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by Horrible Gelatinous Blob 05/09/2012, 11:43pm PDT |
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Keep in mind this is all traditional stuff. Local laws and statutes vary, and generally the most egregious examples of loopholes (like the first hypo) have been legislated out of existence.
Tansin A. Darcos (TDARCOS) wrote:
Horrible Gelatinous Blob wrote:
Here's a hypo for you: an eighteen year old high school student is about to graduate as valedictorian of her class with a full scholarship to her local state school. A week before commencement, the principal calls her into his office and tells her that he knows that she's in the country illegally. However, he says that he will not turn her in if she agrees to have sex with him, meaning that she will still graduate and can attend college. Feeling like she has no choice with the spectre of expulsion, arrest, and deportation looming over her, she gives in. Rape or not rape?
Oh it's rape, there's no doubt about that. It's "threat of force," e.g. that the government will use force to remove her from the country. If nothing else, it's probably also extortion even if it didn't fit the exact definition of the statute for rape.
Under the traditional definitions, this is not rape. The principal did not commit a wrongful act at any point (legally, not morally): she is over 18, he did not threaten to wrongfully withhold her diploma, he has no legal duty to inform the authorities about her immigration status, nor is he required to keep it confidential. Your interpretation of force is way too broad. When reading a statute, if the definition isn't included, go with the plain meaning. Here, the plain meaning of "force" is clearly "physical force with the intent to cause pain or injury," not the more nebulous "any kind of action that might be possibly unwelcome at some point in the hypothetical future."
Almost any "threat" that doesn't include a wrongful act can easily be recast as an offer. "Have sex with me or I'll call ICE" versus "I won't call ICE if you'll have sex with me." The form is different but the substance is the same.
Compare this to another hypo: a widow with three children is thrown out of her home. A kind male friend offers to take her in and she accepts. Three months later, he asks her to have sex with him and she does so, afraid that he will kick her and her children out if she refuses.
Rape? What if he explicitly says "I'll continue to let you stay here if you have sex with me"? Is it rape then?
PS: Extortion is traditionally a crime that involves property. No property involved, no extortion.
Tansin A. Darcos (TDARCOS) wrote:
I have some familiarity over this because I remember reading a court case before the California Supreme Court, Mary M. v. City of Los Angeles, 54 Cal.3d 202 (1991), 814 P.2d 1341, 285 Cal. Rptr. 99. Cop pulls over a woman for a traffic offense, and gives her a choice, screw him or go to jail (he wasn't even going to write her a ticket). So she ends up basically with no choice as he rapes her. She sues the city, and gets a judgement for something like $100,000. The judgement was upheld on technical grounds, basically the city's lawyers asked for a bad jury instruction that almost guaranteed they'd find for her, but, then on appeal. they can't then demand the jury's decision be thrown out because they selected a faulty set of instructions.
I know I told you this before, but that's a tort case. Different standard of proof, different rules of evidence, different legislation to guide the decision, different precedent to follow, different social goals to achieve. It's not comparable and trying to apply anything in its holding to a criminal context is dumb. |
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"Consent" when it comes to sex by Tansin A. Darcos (TDARCOS) 05/07/2012, 11:43pm PDT
If I'm procrastinating on Caltrops, it must be exam time by Horrible Gelatinous Blob 05/08/2012, 12:15am PDT
Is it rape, or is it not rape? by Tansin A. Darcos (TDARCOS) 05/09/2012, 12:10pm PDT
Wrong. by Horrible Gelatinous Blob 05/09/2012, 11:43pm PDT
Getting sex by threat of prosecution is extortion (or blackmail in Wyoming) by Tansin A. Darcos (TDARCOS) 05/12/2012, 10:22am PDT
I'm done with exams, so I've lost all interest in this now by Horrible Gelatinous Blob 05/12/2012, 1:37pm PDT
Well, there is a difference here by Tansin A. Darcos (TDARCOS) 05/12/2012, 3:41pm PDT
I see you falling into the same trap I did by Entropy Stew 05/12/2012, 5:13pm PDT
He was convicted of rape, though by Tansin A. Darcos (TDARCOS) 05/12/2012, 10:29am PDT
Also: by Horrible Gelatinous Blob 05/08/2012, 12:19am PDT
I always told her I was going to enter her AND get inside her..... NT by Buffalo Bill 05/09/2012, 10:15am PDT
Just remember the rule about when sex is "dirty" by Tansin A. Darcos (TDARCOS) 05/09/2012, 12:14pm PDT
I should really be working on my paper. It's due tomorrow. by Horrible Gelatinous Blob 05/09/2012, 11:53pm PDT
TDARCOS, creepy?! Say it ain't so, Captain Obvious. NT by Eurotrash 05/10/2012, 11:57am PDT
*The girl, hearing the sound of a motorized scooter, looks fearfully behind her* NT by Whirrrrrrrrrrrrrrrrrrrrrrrrrrrrrrrr 05/10/2012, 7:39pm PDT
HAhahaha oh my god that is hilariously terrifying NT by WITTGENSTEIN 05/13/2012, 10:48am PDT
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