General Discussion
In reply to the discussion: Marriage tips from a rapist, on ABC [View all]Jim Lane
(11,175 posts)My personal opinion is that it's harmful to the cause of rape prevention (and to the goal of seeing that rapists are punished when it does occur) to say, without qualification, "a child cannot consent...." The problem is that it goes against many people's understanding of the common English meaning of "consent". It's also too broad a statement, as my example of the football game illustrated.
My post had absolutely nothing to do with "the failure to actively resist." I know that some rape apologists make such arguments at times, but your imputation of such a position to me is totally without justification.
Suppose a 12-year-old said, "Yeah, let's do this" (which was my actual example, rather than a failure to actively resist). If the prosecution has to prove that s/he didn't consent, then some jurors are going to be hard to convince. It sure looks like consent. If it were a playground tackle, it would be consent in both the ordinary English meaning and in the legal meaning. That's why, as a tactical matter as well as for complete precision, I think it's better to say that a child can't give legally effective consent to sexual contact. If the judge explains it that way to the jury, they're more likely to convict, especially if one of the jurors has the reactions that some posters in this thread have exhibited.
You might take note that I got into this for the purpose of disagreeing with Egnever's argument in #14, reiterated in other posts, that there was consent so Letourneau wasn't a rapist.
(Incidentally, this isn't the only instance where a legal definition departs somewhat from many people's understanding of a term. A public figure who sues for defamation must prove that the defendant acted with malice. The problem is that, in this legal standard, the word "malice" has a different meaning from its ordinary usage. It can be satisfied if the defendant was utterly indifferent to the plaintiff, had no desire whatsoever to harm him or her, but published an interesting story in reckless disregard of its truth or falsity.)
I consider Letourneau a rapist. The age of the victim would indeed affect the degree of rape under the law in most states, and would certainly be one factor that a judge would consider in sentencing, but I wasn't addressing those issues so I wasn't completely scrupulous about getting the victim's age right. If I had been writing a brief instead of a forum post I would have cited to the record and would have caught my mistake.