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15 April 2015 @ 09:27 pm
When a business deal goes sour  
I'm mystified by this.

This article has been in the news recently as the convicted rapist is appealing his sentence for raping a sex worker. His lawyers are arguing on the basis that there was a mistake of law made in the original trial; for there to be a rape, there had to be a lack of consent (or inability to consent) and in this case there was consent freely given.

I never understood the conviction in the first place. If you offer to buy my violin for $850, and I hand over the violin but you don't pay me, then you're basically guilty of fraud, obtaining goods by deception, theft... any of these fit, but because in this instance it's sex all of a sudden it's a whole different scale of offence? I don't get it. Sex is her livelihood, her commodity. She was defrauded by a trick and suddenly she feels that he violated her? So if there's cash involved, there's no violation? What if he'd only had half the promised money - would she be going after him for indecent assault instead? I'm all for working girls earning an honest quid but this case just has me puzzled.
Current Mood: grumpygrumpy
byslantedlight: Doyle thoughtful  (ilywela13)byslantedlight on April 15th, 2015 12:45 pm (UTC)
Interesting (and horrible) case... I agree with the judge though, I think the decisions available to him probably hinged on "there was no consent to sex when it was obtained by fraud".

I think we have to be careful of falling into the different-levels-of-rape-so-some-are-okay trap, and as you say if she gave consent and consent is the definition of rape, then how is this rape? I suspect it calls for a different terminology to be available, because it also opens the door to the whole he-said-he-loved-me-so-I-had-sex-with-him-but-then-he-said-he-didn't-so-it-was-fraudulent-consent-so-its-rape argument, which would be a nightmare...

Hmmn - if you bought a violin on the understanding that it was a violin that had been owned by Vanessa Mae, and then it turned out to have been owned by Stalin so that instead of being able to look at it as a thing of beauty, you could only see the murders and atrocities committed in Russia, would the seller have committed fraud (you still had a violin)? I'd say yes, but instead of the consequences being financial, they're debilitatingly emotional - you couldn't comfortably play or look at your purchase, and so you'd effectively lost your money due to the fraud. In the current case, the woman was made to feel debilitatingly emotional as a result of the fraud, which would no doubt affect the way she approached her work in the future, which happened to be providing sex - so she'd not only lost out financially, she'd been emotionally damaged and perhaps had her livelihood damaged as well. I agree that doesn't sound like "rape" as we understand it, but I suspect the judge didn't have anything else that they could call it and still address both financial and emotional damage...?

Sorry - I of course should be working, but thinking about that was far more interesting... *g* (Hmmn, I wonder what it would be tried under in countries where prostitution is legal?)

ETA - the other potential legal trap would be saying that this is a straight financial transaction, because that would open the door to a lesser charge for prostitutes who actually are raped by clients - the client could plead that there was consent but admit to fraud, which in so many ways is a much lesser charge. Hopefully the judge was also taking that sort of idea into consideration. (*goes back to work - again*)

Edited at 2015-04-15 01:09 pm (UTC)
miwahni: Random Doesn't play well with othersmiwahni on April 16th, 2015 12:30 pm (UTC)
I suspect it calls for a different terminology to be available, because it also opens the door to the whole he-said-he-loved-me-so-I-had-sex-with-him-but-then-he-said-he-didn't-so-it-was-fraudulent-consent-so-its-rape argument, which would be a nightmare... This I agree with, and this is the precedent which I think has just been set. Only in this case it was he-said-he'd-give-me-money-but-he-reneged-so-it's-rape - even though there was no coercion, no physical or implied threat.

And yes, in her place I'd be pissed-off - no-one likes being cheated - and probably distrustful of men which may well impact on my ability to earn a living at my chosen profession, but I think if you're a working girl you've already disassociated consensual sex from the kind of emotions that would leave you feeling violated (although perhaps I presume too much). But in any case you've been duped, tricked, whatever. I just still hesitate to call it rape which has connotations of a power imbalance, helplessness and lack of control over the event etc.

I don't think that treating it as a financial contract would open the doors to other rapes of working girls being downgraded -we're still looking at the issue of consent, here, and in this case she agrees that she consented to the sex.

She could have claimed for intentional wrong under tort law and sought restitution plus damages, which would have been more financially rewarding to her. The whole thing is a contentious issue, though.

Trepkos: Bemused by Glimmergirltrepkos on April 16th, 2015 07:27 am (UTC)
I am equally puzzled. What about if he had paid the prostitute to have sex with him for four hours and she kicked him out after one hour? The transaction would have been not as expected. Would she then have raped him for that hour?

With the violin argument - what if it had been an ordinary violin, rather than one that had a bloody history? Wouldn't that be more like him having normal sex with her ... rather than the Stalin violin, which would have been like he had violent sex with her, when she had not agreed to that ...
miwahnimiwahni on April 16th, 2015 12:34 pm (UTC)
See, this is one of those issues that really makes me think. There are so many possibilities, ambiguities and unanswered questions.

And at the end of it all, the guy who was convicted has appealed, and because his appeal won't be heard until after his jail sentence expires he's been let out on bail so obviously not considered a danger to the community. Although if I see him coming up the street with a violin case I'll be running in the opposite direction.