Tuesday, 2 December 2008

For the love of God...

An Invercargill man is currently on trial for rape. He broke into the house of his victim, beating her partner and forcing him into a closet, before attacking her.

The man's lawyer defended him thus:

He had not raped the woman, Mr Eagles said. She had invited Hird to have sex with her because she thought it would mean he would then leave the house.

In other words, she 'agreed' to have sex because she was afraid of the violent intruder in her home. That's a definition of consent worthy of Clint Rickards.

5 comments:

The ex-expat said...

Also apparently they had sex before so naturally she had given consent to all future sexual encounters.

Arrgh.

Ari said...

Sigh, more ignorance about rape.

If this were violent assault as opposed to sexual assault, the suggestion that inviting someone to bruise you made it okay would be rightly laughed at.

Maybe soon agreeing to open bank vaults when someone's pointing a gun at you will be considered a legal transaction. :P

Anna said...

Funny you should say that, Ari - Carol Pateman wrote about the general principle that contracts entered into under duress or threat don't count, but noted that the 'agreement' to have sex is different. When it comes to sex, you have to really prove you didn't want to do it - preferably by being beaten up and having bruises to show.

Interesting comparison: the law (maybe the Credit Contracts Act?) requires a cooling off period be given to people who buy things from door-to-door salesman. This is a recognition that this is a situation where consumers are vulnerable, and the law preempts this by building in a safeguard. You'd think that having a violent nutter in your house would also be the kind of situation which made a person vulnerable to duress - and yet in the Invercargill case the lawyer is trying to put the onus on the woman to prove she didn't want it. The difference in these scenarios seems to be that buying stuff is a public matter, and sex is supposedly a private one.

Ari said...

Well, I'm not saying it's black or white whether someone under duress consents, but it's pretty clear to me that there's a sufficiently dark shade of grey. Agreement under duress cannot and should not be counted as explicit consent. It's not evidence of rape, but neither is it a defense against rape.

I guess I'm pointing out that someone saying "Hey, I might not be guilty" is not the same as someone saying "look, I'm innocent!", and that this should set off alarm bells. :)

Anna said...

Agreed, Ari. I wasn't suggesting a mandatory cooling off period for people considering having sex! I'm just saying that if we have the capacity to acknowledge that people are vulnerable in some situations, surely we could extend that to the situation of having a violent intruder in one's home. How could anyone in their right mind consider this is the kind of situation where a person could make a free decision about consenting to sex? The mind boggles...