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Posted at 2:27PM on 25 Jan 10. Permalink.

So you want this thread to be all about disclosing our sexual fantasies? Why don't you just insert a link to that thread about Kevin McCloud [sic]?

Posted at 2:35PM on 25 Jan 10. Permalink.

I feel compelled to link to this (not for the first time.)

You might have to seek or give consent at various different points in a sexual encounter, and you should be ready to stop at any time if anyone else wants you to stop. Embrace the yes, and respect the no...

Posted at 2:36PM on 25 Jan 10. Permalink.

... how can I have the ability to say no unless I also have a meaningful ability to say yes?

I don't see that this follows at all.

Posted at 2:38PM on 25 Jan 10. Permalink.

So you want this thread to be all about disclosing our sexual fantasies? Why don't you just insert a link to that thread about Kevin McCloud [sic]?

He was on my television not long ago speaking French. I choose to believe he was speaking directly to me.

Posted at 2:51PM on 25 Jan 10. Permalink.

how can I have the ability to say no unless I also have a meaningful ability to say yes?

I don't see that this follows at all.

I initially made this a statement, then rephrased it as a question, because it's an idea I'm still playing with.

Let's take the idea that a person under sixteen can't consent to sex. (I know that's a flawed idea, and thank you Graeme for pointing that out in a thread the other day, but it's one a lot of people believe.) Ergo, all sex with minors is rape.

Now, I had sex at fifteen. I consented to it, and it wasn't rape. But if you believe that a fifteen year old can't say Yes, that sex becomes rape regardless of how I felt about it. Whether or not I said yes or no becomes irrelevant, my feelings become irrelevant.

Some female Guardian columnists believe that prostitution is inherently rape. So whether or not a particular prostitute consented to a particular act with a particular client becomes irrelevant. All clients are abusive, therefore they cannot distinguish between 'nice' clients, and the kind the Swedish prostitution model leaves you with - guys who don't care if they get arrested.

Just like the opposite view - prostitutes can't possibly be raped because they're selling sex - this takes the importance away from where it should be, IMO, the yes or no.

Posted at 3:10PM on 25 Jan 10. Permalink.

And somehow Bailey Kurariki, at 13yrs old could be sentenced to 7yrs for manslaughter.

http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=2847338

Don't the NZ Police use discression and not charge if say the kids are of similar age?

Posted at 3:18PM on 25 Jan 10. Permalink.

Without wishing to suggest for a second that she could not say no at any time for any reason...

I suspect the issue for the court may have been that it was essentially her credibility that she said no at all versus the 5 men who presumably would have denied that she said no.

If she had proof that she said no (at any time) then it would have been (hopefully) easy to prove it was rape.

That said, surely she should have at least been given the chance to argue her case.

The judge and the prosecutor seem to have decided that a) she wasn't telling the truth and/or b) even if she was telling the truth (and therefore raped) there was no way the 5 men would have been caught out in court.

Posted at 3:24PM on 25 Jan 10. Permalink.

I suspect the issue for the court may have been that it was essentially her credibility that she said no at all versus the 5 men who presumably would have denied that she said no.

All the reporting states that the chat logs were the reason the trial was, basically, abandoned. The chat logs are all previous to the event in question, so don't mention anything about what happened on that evening. And the prosecutor has said that his "particular concern" was her remarks about the Irish men.

Most rape trials come down to 'he said, she said', because there tend not to be impartial witnesses. Why would this be different from, say, the Shipton-Schollum trials?

Posted at 3:25PM on 25 Jan 10. Permalink.

Don't the NZ Police use discression and not charge if say the kids are of similar age?

I forget the details, but I think in the 14 - 16 age group range, they assess the relative ages, relationship, nature of the encounter, and then consider what to do.

So if you're 15 and having sex with your partner who is a similar age to you, they'll ignore that.

If you're 25 and having sex with a 15 year old... not so much.

Posted at 3:27PM on 25 Jan 10. Permalink.

So whether or not a particular prostitute consented to a particular act with a particular client becomes irrelevant.

But that's a reasonable argument --- generally speaking, no prostitute would, without the inducement of money, have sex with the clients. And the reason people need money is that without it bad things happen to them. Which, as far as the `prostitution is rape' argument goes, amounts to coercion. So while the prostitute may have `consented' to a particular act, that consent is only granted based on coercion. The yes or no has been degraded by the fact that no isn't really an option.

Take a masseur. A massuer may have the right to say no to any given client, but in general they have to massage or starve. It would still be wrong for any client to force a massage* (roughly like in the prostitution case). But we we think that sex, given the importance of the act, ought be protected from the category of `work or starve'.

That argument suffers from empirical difficulties regarding the importance of coercion in work, but I rather think they can be remedied by a consideration of the actual conditions of sex-work vs other work.

* this isn't quite right & rather crudely put, but near enough.

Posted at 3:31PM on 25 Jan 10. Permalink.

Most of my fantasies are things I either wouldn't or couldn't do in real life (that's why they are fantasies and not, y'know, memories) and most of the rest are things I would want to negotiate very carefully before trying them out. The idea that speculating about doing something counts as explicit consent to have something not quite the same done to me is abhorrent.

Posted at 3:36PM on 25 Jan 10. Permalink.

Keir, your argument would seem to apply to any employment. I certainly only turn up at the office because I'm paid to. Does that make my employer a kidnapper?

Posted at 3:39PM on 25 Jan 10. Permalink.

I agree it should have gone to trial. Even if the prosecutor wasn't convinced it is surely his job to represent the victim to the best of his ability. And no, the judge shouldn't be ruling prior to hearing ALL the evidence.

Most rape trials come down to 'he said, she said', because there tend not to be impartial witnesses.

Really? Sure the most difficult ones are like that but I don't know about most.

The problem is that if there really is no other evidence - then it really is she said vs they said and that in the end comes down to convincing a jury which party is lying (the most). I can see where credibility is compromised so much by past behaviour that the judge and prosecutor believe that a trial is pointless.

For example would anyone believe Clinton now if he was accused of having consensual sexual relations with another intern?

I'm not trying to be devils advocate nor am I saying for a second that if she said no then the guys had any right to continue. I just think there is a point at which it becomes impossible for the court to determine who is lying and who is not. In that situation the court must return an innocent verdict.

It does seem odd that the prosecutor (acting for the victim) seems to have made that decision before the trial started.

Posted at 3:48PM on 25 Jan 10. Permalink.

Even if the prosecutor wasn't convinced it is surely his job to represent the victim to the best of his ability.

Nope. The prosecutor acts for the Crown*, not the victim. They are not the victim's lawyer.

* or the People, or the State, or whatever.

Keir, your argument would seem to apply to any employment. I certainly only turn up at the office because I'm paid to. Does that make my employer a kidnapper?

No. But there's definite coercion*. We apply higher standards to sex than mere presence, or typing, or whatever, because we ascribe more importance to free will about sex. So that's not really a problem; all we establish there is that sex is different from data-entry.

Also most people in sex work have fewer options etc, so.

* not the right word, because I dare say coercion means something in employment law.

Posted at 3:52PM on 25 Jan 10. Permalink.

all we establish there is that sex is different from data-entry.

I've had experiences when they were very very similar. Sigh.

Posted at 3:54PM on 25 Jan 10. Permalink.

All the reporting states that the chat logs were the reason the trial was, basically, abandoned. The chat logs are all previous to the event in question, so don't mention anything about what happened on that evening. And the prosecutor has said that his "particular concern" was her remarks about the Irish men.

It's hard to know without access to the transcripts, but I think that if she shared fantasies of group sex with this guy, and if they resembled or could be potrayed to resemble a rape fantasy (reading the post you linked to on the Hand Mirror - which still has me fuming, one year on - it's not hard to see how easy this would be for a defence lawyer to achieve), then it would make the case pretty much impossible to prosecute. Because you're right to note that the she said/they said dynamic is not fundamentally different from the Schollum-Shipton case, but remind me how that trial ended?

So on the one hand that the case was abandoned doesn't surprise me, it's the lack of outrage and regret which is dispiriting.

Posted at 3:56PM on 25 Jan 10. Permalink.

Nope. The prosecutor acts for the Crown*, not the victim. They are not the victim's lawyer.

In a rape case the prosecutor acts for the rape victim and prosecutes the alleged rapists

Posted at 3:56PM on 25 Jan 10. Permalink.

But we we think that sex, given the importance of the act, ought be protected from the category of `work or starve'.

"We" who, dude? I think raising children is way more "important" than sex, and ditto caring for the elderly. Should they be "protected" too? And honestly, in practical terms I've got no idea what you mean by that.

So while the prostitute may have `consented' to a particular act, that consent is only granted based on coercion.

I think the actual "prostitute" who's naive enough to think she "consented" knows the difference between having sex s/he wouldn't have had without the financial reward, and being raped. And I think that falls under one of my largely unwritten rules for discussing sex/social/feminist issues on the internet: don't tell me what something is like if I've done it and you haven't. (Not, in this case, actual 'me'.)

Posted at 4:00PM on 25 Jan 10. Permalink.

Even if the prosecutor wasn't convinced it is surely his job to represent the victim to the best of his ability.
...
It does seem odd that the prosecutor (acting for the victim) seems to have made that decision before the trial started.

A prosecutor does not act for the victim (or alleged victim/complainant), the prosecutor acts for the state. A prosecutor has obligations not only to the court, and the state, but also to the accused. A prosecutor who forms a view that based on the totality of evidence available at any point in a case in would be an injustice for there to be a conviction is basically required to drop the charges.

And this is "injustice" in the sense of the David Bain appeal. It doesn't mean the person didn't do it, but it is viewed as wrong that someone should be convicted of something when serious new potentially exculpatory evidence arises, or where the evidence could not properly establish the charge beyond a reasonable doubt. Even if the person is guilty.

The charging of someone with a criminal offence is one of the greatest impositions of state power - it should only be done - and only be continued once started - if the state has a good faith belief that it would be proper and just to obtain a conviction given the evidence.

I do not know the full facts of the case to which Emma is referring, but I anticipate there may be more to it. This does not seem the type of case a prosecutor would readily drop.

Posted at 4:09PM on 25 Jan 10. Permalink.

I do not know the full facts of the case to which Emma is referring, but I anticipate there may be more to it. This does not seem the type of case a prosecutor would readily drop.

This is actually the main reason I waited a week before writing on this trial, because I thought there must be more to it. If there is, it hasn't come out. The prosecutor has spoken to the media and said which bit he was most concerned about - which was a statement about something that never actually happened, with a completely different group of men. And the judge said she had no credibility, but there's no sign that the logs revealed she had lied about anything.

It may be that they didn't have a show of getting a conviction because of her past history - which should IMO, like the defendants', be inadmissable, and for the same reasons. But that would surely be because a jury would think, well she fantasises about group sex with strangers, she must be totally up for it all the time, not because of a point of evidence but because of a shitty incorrect assumption.

Posted at 4:14PM on 25 Jan 10. Permalink.

A prosecutor does not act for the victim (or alleged victim/complainant), the prosecutor acts for the state.

In most cases, of course, it's not necessary to have someone whose job is to act for the accusor, because they're not on trial. In a rape trial, however, it's sometimes hard to remember that it isn't the victim who's on trial.

Posted at 4:14PM on 25 Jan 10. Permalink.

How hard would it be for a prosecutor to stand up in court and say:

"So, the victim said this thing on the internet. She said it before the night in question, and she said it not knowing what was going to happen later. You may not like what she said, you may think she was stupid or deviant, but that doesn't matter. It is irrelevant to what happened when she was allegedly attacked."

Because, really, not to bring up that other case, but if saying stuff on the internet means you don't get the same rights to a trial...well, we're all fucked. (And I am going to have to delete some text messages....)

Posted at 4:16PM on 25 Jan 10. Permalink.

"We" who, dude? I think raising children is way more "important" than sex, and ditto caring for the elderly. Should they be "protected" too? And honestly, in practical terms I've got no idea what you mean by that.

I mean that while nobody likes sitting around in an office all day in order to keep food on the table, it generally isn't thought of as being as bad as having sex you don't necessarily want in order to keep food on the table.

And you might disagree and all, but it seems a reasonably broad and true description of the way people act and think.

I think the actual "prostitute" who's naive enough to think she "consented" knows the difference between having sex s/he wouldn't have had without the financial reward, and being raped.

But that's the difficulty: you are asserting that prostitutes consent, while the counter-argument is that the consent is given under duress and not particularly meaningful. You can't settle it by referring back to the consent unless you want to chuck out duress* altogether.

(There's also arguments which make a distinction between rape and immoral use of power imbalances and so-on, and you could trot those out.)

* again not quite the right word but.

Posted at 4:27PM on 25 Jan 10. Permalink.

But that's the difficulty: you are asserting that prostitutes consent, while the counter-argument is that the consent is given under duress and not particularly meaningful. You can't settle it by referring back to the consent unless you want to chuck out duress* altogether.

Actually, no Keir, what I was trying to do (obviously poorly) was to get you to see the difference between the two things in the emotional experience of the prostitute. I'll also refer you back to Russell's comment on previous thread about the Prostitution Reform Act's emphasis on consent.

Then perhaps you could go tell Amanda or the sex workers who write here how they're too coerced to consent. But give me advance notice, cause I want to watch.

Posted at 4:30PM on 25 Jan 10. Permalink.

Thanks for that Graeme. I guess I had it wrong.

At what point does the alleged rape victim get a representative that actually does do everything they can to prove the case?

Posted at 4:33PM on 25 Jan 10. Permalink.

I mean that while nobody likes sitting around in an office all day in order to keep food on the table, it generally isn't thought of as being as bad as having sex you don't necessarily want in order to keep food on the table.

I'm going to be middle-class and naive for a moment, but I don't think there are a lot of people in New Zealand whose choices are sex work or actual starvation. Hardship/unpleasantness, yes. Actual starvation...probably not.

Prostitution is a very situational debate; there are situations where it is, basically, rape, and there are situations where it is nothing of the sort, and any argument which tries to argue that all prostitution, everywhere, is rape, is basically arguing that no woman, no matter what her situation, can consent to sex for money. And that, as Emma has repeatedly pointed out, denies women any right to speak for themselves on the matter, which is...not good.

(Also, there is a *huge* difference between sex you don't necessarily want and rape. I've had sex I didn't necessarily want to have at the time, but nevertheless consented to for reasons other than wanting to have sex, and I cannot possibly believe that it was in any way at all the same thing as being raped.)

Posted at 4:42PM on 25 Jan 10. Permalink.

But that's the difficulty: you are asserting that prostitutes consent, while the counter-argument is that the consent is given under duress and not particularly meaningful. You can't settle it by referring back to the consent unless you want to chuck out duress* altogether.

I think you've transferred the duress of a person being poor, to the person buying sex. Which may be valid if the person buying sex also the person that made you poor (ie, a pimp), but normally won't be.

The fact that person A has money, and person B needs money, doesn't mean person A is applying duress to person B. The problem in the equation is that person B doesn't have money, not that person A is willing to pay for sex. Unless they're lying or complete fools, there are plenty of sex workers who publicly state that they do that job because they enjoy it, or enjoy the money, lifestyle etc. Who are we to tell them they're wrong and are all under duress?

Posted at 4:43PM on 25 Jan 10. Permalink.

At what point does the alleged rape victim get a representative that actually does do everything they can to prove the case?

Not in terms of prosecuting the case that I'm aware of. Victim Support, Rape Crisis etc will sometimes provide support people to help rape victims get through trials, but they don't have legal standing.

Posted at 4:44PM on 25 Jan 10. Permalink.

At what point does the alleged rape victim get a representative that actually does do everything they can to prove the case?

They don't. Just as a victim of an armed robbery doesn't, nor a victim of any other crime. Which is not to say that the prosecutor, and cops aren't trying damn hard to secure a conviction, just that in there pursuit of a conviction other factors do have a (usually small) part to play.

Posted at 4:53PM on 25 Jan 10. Permalink.

Ah, found it. Renegade Evolution on consent and rape in prostitution and pornography - both jobs she has actually done.

If a person does not have the ultimate authority to decide when they have not been raped, then by default that authority is also in question when they decide they have been raped. And that is an authority that should not ever be put in question in either scenario, because it then denies that persons authority in all arenas and renders any choice or decision they make absolutely worthless and subject to disbelief. And that shit? That shit there is a soul-killer.

...

It’s the blanket assertion that the women (all of them) in porn (all of it), are, in the course of filming porn, being raped. This bothers me for so many reasons. Chief among them, I really do think overuse of the word rape cheapens it. I really do. I think it’s an insult to women who really have been raped to liken what happened to them to what goes on with a consenting woman who makes pornography. It also is incredibly insulting and agency denying to the consenting woman who does make pornography.