Can't we all just get along?

[Matteo Martini]

Feel free to quote the section of her OP where she says she gave consent.

I will repeat it for the 100th time

1) sex without consent is rape
2) lack of resistance does not necessarily qualify as consent (it does not, for example, in case of duress)
3) lack of explicit consent also does not necessarily qualify as lack of consent
4) in order to have lack of explicit consent to qualify as lack of consent you need to have duress or coercion
5) there was no duress nor coercion in Fiona` case
6) therefore, there was not lack of consent
7) therefore, she was not raped
8) therefore, you guys are wrong

 

[gumboot]

4) in order to have lack of explicit consent to qualify as lack of consent you need to have duress or coercion

Here's where your theory collapses. Please provide evidence for the above assertion.

 

[Matteo Martini]

No you didn't. You made an unsupported assertion - that she gave consent. You have provided not one iota of evidence that this is true. So put up, or shut up.

If there is no duress nor coercion、the "victim" is adult, not phisically impaired, and not mentally impaired, there is no black mail, etc. lack of resistance means there is NOT lack of consent, therefore, no rape.
Look at Wikipedia .

http://en.wikipedia.org/wiki/Rape

In any allegation of rape, the absence of consent to sexual intercourse on the part of the victim is critical. Consent need not be express, and may be implied from the context and from the relationship of the parties, but the absence of objection does not of itself constitute consent.

Duress, in which the victim may be subject to or threatened by overwhelming force or violence, and which may result in absence of objection to intercourse, leads to the presumption of lack of consent. Duress may be actual or threatened force or violence against the victim or somebody else close to the victim. Even blackmail may constitute duress. The International Criminal Tribunal for Rwanda in its landmark 1998 judgment used a definition of rape which did not use the word consent. It defined rape as: "a physical invasion of a sexual nature committed on a person under circumstances which are coercive."[7]

Valid consent is also lacking if the victim lacks an actual capacity to give consent, as in the case of a victim with a mental impairment or developmental disability.

Consent can always be withdrawn before the actual sexual intercourse takes place, so that any further sexual activity after the withdrawal of consent constitutes rape.

 

[Matteo Martini]

Here's where your theory collapses. Please provide evidence for the above assertion.

Look above

 

[PhantomWolf]

Look above

I have. Everybody that has commented on the quote you give reads it differently than you do.

Consent need not be express, and may be implied from the context and from the relationship of the parties, but the absence of objection does not of itself constitute consent.

Please, please, please read this bit until you get it into your head.

This is saying that if there is a context and/or relationship between the two, there doesn't have to be explicit consent. i.e. if you are in a relationship and start to monkey about both parties don't have to say yes, the consent can be assumed by the context and relationship. If one party initiates sexual activity they don't have to say yes, their actions are consent. BUT and it's a big but. The mere absence of objection does not of itself constitute consent when there is no relationship and no context. What part of this don't you get? There doesn't have to be any duress at all, there just has to be a lack of consent. Full stop, if you can't figure that out, then you are passed help.

 

[gumboot]

If there is no duress nor coercion、the "victim" is adult, not phisically impaired, and not mentally impaired, there is no black mail, etc. lack of resistance means there is NOT lack of consent, therefore, no rape.
Look at Wikipedia .

http://en.wikipedia.org/wiki/Rape

The wikipedia article does not specify that duress is the only circumstance in which absence of resistance does not constitute consent. You've fabricated that conclusion for your own purposes.

 

[PhantomWolf]

lack of resistance means there is NOT lack of consent

the absence of objection does not of itself constitute consent.

Can you not see the difference?

 

[gumboot]

I have. Everybody that has commented on the quote you give reads it differently than you do.



Please, please, please read this bit until you get it into your head.

This is saying that if there is a context and/or relationship between the two, there doesn't have to be explicit consent. i.e. if you are in a relationship and start to monkey about both parties don't have to say yes, the consent can be assumed by the context and relationship. If one party initiates sexual activity they don't have to say yes, their actions are consent. BUT and it's a big but. The mere absence of objection does not of itself constitute consent when there is no relationship and no context. What part of this don't you get? There doesn't have to be any duress at all, there just has to be a lack of consent. Full stop, if you can't figure that out, then you are passed help.

Matteo has made an assumption that the wikipedia article follows the line:

"the absence of objection does not of itself constitute consent"

With an exclusive list of circumstances in which the absence of objection does not of itself constitute consent. They being;

Duress
Victim lacks legal capacity to give consent


Of course anyone with a brain realises that these are specific examples of circumstances where the absence of objection does not of itself constitute consent. This does not exclude the possibility that other circumstances can exist in which the absence of objection does not of itself constitute consent.

What matteo fails to understand is that the assumption is there is not consent, unless action or word by the other person has established consent. Thus, in order to argue there was consent, you must be able to cite when it was given.

Now, I could imagine someone arguing that Fiona gave consent when she allowed the guy to stay at her place. I don't agree with that, and I think most people wouldn't, but at least someone making such a claim would recognise that the default position is lack of consent, until such time as action is taken that constitutes consent. Matteo seems incapable of grasping even that basic understanding.

 

[Matteo Martini]

The wikipedia article does not specify that duress is the only circumstance in which absence of resistance does not constitute consent. You've fabricated that conclusion for your own purposes.

Maybe I have been imprecise in my assertions.
I aknowledge that.
Wikipedia specifies other circumstances in which absence of resistance does not, by itself, constitute consent: coercion, duress, blackmail, mental disability, physically disability, being underage and few others (someone has posted the acticle of law before, please have a look).
Please, specify in which category exactly our case falls into.
If you can not, than we agree that, in our specific case, absence of resistance does constitute consent.
If you disagree with this, please tell me how you would legally define "consent" in case of sexually intercourse.

 

[Matteo Martini]

Now, I could imagine someone arguing that Fiona gave consent when she allowed the guy to stay at her place.

Not me

 

[MattC]

If you disagree with this, please tell me how you would legally define "consent" in case of sexually intercourse.

I like this one:

(a) "Consent" means intelligent, knowing, and voluntary consent and does not include coerced submission. "Consent" shall not be deemed or construed to mean the failure by the alleged victim to offer physical resistance to the offender.

~ Matt

 

[Matteo Martini]

I like this one:



~ Matt

One may argue that, having Fiona`s not said "no" to the guy and not being coerced, underage, etc. etc., that was "intelligent, knowing, and voluntary consent" .
If you do not think so, please provide evidence otherwise of what you consider "intelligent, knowing, and voluntary consent".

 

[gumboot]

Maybe I have been imprecise in my assertions.
I aknowledge that.
Wikipedia specifies other circumstances in which absence of resistance does not, by itself, constitute consent: coercion, duress, blackmail, mental disability, physically disability, being underage and few others (someone has posted the acticle of law before, please have a look).
Please, specify in which category exactly our case falls into.
If you can not, than we agree that, in our specific case, absence of resistance does constitute consent.

No we don't. You're assuming those listed categories are the only cases in which absence of resistance does not constitute consent. They are not.

 

[gumboot]

If you do not think so, please provide evidence otherwise of what you consider "intelligent, knowing, and voluntary consent".

Well for starters it would have to involve doing something to give consent. Consent is not something that is inherently given until such time as you attempt to take it away. Quite the opposite. There is inherently no consent until such time as you attempt to give it.

 

[Matteo Martini]

No we don't. You're assuming those listed categories are the only cases in which absence of resistance does not constitute consent. They are not.

Please, feel free to post other categories of cases, with evidence.
I am here waiting.

 

[Matteo Martini]

Well for starters it would have to involve doing something to give consent. Consent is not something that is inherently given until such time as you attempt to take it away. Quite the opposite. There is inherently no consent until such time as you attempt to give it.

Doing something, like.. what?

 

[PhantomWolf]

If you disagree with this, please tell me how you would legally define "consent" in case of sexually intercourse.

Consent is a yes given by words or actions where there is no coersion or force required to give that yes, or if and only if in the case of an established relationship a lack of objection where any objection is able to be given.

 

[PhantomWolf]

Doing something, like.. what?

Responding positively, not negitively or not at all.

 

[PhantomWolf]

Let's try and make this easy:

Couple not in sexual relationship: Red light unless given green
Couple in sexual relationship: Green light unless given red

 

[gumboot]

Doing something, like.. what?

Actively engaging in the intimate activity. Making statements that imply or explicitly state a desire to have sex. Being in a pre-existing sexual relationship with the person. That kind of thing.