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shadowkat[BEFORE READING AND COMMENTING ON THE BELOW:Please note the following is meant to be an objective gathering and explanation of facts - I'm not stating that what happened in the Roman Polanski case was not rape or the facts as I read them on the salon article and in blogs are not true - if they are? He is a douchebag, but then I always thought Polanski was a douchebag - I've seen his films, Repulsion, Rosemary's Baby and The Tenant - all make one want to squirm in their seat forever and a day. Also up until recently, I thought the reason he left the US was he was having sexual relations with then 15 year old Natassha Kiniski the star of his film, Tess of the D'Urbvilles. Polanski also is not the first person to flee for this - Charlie Chaplin did, as did Fatty Urbunkle, I believe.( But as to what actually happened in this case? Truth is I have no idea, all I know is what a lot of bloggers and op-ed commentators have stated or reported based on testimony that they've cobbled from sources or links on the internet, and I know enough to trust internet cites, including one's I've linked to, twitterers, bloggers and op-ed journalists about as far as I can throw a 300 pound gorilla, which is not that far. That again is not to say that they are not correct and this is not true. But keep in mind it happened over 30 years ago, the testimony is 30 years old, and only the people who were actually there know for certain, and the prosecutor has gone on record as to having lied about it to make his case winnable (ETA: apparently even that bit is not clear, since that prosecutor apparently lied about being involved with the case and it was a completely different prosecutor - sigh we really do live in the age of misinformation, don't we?). This means we can't know for certain what happened, we can only speculate.) Nor am I condoning Whoopie Goldberg's statement listed below, I am providing an objective explanation. So if you disagree - please do not shoot the messenger. I am just imparting information. I am giving you the information that I've discovered to provide a complete picture. Information that may or may not be true. The veracity of any of this seems to still be in question. Again please do not misunderstand any of the below to be condoning the drugging and as a direct result coercion of a young girl to have sex, I don't care if she was 13 or 54 - that is rape. By the way, if she was under 10 - it would not have been statutory rape or rape, it would have been child molestation and pedophilia which has a completely different set of laws and a far harsher set of penalities. The bit on Age of Consent in California - gives the penalities for statutory rape in the state of California. ]
The papers have been agog with the Roman Polanski issue. Spoke to a reluctant mother about it over the phone - she told me that according to the news they will probably have to dismiss the case for two reasons: 1)the prosecutor lied to the judge in the initial case causing the plea bargain to be dropped and Polanski to flee and 2) besides spending 42 days in prison, Polanski paid the victim years ago, quite a bit of money as the result of a civil suit regarding the action.
The girl, now a married mother of three in Hawaii, has said that years ago she sued Polanski and settled the case out of court for an undisclosed amount of money. In January, she asked a California judge to dismiss the criminal case, and has said several times that she wishes the media coverage would stop.
(http://features.csmonitor.com/globalnews/2009/09/29/free-roman-polanski-case-shows-us-france-cultural-divide/)
The following link states that the victim sued Polanski and settled the case for an undisclosed amount, also Polanski served 42 days in prison, then fled to France after the Judge reneged on the plea aggreement:
http://www.cbsnews.com/blogs/2009/09/29/crimesider/entry5349005.shtml
According to ABC News site: The DA on the case lied and embellished the facts: "They interviewed me in the Malibu courthouse when I was still a DA, and I embellished a story," Wells said about the film crew in an interview with The Associated Press Wednesday. "I'm a guy who cuts to the chase -- I lied. It embarrasses the hell of me." (See link here:http://www.thedenverchannel.com/entertainment/21157614/detail.html)
Ask any criminal attorney what cases they hate to prosecute or defend the most and they will probably list rape amongst them. The reason is simple - they are very hard to prove on either side. But even harder for prosecutors - because our system of justice is innocent before proven quilty. Which we want. Otherwise we'd be living in a dictatorship.
Most rape cases come down to a "he said/she said" - and the evidence, isn't always helpful, since tearing and bruising can also be evidence of rough consensual sex. You have two people in a room. No one but those two people know what happened. Who do you believe? And yes, people lie, often without realizing it and for numerous reasons, often justifiable ones from their perspective. And no, it is not easy to tell who is lying - particularly when they don't know they are doing it and do not feel guilty about it. Also people embellish often without realizing it.
But the Polanski case is not just a rape case or it was not prosecuted as just a rape case, but a "statutory rape" case. The big difference between rape and statutory rape - is in "statutory rape" you do not need to prove there was no consent.
Whoopie Goldberg's statment on the View as reported in The AM newspaper this morning was defining that distinction. She stated - it was not "rape - rape" and that we live in a different kind of society, sex with a 13-14 year old was not considered bad, back then or in other countries. What she meant was she thought it was consensual, but because the girl was under age, it was considered rape. (See link here:http://www.guardian.co.uk/film/2009/sep/29/roman-polanski-whoopi-goldberg (Goldberg Quote.)
Is she right? Here are a few links:
1. historical perspective for 13-14 year olds and sex cases:
This site: Quote - "Sep 6, 1973 - tthe age at which sexual relations are determined id to be statutory rape and the age at which women should be allowed to get married. although many scientists feel that men ... "TODAY THERE are 12-year-olds who are physically developed, attractive and in fact seductive.," he said . ...
From Sexual Maturity May Be Leveling Off . - Related web pages
news.google.com/newspapers?id=c70NAAAAIBAJ ... ">
2. Age of Sexual Consent in Europe. In Spain, the age of sexual consent according to this site is 13.
The ages of consent for sexual activity vary by jurisdiction across Europe. Spain sets its age of consent at 13, and the rest of the countries have an age of consent between 14 and 17, except Turkey, Kazakhstan, and Malta, which have the highest age limit, set at 18. The laws can also stipulate the specific activities that are permitted and/or differentially specify the age at which a given gender can participate. Below is a discussion of the various laws dealing with this subject. The highlighted age refers to an age at or above which an individual can engage in unfettered sexual relations with another who is also at or above that age. Other variables, for close in age exceptions may exist, for relating to defences in Cyprus and Greece (that applies for heterosexual and lesbian sexual conduct only and not for male-male sexual conduct) and a higher age of consent just for male-male sexual conduct are noted in Gibraltar, Greece (for the male-male partners over 18) and Guernsey. All other places in Europe have an equal age of consent, regardless of sexual orientation and/or gender.
What does Goldberg mean by the it's not "rape-rape", it is statutory rape?
A lot of people do not understand what statutory rape means. So I'll give an example. If you've ever watched Buffy the Vampire Slayer - Angel sleeping with Buffy when she turned 17 in the episode Surprise would be considered statutory rape in some states in the US, specifically California where they lived. Joyce could have had him arrested and convicted for statutory rape. He would be convicted for rape, regardless of whether or not she consented. He would be considered no better than Roman Polanski. Another example of statutory rape is Lolita - the fictional novel by Vladmir Nabokov.
Curious, I pulled out my trusty Barrons Law Dictionary to determine what the definition of "statutory rape" is. Here's what Barron's states:
STATUTORY RAPE: The crime of having sexual intercourse with a female under the age set by statute, regardless of whether or not she consents to the act.
The common law set the age at 10 years and statutes of various states ranged from 11 to 18 years. The trend in modern statutes is to reduce the age to 12-14 and require the male actor be some years older. A mistake of fact as to the age of the female is generally not recognized as a defense to the crime of statutory rape except by a few jurisdictions.
[Barrons Law Dictionary, 3rd Edition,1991, also see: Perkins and Boyce, Criminal Law, 198-199, (3rd Ed.1982).
I googled the age of sexual consent in California - here is the statute:
http://www.ageofconsent.com/california.htm
261.5. (a) Unlawful sexual intercourse is an act of sexual
intercourse accomplished with a person who is not the spouse of the
perpetrator, if the person is a minor
For the purposes of this section, a "minor" is a person
under the age of 18 years and an "adult" is a person
who is at least 18 years of age. (Buffy had just turned 17 when Angel had sex with her.)
(b) Any person who engages in an act of unlawful sexual
intercourse with a minor who is not more than three years
older or three years younger than the perpetrator, is
guilty of a misdemeanor.(Angel was 26 by human years and 247 by vampire years)
(c) Any person who engages in an act of unlawful sexual
intercourse with a minor who is more than three years younger than
the perpetrator is guilty of either a misdemeanor or a felony, and
shall be punished by imprisonment in a county jail not exceeding one
year, or by imprisonment in the state prison.
(d) Any person over the age of 21 years who engages in an act of
unlawful sexual intercourse with a minor who is under 16 years of age
is guilty of either a misdemeanor or a felony, and shall be punished
by imprisonment in a county jail not exceeding one year, or by
imprisonment in the state prison for two, three, or four years.
(e) (1) Notwithstanding any other provision of this section, an
adult who engages in an act of sexual intercourse with a minor in
violation of this section may be liable for civil penalties in the
following amounts:
(A) An adult who engages in an act of unlawful sexual intercourse
with a minor less than two years younger than the adult is liable for
a civil penalty not to exceed two thousand dollars ($2,000).
(B) An adult who engages in an act of unlawful sexual intercourse
with a minor at least two years younger than the adult is liable for
a civil penalty not to exceed five thousand dollars ($5,000).
(C) An adult who engages in an act of unlawful sexual intercourse
with a minor at least three years younger than the adult is liable
for a civil penalty not to exceed ten thousand dollars ($10,000).
(D) An adult over the age of 21 years who engages in an act of
unlawful sexual intercourse with a minor under 16 years of age is
liable for a civil penalty not to exceed twenty-five thousand dollars
($25,000).
(2) The district attorney may bring actions to recover civil
penalties pursuant to this subdivision. From the amounts collected
for each case, an amount equal to the costs of pursuing the action
shall be deposited with the treasurer of the county in which the
judgment was entered, and the remainder shall be deposited in the
Underage Pregnancy Prevention Fund, which is hereby created in the
State Treasury. Amounts deposited in the Underage Pregnancy
Prevention Fund may be used only for the purpose of preventing
underage pregnancy upon appropriation by the Legislature.[**This is what happened in the Polanski Case - they sought civil penalities and settled.]
261.6. In prosecutions under Section 261, 262, 286, 288a, or 289,
in which consent is at issue, "consent" shall be defined to mean
positive cooperation in act or attitude pursuant to an exercise of
free will. The person must act freely and voluntarily and have
knowledge of the nature of the act or transaction involved.
A current or previous dating or marital relationship shall not be
sufficient to constitute consent where consent is at issue in a
prosecution under Section 261, 262, 286, 288a, or 289.
Nothing in this section shall affect the admissibility of evidence
or the burden of proof on the issue of consent.
261.7. In prosecutions under Section 261, 262, 286, 288a, or 289,
in which consent is at issue, evidence that the victim suggested,
requested, or otherwise communicated to the defendant that the
defendant use a condom or other birth control device, without
additional evidence of consent, is not sufficient to constitute
consent.
So, in the state of California, Angel who was 26 in human years, and 247 in vampire years having sex with Buffy who had just turned 17 - was guilty of statutory rape. If David Boreanze had sex with Sarah Michelle Gellar before she turned 18, he would be guilty of statutory rape.
Does not matter whether or not she consented. The reason? The law does not believe that a female under the age of 18 can provide consent. It is set up to protect women, particularly adolescent women from manipulative and seductive older men, who can coerce them into sexual situations or persuade or seduce them. Example: Angel seduces Buffy by giving her a ring, being dark and mysterious, and needy - he is older than she is and plays on her hormones.
What happens after - is what happens in most of these cases, (See Lolita), and that is the reason for the statute.
See this link on statutory rape: http://en.wikipedia.org/wiki/Statutory_rape
Statutory rape laws are based on the concept that a young person may desire sex but may lack the experience possessed by legal adults to make a mature decision as to whether or not to have sexual contact with a particular person. Thus, the law assumes, even if he or she willingly engages in sexual intercourse with a legal adult, his or her sex partner may well have used tactics of manipulation or deceit against which the younger person has not yet developed sufficient discernment or defense.
Critics argue that a young teenager might possess enough social sense to make informed and mature decisions about sex, while some adults might never develop the ability to make mature choices about sex, as even many mentally healthy individuals remain naive and easily manipulated throughout their lives.
Another rationale comes from the fact that minors are generally economically, socially, and legally unequal to adults. By making it illegal for an adult to have sex with a minor, statutory rape laws aim to give the minor some protection against adults in a position of power over the youth.
Another rationale presented in defense of statutory rape laws relates to the difficulty in prosecuting forced rape (against a victim of any age) in the courtroom. Because forced sexual intercourse with a minor is considered to be a particularly heinous form of rape, these laws relieve the prosecution of the burden to prove lack of consent. This makes conviction more frequent in cases involving minors.
The original purpose of statutory rape laws was to protect young, unwed females from males who might take their virginity, impregnate them, and not take responsibility by marrying them.[12] In the past, the solution to such problems was often a forced marriage or "shotgun wedding" called for by the parents of the girl in question. The original rationale was to preserve the marriageability of the girl and to prevent unwanted teen pregnancy.
I gave the Buffy example for statutory rape because I needed an example in which most people would agree was not "technically" rape because the female consented, but from the angle explained above is definitely "rape" under the law and the statute for the reasons stated above.
That said, there was a comment made by Peter Kanaris, a coordinator of public education with the New York State Psychological Association in today's AM Newspaper, which can be found on amny.com. He said:" Backing a rapist also sets a dangerous precedent, with the public not always able to separate the nuances of rape cases. It is either right or wrong."
The rational is simple, the statistics show that one woman in six is raped. A rape happens every minute. And rape is most often of those who are not phsyically powerful - who do not have the physical ability to stop the person coercing them.
About Victims
1 in 6 women and 1 in 33 men will be a victim of sexual assault in their lifetime.
College age women are 4 times more likely to be sexually assaulted.
Learn more victim statistics
Sexual Assault Numbers
In 2007, there were 248,300 victims of sexual assault.
Every 2 minutes, someone in the U.S. is sexually assaulted.
Read more sexual assault numbers
Reporting to Police
60% of sexual assaults are not reported to the police.
Reporting has increased by 1/3 since 1993.
Learn more reporting statistics
About Rapists
Approximately 73% of rape victims know their assailants.
Only 6% of rapists will ever spend a day in jail.
Go here: http://www.rainn.org/statistics
and here: http://oak.cats.ohiou.edu/~ad361896/anne/cease/rapestatisticspage.html
"The United States has the world's highest rape rate of the countries that publish such statistics. It's 4 times higher than Germany, 13 times higher than England, and 20 times higher than Japan. "
[ETA: see comments below - which states a better source for stats on this. Also proves how unreliable internet sites can be regarding this information. We really have to be careful about the information we get on the net.]
a controversial Wiki entry on the reliability of rape statistics
Statistics on rape are common in western countries and are becoming more common throughout the world. They are, however, highly politicized, often sex biased, and have been accused of being unreliable because they are so diverse and are used by different groups for different reasons. This is partly because of inconsistent definitions of rape in both legislative and academic studies. However, it is also because of over reporting, under reporting and false reporting of the crime. In the United States rape is defined differently by separate states. In many legislatures in the world some non-consensual sexual acts are not defined as rape at all. They may be considered legal, or as an illegal form of sexual assault. In some jurisdictions, male-female rape is the only form of rape considered rape while in others male-male, female-male or female-female rape may also be included as a legal form of rape.[1] Rape of children is rarely reported in official reports. Nor is the rape of children by their mothers and fathers or other relations represented in official publications. Rape, alone among other major crimes, suffers from severe definitional contradictions that create controversial statistical disparities.
US and Global Statistics in Facts about Violence: http://www.feminist.com/antiviolence/facts.html#statistics
Fact #32: Globally, at least one in three women and girls is beaten or sexually abused in her lifetime. (UN Commission on the Status of Women, 2/28/00)
From my own experience in law school doing a moot rape trial and reading various cases, it is close to impossible to get a conviction. Because it is he said/she said. The victim has to prove beyond a reasonable doubt that the defendant raped her. It's not as easy as you think.
An example - your kids have a fight. Who is to blame? How do you know which kid is lying?
You don't. Rape trials are just like that. It's not like murder or theft - you don't have evidence left over. In most cases - it is bruises and violence to the victim or evidence of drug use. But if you do not report it immediately, that evidence is gone and you have nothing.
The papers have been agog with the Roman Polanski issue. Spoke to a reluctant mother about it over the phone - she told me that according to the news they will probably have to dismiss the case for two reasons: 1)the prosecutor lied to the judge in the initial case causing the plea bargain to be dropped and Polanski to flee and 2) besides spending 42 days in prison, Polanski paid the victim years ago, quite a bit of money as the result of a civil suit regarding the action.
The girl, now a married mother of three in Hawaii, has said that years ago she sued Polanski and settled the case out of court for an undisclosed amount of money. In January, she asked a California judge to dismiss the criminal case, and has said several times that she wishes the media coverage would stop.
(http://features.csmonitor.com/globalnews/2009/09/29/free-roman-polanski-case-shows-us-france-cultural-divide/)
The following link states that the victim sued Polanski and settled the case for an undisclosed amount, also Polanski served 42 days in prison, then fled to France after the Judge reneged on the plea aggreement:
http://www.cbsnews.com/blogs/2009/09/29/crimesider/entry5349005.shtml
According to ABC News site: The DA on the case lied and embellished the facts: "They interviewed me in the Malibu courthouse when I was still a DA, and I embellished a story," Wells said about the film crew in an interview with The Associated Press Wednesday. "I'm a guy who cuts to the chase -- I lied. It embarrasses the hell of me." (See link here:http://www.thedenverchannel.com/entertainment/21157614/detail.html)
Ask any criminal attorney what cases they hate to prosecute or defend the most and they will probably list rape amongst them. The reason is simple - they are very hard to prove on either side. But even harder for prosecutors - because our system of justice is innocent before proven quilty. Which we want. Otherwise we'd be living in a dictatorship.
Most rape cases come down to a "he said/she said" - and the evidence, isn't always helpful, since tearing and bruising can also be evidence of rough consensual sex. You have two people in a room. No one but those two people know what happened. Who do you believe? And yes, people lie, often without realizing it and for numerous reasons, often justifiable ones from their perspective. And no, it is not easy to tell who is lying - particularly when they don't know they are doing it and do not feel guilty about it. Also people embellish often without realizing it.
But the Polanski case is not just a rape case or it was not prosecuted as just a rape case, but a "statutory rape" case. The big difference between rape and statutory rape - is in "statutory rape" you do not need to prove there was no consent.
Whoopie Goldberg's statment on the View as reported in The AM newspaper this morning was defining that distinction. She stated - it was not "rape - rape" and that we live in a different kind of society, sex with a 13-14 year old was not considered bad, back then or in other countries. What she meant was she thought it was consensual, but because the girl was under age, it was considered rape. (See link here:http://www.guardian.co.uk/film/2009/sep/29/roman-polanski-whoopi-goldberg (Goldberg Quote.)
Is she right? Here are a few links:
1. historical perspective for 13-14 year olds and sex cases:
This site: Quote - "Sep 6, 1973 - tthe age at which sexual relations are determined id to be statutory rape and the age at which women should be allowed to get married. although many scientists feel that men ... "TODAY THERE are 12-year-olds who are physically developed, attractive and in fact seductive.," he said . ...
From Sexual Maturity May Be Leveling Off . - Related web pages
news.google.com/newspapers?id=c70NAAAAIBAJ ... ">
2. Age of Sexual Consent in Europe. In Spain, the age of sexual consent according to this site is 13.
The ages of consent for sexual activity vary by jurisdiction across Europe. Spain sets its age of consent at 13, and the rest of the countries have an age of consent between 14 and 17, except Turkey, Kazakhstan, and Malta, which have the highest age limit, set at 18. The laws can also stipulate the specific activities that are permitted and/or differentially specify the age at which a given gender can participate. Below is a discussion of the various laws dealing with this subject. The highlighted age refers to an age at or above which an individual can engage in unfettered sexual relations with another who is also at or above that age. Other variables, for close in age exceptions may exist, for relating to defences in Cyprus and Greece (that applies for heterosexual and lesbian sexual conduct only and not for male-male sexual conduct) and a higher age of consent just for male-male sexual conduct are noted in Gibraltar, Greece (for the male-male partners over 18) and Guernsey. All other places in Europe have an equal age of consent, regardless of sexual orientation and/or gender.
What does Goldberg mean by the it's not "rape-rape", it is statutory rape?
A lot of people do not understand what statutory rape means. So I'll give an example. If you've ever watched Buffy the Vampire Slayer - Angel sleeping with Buffy when she turned 17 in the episode Surprise would be considered statutory rape in some states in the US, specifically California where they lived. Joyce could have had him arrested and convicted for statutory rape. He would be convicted for rape, regardless of whether or not she consented. He would be considered no better than Roman Polanski. Another example of statutory rape is Lolita - the fictional novel by Vladmir Nabokov.
Curious, I pulled out my trusty Barrons Law Dictionary to determine what the definition of "statutory rape" is. Here's what Barron's states:
STATUTORY RAPE: The crime of having sexual intercourse with a female under the age set by statute, regardless of whether or not she consents to the act.
The common law set the age at 10 years and statutes of various states ranged from 11 to 18 years. The trend in modern statutes is to reduce the age to 12-14 and require the male actor be some years older. A mistake of fact as to the age of the female is generally not recognized as a defense to the crime of statutory rape except by a few jurisdictions.
[Barrons Law Dictionary, 3rd Edition,1991, also see: Perkins and Boyce, Criminal Law, 198-199, (3rd Ed.1982).
I googled the age of sexual consent in California - here is the statute:
http://www.ageofconsent.com/california.htm
261.5. (a) Unlawful sexual intercourse is an act of sexual
intercourse accomplished with a person who is not the spouse of the
perpetrator, if the person is a minor
For the purposes of this section, a "minor" is a person
under the age of 18 years and an "adult" is a person
who is at least 18 years of age. (Buffy had just turned 17 when Angel had sex with her.)
(b) Any person who engages in an act of unlawful sexual
intercourse with a minor who is not more than three years
older or three years younger than the perpetrator, is
guilty of a misdemeanor.(Angel was 26 by human years and 247 by vampire years)
(c) Any person who engages in an act of unlawful sexual
intercourse with a minor who is more than three years younger than
the perpetrator is guilty of either a misdemeanor or a felony, and
shall be punished by imprisonment in a county jail not exceeding one
year, or by imprisonment in the state prison.
(d) Any person over the age of 21 years who engages in an act of
unlawful sexual intercourse with a minor who is under 16 years of age
is guilty of either a misdemeanor or a felony, and shall be punished
by imprisonment in a county jail not exceeding one year, or by
imprisonment in the state prison for two, three, or four years.
(e) (1) Notwithstanding any other provision of this section, an
adult who engages in an act of sexual intercourse with a minor in
violation of this section may be liable for civil penalties in the
following amounts:
(A) An adult who engages in an act of unlawful sexual intercourse
with a minor less than two years younger than the adult is liable for
a civil penalty not to exceed two thousand dollars ($2,000).
(B) An adult who engages in an act of unlawful sexual intercourse
with a minor at least two years younger than the adult is liable for
a civil penalty not to exceed five thousand dollars ($5,000).
(C) An adult who engages in an act of unlawful sexual intercourse
with a minor at least three years younger than the adult is liable
for a civil penalty not to exceed ten thousand dollars ($10,000).
(D) An adult over the age of 21 years who engages in an act of
unlawful sexual intercourse with a minor under 16 years of age is
liable for a civil penalty not to exceed twenty-five thousand dollars
($25,000).
(2) The district attorney may bring actions to recover civil
penalties pursuant to this subdivision. From the amounts collected
for each case, an amount equal to the costs of pursuing the action
shall be deposited with the treasurer of the county in which the
judgment was entered, and the remainder shall be deposited in the
Underage Pregnancy Prevention Fund, which is hereby created in the
State Treasury. Amounts deposited in the Underage Pregnancy
Prevention Fund may be used only for the purpose of preventing
underage pregnancy upon appropriation by the Legislature.[**This is what happened in the Polanski Case - they sought civil penalities and settled.]
261.6. In prosecutions under Section 261, 262, 286, 288a, or 289,
in which consent is at issue, "consent" shall be defined to mean
positive cooperation in act or attitude pursuant to an exercise of
free will. The person must act freely and voluntarily and have
knowledge of the nature of the act or transaction involved.
A current or previous dating or marital relationship shall not be
sufficient to constitute consent where consent is at issue in a
prosecution under Section 261, 262, 286, 288a, or 289.
Nothing in this section shall affect the admissibility of evidence
or the burden of proof on the issue of consent.
261.7. In prosecutions under Section 261, 262, 286, 288a, or 289,
in which consent is at issue, evidence that the victim suggested,
requested, or otherwise communicated to the defendant that the
defendant use a condom or other birth control device, without
additional evidence of consent, is not sufficient to constitute
consent.
So, in the state of California, Angel who was 26 in human years, and 247 in vampire years having sex with Buffy who had just turned 17 - was guilty of statutory rape. If David Boreanze had sex with Sarah Michelle Gellar before she turned 18, he would be guilty of statutory rape.
Does not matter whether or not she consented. The reason? The law does not believe that a female under the age of 18 can provide consent. It is set up to protect women, particularly adolescent women from manipulative and seductive older men, who can coerce them into sexual situations or persuade or seduce them. Example: Angel seduces Buffy by giving her a ring, being dark and mysterious, and needy - he is older than she is and plays on her hormones.
What happens after - is what happens in most of these cases, (See Lolita), and that is the reason for the statute.
See this link on statutory rape: http://en.wikipedia.org/wiki/Statutory_rape
Statutory rape laws are based on the concept that a young person may desire sex but may lack the experience possessed by legal adults to make a mature decision as to whether or not to have sexual contact with a particular person. Thus, the law assumes, even if he or she willingly engages in sexual intercourse with a legal adult, his or her sex partner may well have used tactics of manipulation or deceit against which the younger person has not yet developed sufficient discernment or defense.
Critics argue that a young teenager might possess enough social sense to make informed and mature decisions about sex, while some adults might never develop the ability to make mature choices about sex, as even many mentally healthy individuals remain naive and easily manipulated throughout their lives.
Another rationale comes from the fact that minors are generally economically, socially, and legally unequal to adults. By making it illegal for an adult to have sex with a minor, statutory rape laws aim to give the minor some protection against adults in a position of power over the youth.
Another rationale presented in defense of statutory rape laws relates to the difficulty in prosecuting forced rape (against a victim of any age) in the courtroom. Because forced sexual intercourse with a minor is considered to be a particularly heinous form of rape, these laws relieve the prosecution of the burden to prove lack of consent. This makes conviction more frequent in cases involving minors.
The original purpose of statutory rape laws was to protect young, unwed females from males who might take their virginity, impregnate them, and not take responsibility by marrying them.[12] In the past, the solution to such problems was often a forced marriage or "shotgun wedding" called for by the parents of the girl in question. The original rationale was to preserve the marriageability of the girl and to prevent unwanted teen pregnancy.
I gave the Buffy example for statutory rape because I needed an example in which most people would agree was not "technically" rape because the female consented, but from the angle explained above is definitely "rape" under the law and the statute for the reasons stated above.
That said, there was a comment made by Peter Kanaris, a coordinator of public education with the New York State Psychological Association in today's AM Newspaper, which can be found on amny.com. He said:" Backing a rapist also sets a dangerous precedent, with the public not always able to separate the nuances of rape cases. It is either right or wrong."
The rational is simple, the statistics show that one woman in six is raped. A rape happens every minute. And rape is most often of those who are not phsyically powerful - who do not have the physical ability to stop the person coercing them.
About Victims
1 in 6 women and 1 in 33 men will be a victim of sexual assault in their lifetime.
College age women are 4 times more likely to be sexually assaulted.
Learn more victim statistics
Sexual Assault Numbers
In 2007, there were 248,300 victims of sexual assault.
Every 2 minutes, someone in the U.S. is sexually assaulted.
Read more sexual assault numbers
Reporting to Police
60% of sexual assaults are not reported to the police.
Reporting has increased by 1/3 since 1993.
Learn more reporting statistics
About Rapists
Approximately 73% of rape victims know their assailants.
Only 6% of rapists will ever spend a day in jail.
Go here: http://www.rainn.org/statistics
and here: http://oak.cats.ohiou.edu/~ad361896/anne/cease/rapestatisticspage.html
"The United States has the world's highest rape rate of the countries that publish such statistics. It's 4 times higher than Germany, 13 times higher than England, and 20 times higher than Japan. "
[ETA: see comments below - which states a better source for stats on this. Also proves how unreliable internet sites can be regarding this information. We really have to be careful about the information we get on the net.]
a controversial Wiki entry on the reliability of rape statistics
Statistics on rape are common in western countries and are becoming more common throughout the world. They are, however, highly politicized, often sex biased, and have been accused of being unreliable because they are so diverse and are used by different groups for different reasons. This is partly because of inconsistent definitions of rape in both legislative and academic studies. However, it is also because of over reporting, under reporting and false reporting of the crime. In the United States rape is defined differently by separate states. In many legislatures in the world some non-consensual sexual acts are not defined as rape at all. They may be considered legal, or as an illegal form of sexual assault. In some jurisdictions, male-female rape is the only form of rape considered rape while in others male-male, female-male or female-female rape may also be included as a legal form of rape.[1] Rape of children is rarely reported in official reports. Nor is the rape of children by their mothers and fathers or other relations represented in official publications. Rape, alone among other major crimes, suffers from severe definitional contradictions that create controversial statistical disparities.
US and Global Statistics in Facts about Violence: http://www.feminist.com/antiviolence/facts.html#statistics
Fact #32: Globally, at least one in three women and girls is beaten or sexually abused in her lifetime. (UN Commission on the Status of Women, 2/28/00)
From my own experience in law school doing a moot rape trial and reading various cases, it is close to impossible to get a conviction. Because it is he said/she said. The victim has to prove beyond a reasonable doubt that the defendant raped her. It's not as easy as you think.
An example - your kids have a fight. Who is to blame? How do you know which kid is lying?
You don't. Rape trials are just like that. It's not like murder or theft - you don't have evidence left over. In most cases - it is bruises and violence to the victim or evidence of drug use. But if you do not report it immediately, that evidence is gone and you have nothing.
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Re: The purpose of the statutory rape statute
Date: 2009-10-02 03:55 pm (UTC)I'd also add that Fatty Arbuckle was acquitted, though his career was ruined, and Charlie Chaplin was denied re-entry to the US in the '50's due to his political leanings.
Plea agreements and sentencing
Date: 2009-10-02 05:15 pm (UTC)The US system allows for an appeal of sentencing does it not?
You are in luck, the assoc. deputy counsel of my workplace, who used to work for the criminal justice department just popped into my office. (we're friendly)
So I asked him your question or rather the question in three parts:
a. Is sentencing part of a plea agreement or does it come after?
It depends. If State or Federal. And the case.
Often you will enter a plea agreement, be told that the prosecutor won't ask for the harsher sentence and sentencing is up to the discretion of the judge.
Example: I will waive the death penalty, if you plead guilty.
Or You will get 15 years with or without probation, the lesser term as opposed to the max - 20 years with no probation.
But in many cases, as it was in the Polanski case - the sentencing was left to the discretion of the judge. The prosecutor promised Polanski a lesser sentence, the judge gave a harsher one or word came down that he was going to.
b. If it is up to the discretion of the judge can it be appealed?
No, you normally can not appeal sentencing under a plea agreement. It has been done but under isolated circumstances and rarely. The attorney stated he ran into a judge socially once and found out that the judge gave a sentence in error because he was new and hadn't done it before. So the attorney wrote a brief stating that and got it appealed. But that is rare. So no Polanski could not appeal the judge's sentence.
c. What was at issue in the Polanski case?
First, you can't trust the media. (And all the information we have is via the media unfortunately. We do not have any primary sources. )
At issue was the fact that the judge may have been persuaded by outside sources to impose a harsher sentence than the one promised to Polanski. Polanski fled when they heard what the judge's sentence was going to be. I don't know what it was - but it was apparently pretty harsh and outside what Polanski had been told prior to entering his plea.