Consent and intent with regard to the issue of sex or rape - a liberal meta-reflection

By Louise at 07/05/2007

In april wrote Katrine Kielos a kind of article in Arena on rape and liberal principles and rights (archived not longer available), the intent criterion for rape gives liberals headache. I'll just go into it there with liberal rights, but only generally of legal certainty and the current våldäktsfallet.


You could say rape cases sometimes is actually a legal headache, but not for those reasons, but rather because of assessments that may seem to belong to the matter in court. As the woman is wearing or if she is sexually active and to what degree, and so on. Another problem is that it is difficult for people to get right with power extended arm. Such examples are plentiful.

The problem is not the principles that are essential to human rule of law, but sometimes the people who are supposed to make these assessments. We must live with until a cleverer system can replace human thinking. Meanwhile, we can not do anything to work against attitudes and to work for the courts is better way to prepare (eg are political appointments plausible).

All people have the same rights, there is nothing that varies according to who we are (citizenship exemption and minors). That our life situations are different does not change this, a rich man can afford a better lawyer, and so on. The court shall not take into account who we are, but what have done and what we will be held accountable for. A theft is no less theft because it was a poor who committed the crime. It is no different because you rob a rich man who barely notice it financially. It is no different to the case of women because they are at greater risk of being raped.

That is exactly what Kielos mean. Fact that a particular crime should be treated in the legal system, depending on who we are. For this reason, she argues that one should remove the requirement of intent, it is so difficult for a woman to get right in court. The opposite would be obvious intentional requirement was removed. A man would be more likely to be tipped as his potential deviant version of an event would not be valid in advance. Then we have a legal system that does not treat people equally.

Consent is an important liberal principle that fall under many different types of documents, not just sexual. A man has a right to refuse consent, and always entitled to change his mind, even in the midst of an ongoing penetrative intercourse, or sexual activity of any kind, she or he has every right to cancel it even though consent was given initially. Whatever the reason.

Here's assessment of intent or purpose set. An experience is not sufficient reason - you have to show that it should have been understood well. (Intention Principle applies not only sex, but beatings, and killings. But not usually victimless crime, and a variety of laws which apply in different ways). This is the balance that must always be met, a rule of law that accrue to both parties in a case. Without being able to show the character of maliciously and intentionally erased such balance away.

It would be absurd to judge people as hard if they did something omenat and unintentionally as if they had done it deliberately. To deviate from this principle would lead to horrific results. The existence of what we mean by accident - ie., Without intent or purpose cause adding an injury - is namely also part of assessing whether a crime took place. There must be a criminal. The plot exists, someone has been injured, there is a victim who is proved to have been damaged. But the assessment of the nature of the document determines whether a crime took place and how the debt issue to be handled, that there really is a criminal. Someone who intentionally committed crimes. That's what a criminal is.

In Sweden acquitted as we know, then a couple of young men from rape despite of judgment (according to media should be noted, the judgment, I have ordered and will read more) could be shown that the woman repented, on the grounds that it was doubtful that the men understood and understood and thus acted accordingly. Because they used to have violent sex. If such doubts about the intent or purpose, there must be acquit. All jurisdictions and all kinds of legal judgment is made on the principle of "beyond the shadow of the doubt" (beyond a shadow of a doubt). It is important not only in criminal cases, but also for other things such as asylum. Another important principle is "innocent of the contrary is proved."

But there is an obvious violation of the Court's finding that there was not demonstrated continued consent, as well as elements of assault, it really strange in the case. But here it may be speculation, since the goal is only referenced in the media. It would be wrong on the principle of faith, proves not obvious in this case that Kielos and others would argue.

If it can be shown that the woman in this case has not given its continued consent presupposes that expressed in any way, which the right notes are shown, then we consider intent or purpose. If you have to hit someone to have sex, and this crying and protesting, it is not reasonable that you do not understand that consent is no longer present.

People exposed to maltreatment can not give consent, it is a contradiction - for people who engage in consensual sexual games where "violence" (pain as an ingredient, not the legal concept of abuse) are in exactly the same principle of consent. That's why people is involved with BDSM has pronounced agreements to signal to stop, samtyckespricipen is very important for the whole file. If it was that way, they have understood the signals to stop. Is it demonstrated, you can not blame it on that it was the issue of SM and therefore it could not be understood as "assault"

(!) Was an ingredient. I am very skeptical (but wait until I read the judgment) Then, if one is to apply the rules of consent to have sex as it is proposed here and there? But it is already so. Should contracts be written and documented? And oh well, but that would require actually witnesses as well? Then well the same thing apply within marriage for every time they copulate? Is it really very practical and feasible?

*** With that said I will take up the headaches with other content in Katrine Kielos latest attempt to discuss liberalism, which was held a month ago in Arena . As even a whole month tracing the article can not even referencing the correct liberal principles, arguments and points that I can hardly wade through it. Since the article is built up around rape and why these (misunderstood) principles fall short, to land in a bizarre anti-climax as the problematisation of the option is absent.

But one thing is actually quite correctly perceived even if it is built on a misunderstanding. And it might as well start at the end. A "liberal" view of the law in the courts can not solve the "gender norms" or the fact that women are at greater risk of rape, or unable even to eradicate the incidence of crime and phenomenon, it is not intended to do so, without resolving the issue of guilt and crime beyond a shadow of a doubt.

Kielos writes:
 The reason our legal tradition fails to address rape in its view of rights. Liberals understand "everyone's right to her own body" incorrectly. This is because a right in a liberal understanding is something that already exists: human beings have certain inalienable rights, and these must be guaranteed by the government, politics and law. Liberalism distinguishes rights from political objectives and see a big point in doing so. Rights guarantees the foundation that never tafsas on political decisions and messy world improvers fingers, what good purpose whatsoever.

The problem with the above view of rights is that it is based on a reality that never existed. When well-meaning says that men and women have the right to self-determination over their bodies while they say that this right is something that actually exists. They say that women today have a right to their own body, and that the only thing that society should do is to ensure that this is not violated.

But men and women in an unequal society like our own are not the same right to their own body. Being a woman is a risk factor regarding becoming a victim of sexual violence.

It is confusing.

Liberal rights are not a guarantee to avoid violence. The thing about "freedom from violence" is like Dennis wondering something I wonder about, what sources Kielos uses to come to the conclusion that the right to her own body first is something that exists, and that's a guarantee to avoid violence. This is not usually argued. An increased risk can not be solved with the legal system if we simultaneously will think that they must all be pretty sure. One risk is not what rights we have, and it's not right for our body to do what it does say is when a violation actually occurs.

It remains for Kielos to show how the feminist right to guaranteed escape violence (?) Really should be able to work in teams and on the premises. If faith is erased from legal thinking, as is the issue of prisons enough. But it is of course also a solution. We can of course also call for more prisons, police, and surveillance, perhaps a personal policeman to every citizen, and / or we can call for the right to arm ourselves to defend ourselves. But the guarantee to avoid violence? Hardly. Not even the most totalitarian state can guarantee the absence of violence, even if it is its ambition - it's then of course the essence of violence.

But rather, it's about the radical feminist and socialist desire to play yourself ownership and rights not the final word on women said sexual subordination. (As if there is claimed to be with a feminist understanding.), There are of course not, they assume that women and men are treated as age and capable people with the ability to act according to his will, which they are not in the socialist feminist legal opinion. Rights should this be ideally formulated as equity objectives for gender equality / equality, and formulated thus targeted (so in this way the groups are not equal economically and socially to have social and economic rights to exclude these differences, it's called justice), not rights funds and provided for equal treatment (as in liberal opinion it justice.)

If we can not point to the right, we can not talk about the crimes and violations. If we can not be said to take our bodies, we do not have the right to defend ourselves, or claim that we infringed.

Some line markings:

"That a man has sex with a woman and that she also feel they raped becomes an insoluble paradox. Someone must be lying. "

No, one must not lie. The reality is not so simple and people's actions are not as black or white. Sometimes things just simply unclear. That someone feel something is not the same as that conveyed.

"A feminist understanding of rights assumes that rights are to be achieved in the fight against social inequality. Feminism can not be liberal if it wants to challenge patriarchy."

Rather, liberalism can not be socialism. And there is nothing surprising in that. If socialist feminists want to "challenge" the patriarchy by repealing the rule of law and formulate laws to which it intends to achieve a utopia - the crime solving / rape-free society - it is criminal in itself, it is the ultimate violation of the very foundation of what it means human rights. Liberalism sees the agreement between self-owning people as fundamental to be able to live as a free man. One challenge to oppression with oppression - it's a contradiction.

"A woman who moves into the public space experience daily how her bodily integrity violated the eyes, hands and comments."

Here it has gone overall inflation kränkthet. No, of course, the right to offend someone with "hands" that grabbing someone without permission. But we do daily without meaning anything special at all, sometimes just omenat the crowded bus. But what is meant by looks and comments. What is it that violates a person's bodily integrity here? What is the physical integrity? A right not to hear comments about oneself, one's right not to someone looking at one? And it also implies a right not to be touched, I wonder if it is as well to erase men from the community and send them on a permanent camp.

"We need a whole new outlook on book of the law's role in a progressive society. Law can never be neutral. But it can stand on the oppressed."

Of course it is unthinkable that a woman can lie and a man speaking the truth. Or that no one is lying and both are telling the truth. Ergo, someone (a woman) to be oppressed and the law stand on her side - by default. This is equality as practiced evil. As is known, the total slave society to be equal. Addition: When Kielos describes the woman's subordination - that she does not have existing rights to her body because she can not say no to sex "for he commanded the at dinner." And that, therefore, the right of his body devastating. it is completely perplext. What about the failure of the principle of the right to their body to some women do not practice it? Maybe it actually is wrong?

Maybe interesting.

Translation: http://translate.google.com/translate?hl=en&sl=auto&tl=en&u=http%3A%2F%2Fwww.louisep.net%2Fblogg%2Fnode%2F1553

Swedish blog: http://www.louisep.net/blogg/node/1553