she-said. That’s enough to convict, but it also sometimes leads to acquittals of people the prosecutor believes to be guilty. I suspect that plea agreements more often come to reasonable results than trials.
June 8, 2010, 11:40 pmFederal Farmer says:
Absolutely. No doubt the defense will use either situtation to their best benefit though.
June 8, 2010, 11:48 pmShelbyC says:
Despite the asymmetrical language, I’d imagine a man knows he has it the same way a woman knows she has it. But it seems the relevant question is, does he have to prove he had it, or does the state have to prove he didn’t have it, and knew he didn’t have it.
June 8, 2010, 11:52 pmarch1 says:
The fact that every respondent appears to have concluded that wm13′s proposal merited a serious response strikes me as almost surreal.
June 9, 2010, 12:11 amJ. Aldridge says:
Bet you have no idea what that means and why it was included in the 1A.
June 9, 2010, 12:16 amEvilDave says:
Or cases of “rape” in which the woman had sex she later regretted (e.g., cheating on a boyfriend).
I know men are presumed guilty when it comes to sex crimes, and effectively have the burden of proof regarding their innocence, but that doesn’t mean all or even most rape claims are credible.
Even if that is breaking a PC-taboo to say that.
June 9, 2010, 12:18 amA shame we can’t have perfect knowledge and know the percentage of rape claims that are false, and the number of rapes that go unreported.
Chris Travers says:
Does that mean I have to have written permission to have sex with my wife or she might call the prosecutors on me? Also how would that work in cases of withdrawn consent?
June 9, 2010, 12:22 amChris Travers says:
But doesn’t that essentially make all sex rape, for which proper consent is just an affirmative defence? That strikes me as very dangerous due-process wise. I suppose getting written consent first would be a nice thing to do, but then what do you do if the woman says she felt pressured to sign the consent form, or that she withdrew consent during the act? I’d really rather see all aspects of a criminal charge of this nature be proven beyond a reasonable doubt.
I’m not at all sure that it’s as improbable as you might think. If they’re both drunk, neither has properly consented and they’ve just both raped eachother. If we make all sex rape except that consent is an affirmative defence, then it seems to me that we ought to be putting both parties up as defendants all the time.
June 9, 2010, 12:30 amRicardo says:
We can certainly stipulate that. Volokh went a bit further several years ago and suggested that involuntary arousal may be an actual outcome in some percentage of sexual battery or assault cases and was exposed to righteous indignation from the usual suspects.
June 9, 2010, 12:35 amChris Travers says:
ISTM that this gets to a mens rea requirement, does it not? I.e. does the rapist (gender-neutral here) have to intend to have sex with someone he/she knows has not meaningfully consented? Or is the general intent to have sex enough and consent just an affirmative defence?
(I.e. example. You agree in writing I can punch you in the nose if I pay you $100. I punch you in the nose and give you the money. You have me prosecuted for assault. I bring up the contract and point out that you consented to the assault. Is this the way we want to run rape cases?)
June 9, 2010, 12:37 amShelbyC says:
Agreed. Although I think we have the same mens rea issue in your nose-punching example or just about anything else that involves consent.
June 9, 2010, 12:46 amRicardo says:
I recall reading about a case in Sweden where a woman was successfully prosecuted for rape or sexual assault for performing fellatio on an unconscious man without his consent.
So it does happen. I don’t think I’m out of line in thinking that most straight guys would not bother to call in a case like that to the police department.
June 9, 2010, 12:47 amChris Travers says:
I think that would depend on whether the woman could generally be prosecuted as an accomplice. If so, I don’t see how it doesn’t apply to women.
June 9, 2010, 12:49 amgeorge weiss says:
ken brooks-
just so you know-most plea agreements come with text waving any appeal (except on the issue of the voluntary nature of the plea itself)
as for a civil suit-prosecutors are immune from suit for prosecutorial actions of any kind-no matter how intentional or unconstitutional and in bad faith.
June 9, 2010, 12:51 amShelbyC says:
I’m not sure the whole drunk != consent thing means anything outside of a few oddball court decisions and some University Women’s center propaganda.
June 9, 2010, 12:55 amneurodoc says:
The OP concerned the felony of “seducing an unmarried woman, which some of us view as pretty outrageous, if no unconstitutional. Did the discussion transmute at some point to one about rape rather than “seduction” and sex absent any force?
(I find it problematic at times when posters don’t make clear to whom, if anyone, they are responding, leaving it in doubt how their remarks are to be understood. If someone has a previous post in mind when they undertake to comment, it is helpful if they address themselves to the person whose comment they have in mind, or better yet quote something of that prior comment so we may know what it was.)
June 9, 2010, 1:32 amVisitor Again says:
Quite apart from the constitutional doubts surrounding such an offense, sometimes defense lawyers are entirely happy that there is something like this offense available for use in a plea agreement. It would seem that it is a lesser included offense or at least a lesser related offense of many more serious sex crimes and therefore a legitimate basis for a plea agreement. At the same times it’s a relatively innocuous offense. I presume, for example, that conviction does not require registration as a sex offender.
June 9, 2010, 1:35 amSaul says:
ShelbyC – It has been pretty well established in this thread that the need for a middle ground exists, and that (as public defender put it) there is a need for a release valve. Things aren’t nearly as black and white as you suggest they are – the hypo by Gov98 shows one example.
Also, aside from your poor suggestion, I have never been told my job description is to make somebody unhappy all the time. Sometimes I have to make someone (or everyone – in the case of a recanting DV victim) unhappy, but frequently I can manage a plea bargain where all parties come away satisfied. Your misunderstanding is probably rooted in the assumption that jail is the only gaol and the only sentencing tool available. I have a lot of goals other than jail and a lot of sentencing tools other than jail. Arranging a plea bargain to avoid a lengthy mandatory minimum jail sentence while accomplishing all my other goals and constructing a sentence that address the offender is a job well done.
Of course, if your argument is that the statute should not exist (as Eugene points out) then I think that is a theoretical criticism of the statute, and I think the answer should be in the theoretical realm as well – leave it to the people’s elected representatives to eliminate the statute. In the meantime, I practice in the practical realm, and there is practical use for this type of statute.
June 9, 2010, 1:44 amChris Travers says:
Drunk doesn’t equal consent in every other area. For example there was a recentish cannibalism-with-consent case in Germany which turned on the fact that the victim was too drunk to consent to being murdered at the time of his death.
My point is that if you treat rape as sex, and consent as an affirmative defence, then you are going to run into the fact that such consent is going to be more heavily scrutinized in all of the other ways. It’s a good reason not to go down that path.
June 9, 2010, 2:08 amRicardo says:
The state of Virginia argued its anti-miscegenation laws applied to blacks and whites equally — no dice said the Supreme Court.
If you are going to prohibit men from seducing unmarried women, there doesn’t seem to be any good reason for not also prohibiting women from seducing unmarried men. That is the point, whether or not a woman could be prosecuted as a mere accomplice under the existing law.
June 9, 2010, 2:25 amOrenWithAnE says:
This. This 100x over.
Screw. Fuck. Bang. Bed. Score. Catch. Land. Score. Hook-up. Squeeze. Bonk. Boink. Boff. The whole point of sex-positive verbiage is that there’s no reason to attach bad connotation to the act of consensual intercourse or to the words that describe it.
Also, that story you linked was clearly rape. She said no, he forced her, end of story.
I believe the intent of the law was to criminalize consensual sex and that use as a plea-bargaining offer in non-violent or statutory rape cases is not what was intended by the legislature.
And for those that Protestants, remember that the Catholic Church requires ….
[ Seriously, how could you speak to an individualist and then attempt to convince him with an argument resting on the good of society? By construction he doesn't care. ]
June 9, 2010, 2:34 amChris Travers says:
I’m remembering a case where the Supreme Court held that differential punishments for essentially what amounted to statutory rape by gender didn’t violate the EPC because the other party could be charged as an accomplice, and because women were more at risk for unwanted pregnancy.* I can’t remember the name of the case though though.
* However, IMO, since women alone get to make the abortion decision, IMO that undermines the compelling state interest argument and a better argument could be made that men are the vulnerable parties…..
June 9, 2010, 2:52 amEvilDave says:
And where do you think the next generation of lawyers and judges are coming from?
June 9, 2010, 3:31 amPerseus says:
Guess again. See Michael M. v. Superior Court: “young men and young women are not similarly situated with respect to the problems and the risks of sexual intercourse.”
June 9, 2010, 3:34 amAaron says:
You apparently misunderstand the statistics for failure of birth control. The statistics are almost never quoted per act, but per year of having sex regularly. While the per-event statistics would be interesting to have, they’re generally not what people should be interested in, because people have sex a whole lot more than once. Unfortunately there’s no easy way to go from one to the other, because the events are not independent.
June 9, 2010, 4:30 amRicardo says:
Not sure how this argues against this particular statute being unconstitutional, which applies to all unmarried — not “young” — women.
June 9, 2010, 4:49 amPerseus says:
Emphasizing “young” men seems pointless since, as the Court stated, “the age of the man is irrelevant.” You also analogized the law to anti-miscegenation laws despite the Court’s lower standard of scrutiny with respect to sex. So it doesn’t seem to me to be as “straightforward” a violation of equal protection as you claim.
June 9, 2010, 6:03 ampublic_defender says:
As I said above, the system needs safety-valve offenses for those cases where a defendant’s behavior was right on the line between creepy and illegal (and therefore where the lawyers for both sides can’t say whether the defendant would be convicted or acquitted). But I concede that manufactured pleas diminish respect for the system.
It would be much better for all concerned if low-level sex offenses carried truly low-level penalties. But now, even low-level offenses can carry decades of sex offender registration and public notification. And prison terms just keep getting longer at all levels.
We have a local trial judge who had been a really tough prosecutor. He testified against increased penalties for sex offenses because he realized that they destroyed the ability of prosecutors to get deals in marginal cases. If a defendant faces decades in prison followed by decades of sex registration, he might as well box it up and see what the jury says. So as a result of higher penalties, we get more cases with higher sentences, but also more acquittals of people prosecutors believe to be guilty.
Getting back to the professor’s post, I can see how having this offense on the books is problematic on a number of levels. But given what’s in the rest of the criminal code in most states, having this offense to plead down to is less bad than not having it.
June 9, 2010, 6:10 amRicardo says:
1. As the decision you quoted from states itself, the statute must have a “substantial relationship” to government interest in order to defend sex-based discrimination or differential treatment in law.
June 9, 2010, 6:42 am2. In this case, the government interest was in preventing the harm associated with teenage pregnancy. I’ll simply provide the full context to see just how much emphasis was put on the fact that the law concerns teenage girls:
J.T. Wenting says:
No lawyer here, but as I see it the fact of showing that there was consent from the woman to have sex would prove automatically that there was seduction (unless it could also be proven that the woman seduced the man, but the law is likely written to define seduction as there being contact with the intent to engage in sex without any consideration as to who initiated that contact).
June 9, 2010, 7:12 amBiolawguy says:
This news article seems to describe the use of an adultery statute as a way to provide “extra” punishment for public lewdness…
June 9, 2010, 7:30 amShelbyC says:
Well, if I invite you into my house and I’ve had a few drinks, you’re not a burglar. If I loan you my car after I’ve had a few drinks, you’re not a car theif. But you’re right, we definately don’t want to go down the affirmative defense road.
June 9, 2010, 8:16 amJ.T. Wenting says:
So we should have laws that allow us to lock up people who have done things we concede aren’t crimes but we consider to be “undesirable”?
June 9, 2010, 8:51 amSounds a lot like what the USSR used to do by sending millions to Siberia for no other crime than being “undesirables”.
Or North Korea locking up peoples’ families for no other crime than being family of someone who disagrees with the government.
Morning Links | The Agitator says:
[...] Michigan, prosecutions for violating the law against “seducing an unmarried [...]
June 9, 2010, 8:58 amAultimer says:
IIRC, “seduce” once implied an element of non-violent but wrongful coercion (like a false promise of marriage), so the MI statute originally probably did not cover truly consensual acts.
I’d still hate to prove up consent without a recording though.
June 9, 2010, 9:45 amwfjag says:
Aultimer, the statute states the elements of the offense as including “shall seduce and debauch”. “Shall” is a mandatory verb — implying that the man really intended to both seduce and debauch from the beginning. “Seduce” is, as you note, somewhat ambiguous as to whether only sex is required, or a possible fraudulent element (“I’m a Doctor” as sufficient false statement? Or, “You know that I respect you.” ?). But, the element that should be a defense counsel’s dream is “debauch”.
Merriam-Webster’s On-line Dictionary:
I would love to read the jury instructions for this.
June 9, 2010, 9:59 amShelbyC says:
Yeah, what if she wasn’t bauched in the first place.
June 9, 2010, 10:16 amChris Travers says:
That’s still less of a barrier than it would be if it were race. Gender differences are held to intermediate scrutiny, race is held to strict scrutiny.
It means one cannot make a great deal out of Loving for purposes of anything gender-related.
June 9, 2010, 10:20 amFederal Farmer says:
There are, to be delicate, other ways a man, straight or gay, can be raped that don’t require the presence of an erection.
June 9, 2010, 10:20 amJeffrey Quick, multiple felon « The Quick and the Dead says:
[...] shocking thing is that this law is still being enforced, generally as a plea [...]
June 9, 2010, 10:20 amShelbyC says:
Heh. Wanna bet? :-)
June 9, 2010, 10:24 amParatrooperJJ says:
Do you give up your right to appeal when you plead guilty in Michigan? I know you do in Ohio.
June 9, 2010, 11:18 amjvon says:
How is this law not discriminatory by sex?
Can you imagine the uproar if there was a law that made it illegal for women to have sex with unmarried men?
June 9, 2010, 11:33 amG.R. Mead says:
This also:
It seems to me that the adultery charge is not a “private” matter. After all, homosexual activists seek to obtain public acceptance by leveraging marriage into their forms of relationship — and what ever one may feel about that — the sine qua non of marriage (civil and religious) is the presence of witnesses to the solemnity of oaths to each other — ergo, marriage and thus adultery is an overtly public matter — and though not all the incidents of marriage are public — the public recognition of it is, and thus public offenses or scandals to it, certainly must be public concerns…
June 9, 2010, 11:41 amsetnaffa says:
Sex outside of marriage is bad for those involved. Regardless of what the liberals tell you, it will leave psychological scars. The honest among us will admit that.
June 9, 2010, 11:46 amDon Buffalo, NY says:
What a coincidence. An adultery charge was reported in today’s Buffalo News.
http://www.buffalonews.com/2010/06/07/1074347/couple-accused-of-picnic-table.html
June 9, 2010, 11:49 amDavid Chesler says:
The less-used Massachusetts statutory rape statute, MGL Chap 272 section 4 has a bauchery exception:
(Statutory rape is prosecuted I think under Chap 265 section 23
and I always thought the “unlawfully” if not circular [which it might be, apparently various definitions of crimes with statutory punishments are still common law here] referred to fornication, Chapter 272, section 18. I remain confused that 15-year-olds cannot at law give consent to have sex, and marriage is no longer a defense to rape, and there is no hard minimum age for marriage in Massachusetts, can someone have sex with his 15-year-old spouse without committing statutory rape?])
June 9, 2010, 11:56 amUrso says:
I’m not sure this Michigan law is limited to sex, even assuming the more expansive definition of sex and not strictly meaning “penetration.” If I’m attending a CMU frat party and convince a heretofore chaste, modest young woman to perform a tabletop dance, I’m pretty sure I’ve “debauched” her in the meaning of art. 532.
Perhaps “seduce” carries an implied requirement of sex, but I’m not sure. Literally it would mean something like “lead away/aside,” or more colloquially “lead astray.” I think the actions described above would count.
June 9, 2010, 11:59 amTexEd says:
Wouldn’t the vigorous application of this language cause many male seniors to be arrested on prom night?
June 9, 2010, 12:05 pmTselin says:
I wonder if the law has been used in cases involving prostitution – either against a john when exchange of money couldn’t be proven or against a pimp as per Urso’s comment at 11:59am
June 9, 2010, 12:23 pmUrso says:
Excellent point. In fact, I’d argue the statute fits pimping better than simply having sex with an unmarried girl. Under today’s evolving standards of decency ™, we wouldn’t consider a girl “debauched” simply because she had sex with a long term boyfriend. We would consider her “debauched” if she was led into a life of prostitution.
Anyway, as a Concerned Parent this thread has convinced me to move to Michigan when my eldest daughter hits 16. It’s one thing to give her a lecture, it’s another to know that I have the force of law behind me.
June 9, 2010, 12:27 pmGuy says:
Better than hand calluses…
June 9, 2010, 12:40 pmneurodoc says:
Do you have any authority other than religious ones to support that contention that “sex outside of marriage…will leave psychological scars”?
Isn’t it true everywhere that you give up your right to appeal when you plead guilty except perhaps on the narrowest of grounds, e.g., you were coerced by the prosecution to confess or they would charge your brother with the crime and see you both off to prison.
June 9, 2010, 12:41 pmMing the Merciless Siamese Cat says:
I say “tomato” you say “tomahto” , I say “innocent until proven guilty”, you say “guilty until proven innocent.” Tomato, tomahto, innocent until proven guilty, guilty until proven innocent.
Let’s call the whole thing off.
June 9, 2010, 12:56 pmMing the Merciless Siamese Cat says:
Leaving it a bit late, aren’t you?
June 9, 2010, 12:57 pmcelticdragonchick says:
In my basic training unit at Ft. Jackson, we were briefed on sexual assault. Part of that was an actual incident where four female soldiers called for pizza, and then restrained the pizza delivery guy and took various liberties with him against his wishes.
They were successfully prosecuted under the UCMJ.
June 9, 2010, 1:01 pmwfjag says:
Limiting the crime to men is only redundency in drafting. It’s an irrebutable presumption that all men are already debauched.
June 9, 2010, 1:02 pmSaul says:
I agree – it would be better to reorder the mandatory minimums in a number of offenses. But in the meantime, the legislature has left the safety valve in place, so why not use it?
It is odd that the statutes original purpose (probably prohibiting seduction of women for some moral purpose) is not being followed, and that the statute is not being used for a different purpose (relief valve in certain situations, rarely or never a statute charged on its own). But, lots of things are useful and desirable even if they are not used for their original purpose. Not just in the legal field, but in a number of other fields, something developed for purpose A becomese useful for purpose B, and nobody complains that the item is not serving its original purpose.
June 9, 2010, 1:17 pmPeter says:
An 1860 federal law barred the seduction of women aboard steamboats. I wonder if that law is still in effect. A pretty novel exercise of the commerce power, if you ask me.
In the interest of encouraging population growth, perhaps we should go in the other direction and encourage seduction aboard all vessels/vehicles/planes that are used in interstate commerce, possibly with financial incentives.
There’s your stimulus plan.
June 9, 2010, 1:19 pmOrenWithAnE says:
Wow. Way to pack together into the same sentence an obvious fact with a triple-whopper of highly dubious claims!
June 9, 2010, 1:31 pmFub says:
Ann Arbor clavierist Wanda, who
Played Bach for hours each day,
Met Elton, Detroit king of blues,
Unlike in every way.
Elton said “Those fugues and preludes
All annoy me greatly.
Play barrelhouse at stroke of twelve
If you would like to date me!”
Wanda fell for Elton.
She knew she had to choose
Her beloved Bach or Elton’s clock,
So she hammered out some blues.
As midnight tolled they rocked and rolled,
But with the rising sun,
Elton ‘rose and rue disclosed,
“Alas, I am undone!”
“I’ll calm your fear, dear”, Wanda said,
June 9, 2010, 1:39 pmAnd took him to the doctor.
But Elton knew his free days few –
He’d feloniously de-Bached her.
Urso says:
Sir, I am in your debt.
June 9, 2010, 2:07 pmG.R. Mead says:
I think Daniel Moynihan made the objective case for that in 1965, on the impact of increasing illegitimacy and single parenthood falling disproportionately on — shockingly — the mothers — and it has only gotten worse — with the added distortion of the machinery of child support enforcement chasing (again shocked — shocked, I say) almost entirely a male target population.
I’ll go with Ricardo on this one …
June 9, 2010, 2:07 pmG.R. Mead says:
Ooh! Ooh! Let me cross!
Q: Can you say to a certainty that you have fathered no children out of wedlock?
A: No.
Q: Does it not concern you that a child of yours is growing up not knowing that you are his or her father?
If he answers, “YES” then it is shown that a lingering negative psychological mark survives the illicit encounter, borne by concern for children he may never know.
If he answers “NO, then it is shown that illicit encounters have coarsened his psychology to the point that he shows no empathy, even for his own children.
If he answers “Yes” to the first because he has been vasectomized, then we have shown that his psychology has been marred by the fear of illicit encounters possibly bearing children, that he has physically mutilated himself to avoid it as a result.
So — scars, ladies and gentlemen, we can see scars, right here.
Your Honor — I tender the witness to counsel for the ladies…
June 9, 2010, 2:18 pmwhit says:
to paraphrase pj orourke, this law effectively outlaws dating.
June 9, 2010, 2:31 pmJohn Herbison says:
I have often heard that sex is a misdemeanor: ‘de more one misses it, ‘de meaner (s)he gets.
June 9, 2010, 2:32 pmwhit says:
even if true, that doesn’t justify criminalization.
fat people wearing spandex can cause psychological scars in others. should that be criminalized?
June 9, 2010, 2:34 pmJohn Herbison says:
I share Professor Volokh’s skepticism about the noblesse oblige of prosecutors regarding sex crimes. I can also understand the reluctance of a defendant, who is charged with a more serious sex offense, to roll the dice and go to trial.
I once represented a defendant charged with promoting prostitution, a felony in Tennessee. (His statement to police indicated that the women working at the massage establishment that he managed would rub a customer’s genitalia, if requested, for no extra charge.) The prosecutor would not agree to amend to a misdemeanor charge of unlawful massage of erogenous areas, but we did agree to a plea to the indictment, with a sentence of two years’ unsupervised probation, reserving the constitutionality of the prostitution statutes as a certified, dispositive question of law on appeal. (We were unsuccessful on appeal.)
June 9, 2010, 2:46 pmOrenWithAnE says:
You mistake my point. The part about pregnancy is the undoubtedly true part. Let me try again with more annotation:
I am absolutely not doubting that pregnancy and single motherhood are distinctly female problems. That much is obviously true (and is part one of our compound sentence) and there is no dispute that reducing such pregnancies is a valid state goal.
The latter half, however, makes no reference to pregnancy but is rather a restatement of the old tripe about women being the fragile sex. The prevailing view among most women I know is that women are capable of the same sentience and rational thought that men are and can decide for themselves when they want to engage in sexual relations.
Continuing to parrot the old nonsense that they suffer from those relations is an affront to their manifest will. Women that do not want to have sex do not. Women that do want to have sex do. If anyone intends to force them otherwise, they should spend time behind bars (as should anyone that intents to rape a man, naturally).
Next question counsel?
June 9, 2010, 3:02 pmOrenWithAnE says:
I hope you only started representing him after he made that admission. If not, it’s time to find better clients.
June 9, 2010, 3:10 pmJohn Herbison says:
The Michigan statute at issue here applies to a man seducing and debauching an unmarried woman, but not to a woman doing the same. Classifications based on sex are ordinarily subjected to intermediate scrutiny under traditional Equal Protection analysis. I wonder what governmental interest the State of Michigan would posit in support of the exemption of women from operation of the statute.
June 9, 2010, 3:11 pmJohn Herbison says:
That is a client whom I had previously represented, but I was not engaged in that specific matter until after he made the statement.
June 9, 2010, 3:13 pmwfjag says:
Fub — wonderful. Can that be put to music?
June 9, 2010, 3:18 pmTed says:
No to nit pick, but doesn’t burglary require a) breaking and entering and b) the intent to commit a felony? Oh, and doesn’t larceny require intent to deprive an owner of property permanently? I suppose different states vary…
June 9, 2010, 3:45 pmTed says:
Help me out here, please. Is your point that pre-marital sex causes psychological scarring? Or, is your point that there is no way to tell whether it causes psychological scarring? Or, are you making the general claim that the concept of psychological scarring as applied here is pure BS?
Also, let’s assume Mr. X is unmarried and virile. He has never married, and will never be married. But he has been in a monogamous relationship for 10 years, engaging in regular sexual activity — let’s say 100 times per year — using contraceptives. He has not strayed; he knows of no children running about the house.
It seems Mr. X could honestly and proudly answer “Yes” to your question, free of psychological scarring.
June 9, 2010, 4:02 pmohwilleke says:
Does a seduction conviction make you a sex offender? How would that impact you if you were convicted in a state where repeat sex offenders are subject to more serious penalties?
June 9, 2010, 4:17 pmShelbyC says:
Isn’t the “extra charge” part important? Also, don’t they have to have evidence that somebody so requested? Heck, as a technology professional there are some clients whose genitalia I’d rub for no extra charge if requested, but nobody’s ever requested.
June 9, 2010, 4:24 pmBruceC says:
A related question to this one is how prosecutors can charge a minor who is under the age of consent for sex with sex crimes such as distribution of child pornography for “sexting”. I’m not a lawyer but it seems impossible to me that a 15 year old can at the same time be too young and immature to “consent” to sex but at the same time be mature enough to suffer the same consequences as an actual child pornographer.
Can anyone explain how a prosecutor can justify this and still sleep at night?
June 9, 2010, 4:29 pmTed says:
Jesus.
June 9, 2010, 4:37 pmHickory Dickory says:
“there isn’t a Constitutional right to have sex with an ambivalent partner, is there?”
Of course there is! There is also a constitutional right to play Parcheesi, go hiking, or watch a movie with an ambivalent partner. Just because an individual does not expressly assent to a mutual act by issuing an affirmative statement does not mean she did not consent to it (even if her consent was granted or the act performed with a certain sense of ambivalence).
June 9, 2010, 4:37 pmsardonic_sob says:
Breathing will soon be a crime. Or rather, emission of carbon dioxide without the proper permit/license/whatever soon will be.
You don’t believe me? I would bet ten grams of fine gold, if such a wager were not unlawful in my jurisdiction, that within ten years we will have either regulatory or statutory basis upon which, if read tortuously enough, a person could be accused of an unlawful act for breathing by way of their carbon dioxide emissions. It will probably take longer than that for the government to claim ownership of the air itself, so I would hedge my bet and say you’ll probably be allowed to inhale all you want without breaking the law.
June 9, 2010, 5:07 pmChrisTS says:
Is that a curse or an answer?
June 9, 2010, 5:26 pmPerseus says:
As I indicated–and Chris Travers explained more fully above–the strict scrutiny standard employed in racial discrimination cases (which you implicitly invoked with the analogy to anti-miscegenation laws) isn’t appropriate for sex discrimination cases. I brought up the Michael M. v. Superior Court case to show that the equal protection analysis is not as straightforward as you claim (the Court might agree with your distinction based on age, but it’s not obvious that it would).
June 9, 2010, 5:27 pmFub says:
Cool. Can you quietly get me a Michigan doggerel license?
Sure, if some talented decomposer becomes inspired by the libretto.
June 9, 2010, 5:28 pmChrisTS says:
BruceC says:
Apart from the inanity of the age issue, there is the odd feature of most of these proposed laws (AFAIK) that they only apply to different-sex exchanges. So, the 14 year old lesbian can send her photo to another girl with impunity.
June 9, 2010, 5:29 pmAnatid says:
In reality, this blurring occurs. Are you hoping for:
- no blurring of the distinction in the law
- no blurring of the distinction in language, or
- no blurring of the distinction in reality?
I couldn’t quite tell which you meant from your post.
Okay. You’re an everyday, 140-lb guy hanging out at a party. Bored, you wander into one of the back rooms, and without realizing it, you find yourself alone.
Almost.
You forgot about Frieda.
She’s the 300-lb, hairy-chinned, wandering-eye, greasy-haired friend-of-a-friend who’s been eying you for weeks, and she just spotted you heading to the back. Now she has her chance.
Why is it that the rape fantasies (I include the thread on statutory rape in males from a few months back, where a frighteningly-large number of male posters indicated that they would have been fine if a teacher had slept with them when they were 15) on Volokh invariably seem to feature desirable sex?
My brother was foreman on a jury that looked at a case like this. When the guy sobered up, he reported the car as stolen. The acquaintance was on trial for carjacking, plus a number of lesser offenses (such as possession of a crack pipe). Since it would have been his third strike, and carjacking is by definition considered a violent crime, he would have gone to jail for life if convicted. Fortunately, my brother convinced the rest of the jury to convict on the minor charges and not on the “carjacking.”
Fun data: the prevalence rate of PTSD in male rape victims is higher than the prevalence rate of PTSD in female rape victims. (The overall number of female rape victims is, of course, higher by an order of magnitude.) This is likely due to a combination of factors: most male rape is performed by heterosexual males upon heterosexual males, plus the crushing social stigma associated both with male rape victims and with the concept that a man might not automatically enjoy sex.
We almost got to the 100-comment mark without a gratuitous and unnecessary potshot at liberals … almost. Why did you have to ruin a good thing, setnaffa? Why?
June 9, 2010, 5:41 pmTed says:
Nerds fantasize about teachers…hot teachers.
June 9, 2010, 5:51 pmAnatid says:
Yeah, but she’s a lot more likely to be Mrs. Wormwood than Mrs. Robinson.
June 9, 2010, 6:03 pmShelbyC says:
I disagree.
June 9, 2010, 6:03 pmShelbyC says:
Not the ones in the news. Good lord, where were they when I was in school?
June 9, 2010, 6:06 pmShelbyC says:
I suspect most men would have less (and different types of) trauma associated with Frida forcing themselves on them then most women would have if, say, Brad Pitt forced himself on them.
June 9, 2010, 6:10 pmChrisTS says:
Well that’s fun to know, Shelby. Care to dilate? :-)
June 9, 2010, 6:15 pmG.R. Mead says:
Not BS. Yes to 1. Often yes to 2, but the objective results of changed behavior (e.g. — deepened lack of trust in the support of males who might father children in the case of women) reveal the significant harm caused in the ole psychological black box (e.g — Moynihan et al.) Never mind the psychological consequences of infidelity to actual children in a family. Living with diminished trust is debilitating.
Of course — but then in my perfect legal world I would call them married at common law – so the problem would not arise …
;-}
Florida, sadly, disagrees with me.
June 9, 2010, 6:26 pmAnatid says:
I’m not sure that’s actually the case, although the data I’ve seen didn’t differentiate between men who had been raped by women and men who had been raped by men. First page of Google Scholar hits doesn’t reveal this information, so ahwell.
If it hasn’t been done yet, someone should do this study to find out.
I do know that across genders, unconsensual penetrative sexual acts have a higher rate of PTSD than unconsensual nonpenetrative sexual acts. But as Federal Farmer said above, there’s plenty of ways for Freida to get creative. I would suspect that this, rather than the gender of the attacker, is the more important variable.
June 9, 2010, 6:30 pmShelbyC says:
Well, I’m not sure what I can add beyond the opposite of what you said:
AFAIK if she even takes the photo, she has manufactured CP, and if she sends it to anybody of any gender she has distributed CP.
June 9, 2010, 6:39 pmG.R. Mead says:
Riddle me this, though.
How DO we justify rape laws instead of simple battery unless there is something MORE than mere consent at stake.
Simply saying rape is defined by lack of consent is tautological — why does THAT consented touching matter more than a unconsented kick in the kiester. Obviously, it does, and I have my reasons which are entirely traditional. But for all the purely libertine advocates — why, exactly?
And if we allow minors to consent to destroy their unborn children without counseling, much less parental care or parental consent, why do we punish those who brought about their condition in the first place based on their actual consent. Simply defining it as legally incompetent is as tautological as the rape/consent example above — why is it competent in the first instance but not in the latter — certainly, it is no less invasive.
It is utterly incoherent.
June 9, 2010, 6:45 pmShelbyC says:
I would also suspect that most men would have significantly less trauma if Frida forced herself on them creatively than if a man did the same thing. I don’t know how women would feel in the same situation. As you say, a study would be interesting. Not sure how you’d do one, though.
June 9, 2010, 6:45 pmAnatid says:
Harm reduction. Basic pragmatism.
All you have to do is look at the facts. Here in California, any minor 12 years of age or older can receive an abortion without parental consent or notification. The large majority of minors who receive abortions choose to tell their parents anyway. The very large majority of those who do not are afraid of major parental repercussions – being kicked out, being severely beaten … what if the girl’s father is also the baby’s father?
Getting an abortion as a teenager must be a difficult and scary experience. Any kid who is able to go to their parents in this time of need, will go. These laws exist to protect the kids who cannot.
June 9, 2010, 6:50 pmAnatid says:
The same way you run any study with human subjects involving harm or abuse – you collect correlation data and try to control it as strictly as possible to get the causal factors. As long as they’re collecting data on “were you raped,” “was it a man or a woman,” “did he/she penetrate you,” and “do you have PTSD,” seems like you could combine it all into one fat metanalysis to answer our question.
Someone has to have done this already.
June 9, 2010, 6:54 pmSuperSkeptic says:
I agree. But I would note that we are so far off-base from the “libertine” conception of only punishing acts that harm others or acts of force without consent, that this is bound to be the appearance of things, and a sudden all-at-once shift would be too radical.
And rape does have harsher (mental) consequences than a regular battery, I would argue at least, because of psychological and social harms that are not necessarily tied to traditional religion or religiosity – although that may well be where they originated.
June 9, 2010, 7:10 pmTed says:
Lots of reasons. Let’s think about some of the traditional reasons for having criminal laws: retribution (punishment), deterrence (prevention), and harm (protection). In each category, rape is “worse” than “simple battery” (I was taught that battery is a tort, and that assault — the touching kind — is the crime).
I don’t really understand what you’re getting at. Lack of consent is the defining component of rape because it distinguishes otherwise-normal activity, sex, from socially undesirable activity, rape. I guess any definition of a word is a tautology of itself. Defining assault as an unlawful touching of another is a tautology, no?
June 9, 2010, 7:24 pmwhit says:
depends. generally speaking, in the man on woman case you are talking penetration. in the woman on man case are you also talking penetration?
June 9, 2010, 7:35 pmShelbyC says:
Well, there were two different women on man cases (where the woman forces hereself on the man), one where the woman is catching, the other where the woman is pitching. (I assume with some type of enhancement, it wasn’t my scenario). And to be clear, I meant emotional trauma.
June 9, 2010, 7:47 pmLaura(southernxyl) says:
Anatid – all of the above.
As a woman, and the mother of a woman, I’d like to differentiate as much as possible between sex and rape. We women, at least the ones I know, would like to enjoy sex without feeling that we are being used to our detriment and someone else’s advantage. Think about what a person means when he/she says “f-k you” or “I am so screwed” and then extrapolate to how a woman would feel about having even consensual sex with a man who uses those words that way, and then to describe the sex act with her.
As to the 12-year-old needing an abortion because her father raped her – her pregnancy is not her primary problem, and aborting it won’t solve her primary problem; it will only serve to allow her father to continue raping her.
June 9, 2010, 7:52 pmJohn Herbison says:
If the case had gone to trial, it may have been important. The relevant portion of the definition of prostitution was “engaging in, or offering to engage in, sexual activity as a business.” “Sexual activity” is defined only as “any sexual relations including homsexual relations”. Decisional law indicates that sexual penetration is not required.
Had there been a trial, the defense theory would have been that the conduct at issue did not constitute sexual relations.
June 9, 2010, 7:58 pmG.R. Mead says:
I thought we were arguing about the nature of BOTH the harm and the consent. One aspect of consent you are neglecting is the informed nature of it. Uninformed consent IS harmful — when the information that was lacking is later discovered — a chain of causation that was inevitable or highly likely, but unforeseen by the individual — hence we protect minors from the consequences of their ignorance AND their incaution in the face of unknown ignorance.
Adults we like to presume have developed sufficient humility to abide by counsel in situations they did not create and due caution in the face of known ignorance — a set of pleasing fictions in many cases, but that’s what we do.
On this traditionalists and libertarians can agree (I consider myself to be both) — because uninformed consent does real unintended harm and mostly (hardly without exception) traditions encode restraints against the most likely negative consequences the most common or most socially important conditions that uninformed acts effect or can result in.
It does not require invocation of revelation to establish that an evolved body of collective knowledge is a store informational value disregarded at one’s peril. A few thousand years of accumulated human culture can’t be all wrong, and we disregard its counsel at our peril — as long as the culture is conservatively adaptive — with emphasis on both adjectives, equally.
What else is Law, but this, in fact?
June 9, 2010, 8:12 pmG.R. Mead says:
Battery is also a crime. Why is it worse? –in your terms? I know it is in mine — but we do not agree on that ground, so explain yours, please.
Assault does not require touching. That aside — the point being what in the world does “rape” (an unlawful unconsented touching) add to an unlawful unconsented touching? We set up a different category — and for a different reason — I argue–.
You state it, though — the issue is defining “normal” activity from “aberrant” activity. Marriage was once legally normalized for ALL sexual relations, and supported by force of law — and all other conditions were aberrant, and penalized. Tradition has sound reasoning for this in its negative terms and religious warrant for its positive attributes.
Alright then, why should we accept that rape is the degree of sexual aberration sanctionable and that other relations out of wedlock are NOT? What criteria drive the legal norm of sex for a libertarian if not the issues of harm and consent, as I have outlined above?
Being libertarian and advocating free choices (which I do) does not remove the disability of ignorance that make uninformed choices truly unfree. What reasoning therefore rejects the accumulated wisdom of generations — unless it is demonstrably and particularly FALSE in a given circumstance — vice inconvenient at this moment and therefore disposable as a matter of general principles, as we seem to have done? What is the reasoning for setting such a low bar?
June 9, 2010, 8:49 pmJohn Howard says:
I can’t believe people have trouble with the notion that sex can make babies. Fornication laws are designed to prevent babies from being born to uncommitted partners, because it is bad for everyone. There is no right to have unmarried sex. Lawrence found a right to have homosexual sex in private. It did not address fornication, and did not address going public about homosexual sex. It also affirmed that marriage is, at minimum, “about the right to have sexual intercourse.”
There is no such thing as unmarried consensual sex, because informed consent is only established by saying “I Do” to marriage. Without that official consent, there is no consent, because neither partner can know what they are supposedly consenting to. So fornication is mutual rape, where each rapist agrees not to call the cops, because they both want to rape each other equally.
June 9, 2010, 9:18 pmSDN says:
Ken, free association has been a dead issue since 1965, when private businesses were told that they couldn’t choose who they allowed to associate with them as customers in the Civil Rights Act.
Whether or not you think that the end justifies those means, free association died that day.
June 9, 2010, 9:24 pmDavid Chesler says:
Continuing my persusing of the Mass statutes, section 1 of Chapter 207 prohibits men from marrying their mothers, sisters, and other close relatives, and section 2 prohibits women from marrying their fathers, brothers, etc. Formerly men couldn’t marry their brothers because they were both men, but that’s not longer the case. Now what?
June 9, 2010, 10:17 pmtim j says:
You don’t know how humiliating it is to have been acquitted of this crime 14 times.
June 10, 2010, 12:21 amAnd none of the juries was hung that well.
whit says:
right, but i think ceteris paribus, penetration WILL cause more emotional trauma. and personally, based on the dozens of times i have interviewed rape victims, that’s my assessment.
it’s similar to how people feel far more violated by their house being burglarized (penetration into a personal space) vs. their car stolen.
again, that’s based on my experience of interviewing scores of victims.
June 10, 2010, 12:35 amwhit says:
also, fwiw, WA law does NOT require consent when a marital couple is having sex. it is a crime for a spouse to have sex with their spouse AGAINST consent, but NOT a crime when they have sex w/o consent (such as when the other person is severely intoxicated). iow, in a married couple, consent is ASSUMED.
this is distinguishable from a non-married couple where having sex w/o consent is (technically) rape. practically speaking, any # of boyfriend/girlfriend couples have probably technically raped their partner on an occasion when that partner was severely intoxicated.
June 10, 2010, 12:38 amReaderY says:
In the oral argument in Lawrence v. Texas, Lawrence’s attorney conceded under questioning that fornication laws have a rational basis, but claimed that Texas’s law was different from fornication laws and should be treated differently.
June 10, 2010, 12:49 ampublic_defender says:
I agree that we’d be better off if statutes like this one were replaced with real low-level sex offenses with real low-level penalties. My point is that laws like this do have at least one beneficial side effect in the real world of criminal prosecutions.
June 10, 2010, 6:03 amShelbyC says:
Agreed, but I’m not sure I follow what you’re saying. I made two wild-ass specualtions: 1. Having a man force himself on a woman will cause more trauma that having a woman force herself on a man in the traditional way will cause to the man. 2. Having a woman force herself on a man in a non-traditional manner (achieving penetration with some kind of device or something) causes less trauma to the man than having another man force himself on him. Both of these scenarios support your point.
June 10, 2010, 9:16 amRINO in Name Only says:
Yes please.
June 10, 2010, 9:29 amTed says:
Rape is generally perpetrated by a more powerful perp over a less powerful victim, a man vs. a woman. Crimes against weaker victims are generally found to be more aberrant. Thus, society allows and justified imposing a different level of retribution upon the perp.
Sexual desire, and its apparent influence on rape and recidivism, appears to be instinctual; I don’t know if this is a cultural or evolutionary trait, who knows, maybe lust is a “traditional” feeling created by religion. Thus, a more severe category of penalties is required to deter actors.
Rape causes different kinds of harm than simple battery, namely psychological harm. While some of this harm is caused by the act of rape, much of it also caused by “having been raped” in our society. Something that doesn’t occur to the same degree as in battery.
Any one of these three reasons is sufficient to warrant putting rape in a different category than battery, and I imagine there are many more. Your traditional feelings that sex is a disgusting, sinful, aberrant act outside of marriage might work its way into the social reasons why rape is treated differently than batter, but its not the only, or even the primary reason rape is in a different category.
I can’t tell if this is rhetorical or not. But consent is the difference because consent is what generates the harm in a rape. Many rapes don’t involve touching in a way that causes physical harm. Instead of comparing rape with battery, which incorrectly compares touching with consent, compare rape with kidnapping, which both involve otherwise normal conduct but become criminal due to lack of consent. If you hang out in my home, cool, no problem. If I lock you in there against your will, felony. Same with rape. If you and I “boink,” cool, unless you say no or I feed you roofies first.
I don’t know what “legally normalized” means, try using shorter words/phrases and being less sesquipedalian. However, marriage no longer has anything meaningful to do with the legality of sex. If you disagree, you should update your medieval thinking and recognize that people are free to make their own choices, even outside of a social construct that is no longer useful; lest you end up like John Howard, afraid to touch anything he hasn’t married.
Well, I don’t know anyone, nor have I ever heard of anyone, being omniscient. So, I guess all choices are not truly free. So it goes.
Shorter sentences would improve clarity as well. What reasoning is there to abide by demonstrably less informed people of the past, whose choices were not truly free — due to their ignorance — and who faced undeniably different circumstances than the vast, vast majority of people today? I vote we take the bits of tradition that are demonstrably and particularly TRUE and continue to sort out the rest, maximizing freedom and untruly free choice along the way. I believe this is what is neutrally called “progress?”
Out curiosity, how would any thing change if you only followed tradition unless it was demonstrably false? How would you demonstrate that the tradition was false? For instance, how can you demonstrate that the traditional reasons for marriage are FALSE? It seems to me that you would have to allow people to live an uninhibited life unmarried, full of sinful boinking and well-educated children to ever draw that conclusion? Hmm, sign me up for the study!
Whew.
June 10, 2010, 12:15 pmJohn Howard says:
Rape is even more traumatic for a man because he can’t end the pregnancy if a pregnancy results. I have been raped myself, when lying naked together she suddenly got on top and forcibly commenced undesired unprotected intercourse while I said no no no, and I had to push her off me before I came (and for some reason the brain in the penis finds that situation very orgasm enducing). It’s not that much different from consensual sex where the man worries afterwards that he might have gotten her pregnant and has no control any more, that too can feel like being raped, even though everything was supposedly consensual. It isn’t consensual because all the control over reproduction remains with the woman, the man can’t consent to the full process, only to a small part of it. It’s not informed consent because neither knows what will happen, and only one of them controls that.
June 10, 2010, 12:57 pmwhit says:
generally speaking – i agree
June 10, 2010, 2:25 pmJohn Herbison says:
Mr. Howard, this comment is satire, isn’t it?
June 10, 2010, 6:01 pmTed says:
Or trolling, read the one prior.
June 10, 2010, 6:27 pmMichael Ejercito says:
Lawrence v. Texas
Under the precedent set by Michael M. v. Superior Court, states may punish men for seducing unmarried women, but not women for seducing unmarried men, as long as the unmarried woman is underage. (Seduction of adult unmarried women would be protected by the Lawrence precedent.)
Under the precedent set by Michael M., there would be no such problem at the federal level.
Michael M. v. Superior Court.
It was one of the cases cited by the defendants in Perry v. Schwarzenegger
Like driving?
Did drunk drivers give consent to drive?
Lack of sex can cause emotional scars .
Has anyone ever specified the process by which rape causes psychological harm?
June 10, 2010, 10:19 pmG.R. Mead says:
This does not distinguish a plain battery.
Battery is an unconsented touching, again not distinguishing it from rape. I agree it is important to distinguish todistinguish it — but these elements are in common between rape and simple battery.
So you say. But is that good thing or a bad thing? And who are you to say?
Oh, if only our legislators thought as carefully as, say Thomas Aquinas or Thomas More I could die happy …
Freedom is relative — and my point was that relative ignorance is relatively unfree in action. The lack of perfect knowledge does not change that gradient of freedom that corresponds with degrees of knowledge.
You mistake information for wisdom. Wisdom is the fruit of mindful experience. Information is simply a collection of facts. Science is the organization of those facts. A system that accurately predicts new information is scientific. Short enough?
What wisdom from your experience overcomes that of the generations that informed, say, Thomas Aquinas about the greatest utility of human social arrangements? Or, more recently of Karol Wojtyla?
Best systems are optimized — many other arrangements could be equally true, but not best -depending on the measures of optimality. Tradition (accumulated wisdom) holds that humans beings thrive most thoroughly in certain patterns as opposed to other patterns. Particular truths however give no guide to general patterns — only science and wisdom give you that. No scientific account of human society has yet proven true in the predictive sense — it is an optimized adaptive system — not a fixed scientific object — so this is not a criticism but simply an inapplicable subject matter.
Simple. Find a human society that perpetuates itself in which sexual exclusivity is not prized in a durable socially enforced mating bond — there isn’t one.
June 10, 2010, 11:27 pmChris Travers says:
I am probably unique here but I think of Wisdom, I think less of Thomas Aquinas and more of Havamal (10th century anonymous poem in Old Norse):
But then I suppose I look back a bit further than most.
Well, this is an interesting question actually. For example, in medieval Irish law, there were a number of types of marriage (probably a pagan structure given possible correspondences to Vedic material) which included things like one-night stands (which were essentially a marriage-and-divorce all rolled up into one neat tidy package).
In essence medieval Irish law marriages could be understood in modern terms to be divided into basically three categories:
1) Agreements to live together and build a family
2) Casual marriages where divorce was easy (one-night stands, romantic/sexual relationships which were not expected to be lasting, etc).
3) Criminal marriages which included divorce as part of the package and were also actionable crimes (having sex with a drunk woman and rape were the two types there).
As an aside the formal requirements for bridal kidnapping to be legal in that system place it somewhere inbetween categories 1 and 2.
June 11, 2010, 3:14 amChris Travers says:
Now, now… I had sex before I got married, and the only children I have were born to that marriage. I know that for an absolute fact (when my college gf and I broke up we were both too broke to move out of the shared apartment for a year even though we began dating other people and stopped sexually interacting with eachother).
Just because picking up women in bars is probably not the best practice doesn’t mean you can get entirely to the point…
I also have a friend who woke up one day to the pleasant surprise of having a 9-year-old daughter whom he had helped raise (out of charity, not knowing it was his daughter!) for the previous two years. He was really ecstatic because he was trying to adopt her at that time.
June 11, 2010, 3:28 amAnatid says:
Oh, absolutely. If you’re actually interested in coming to a good understanding of the subject, I recommend that you go to your local university’s psychology library and borrow “Evolution and posttraumatic stress” by Chris Cantor. They should have an entire shelf of books on PTSD, and a good number of them will be specifically about rape.
If not, then I’ll summarize.
Humans have a system called the sympathetic nervous system that enables us to confront stressful and dangerous situations. Certain hormones are released and certain brain regions are activated to prepare the body for danger: heart rate increases, blood flow increases to major muscles, pupils dilate, the mind becomes more alert, reaction times increase.
This system activates upon the perception of danger – at least, in an evolutionary sense. Our ancestors in the jungle found this system useful for escaping predators. We share this system with all other mammals, and the most basic core even with reptiles.
A reptile can recognize danger, and feel fear at the danger, and respond more quickly to it. We mammals can do something else: we can learn. We can learn that this root is good to eat, that calling for help will bring friends running, that tree branches can be used to make a comfortable bed at night. And when we get attacked by a tiger at the watering hole, we want to be able to learn very very quickly to beware tigers at the watering hole. A single exposure should be plenty.
As you can imagine, fear-conditioning learning is much faster, and much stronger, than regular learning of facts.
In a healthy person, when exposed to danger, fear pathways will cause learning and memory pathways to magnify, ensuring that the person will never forget the event. All memories fade with time, however, and while the lesson will be learned, the memory of fear will fade.
In one portion of the population, however, the memory of fear does not fade. Months or years later, it will still remain vivid in the person’s mind. It’ll be lurking around every streetcorner; it’ll be hiding in every nightmare. The person will experience flashbacks and panic attacks, and find themselves avoiding whatever it was that first caused the fear – maybe a certain street corner where a bomb blew up a bus, or maybe the store where he last saw a man with a too-familiar face. This is called post-traumatic stress disorder, and it can ruin a person’s life.
What causes it? Well, exposure to some kind of danger, of course. But many people are exposed to dangers daily, such as firefighters, without experiencing any trauma. And others are known to develop PTSD from the threat of danger alone, even if they were physically unharmed.
The differing factor seems to be perception of control. When a person feels he is in control of a situation, even a dangerous one, he is empowered to protect himself and to evade harm. When a person feels powerless, he will perceive no way of ending the harm, and even if an exit appears, he may not take it. He doesn’t see any exit. He only sees unending fear.
Rape is up there with torture on the spectrum of powerlessness and loss-of-control – and unsurprisingly, these two categories carry the highest incidence rates of PTSD. To be physically invaded against one’s will represents the ultimate loss of control: someone else taking command of your body itself.
Is it any wonder that rape is harmful?
June 11, 2010, 4:28 amChris Travers says:
Wouldn’t that make it no more harmful (and probably quite a bit less) than, say, being a US soldier in, say, Afghanistan or Iraq?
June 11, 2010, 6:29 amAnatid says:
Depends on the circumstances. A soldier might experience a wide range of conditions. Rates of PTSD among soldiers fighting in guerrilla wars, in which any harmless-looking civilian might turn out to be an enemy, are dramatically higher than among soldiers fighting other soldiers in uniform. Soldiers who experience injury are at higher risk than those who do not.
It’s hard to collect data, but the incidence rate of PTSD among soldiers today overall is ~50%, and is ~80% among POWs, and is over 90% among POWs who had experienced torture. (In WWII, where soldiers wore uniforms and were treated as returning heroes, the rate was less than 30%.) The incidence rate of PTSD among rape victims is ~70-80%, depending on who you ask. For comparison, only ~7% of survivors of natural disasters develop PTSD. Across all categories of potential trauma victims, those who receive social support after the trauma are less likely to develop PTSD, and those who are additionally the victims of social ostracism (you were a coward in war, you deserved to be raped, etc) are more likely to develop PTSD.
Either way, the key themes are predictability of the danger and perception of control over the danger as it occurs.
June 11, 2010, 6:41 amLaura(southernxyl) says:
Thanks for the explanation of PTSD, Anatid.
I read an article in the newspaper in Memphis a few years ago that described the effect that surviving a bank robbery had on two people a year after the fact. The article never used the term but I knew they had it.
It was a man and a woman, bank customers, who hid in a closet during the robbery. The robber shot and killed a clerk and another customer, and was himself shot and killed by the police when they got there. The people hiding in the closet heard the screams and the gunfire, and were in imminent fear for their lives; they stayed in the closet for a good while after the robbery was over, not a bad idea actually b/c the police could have shot them.
A year later, the effect on the man was that whenever he went anywhere – the drug store, the barber to get his hair cut – the first thing he did was to look around for a hiding place, should he need it. PTSD? Probably, but it didn’t significantly alter his life.
But the woman was, as you say, destroyed. She developed kind of a free-floating anxiety that she felt at work, mostly, and she quit that job for another, but it didn’t help. She had to quit that one too due to panic attacks and extreme discomfort from the level of fear that she couldn’t shake. By the time the article was written, she could barely leave her house.
Two people, same experience, profoundly different effects. I don’t think that a woman is always going to suffer PTSD more than a man in the same circumstances, but I have no idea how the breakdown by sex would actually come out if anybody did a study. Maybe with the combat experience women are now getting, there will be the opportunity to find out.
June 11, 2010, 7:12 pmAnatid says:
There are dozens of factors that can influence an individual’s likelihood of developing PTSD, not just gender. AFAIK, the largest gender difference seems to occur as a function of perception of threat and control. For example, a woman threatened with physical violence will develop PTSD with almost as high a rate as a woman who actually experiences physical violence, whereas a man will usually only be at risk to develop PTSD if the violence occurs. If a man is threatened by another man, he will usually feel able to defend himself and somewhat in control of the situation. If a woman is threatened by a man, she may not feel able to defend herself, and will feel powerless in the situation. With perception of loss of control comes the elevated risk of PTSD.
I would guess two factors that might influence female soldiers. One, they are soldiers, trained to be physically competent, so they would likely feel a sense of control if threatened. But two, female soldiers still face greater social barriers (and have more to prove) within the military than men do, and diminished social support following a trauma would make PTSD a greater risk.
The Israeli military have done studies on PTSD across gender in their soldiers, but there we run into a cultural problem: Israel uses much more stringent criteria for diagnosis than we do. Their data might not be useful to us. I’d love to see a study on American soldiers.
June 11, 2010, 8:11 pmAnatid says:
Laura:
June 11, 2010, 8:31 pmI should have also added that PTSD exists as a spectrum, not a binary. Like most mental illnesses, it can exist in different individuals to varying degrees of severity. It’s often the borderline cases that can be most interesting for study – those who carry long-term effects from the trauma, but remain high-functioning anyway.
Laura(southernxyl) says:
Like the man in my story.
I wonder if the woman could be helped with beta-blocker therapy. I’ve read about that – I think the way it works is that you administer a fairly high dose, then walk the person through her memory of the traumatic event and let her experience remembering without the fight-or-flight response occurring. After that happens a few times, she doesn’t need the drug anymore because the memory doesn’t automatically trigger fight-or-flight.
June 11, 2010, 8:53 pmAnatid says:
Pretty much. The current studies are quite promising. Maybe she could enroll in one of the Phase III trials if she doesn’t want to wait for the treatment to become generally available. PTSD’s toll on the mind, body, and lifestyle can do cumulative damage over time.
The man would probably also be helped by beta-blocker therapy, just to extinguish his need to look for hiding places when in public.
June 11, 2010, 9:37 pmXrlq says:
How can a single act constitute both seduction and rape? If the sex was not consensual, the victim was not seduced. Maybe we could solve this problem by requiring prosecutors to pick one theory from the outset and stick with it. Either charge him with rape, or charge him with seduction – but if you opt for the latter, proof of NO consent is now a complete defense (in which case he walks, and the prosecutor looks like a complete jackass for letting a rapist go free by charging him with non-rape instead).
June 13, 2010, 10:25 pmWendy S. says:
It’s my understanding that seduction as a crime involves a false promise of marriage, and the subsequent ruin of a previously-chaste woman’s reputation and future.
June 16, 2010, 3:02 pmMalcolm Smith says:
With all this discussion, perhaps someone should come out and say precisely why seduction (or, for that matter, fornication or adultery) shouldn’t be a crime? I can accept the argument that it would be difficult to enforce – and for that reason I would not ask to see it introduced into my country. But the correspondents to this blog appear to be applying that there is nothing wrong with the action. Sex before/outside of marriage is wrong, you know – very seriously wrong.
June 17, 2010, 2:30 am