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Sunday, September 27, 2009

Van Lente is right and NY's rape statute sucks

You know, I wasn't going to comment on that whole Chameleon debacle, since I don't read Spider-Man. But after reading Fred Van Lente defending himself and the various reactions to it, I kind of feel like I have to contribute.

I don't think a lot of you will like what I have to say.

Mr. Van Lente says:

My understanding of the definition of rape is that it requires force or the threat of force, so no. Using deception to trick someone into granting consent isn’t quite the same thing.

Which is not to say it isn’t a horrible, evil, reprehensible thing that Chameleon did. He is a bad man.

He insults parapelegics[sic] and dips people in acid too.


Before we burn him in effigy, please note that "force or threat of force" generally includes things like being drugged unconscious (force, even if she doesn't know it) or blackmail/extortion (threat of force). He's not "narrowing the definition of rape", he's relating the current status of New York State Law.

Quite a few states DO recognize a fraud or mistaken identity in their rape statutes. Louisiana does. I think that Arizona does. But unfortunately, New York does not.

I took these straight from Westlaw (what all the cool proto-lawyers use).

McKinney's Penal Law 130.20 specifically says:

A person is guilty of sexual misconduct when:

1. He or she engages in sexual intercourse with another person without such person's consent; or

2. He or she engages in oral sexual conduct or anal sexual conduct with another person without such person's consent; or

3. He or she engages in sexual conduct with an animal or a dead human body.

Sexual misconduct is a class A misdemeanor.


McKinney's Penal Law 130.05 defines consent:

1. Whether or not specifically stated, it is an element of every offense defined in this article that the sexual act was committed without consent of the victim.

2. Lack of consent results from:

(a) Forcible compulsion; or

(b) Incapacity to consent; or

(c) Where the offense charged is sexual abuse or forcible touching, any circumstances, in addition to forcible compulsion or incapacity to consent, in which the victim does not expressly or impliedly acquiesce in the actor's conduct; or

(d) Where the offense charged is rape in the third degree as defined in subdivision three of section 130.25, or criminal sexual act in the third degree as defined in subdivision three of section 130.40, in addition to forcible compulsion, circumstances under which, at the time of the act of intercourse, oral sexual conduct or anal sexual conduct, the victim clearly expressed that he or she did not consent to engage in such act, and a reasonable person in the actor's situation would have understood such person's words and acts as an expression of lack of consent to such act under all the circumstances.

3. A person is deemed incapable of consent when he or she is:

(a) less than seventeen years old; or

(b) mentally disabled; or

(c) mentally incapacitated; or

(d) physically helpless; or

(e) committed to the care and custody of the state department of correctional services or a hospital, as such term is defined in subdivision two of section four hundred of the correction law, and the actor is an employee, not married to such person, who knows or reasonably should know that such person is committed to the care and custody of such department or hospital. For purposes of this paragraph, “employee” means (i) an employee of the state department of correctional services who performs professional duties in a state correctional facility consisting of providing custody, medical or mental health services, counseling services, educational programs, or vocational training for inmates;

(ii) an employee of the division of parole who performs professional duties in a state correctional facility and who provides institutional parole services pursuant to section two hundred fifty-nine-e of the executive law; or

(iii) an employee of the office of mental health who performs professional duties in a state correctional facility or hospital, as such term is defined in subdivision two of section four hundred of the correction law, consisting of providing custody, or medical or mental health services for such inmates; or

(iv) a person, including a volunteer, providing direct services to inmates in the state correctional facility in which the victim is confined at the time of the offense pursuant to a contractual arrangement with the state department of correctional services or, in the case of a volunteer, a written agreement with such department, provided that the person received written notice concerning the provisions of this paragraph; or

(f) committed to the care and custody of a local correctional facility, as such term is defined in subdivision two of section forty of the correction law, and the actor is an employee, not married to such person, who knows or reasonably should know that such person is committed to the care and custody of such facility. For purposes of this paragraph, “employee” means an employee of the local correctional facility where the person is committed who performs professional duties consisting of providing custody, medical or mental health services, counseling services, educational services, or vocational training for inmates. For purposes of this paragraph, “employee” shall also mean a person, including a volunteer or a government employee of the state division of parole or a local health, education or probation agency, providing direct services to inmates in the local correctional facility in which the victim is confined at the time of the offense pursuant to a contractual arrangement with the local correctional department or, in the case of such a volunteer or government employee, a written agreement with such department, provided that such person received written notice concerning the provisions of this paragraph; or

(g) committed to or placed with the office of children and family services and in residential care, and the actor is an employee, not married to such person, who knows or reasonably should know that such person is committed to or placed with such office of children and family services and in residential care. For purposes of this paragraph, “employee” means an employee of the office of children and family services or of a residential facility who performs duties consisting of providing custody, medical or mental health services, counseling services, educational services, or vocational training for persons committed to or placed with the office of children and family services and in residential care; or

(h) a client or patient and the actor is a health care provider or mental health care provider charged with rape in the third degree as defined in section 130.25, criminal sexual act in the third degree as defined in section 130.40, aggravated sexual abuse in the fourth degree as defined in section 130.65-a, or sexual abuse in the third degree as defined in section 130.55, and the act of sexual conduct occurs during a treatment session, consultation, interview, or examination.


So far so good, but unfortunately there's "legal commentary" attached:

9. Seduction distinguished

Sexual misconduct differs from seduction, in that “seduction” involves allurement, enticement, or persuasion to overcome unwillingness or resistance. People v. Hough, 1994, 159 Misc.2d 997, 607 N.Y.S.2d 884. Seduction Key Symbol 33

In seduction, unlike rape, the consent of the woman, implied or explicit, has been procured by artifice, deception, flattery, fraud or promise. People v. Evans, 1975, 85 Misc.2d 1088, 379 N.Y.S.2d 912. Seduction Key Symbol 29


Yeah. And you see that case mentioned above? Hough? In it the girl's boyfriend's twin brother tricks her into thinking he's her boyfriend. Yeah, about as close to a real world analogy as you can get.

And that case was in 1994.

So, yeah. Mr. Van Lente is right. At least in New York. It's a deplorable, evil act for a man to trick a woman into having sex by fraud or mistaken identity. But legally it's not rape.

New York kind of sucks sometimes.

((Disclaimer: Please note that this does not constitute legal advice, and I'm not a lawyer. If you find yourself in a comparable situation, please call the cops and a lawyer! Laws can change and there may be additional ways to get some justice!!!))

(Edited to acknowledge that, not having read the story, if the girl IS under the age of consent, then Mr. Van Lente is indeed mistaken, and the offense would be prosecutable as rape regardless of her level of consent.)

33 Comments:

  • At September 27, 2009 4:17 PM, Blogger SallyP said…

    Well, I just learned something interesting1

     
  • At September 27, 2009 6:53 PM, Blogger Menshevik said…

    As far as I can see, the thing is that Van Lente et al. do not like it that people call what the Chameleon (apparently) did rape and want to stop them from using this potentially powerful word by insisting on legal, semantic or whatever definitions of the term. But should we really assume that those who originally called what the Chameleon (apparently) did rape meant to say "rape in the legal sense under the laws of the state of New York"? Or that they used it more in a wider (moral/ethical?) sense, in the way in the past someone talked of a husband raping his wife at a time and place when and where the law did not recognize a husband using force to have sex with his wife as rape? Or in which comic geeks will talk about the forceful/aggressive use of telepathy - i. e. a phenomenon that does not exist in this world and its laws - as "mind-rape"?

    I don't think you can stop people from calling such an act an act of rape even if it is not recognized as such in some jurisdictions including New York. (Assuming, btw, that Marvel's New York does not have stricter laws to deal e.g. with the existence of countless superpowered and alien (Skrull) shape-changers). Any more than you can stop people calling abortion, eating meat or war "murder", even though they are all something else under law. Which is probably why a little later Van Lente made a second announcement stating that the Chameleon did not in fact have sex with Michelle Gonzales when he pretended to be Peter Parker and "made out" with her.

    BTW, aren't you reading quite a bit into Van Lente's statement? For one thing, I don't seem to see the words "legal" or "under New York law" with "definition" or words to the effect that "it may be rape in other jurisdictions, but in New York..."

    Also, strictly speaking, even if we can assume that Van Lente (who I see was born in Washington State and apparently is a dual national (Dutch-American)) was talking specifically about the legal definition of rape under New York law (and not, for instance, about the semantic definition of rape in the current usage of American English), wouldn't he have been incorrect because e.g. sex with a minor is rape under NY law even with no force or threat of force involved?

    Finally, I'm a bit confused re. the force thing. Is blackmail/extortion legally considered force even if it takes the form of e.g. threatening to fire an employee if s/he won't agree to sex or to expose something immoral (but not necessarily legally/criminally pursuable) the intended victim did?

     
  • At September 27, 2009 7:43 PM, Blogger kalinara said…

    Menshevik: I'm only going off of what Mr. Van Lente said.

    Since "force or threat of force" is specifically statutory/common law language, and criminal law is specifically derived from state statute and case law, it's logical to read his response as referring to a legal definition.

    And why would his home state mean he couldn't look up NY law? Peter Parker and company live in NY. It's not hard to look these things up.

    I'm not saying people are wrong to get upset at the plot point, and by my own personal definition NY is wrong and that is rape. But attacking the guy for speaking truth is a bit much. Even if he doesn't share your (or my) opinion that it is rape in a "wider"/moral sense, that doesn't make him a bad person or wrong. (He does outright acknowledge the act as "evil" regardless of whether he thinks it's technically rape.)

    And yeah, blackmail of the sort you mention is usually recognized as "threat of force" in most jurisdictions as far as I'm aware. (I haven't looked up NY case law in particular, to be fair.)

    Finally if the victim is below the age of consent (17 years old, with the perpetrator being over 21), then yes, he would be mistaken and that would be rape regardless and a valid critique of his counterargument.

    I just don't think it's fair to demonize the guy for an accurate (if not necessarily complete) understanding of the law.

     
  • At September 27, 2009 7:57 PM, Blogger kalinara said…

    As an addendum: it could always be established later that this is one of the myriad of ways that the Marvel Universe's New York's laws differ from ours.

    However, that's probably a different discussion altogether. :-)

     
  • At September 28, 2009 3:41 AM, Blogger Menshevik said…

    FYI the woman in question is over the age of consent (and in fact a lawyer!).

    While maybe "it requires force or threat of force" leads legal experts to the conclusion that Van Lente voiced a sort of legal opinion here, I think it is a bit of a stretch to expect people who aren't lawyers or students of law to arrive at that conclusion even if they recognized "force or threat of force" as a legal term.

    Also, I'd say that even if Van Lente had made it clear that he was only speaking of the legal definition of rape specifically under New York law, that would have been a faulty, misleading response to the original criticism of the story. It only sidetracked part of the debaters into a tangential legal discussion (where e.g. one guy argued that even if that particular act would have been rape under British and various US states' laws, you shouldn't call it rape because it is not considered rape under MASSACHUSETTS law - at that point of the discussion nobody knew what New York law actually had to say on the subject).

    Finally, the reason why people were upset over the story and Van Lente was not a difference over a fine point of legal distinction, but the way the act was presented in the story. I'd say people would not have bothered about whether it was or was not it was strictly speaking rape under NY law if the story had actually presented what happened as "a horrible, evil, reprehensible thing", but it wasn't. It was used as a source of "Three's Company" style "wacky hijinks", not as something bad happening to Michelle Gonzales, but as something that caused inconvenience to Peter Parker (because Michelle now mistakenly assumed Peter was in love with her).

     
  • At September 28, 2009 5:53 AM, Blogger Saranga said…

    Re the secution bit, is there anything in the law books referring to seduction of men?

     
  • At September 28, 2009 6:01 AM, Blogger Elayne said…

    Hang on. You DIDN'T EVEN READ the scene in question?

    I'm about as anti-rape as it gets, but not even reading the scene, just hopping into a discussion completely out of context, just seems a bit unfair and knee-jerk to me.

    I read the scene, in the context of the entire story, and I found it as creepy as most other things a villain would do (particularly this villain, who kept justifying in his head that he was improving Peter's life for him) but I didn't think it was rape in any way, shape or form.

     
  • At September 28, 2009 7:37 AM, Blogger kalinara said…

    Elayne:

    Clearly I read the scene as well as you read my post: not at all.

    1. I am critiquing Mr. Van Lente's explanation as linked, not the scene.

    2. I am actually defending Mr. Van Lente. He has accurately stated NY law, as I've demonstrated.

    3. Seriously, if you want to avoid being the pot calling the kettle black, you might want to learn to READ before commenting.

    --

    Menshevik: I didn't say he was offering a legal opinion. I said that I am under the impression that he was relating his understanding of the law and using the appropriate legal language to do so. I am usually inclined to give people the benefit of the doubt when there is a non-assholish interpretation easily available. Here, there clearly is.

    Saranga: Good question, I suspect there isn't (seduction laws are generally remnants from a less enlightened time, shall we say) but I don't know for sure. I'll have to look it up, next time I get a chance.

     
  • At September 28, 2009 12:09 PM, Blogger Menshevik said…

    And once again the point is sidestepped by a piece of legal hairsplitting. Well done!

     
  • At September 28, 2009 3:13 PM, Blogger kalinara said…

    Menshevik: If that's the way you want to look at it.

    Honestly though, it's more that, when faced with a monologue, I don't tend to feel that my input is terribly required. If there is a specific point where I think I ought to clarify or restate my position (as I did with Mr. Van Lente) I will.

    I don't mind long replies and essays in this comment section. I do them myself. But if you want an actual discussion...brevity is an aid.

     
  • At September 28, 2009 3:48 PM, Blogger Ragnell said…

    Hang on, Elayne. You didn't even READ THE POST you're responding to? She's defending the guy. I can tell you're mad about this criticism Van Lente's getting, but it seems here like you're just jumping on the next person to address it without doing more than skimming her point. Seems a bit unfair and knee-jerk to me.

     
  • At September 28, 2009 5:59 PM, Blogger notintheface said…

    Elayne:

    1. Thanks for showing me how to blogroll (I can never say this enough).

    2. Here's the issue: Van Lente did get unfairly castigated elsewhere on this issue, but not here. Kalinara was actually defending his understanding of the issue based on NY statute. I wrote something on my blog a week back stating my opinion that FVL was wrong, but that it was unfair to lump him in the same category as the misogynist "she wasn't raped because she was wearing a short skirt" crowd, as many laypersons would figure the same thing, as the impersonation angle isn't exactly commonplace in real life and easier to misunderstand. (Yes, I'm a layperson, too.)

    3. To be fair to Kalinara, I DID read the scene, and there wasn't really anything in the scene which the second-hand descriptions misinterpreted. IMHO, she probably had sufficient info even without reading the scene, because it was being described by many people, and very accurately. The issue was whether Chameleon slept with Michelle or just made out with her. Because they ducked behind a couch, it initially could have been interpreted either way. FVL clarified it two issues later.

     
  • At September 29, 2009 5:21 AM, Blogger kalinara said…

    I love your post, notintheface, by the way. :-)

    I never really thought about how often that seems to happen to male characters. (I know Battlestar Galactica even did that.) Kind of interesting, really.

     
  • At September 29, 2009 5:27 PM, Anonymous Anonymous said…

    Interesting post and interesting comments. I have to agree with the people that say this is more of a social/moral issue than a legal one.
    If we wanted to make it legal-centric I am sure we could go back far enough in our our legal precedence and find cases which we would clearly call rape in the present day which were not rape at the time the cases were adjudicated.
    But this is not a typical rape case with the use of physical force or drugs. This is a case of deceit. Which I would not put in the same category as the former types of rape. I still think its bad, but maybe not at the same level as the other types.
    Interestingly, Titans had a similar story-line when NightWing was "raped" by Mirage when she impersonated Starfire. . . I don't know if there was outrage then.
    I'm not sure how I feel about this storyline. At heart I am a feminist. And I hate storylines where female characters are raped as a way to make them crazy. But this storyline is going in a different direction and does not involve the violent rape that I hate. So I am going to wait and see where the writer takes this.
    - Seafire

     
  • At September 29, 2009 6:11 PM, Blogger Scott (The Mad Thinker) Anderson said…

    Maybe it's because I also work in the legal field, but I read his comments exactly as you had. I considered writing something, but it was clear from what I read on other blogs that there was no way that a discussion of the legal definition in NY was going to dissuade people who were upset by his language. Somehow his description of the act as "a horrible, evil, reprehensible thing" was still viewed as him saying it was all right because he didn’t think it fit the definition of rape. A reasoned legal discussion was just not going to fly.

     
  • At September 29, 2009 7:07 PM, Blogger kalinara said…

    Seafire: the idea that it isn't the same level of violation as drugs or physical force is essentially the logic behind both the statute and Mr. Van Lente's argument.

    It's a pretty complicated issue though, so I don't really think there's a wrong answer (except of course: "Chameleon didn't do anything wrong!" but I don't think anyone's arguing that.)

    Menshevik mentioned above that Mr. Van Lente apparently clarified that sexual intercourse didn't happen, so it's likely nothing will really come from it. I could be wrong though. :-)

    Scott: I always feel slightly weird when you and I agree, man. :-P

    Anyway, I just like posting my opinion. If it persuades someone, great. If not, well, that's okay too. :-)

     
  • At September 29, 2009 7:17 PM, Anonymous Anonymous said…

    kalinara: one last thing though, I am still not sure the place of legal analysis in this discussion.
    I'd give 2 reasons:
    1. Just b/c it doesn't meet the legal definition of rape doesn't mean that it isn't rape.
    2. More importantly I find it pretty odd that we are willing to have a discussion/analysis on the issue. there have been so many murders in comics have they ever been legally analyzed? I doubt it.
    I have a feeling that the only reason why the legal analysis is being used is to say, "Ah well its not legally rape therefore..."
    And I would argue that this type of mixing and confusing of legal issues with moral issue that give lawyers the bad reputation that they have.
    - Seafire

     
  • At September 29, 2009 7:30 PM, Blogger Scott (The Mad Thinker) Anderson said…

    Seafire, I would suggest that you are the one mixing and confusing of legal issues with moral issues. No one, inlcuding Van Lente suggests that the act of sex by fraud is moral. Even he said it was "a horrible, evil, reprehensible thing." kalinara and I are suggesting that he was only making a comment on the legal definition. Suggesting that he was making some kind of moral arugment that somehow made the act less than horrible, evil, reprehensible thing is what I would say is the confusion.

    You know, I told myself I wouldn't be sucked into this but here I am.

     
  • At September 29, 2009 7:51 PM, Blogger notintheface said…

    "Interestingly, Titans had a similar story-line when NightWing was "raped" by Mirage when she impersonated Starfire. . . I don't know if there was outrage then."

    Anon:

    When I posted about the Nightwing-Mirage storyline, I also mentioned that it was published before there was any comics blogosphere to speak of. In fact, it was published at least a year or two before the Internet had gained popularity with the general public. So I can only guess how much outrage it would have generated had it been published today.

     
  • At September 29, 2009 7:57 PM, Anonymous Anonymous said…

    Madthinker: okay so I give up: why the legal analysis? What purpose does it serve unless it is being used to somehow say, hey its NOT rape.
    Why not a legal analysis of the different types of murder that have occurred in comics?
    Why not a legal analysis of Black Cat's actions as a thief?
    I love analysis of comics for new insights etc. But I am not sure what the purpose of the legal analysis of whether it was rape under the law was.
    Okay let's contextualize this; an event occurs, that possibly is a crime. That happens alot in comics. The character has not asked for a lawyer, there is no court room involved, no police action... why the legal analysis?
    Are you saying that the purpose of the legal analysis by various blogs of this comic was a lesson in law?
    - Seafire, not attacking but genuinely perplexed

     
  • At September 29, 2009 8:20 PM, Anonymous Anonymous said…

    Madthinker: And just to clarify, we are not even talking about an analysis that involves legal policy; i.e. should this type of situation be considered rape. This is plain and simple an IRAC analysis of a crime. If that is the case, why not IRAC other comic crimes? UNLESS the purpose of the IRAC analysis is to show legally it wasn't rape and therefore absolve Chameleon of his crime.
    I personally am a little uncomfortable with the story-line but not as much as other ppl b/c it isn't a violent rape. As notintheface has mentioned in his blog there are other comic stories of this type of deceipt rape. And such stories are also common in folklore, fairy-tales and myths, so I beleive that they have a purpose and reason for existence. That being said I just find it perplexing that we are IRAC-ing this issue. Obviously ppl are not mad over whether it is legally rape or not but whether it is morally/ethically rape or not. And IRAC-ing it does not add anything to the discussion unless you want to make ppl aware about the law to
    a. have ppl change the law
    b. let ppl know that it wasn't rape and therefore ok
    -Seafire

     
  • At September 29, 2009 8:48 PM, Blogger Scott (The Mad Thinker) Anderson said…

    "Are you saying that the purpose of the legal analysis by various blogs of this comic was a lesson in law?"

    No. What I'm saying is that if you ask "Is this rape?" you are asking a legal question because it is the law the defines the word. We could look to other sources, but it is the law that gives the most detailed definition of a crime. Even dictionaries defer to the law. For instance, my dictionary defines rape first as "the crime of using force somebody to have sexual intercourse with somebody" which the Spider-Man scene does not fit. And the second is "an instance of the crime of rape" which the scene fits in some states, but not in others. But to know if the second definition fits, we have to look at the law.

    There are all sorts of acts that might be considered rape by fraud by someone, and a good many of them would not be things that most feminists (including me) would want to count as rape. For instance, if a woman said she was taking birth control to get a man to have sex with her, but she wasn’t, would that be rape? Her act might have long-lasting repercussions in the man’s life that are moral, financial, etc. It might be sex by fraud, but it’s not rape. If I were asked if it was rape after I wrote a scene like that, I would say it was not rape. But by saying it’s not rape, I’m not saying that lying about contraception by either a man or a woman is moral or that any kind of sex by fraud is moral.

    I’d say there are essentially two sources for looking at the word “rape” and seeing if the word fits the act in question. One is the law and the other is the dictionary, which relies on the law for its definition. If we aren’t using the law or dictionaries to define the meaning of words, what are we using?

    And why are we angry with a guy for using those perfectly legitimate sources for the definition of a crime?

     
  • At September 29, 2009 9:51 PM, Anonymous Anonymous said…

    Madthinker:
    Sorry last post/response

    I have to disagree with you. I don't think most people are discussing this in the light of whether this was legally rape and therefore a crime or not.

    They are discussing it under the light of whether the sex was consensual and therefore rape morally speaking.

    Unfortunately, the law does not always have a moral/ethical grounding. For example, in certain countries a woman who is raped can be tried for adultery. I am sure a lawyer/lawstudent from that country could IRAC the situation for us and say oh no this is not a case of rape, this does not fit our statutory definition of what rape is, this is adultery and therefore she deserves to die. In old European law rape was not considered injury to the woman but to her guardian, i.e., her husband or father. I don't know how you feel about those laws but to me they are morally and ethically reprehensible and I say screw what the law says. But that's just me.

    Now as to why this is so upsetting, well for me its upsetting b/c I am a law student. I know that lawyers have a reputation for being amoral, immoral, arrogant, cold-hearted, greedy, while other professionals such as say doctors who probably prorportionally have the same amount of ppl who are amoral, immoral, arrogant, cold-hearted, greedy, are generally viewed more favorably.

    This is 2x in as many days that I have seen lawyers/law students use either legaleese or legal reasoning in what I personally think are inappropriate ways. In this situation we are having lawyers trying to prove that this "rape" does not fit the criminal definition of rape and therefore isn't rape. Thereby we are absolving the Chameleon of having committed "rape".

    Well so how does that add value, and let me emphasize the word value, to the conversation? In fact it does the opposite. It is detracting value, because we are saying that oh no he didn't rape her, let's lessen the crime. He just lied. Oh I see that makes it so much clearer morally for me.

    So if I have a daughter and she is ""raped" by her BF's twin brother I will inform/IRAC it for her that she wasn't raped, she was just lied to.

    I just hope when I am a lawyer I will be able to keep my moral grounding and not use legalese/legal reasoning against lay people or to justify immoral behavior. And you will probably say well I am not saying what he did isn't wrong its just not rape; my response sure it is, even if not legally speaking rape, its rape, Chameleon raped her just like Zeus raped Alcmene (mother of Hercules) in the disguise of her husband, and Uther raped Igraine (mother of Arthur).

    of course the whole problem goes away if Chameleon and the character did not actually have sex. Then this whole conversation becomes moot. :-)

    -Seafire

     
  • At September 29, 2009 11:05 PM, Blogger Scott (The Mad Thinker) Anderson said…

    “I have to disagree with you. I don't think most people are discussing this in the light of whether this was legally rape and therefore a crime or not.”

    But I don’t disagree with that. Most people are not discussing this using legal terminology. But then they aren’t using the dictionary either because it also uses the legal definition. There is nothing immoral about using a term in the manner in which it is commonly used as defined by a dictionary.


    “I don't know how you feel about those laws but to me they are morally and ethically reprehensible and I say screw what the law says. But that's just me.”

    No, it’s not just you. Everyone agrees that what happened in the comic was immoral and reprehensible. The author called it “evil.” Saying that something does not fit the definition of rape is not the same as saying that it is moral. For instance, if a man tied up a woman and burned her to death because he found it sexually exciting, he would be guilty of murder, arson, and kidnapping. But despite the fact that there was a sexual component to the crime, he would not be guilty of rape. Having said that, I assure you, I am not saying the act was moral.

    “This is 2x in as many days that I have seen lawyers/law students use either legalese or legal reasoning in what I personally think are inappropriate ways. In this situation we are having lawyers trying to prove that this "rape" does not fit the criminal definition of rape and therefore isn't rape. Thereby we are absolving the Chameleon of having committed "rape".”

    I will remind you that what you are calling “legalese” is the dictionary definition of the word.

    “So if I have a daughter and she is ""raped" by her BF's twin brother I will inform/IRAC it for her that she wasn't raped, she was just lied to.”

    I would suggest that telling her what would make her feel better would be more important than being precise in your definitions, but if you encouraged her to press charges of rape, knowing that she would fail in that pursuit, I would suggest to you that you were being both a poor mother and a worse lawyer for sending her down that path toward frustration and heartbreak. You would do her no favor by hiding the (legal) definition from her.

    I just hope when I am a lawyer I will be able to keep my moral grounding and not use legalese/legal reasoning against lay people or to justify immoral behavior.

    Unlike the rest of us, right? Those of us who use the precise language of the law and legal reasoning in our practice of the law have lost our moral grounding. Moral people make up their own definitions of words as they go along and jail people based on their own definitions. Moral people don’t rely on legal reasoning and would arrest people based on laws that aren’t written. Oh, if only I could be as ethical as you.

     
  • At September 30, 2009 12:11 AM, Anonymous Anonymous said…

    LOL
    Okay then you ARE saying that rape could just be an injury to a woman's husband or father but not to her and that is okay with you as long as it fits the legal definition. And you are saying that as long as a raped woman doesn't fit the statutory definition of rape but fits the definition of adultery and she gets killed for it you are okay with that... because it legally doesn't fit the definition of rape.

    Thanks, I wish I could be as legally conscious as you are. You are a boon to the legal community.

    I never said that I had the moral high ground. I openly admit that I have my moral and ethical flaws. BUT I am not going to use smoke an mirrors to make myself feel good at the end of the day and justify anything and everything as ok as long as it fits a legal definition.

    We could continue this ad infinitum... so before slavery was illegal it was ok with you... and racism in the form of the Jim Crow laws was legal it was ok with you. Hey cause its legal. Let's see what else... oh abortion that's a great one! Well its illegal therefore morally reprehensible, oh wait now its legal its hey its great! And please don't say that you find these things morally reprehensible and you are just being logical and rational about the law. LOL cause that's exactly what supporters of racist ideaology did at the time. they used law, and definitions, and "science" to justify their conclusions.

    Twist it and turn it and justify it as long as I get paid who cares
    Another great lawyer in the making
    ;-)

    In the end you never responded why this issue is being IRAC-ed and not other issues in comics. Its because at the heart of it many guys hate rape issues and automatically take the stance it wasn't rape. And in this case a lot of guys want to absolve Chameleon of rape. Oh it wasn't rape it was lie.

    Okay so Chameleon came to Spider man in the form of MJ and had anal sex. Oh that's not rape, why its only a lie... Peter quit feeling violated. Its kind of cute when you get all upset over this thing. Aww look he's blushing. Poor Peter. Well at least you enjoyed it. And don't press any charges cause you are not going to win. What you want to kick his @$$. Ok Peter that is against the law, you are acting like a vigilante.. hold on let me get my law book out and IRAC it for you.

    So you can call it a rose if you want but if it smells like ka-ka I unlike you will call it like it is.

    -Seafire

     
  • At September 30, 2009 12:33 AM, Blogger kalinara said…

    Yeah, okay.

    Scott and Seafire, while I like you both, here's the time where I pull out the comment policy on you both as you've made your salient points a while back and are now arguing in circles while taking potshots at each other.

    If you two would like to finish this discussion via email or some other blog/forum, you're welcome to drop a link here.

     
  • At September 30, 2009 9:43 AM, Blogger Scott (The Mad Thinker) Anderson said…

    Sorry, Melissa. I knew that would happen if I discussed this but suckered myself right into it anyway. Ugh. What is wrong with me? Feel free to supply a list.

     
  • At September 30, 2009 11:07 AM, Blogger kalinara said…

    :-) Happens to all of us sometimes.

     
  • At October 01, 2009 5:22 PM, Blogger Ferrous Buller said…

    So here's a hypothetical for you:

    Let's say Chameleon is eventually arrested and that Michelle (the victim in all this) finally believes what Peter told her about Chameleon. [At this point, Peter's told Michelle that Chameleon impersonated him, but she thinks he's lying as a really lame way of dumping her.] And let's assume they had sex, not just sloppy makeouts on the kitchen floor. So she decides to press charges against Chameleon. Only - what charges could she file? If we presume Van Lente's & your legal interpretation of Marvelverse NY law is correct, then she can't accuse him of rape. Could she accuse him of fraud? Or could she sue him in civil court? For, I dunno, emotional distress or something like that? In that case involving her boyfriend's (evil!) twin brother, did the plaintiff ever get any sort of legal settlement in her favor?

    Where's She-Hulk when you need her? :-)

     
  • At October 01, 2009 6:17 PM, Blogger Scott (The Mad Thinker) Anderson said…

    Could she accuse him of fraud?

    The problem with fraud is that it suggests that she should have gotten paid for the act, that there was a transaction for which there was a value and she was cheated out of her part of the compensation. As you have figured out, the prostitution statutes would prevent this charge.

    Or could she sue him in civil court? For, I dunno, emotional distress or something like that?

    Nice try, but I believe the tort only works for the intentional infliction of emotional distress. Just causing distress isn’t enough. For instance, if Peter really dumped her, she might be distressed, but she’d have to prove that he intended to cause her distress and didn’t just want to break up with her, and then she’d have to prove that she had damages for which she should be compensated. Or more dramatically, let’s say the Chameleon killed my next-door neighbor who was my good friend. The killing would certainly be a crime and it would certainly cause me all sorts of distress. But his goal was to kill my neighbor not to cause me distress. If he killed all my neighbors to freak me out, I might have a case. In this instance, the Chameleon’s goal was to kill someone, IIRC. Unless she can prove that it was his intention to cause her distress, and I don’t think she could, I don’t think she’d succeed. Still, you never know and I’m no expert in his law.

     
  • At October 01, 2009 8:53 PM, Blogger kalinara said…

    I wouldn't be as quick to say no as Scott, especially on fraud. I remember seeing a few cases that might imply otherwise.

    Ultimately, it'd depend on the individual state statute and the temperament of the judges to see if the elements could be met.

    -

    I think a battery tort claim could work though, or even criminal battery. Again, it'd depend on the statute's language, the judges, and the lawyer, I'd bet.

    Very few things are absolutely certain in the court of law though, so I'd give it a shot.

     
  • At October 02, 2009 12:47 PM, Blogger Scott (The Mad Thinker) Anderson said…

    Melissa, Ooo, battery! I like that! Very clever.

    I was thinking about this on the way to work and it occurred to me that I was thinking about the case from the vantage point of the semi-omniscient reader. While I may know that the Chameleon was not engaging in intentional infliction of emotional distress, some trier of fact would not and a sex act might not appear to be in line with the Chameleon’s goal as an assassin. If one could convince the trier that this extraordinarily unsympathetic person was intending to cause emotional harm because he’s just that much of a creep (and any evidence of his past misdeeds might guarantee that if they were admissible) that’s a case one might win. I’d give it a shot if the client was up for it.

    Did you look up the parties of the twin case to see if there was civil action? I don’t have access to NY case law in my Westlaw, but I’m fascinated by this case now. In fact, if you give me the names, I’ll probably Google the hell out of them, looking for some headline reading “Infamous Twin Pays Millions Then Hit by Truck.”

    Oh, and despite my better judgment, I did respond to Seafire here:
    http://scottthemadthinker.vox.com/library/post/seafire-not-attacking-but-genuinely-perplexed-that-you-love-rape.html
    Someone please break my fingers to keep from doing this again!

     
  • At October 03, 2009 3:30 AM, Blogger kalinara said…

    Okay, well the case is People v. Hough (citation: 159 Misc.2d 997, 607 N.Y.S.2d 884)

    I haven't found the girl's name, but the evil twin is "Lamont Hough." (Lenny is the name of the boyfriend.)

    Case was in 1994.

     

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