Rape fantasy turned bad

[Malthus]

Perhaps, though again I'd argue that "having sex with your unresisting ex after beating her up" is not analogous to "having sex with someone you thought was a rape fetishist because her ex scammed you".

Sure, ex post it is obvious the guy should have done more due dilligence in this case. But your suggested test basically means that it is impossible to legally consent to a "fantasy" scenario of this sort, because electronic means of identification are so unreliable.

Malthus, you should know this.  Sometimes you rely on a case because it's facts are similar to the ones at bar.  But sometimes you rely on a case because of a statement of law contained in the case.  This is the latter.

And yes, I would suggest that it is impossible to consent to such an extreme fantasy by purely eletronic means.  Or rather, because the onus is on the accused not the complainant, not that it is impossible for the complainant to consent by such means, but that it is inherently unreasonable for the accused to rely on purely electronic consent for such an extreme and violent fantasy.

The law here isn't of particular support without the facts. Stating that "there are some occcasions which require immediate, in-person consent" is meaningless stripped of context. It is merely an assertion that "oh, and I think this is one of those occasions". It doesn't provide any sort of test that can be applied to different facts.

Again, I see no support for the proposition that it is reasonable to consent to the most intimate medical or financial propositions via electronic means, but completely unreasonable, as a matter of general principle, to consent to sexual ones. 

[Barrister]

Again, I see no support for the proposition that it is reasonable to consent to the most intimate medical or financial propositions via electronic means, but completely unreasonable, as a matter of general principle, to consent to sexual ones.

s. 273.2 is the support for the proposition that ascertaining consent in sexual matters is held to a different standard.  And that it a definitive statement of law.  The fact that you keep bringing up financial documents is just not helpful.


And you're right that unless there's a case with identical facts I can't make a conclusive statement.  I've never said a conclusive statement.  But what I have said is "I would suggest ... that it is inherently unreasonable for the accused to rely on purely electronic consent for such an extreme and violent fantasy."

And by the way you keep getting your language confused/wrong.  It's not that the complainant can't consent.  Of course they can.  They can consent in any means that they want to.  The question is the accused, and what they can rely upon to determine consent.

So far you seem to keep arguing the possibility that it might be allowed.  I agree that in the absence of any case directly on point it can't be ruled out.  But are you actually arguing that you think a court might find in favour of this guy?  Or are you just playing devil's advocate here?

[katmai]

This was an NCIS episode.

I knew this sounded familiar.

[jimmy olsen]

Is it "unreasonable" for a person to fall for someone's deliberate attempt to mislead them?

That depends. Is the deliberate attempt in the form of an anonymous email account and craigslist posting? If so, yes.

No way a jury acquits when there is a rape victim in the room.

I think it depends on how much contact there was, if all he saw was the add and that's it than yeah, he's guilty. But if like Marty speculated there were a lot of emails going back and forth that planned things out in detail, then I think there could be reasonable doubt.

[grumbler]

Now it may be the case that it is legally impossible to consent to a "rape fantasy" of this sort, but the case cited doesn't even remotely stand for that.

Actually, that's easy.  I always have them say "I thought you were the dishwasher repairman" when I break down their door.  This code-phrase indicates both their consent and that their husband is not home (though the lack of gunfire has already indicated the latter).

In court, this precaution works like a charm.

[Malthus]

Again, I see no support for the proposition that it is reasonable to consent to the most intimate medical or financial propositions via electronic means, but completely unreasonable, as a matter of general principle, to consent to sexual ones.

s. 273.2 is the support for the proposition that ascertaining consent in sexual matters is held to a different standard.  And that it a definitive statement of law.  The fact that you keep bringing up financial documents is just not helpful.


And you're right that unless there's a case with identical facts I can't make a conclusive statement.  I've never said a conclusive statement.  But what I have said is "I would suggest ... that it is inherently unreasonable for the accused to rely on purely electronic consent for such an extreme and violent fantasy."

And by the way you keep getting your language confused/wrong.  It's not that the complainant can't consent.  Of course they can.  They can consent in any means that they want to.  The question is the accused, and what they can rely upon to determine consent.

So far you seem to keep arguing the possibility that it might be allowed.  I agree that in the absence of any case directly on point it can't be ruled out.  But are you actually arguing that you think a court might find in favour of this guy?  Or are you just playing devil's advocate here?

Naturally for the purpose of this discussion the issue is whether the accused can rely on their consent; I fail to see the relevance for our purposes between that and "can consent".

The problem with the legal standard mentioned in the statute is that it provides no guidance as to what is "reasonable". The case you cited does, based on its fact situation; the particular bit you quoted merely states that on these facts, consent in person at the time would be required (the obvious inference is that on different facts it would not be). The point of mentioning other types of transactions is that they could, possibly, provide some actual guidance as to the level of security and procedure considered "reasonable' in other situations and for other purposes - the issue being, if electronic consent is considered "reasonable" for X, why would it not be for Y?  Of course such an analysis is "helpful", or at least, the courts do it all the time. 

As for whether this guy would succeed in court, that depends on a lot of things - the exact nature of the charges brought against him, the exact details of the communications, the law in place in his state (which is of course not Canadian law) etc. My only point was that it was not of necessity a "slam dunk". There could be a "reasonable doubt" as to his guilt, if he's able to demonstrate to the satisfaction of the trier of fact that he was, in point of fact, a dupe and not an accomplice.

To the extent you agree with that, then the puzzle is what exactly you are arguing about.

[KRonn]

 

Wow...just... wow...   

[Martinus]

Wow...just... wow...   

Was it a reaction to the article or Mathus's post?

[Barrister]

Naturally for the purpose of this discussion the issue is whether the accused can rely on their consent; I fail to see the relevance for our purposes between that and "can consent".

It's a criminal law thing.  Ever since R v Ewanchuck, which very pointedly threw out the defence of 'implied consent', you have to be careful about your language in talking about consent.  First you look at whether there was factual consent, and if there was, then it's the end of the story.  The thing is, if it was this woman's fantasy to be raped, even if she didn't tell anyone, and it was someone else who set it up without telling her, if she wanted it (and says so afterwards) then no crime took place.  If she didn't want it, then you must go to the defence of 'honest but mistaken belief in consent'.

The problem with the legal standard mentioned in the statute is that it provides no guidance as to what is "reasonable". The case you cited does, based on its fact situation; the particular bit you quoted merely states that on these facts, consent in person at the time would be required (the obvious inference is that on different facts it would not be). The point of mentioning other types of transactions is that they could, possibly, provide some actual guidance as to the level of security and procedure considered "reasonable' in other situations and for other purposes - the issue being, if electronic consent is considered "reasonable" for X, why would it not be for Y?  Of course such an analysis is "helpful", or at least, the courts do it all the time. 

But sex. is. different.  You never hear an argument about 'honest but mistaken belief in consent' in a fraud case.  The law is very clear that you need to be more careful in ascertaining consent before engaging in sex than in any other activity.  The courts will make analogies between similar circumstances, and will not between obviously different circumstances.

As for whether this guy would succeed in court, that depends on a lot of things - the exact nature of the charges brought against him, the exact details of the communications, the law in place in his state (which is of course not Canadian law) etc. My only point was that it was not of necessity a "slam dunk". There could be a "reasonable doubt" as to his guilt, if he's able to demonstrate to the satisfaction of the trier of fact that he was, in point of fact, a dupe and not an accomplice.

To the extent you agree with that, then the puzzle is what exactly you are arguing about.

It's not a slam dunk, but it's pretty close to it.  That's based only on my own experience in running sex assault trials of course (probably a couple dozen over the last 6 years), since there's an absence of definitive caselaw.

Do you really think this guy, assuming Canadian law, has any significant chance of beating this charge?

[Queequeg]

I like the thread title.  I'm wondering how a rape fantasy could turn 'good'?

[KRonn]

Wow...just... wow...   

Was it a reaction to the article or Mathus's post?

Reaction to the article.

Just amazing what stupidity a couple of dumb asses can conjure up. 

[Malthus]

It's a criminal law thing.  Ever since R v Ewanchuck, which very pointedly threw out the defence of 'implied consent', you have to be careful about your language in talking about consent.  First you look at whether there was factual consent, and if there was, then it's the end of the story.  The thing is, if it was this woman's fantasy to be raped, even if she didn't tell anyone, and it was someone else who set it up without telling her, if she wanted it (and says so afterwards) then no crime took place.  If she didn't want it, then you must go to the defence of 'honest but mistaken belief in consent'.

Yes, we agree on that much.

But sex. is. different.  You never hear an argument about 'honest but mistaken belief in consent' in a fraud case.  The law is very clear that you need to be more careful in ascertaining consent before engaging in sex than in any other activity.  The courts will make analogies between similar circumstances, and will not between obviously different circumstances.

You are simply wrong on the first point. Certainly, you will hear arguments about honest but mistaken beliefs consent in *civil* fraud cases. Consider the legal concept of "knowing assistance" in the breach of a trust and "knowing receipt" of trust monies. These cases often turn on whether the person alleged to have assisted in or received trust funds had an honest (but mistaken) belief that the beneficiaries had consented to the transaction.

"Sex is different" is a mere assertion. Why should it be? Are you claiming I need more careful formalities to obtain consent for sex than for a trustee to transfer trust funds? One usually does not bring lawyers and notarized statements to a bar ... or at least, I didn't when I was dating. 

It's not a slam dunk, but it's pretty close to it.  That's based only on my own experience in running sex assault trials of course (probably a couple dozen over the last 6 years), since there's an absence of definitive caselaw.

Do you really think this guy, assuming Canadian law, has any significant chance of beating this charge?

I think he has a chance. Of course he'll be unsympathetic to a jury, so not a good chance.

[viper37]

And yes, I would suggest that it is impossible to consent to such an extreme fantasy by purely eletronic means.  Or rather, because the onus is on the accused not the complainant, not that it is impossible for the complainant to consent by such means, but that it is inherently unreasonable for the accused to rely on purely electronic consent for such an extreme and violent fantasy.

going back to Malthus' comment about signing contract over the internet got me thinking:  this kind of internet transaction is only valid after your identity has been established.  With Telus Mobility, when I sign an electronic form, I first had to register with my Telus account #, my name, adress, company, etc, and then I can use this to electronically sign the form.  So, Telus really took steps to verify my identity, with information they had on file previously.

If you buy something from the internet, be it a book or a porn flick, you need to "register" on the site, provide your adress and have it matched with the credit card you pay, as a way to establish your real identity.

In our case, I doubt the guy could prove he took several steps to identify the woman and make sure he was really speaking to her (say, calling the woman, checking the phone # and adress, make sure he's speaking to girl, etc, etc,).

Might not be a slam dunk, but I have a hard time seeing this guy walking out free.  Maybe a reduced sentence from the judge instead of the harsher one, but no way he walks free.

[The Brain]

It seems improbable that the steps he took to get her consent will be considered to meet a "reasonable" standard.

[grumbler]

It seems improbable that the steps he took to get her consent will be considered to meet a "reasonable" standard.

I think that this is the way to word it.  It isn't impossible, because we don't know the facts, but it certainly seems improbable.