>Woman says she's on birth control, isn't, and gets pregnant. Was the man raped?
Yes, 100%. Also she wouldn't have to get pregnant for it to be considered as such.
>Man says he's a millionaire, but isn't. Was the woman raped?
For that you would have to prove beyond reasonable doubt that the only reason why the woman slept with him was because she wanted to sleep with a millionaire.
Did she want to mark "Have sex with millionaire" off her bucket list? -> Rape
Did she want to have sex with him because she found him attractive and the millionaire part only played into this? -> Not rape
So if I hit the "agree" button on TOS that are long and complex enough that I am not expected to reasonably understand, I am not bounded by them, because I never provided consent?
What if instead of TOS, we're talking about the tax code? Or the law?
I am not trying to invalidate what the article says, but I think the subject is more nuanced than just "lie -> no consent"
Oh I agree that the article is very interesting. I never said otherwise.
I was using the resource of hyperbole. I _know_ that the article is more subtle than "lie -> no consent".
Through the two examples I was trying to say that IMO, the subject is more complicated than what the article suggests. It covers one aspect of consent (adult sexual relationships), applying principles from other areas (business transactions).
But if that principle is expanded into other areas (like TOS / tax code / law), the argument starts to become weaker. (Not stating that I disagree with it out right. Just that it's not as clear)
> But if that principle is expanded into other areas
Yes, that's the key. The principle is what it is. What makes it interesting here is the context. Can we rely on one legal construct to give us a civilised result in contexts that vary all the way from consumer law through to sexual morality and inter-personal psychodynamics?
> So if I hit the "agree" button on TOS that are long and complex enough that I am not expected to reasonably understand, I am not bounded by them, because I never provided consent?
That has its own debate. The company is the powerful party with lawyers writing up their TOS. Consumers are laypeople that cannot reasonably retain legal counsel to review every TOS they have to sign, nor do they have the time to actually read them all themselves (it takes multiple months of 40 hour weeks time to fully read all TOS that the average person consents to). Given this asymmetry, why do we have the onus fall on the consumer to be responsible for understanding the terms, when we could put the legal responsibility on the company to be responsible for confirming that the consumer understands the TOS before the company can sell it? If a company had to confirm you knew what you were consenting to, they would by necessity have to simplify and clarify their TOS.
Where are the outrage crowds when someone uses the word "rape victim" both for the person that was slammed on a pavement, threatened with a weapon and beaten into submission, and the one who had nice sex with the wrong person?
>Isn't that the point? If the person lied about the situation then you never consented to the situation that actually happened.
I smoke cigarettes. I dated someone for a while who didn't want to date/be intimate with a smoker. We had enthusiastic sex for a couple months.
Was I raping her because I lied to her? It's clear that she liked me and wanted to have sexual contact with me.
However, she didn't want to be in a relationship with a cigarette smoker. I never smoked around her. I tried hard to eliminate any odors, ash or other byproducts of smoking when she was around -- not to perpetuate the lie, but to make her feel comfortable and desired.
So I'll ask again, did I repeatedly rape this woman?
If a reasonable person would have understood that her having sex with you was contingent on you being a non-smoker, then I would argue that yes you did rape her.
No, they consented at that moment with the available information they had.
The fact that the information turned out to be false doesn't invalidate the consent they gave. It's just turns out that consent was acquired via fraud.
Consent cannot be retroactively revoked.
To give an analogy, if I consented to buy a car that advertised 40 mpg but it turns out that it only makes 37 mpg does that mean I was robbed and that I did not consent to buy the car?
No, it means I consented to buy a car that fraudulently misstated its fuel efficiency claims. There should be punishment for such fraudulent claims, but it should not be equated to robbery.
What I find weird is that this whole discussion presupposes that a woman gives away sex in some kind of transaction, not that she has sex because she desires it.
In the first case we could talk about some kind of fraud. Maybe she expected a long term relationship in exchange for having sex with the man, which he actually couldn’t offer because he was married, so she feels that he didn’t live up to his part of the bargain. She gave something away and didn’t get anything in return.
But that whole premise is just sad.
If she instead had sex because she desired it, in the same way as the man, which I hope most people agree is how it should be, it wasn’t a transaction. And she wasn’t cheated on anything.
>"Imagine the following hypothetical situation: Frank and Ellen meet at a night course and end up getting drinks together after class several times. The drinks start to feel like dates, so Ellen asks Frank if he is married, making it clear that adultery is a deal-breaker for her. Frank is married, but he lies and says he is single. The two go to bed. Is Frank guilty of rape?"
"Imagine the following hypothetical situation: Frank and Ellen meet at a night course and end up getting drinks at a non-alcoholic juice bar (Frank and Ellen are Vegan New-Agers!) together after class several times. The non-alcoholic drinks start to feel like dates (or at least like non-alcoholic juices, which they are!), so Frank asks Ellen if she's wearing any make-up -- making it clear that advertising herself as less sexually attractive than she really is -- is a deal-breaker for him!
Ellen is wearing make-up -- but she lies and says she isn't! The two go to bed. Is Ellen guilty of man-rape?"
>"To most people, even those who consider Frank a dishonorable creep, the answer is clearly no. The law agrees: In most American jurisdictions, Frank is not liable for any tort or crime, let alone something as serious as sexual assault."
Yes, but conversely, Ellen slept with the man on the first date...
(Maybe I'm going to sound old-fashioned here -- but isn't Ellen going a little too fast by sleeping with the man on the first date? In other words, Ellen is not exactly a paragon of virtue herself, is she?)
>"But why? This question has been a source of contention among legal experts for decades, ever since the law professor Susan Estrich argued that the law of rape should prohibit fraud to procure sex, just as the law of theft prohibits fraud to secure money."
People have used marriage to "procure sex" since time immemorial -- and what exactly the difference between "marriage" and "fraud" is -- to this day, I don't know! <g>
>"Ellen did not consent to have sex with a married man, the argument goes, so the sex she had with Frank was not consensual."
If one of Ellen's criteria to have sex was that the man not be married, then this criteria would have existed because she would have wanted a chance to marry him herself in the future, should he meet her other criteria.
But even so, relationships are complicated things, and can fall apart for any number of reasons, so even if Frank would not have been married, and even if Ellen would have had a shot at that marriage, the relationship still could have fell apart way before marriage, and if she began going that route, the net effect, at least as far as the first sexual encounter would have went, would have been exactly the same!
...
Also, related to this whole "Frank and Ellen" thing (a fictitious story; an analogy), I offer you what 10x (actually 100x'er!) programmer Bjarne Stroustrup, creator of the C++ language (and generally very intellectual person!) said about analogies, and he said (and I quote!):
Rape is one of the the most underrepresented and under prosecuted crimes since laws are made by men for men. This article gives the false impression that men are held accountable for their behaviors, sexual or otherwise. What a joke this article is.
25 comments
[ 4.6 ms ] story [ 29.6 ms ] threadYes, 100%. Also she wouldn't have to get pregnant for it to be considered as such.
>Man says he's a millionaire, but isn't. Was the woman raped?
For that you would have to prove beyond reasonable doubt that the only reason why the woman slept with him was because she wanted to sleep with a millionaire.
Did she want to mark "Have sex with millionaire" off her bucket list? -> Rape
Did she want to have sex with him because she found him attractive and the millionaire part only played into this? -> Not rape
What if instead of TOS, we're talking about the tax code? Or the law?
I am not trying to invalidate what the article says, but I think the subject is more nuanced than just "lie -> no consent"
The article explicitly describes how most people believe you do consent even if lied to. As does the law.
The article actually is very nuanced, which is what makes it so interesting.
I was using the resource of hyperbole. I _know_ that the article is more subtle than "lie -> no consent". Through the two examples I was trying to say that IMO, the subject is more complicated than what the article suggests. It covers one aspect of consent (adult sexual relationships), applying principles from other areas (business transactions).
But if that principle is expanded into other areas (like TOS / tax code / law), the argument starts to become weaker. (Not stating that I disagree with it out right. Just that it's not as clear)
Yes, that's the key. The principle is what it is. What makes it interesting here is the context. Can we rely on one legal construct to give us a civilised result in contexts that vary all the way from consumer law through to sexual morality and inter-personal psychodynamics?
That has its own debate. The company is the powerful party with lawyers writing up their TOS. Consumers are laypeople that cannot reasonably retain legal counsel to review every TOS they have to sign, nor do they have the time to actually read them all themselves (it takes multiple months of 40 hour weeks time to fully read all TOS that the average person consents to). Given this asymmetry, why do we have the onus fall on the consumer to be responsible for understanding the terms, when we could put the legal responsibility on the company to be responsible for confirming that the consumer understands the TOS before the company can sell it? If a company had to confirm you knew what you were consenting to, they would by necessity have to simplify and clarify their TOS.
Fraud is a completely different matter.
Nobody is disagreeing.
I smoke cigarettes. I dated someone for a while who didn't want to date/be intimate with a smoker. We had enthusiastic sex for a couple months.
Was I raping her because I lied to her? It's clear that she liked me and wanted to have sexual contact with me.
However, she didn't want to be in a relationship with a cigarette smoker. I never smoked around her. I tried hard to eliminate any odors, ash or other byproducts of smoking when she was around -- not to perpetuate the lie, but to make her feel comfortable and desired.
So I'll ask again, did I repeatedly rape this woman?
The fact that the information turned out to be false doesn't invalidate the consent they gave. It's just turns out that consent was acquired via fraud.
Consent cannot be retroactively revoked.
To give an analogy, if I consented to buy a car that advertised 40 mpg but it turns out that it only makes 37 mpg does that mean I was robbed and that I did not consent to buy the car?
No, it means I consented to buy a car that fraudulently misstated its fuel efficiency claims. There should be punishment for such fraudulent claims, but it should not be equated to robbery.
Consent is something you give (regardless of information is factually correct or not).
There should be punishment for consent acquired through fraud, but it is not equivalent to acquiring something without consent.
In the first case we could talk about some kind of fraud. Maybe she expected a long term relationship in exchange for having sex with the man, which he actually couldn’t offer because he was married, so she feels that he didn’t live up to his part of the bargain. She gave something away and didn’t get anything in return. But that whole premise is just sad.
If she instead had sex because she desired it, in the same way as the man, which I hope most people agree is how it should be, it wasn’t a transaction. And she wasn’t cheated on anything.
"Imagine the following hypothetical situation: Frank and Ellen meet at a night course and end up getting drinks at a non-alcoholic juice bar (Frank and Ellen are Vegan New-Agers!) together after class several times. The non-alcoholic drinks start to feel like dates (or at least like non-alcoholic juices, which they are!), so Frank asks Ellen if she's wearing any make-up -- making it clear that advertising herself as less sexually attractive than she really is -- is a deal-breaker for him!
Ellen is wearing make-up -- but she lies and says she isn't! The two go to bed. Is Ellen guilty of man-rape?"
>"To most people, even those who consider Frank a dishonorable creep, the answer is clearly no. The law agrees: In most American jurisdictions, Frank is not liable for any tort or crime, let alone something as serious as sexual assault."
Yes, but conversely, Ellen slept with the man on the first date...
(Maybe I'm going to sound old-fashioned here -- but isn't Ellen going a little too fast by sleeping with the man on the first date? In other words, Ellen is not exactly a paragon of virtue herself, is she?)
>"But why? This question has been a source of contention among legal experts for decades, ever since the law professor Susan Estrich argued that the law of rape should prohibit fraud to procure sex, just as the law of theft prohibits fraud to secure money."
People have used marriage to "procure sex" since time immemorial -- and what exactly the difference between "marriage" and "fraud" is -- to this day, I don't know! <g>
>"Ellen did not consent to have sex with a married man, the argument goes, so the sex she had with Frank was not consensual."
If one of Ellen's criteria to have sex was that the man not be married, then this criteria would have existed because she would have wanted a chance to marry him herself in the future, should he meet her other criteria.
But even so, relationships are complicated things, and can fall apart for any number of reasons, so even if Frank would not have been married, and even if Ellen would have had a shot at that marriage, the relationship still could have fell apart way before marriage, and if she began going that route, the net effect, at least as far as the first sexual encounter would have went, would have been exactly the same!
...
Also, related to this whole "Frank and Ellen" thing (a fictitious story; an analogy), I offer you what 10x (actually 100x'er!) programmer Bjarne Stroustrup, creator of the C++ language (and generally very intellectual person!) said about analogies, and he said (and I quote!):
"Proof by analogy is fraud."
-Bjarne Stroustrup
https://www.goodreads.com/quotes/226221-proof-by-analogy-is-...