Law in Contemporary Society

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ClaireOSullivan-SecondPaper 4 - 01 Apr 2008 - Main.MinaNasseri
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 Claire isn't advocating the creation of a tort. I think she's trying to find a middle ground within criminal law between the approach of Canada, which may over-criminalize such 'misunderstandings', and the approach of jurisdictions which refuse to recognize non-forcible rape at all. This doesn't preclude preemptive education, but we get plenty of that in high school and college and it's barely taken seriously, i think precisely because non-forcible rape is often chalked up to a simple misunderstanding. However, to call non-forcible rape a misunderstanding is oversimplified because in many instances the perpetrator may understand perfectly well the signals being given, but may know that that he (or she?) can pretty much get away with it. I have no idea how criminal law should deal with that problem. I think this will be a good topic to grapple with.

-- VishalA? - 01 Apr 2008

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Andrew, I think that having an intermediate misdemeanor charge such as the one Claire suggests may serve as a deterrent or a self-policing mechanism (a preemptive strike, as you put it). Knowing that they may face such a charge, individuals about to engage in sexual conduct will be urged to ask themselves: “Am I absolutely sure that there is consent here?” If one party is drunk, or in some other way incapacitated, there will be incentive to refrain from sexual conduct.

As Claire said, the subjective element of sexual conduct/relations makes it difficult to address through traditional legal avenues. Perhaps we could use the law--through potential punishment/sanctions--to encourage individuals to police their own sexual behavior? Since a misdemeanor charge would possibly be easier to charge and convict on, individuals may be more likely to make sure that they aren’t engaging in date rape. Claire, I’m excited to see how this idea pans out.

-- MinaNasseri - 01 Apr 2008

 
 
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Revision 4r4 - 01 Apr 2008 - 17:53:58 - MinaNasseri
Revision 3r3 - 01 Apr 2008 - 16:03:20 - VishalA?
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