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"Friend Zone" as Rape Culture and the Alpha\Beta Dichotomy


Myshkin

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Just now, Stubby said:

This is a copy of regulation 36(1) of the WA Legal Profession Conduct Rules 2010:     

The existence of this rule (which has been in place since before the 2010 version of the conduct rules was published) has not lead to any appellate decision reversing the outcome of a criminal trial (either for or against an accused) AFAIK.  I don't know if US lawyers have similar restrictions, but that is the case here.

Why is this specific only to cases of sexual assault?  Other than that. I may be missing how this is meant to counter the notion that in criminal cases, it is common to attempt to discredit witnesses and evidence?

Just now, mormont said:

I offer substance in response to substance, as a rule.

Is your assertion that this thread is the exception that proves the rule?  i can get behind that i guess.

 

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But my point, in case it was unclear, is that your post assumes that a good criminal defence lawyer must adopt a mercenary, win-at-all-costs scorched earth mentality in defence of their client: and this assumption tends to derive from TV depictions of the law rather than real life. In most jurisdictions lawyers have legal and ethical limits beside this, as officers of the court.

My post assumes nothing of the sort.  What an odd way to interpret such simple concepts. 

I am honestly baffled by the notion that you consider the concept of a defense team attempting to discredit evidence against their client as something that only happens on TV.  This seems, to me, to be a fairly non controversial position.  

Maybe i need to watch more TV to understand fully where it is you are coming from?  Do you have any shows in particular that you would recommend?

 

 

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Just now, Stubby said:

It's sexual assault specific because it used to be standard practice for barristers to try and blame the victims by alleging promiscuity, lifestyle etc.

We are back, now, to my earlier question of whether these kind of defenses contribute to 'rape culture' or whether they are just more effective because rape culture exists.

And what you are saying here is not what the statute says.  it appears to my non legally trained eye to be fairly more vague and broad than the way you are defining it here, but I am not a lawyer.

Never the less, it does not seem to be contrary to the notion that it is a common practice for defense teams to attempt to discredit the evidence  against their clients.

 

 

 

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And what you are saying here is not what the statute says.  it appears to my non legally trained eye to be fairly more vague and broad than the way you are defining it here, but I am not a lawyer.

It is what it says on the tin.  It was brought in for the main reasons that I suggested.  The wording used is meant to be a catch-all to apply to various degrading lines of questioning.  I am in no doubt about the meaning, as it applies to my work in Court.  It ties into the WA Evidence Act, which takes it a little further. 

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Never the less, it does not seem to be contrary to the notion that it is a common practice for defense teams to attempt to discredit the evidence  against their clients.

Not only is it not "common practice" it is unethical and would amount to professional misconduct to do it.  A finding of professional misconduct against an Australian lawyer means that lawyer is struck off in every jurisdiction.

This link to the Australian Law Reform Commission site explains why rape shield laws were necessary.  It probably goes to your suggestion that the existence of rape culture made these defence tactics more effective, and this was the way our legal system decided to combat the tactic.  This is an extract from the reasoning:

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All states, the ACT and Northern Territory have passed legislation which deals specifically with the admission of evidence in criminal proceedings where someone is charged with a sexual offence.  These ‘rape shield laws’ are said to have three principal aims. These are to:

  • prohibit the admission of evidence of a complainant’s sexual reputation;
  • prevent the use of sexual history evidence to establish the complainant as a ‘type’ of person who is more likely to consent to sexual activity; and
  • exclude the use of a complainant’s sexual history as an indicator of the complainant’s truthfulness.

 

 

 

I commend the rest of the ALRC's statement on the point to you as it leaves no room for doubt about the need for these laws in the first place.

 

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31 minutes ago, Swordfish said:

I am honestly baffled by the notion that you consider the concept of a defense team attempting to discredit evidence against their client as something that only happens on TV.  This seems, to me, to be a fairly non controversial position.  

It is, yes. It's also not the concept under discussion: it's not what you said, and not what I said.

What I said and what you said are on the record, but to sum up: your position is that it is 'absolutely' the duty of defence counsel to attack the lifestyle of a rape victim if doing so might in any way assist their client, and that this is a 'basic tenet' of criminal defence. The clear implication of that is: it's the defence's job to do whatever it takes to win. My response was that this is the sort of impression you might get from TV, and doesn't account for the various professional, ethical and legal boundaries that defence lawyers must observe in most jurisdictions.

Now, if you want to back up your position with some evidence, go ahead. If you just want to mischaracterise the conversation, go ahead and do that too, but don't expect anyone to engage with that.

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7 hours ago, Rippounet said:

When confronted with a victim, many people if not most will question their sincerity or their character. Somehow people still believe that it's possible to "accidentally" rape someone, that's there can be "miscommunication" or something. I think this is what I would call rape culture: not just the fact that people think there can be "grey areas" but the fact that people sysematically think about, talk and underline those grey areas as if they were frequent or the even the norm.
I'm not certain there is a grey area in rape, that weird concept of a "slippery slope" or a "threshold" to distinguish consensual sex from rape. But even if there were such a thing, it would represent a minuscule proportion of rape cases. So minuscule that it should hardly be mentioned in any conversation about rape. If you're talking about someone who got assaulted in the street, you don't automatically wonder whether they were asking for it, or blame them for their clothes. If you're talking about a burglary, you don't automatically wonder if the owner forgot to lock the door or close a window, If you're talking about a murder, you don't focus on how the murderer's life is going to be ruined by their conviction. The fact that rape leads to so much sympathy for the perpetrator is what shows the existence of a rape culture. There's an ingrained bias against women in many people. At the root of the problem is an age-old fear of female sexuality, this idea that girls having a sex life is somehow bad, and that it's the girl's job to deal with men's "urges," not only by having to explictly deny consent (because apparently men are too dumb to know what is consent and what isn't) but also to deal with the poor rejected man's feelings.
I think the link between the friendzone and rape culture is that the women are somehow presented as possessing the power to give men what they want and that they should feel guilty or ashamed about it when they flaunt it but don't give it.

There is no grey area if the rape victim is assaulted on the street or some other public place or even in their home by a stranger. There are/were grey areas in the case of marital rape (although there has been legal improvement here, in former times it was in some jurisdictions legally impossible although this has sometimes been exaggerated, e.g. in Germany where marital rape only became a crime in the 1990s, sexual coercion was possible in a marriage and could be prosecuted) and with prostitutes. And there are also plenty of situations where the evidence seems simply inconclusive, e.g. the Assange case. There are plenty of rape perpetrators or suspects who have no sympathy at all. (In the Brock Turner case it should be noted that there was apparently a rather public outcry after the mild sentence, so the sympathy by his friends and family is only one side.) The little "sympathy" there might be is usually for cases that are for all kinds of reasons perceived as "grey". Like both parties being very drunk and not clear what they were doing, like both parties being in a relationship so it has to be shown that in that particular act there was force/no consent etc. involved etc. The simple point is that this is extremely difficult to show even if one believes that there are no really grey cases and it is always in fact clear if there was consent or not. I mean, if both parties were so drunk they simply do not remember - what court case could there be unless there are clearly injuries etc.

As for victim blaming. I do not deny that it exists. But I don't think that every advice to be careful amounts to victim blaming. If a bike helmet is recommended (but not obligatory) and someone is hit by a careless driver and seriously injured, is it victim blaming to point out that wearing a helmet would have prevented most of the injury? If someone walks around a "bad" part of the city, visibly flaunting a Rolex watch, is it "victim blaming" and stablization of "mugging culture" to point out the stupidity of such a behavior? Of course the driver or the mugger are to blame morally, not the victim. But the victim in such cases nevertheless was very stupid. I don't know when excusable stupidity ends and culpable negligence begins, it doesn't help the victim afterwards anyway. But beforehand pointing out dangers and advising countermeasures should not be understood as shifting the blame (because it is not in the other examples), especially if there are "zones of rape culture" like fraternity parties etc.

As for the last quoted paragraphs. Women clearly do have the power to give men what they want or deny it. And flaunting and denying is wielding that power and part of the "game"? How could there be any doubt about that? And while I don't really buy into the vulgar psychology that men hate women for this power they wield over them, there might be some truth about that as well. Almost everybody likes having power and dislikes lacking power. But all this shows that sex is not just any other pastime and that there were very good anthropological reasons that almost every culture/religion/tradition has enforced sexual rules and taboos. I think it remains to be seen whether "consent" replacing all those complex rules and taboos will be successful in the long run.

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29 minutes ago, Jo498 said:

If a bike helmet is recommended (but not obligatory) and someone is hit by a careless driver and seriously injured, is it victim blaming to point out that wearing a helmet would have prevented most of the injury?

Are you seriously comparing things like what women wear in public, whether they drink and where they walk to safety equipment?

29 minutes ago, Jo498 said:

If someone walks around a "bad" part of the city, visibly flaunting a Rolex watch, is it "victim blaming" and stablization of "mugging culture" to point out the stupidity of such a behavior?

'Flaunting'. I see. She was flaunting it, your Honour.

I seriously struggle to imagine any context in which that word is used and it isn't being used to blame the victim.

29 minutes ago, Jo498 said:

I think it remains to be seen whether "consent" replacing all those complex rules and taboos will be successful in the long run.

I struggle to imagine what you think would replace consent, or why you're placing it in quotes, or why you think that it's 'replacing' anything, as if it's some sort of new-fangled idea. 

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Swordfish,

As attorneys we have competing interests.  We have a duty to zealously represent our clients... and... we have a duty of candor and honesty to the Courts in which we practice.  These duties can and do conflict.  As such there are fairly complicated rules and cases involving the interaction of various ethical duties.  

I, for one, take my duty of candor to the Court very seriously and when I take on a client I explain to them that hiding evidence or playing "gotcha" with opposing parties is not the way I practice.  It has served me well over my 16 and a half year career.  Courts know I'm not playing "hide the ball".  

Just because an attorney can attempt to smear the character of a victim to support their client, it doesn't mean they have to do it.  There is an element of choice there.  It is my sincere hope that as time moves forward fewer and fewer attorneys will invoke "scorched Earth", "look at what she was wearing", "slut shaming" tactics in rape defenses.  You can force the State to prove its case without walking that road.

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5 hours ago, Jo498 said:

As for the last quoted paragraphs. Women clearly do have the power to give men what they want or deny it.

More than men have the power to give women what they want you mean? ^_^

5 hours ago, Jo498 said:

Women clearly do have the power to give men what they want or deny it. And flaunting and denying is wielding that power and part of the "game"? How could there be any doubt about that? And while I don't really buy into the vulgar psychology that men hate women for this power they wield over them, there might be some truth about that as well. Almost everybody likes having power and dislikes lacking power.

This perspective seems to suggest that there is an imbalance of power between men and women, because women hold some form of "sexual power" over men.
Once you question this assumption, you start understanding what the debate is really about.

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11 hours ago, Stubby said:

It is what it says on the tin.  It was brought in for the main reasons that I suggested.  The wording used is meant to be a catch-all to apply to various degrading lines of questioning.  I am in no doubt about the meaning, as it applies to my work in Court.  It ties into the WA Evidence Act, which takes it a little further. 

Not only is it not "common practice" it is unethical and would amount to professional misconduct to do it.  A finding of professional misconduct against an Australian lawyer means that lawyer is struck off in every jurisdiction.

This link to the Australian Law Reform Commission site explains why rape shield laws were necessary.  It probably goes to your suggestion that the existence of rape culture made these defence tactics more effective, and this was the way our legal system decided to combat the tactic.  This is an extract from the reasoning:

 

 

I commend the rest of the ALRC's statement on the point to you as it leaves no room for doubt about the need for these laws in the first place.

 

This is interesting.  I was not aware of it.  Thanks for the link.

 

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On 4/5/2017 at 2:41 AM, Swordfish said:

We are back, now, to my earlier question of whether these kind of defenses contribute to 'rape culture' or whether they are just more effective because rape culture exists.

Does it have to be this dichotomy?

Many artifacts of culture are created by the culture but then go on to reinforce that culture. Take, for instance, FGM - it's both a product of patriarchy and treating women as sexual chattel AND a practice that reinforces that system.

 

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On 4/5/2017 at 3:22 AM, Jo498 said:

There is no grey area if the rape victim is assaulted on the street or some other public place or even in their home by a stranger.

No doubt in your mind, perhaps. I can only hope so. But in the public court, there are definitely doubts in cases that are "clear-cut" to you or to me. That's part of what we're seeing as the rape culture - the continuing and persistent push to not view certain assaults as rape at all.

 

There are plenty of rape perpetrators or suspects who have no sympathy at all. (In the Brock Turner case it should be noted that there was apparently a rather public outcry after the mild sentence, so the sympathy by his friends and family is only one side.) The little "sympathy" there might be is usually for cases that are for all kinds of reasons perceived as "grey".

No. The Judge who declared the sentence obviously had a lot of sympathy for the convicted felon. There are plenty of examples of this and similar happenings.

 

As for the last quoted paragraphs. Women clearly do have the power to give men what they want or deny it. And flaunting and denying is wielding that power and part of the "game"? How could there be any doubt about that? And while I don't really buy into the vulgar psychology that men hate women for this power they wield over them, there might be some truth about that as well. Almost everybody likes having power and dislikes lacking power. But all this shows that sex is not just any other pastime and that there were very good anthropological reasons that almost every culture/religion/tradition has enforced sexual rules and taboos. I think it remains to be seen whether "consent" replacing all those complex rules and taboos will be successful in the long run.

 

Okay. wow.

 

Okay.

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11 hours ago, TerraPrime said:

No doubt in your mind, perhaps. I can only hope so. But in the public court, there are definitely doubts in cases that are "clear-cut" to you or to me. That's part of what we're seeing as the rape culture - the continuing and persistent push to not view certain assaults as rape at all.

 

 

 

No. The Judge who declared the sentence obviously had a lot of sympathy for the convicted felon. There are plenty of examples of this and similar happenings.

 

 

 

 

Okay. wow.

 

Okay.

- do you have any examples of these clear cut cases that a conviction didn't happen because of 'rape culture' and not because of lack of evidence?

- the turner judge said he took brock turner at his word, as turner believed in his drunken state he had gotten consent for his actions. The judge simply believed that turner was telling the truth about that.  I don't see that as having anything to do with rape culture.

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2 hours ago, Channel4s-JonSnow said:

- do you have any examples of these clear cut cases that a conviction didn't happen because of 'rape culture' and not because of lack of evidence?

- the turner judge said he took brock turner at his word, as turner believed in his drunken state he had gotten consent for his actions. The judge simply believed that turner was telling the truth about that.  I don't see that as having anything to do with rape culture.

I'll see about the first.  As to the second... if you have gotten so drunk that you imagine you have permission to have sex with someone not capable of giving consent because they are not conscious... you've raped that person.  

Would you be relaxed if you found out a fellow had engaged in anal sex with you while you were passed out and his excuse was that "well I was really drunk and thought you'd said yes"?

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Jon,

As to the first:

https://en.m.wikipedia.org/wiki/Cheryl_Araujo

https://www.google.com/amp/s/m.mic.com/articles/amp/141781/here-are-9-times-clothing-was-blamed-for-sexual-assault-rather-than-the-obvious

https://mobile.nytimes.com/2013/09/21/us/intrusive-grilling-in-rape-case-raises-alarm-on-military-hearings.html?pagewanted=all&referer=http://www.refinery29.com/2013/09/54274/rape-victim-blaming

http://www.cnn.com/2013/08/28/justice/montana-teacher-rape-sentence/index.html

This is a Law Review Journal article from Yale discussing (for 47 pages) the intersection of "rape" and how women were dressed at the time they were raped:

http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1096&context=yjlf

The long and the short is that this happens frequently.  Saying otherwise is sticking your head in the sand.  If someone says "no" or lacks the capacity to say "no" what they were wearing before saying "no" is absolutely irrelevant to the discussion.

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It's a coincidence that I stumble upon this thread right after watching 13 Reasons Why. Which really made me stop and examine the culture we live in and make me scared to death for my daughter to go to High School. Bryce, the fucking goony rapist from the series struck me as unbelievable at first. Then, the more I thought about it, I came to the conclusion that there are guys like this in every H.S.. It honestly scares the shit out of me. 

I believe there is a rape culture, but I believe that most don't even know that it exists and what makes it possible. It's easy, no is no. I have a daughter and two sons. And, it scares me for all of them. Hoping my son's grow up and respect women and that my daughter is in turn respected by men. I do my best to show them by how I treat their mother, and I think that is where it all starts. But, I'm glad I stumbled upon this series and it's something I will have them all watch or read when they are of age. 

It exists and when I think back upon my days in H.S. I definitely seen behavior and attitudes that create a rape culture. We never had anyone accused of rape when I went to school, but I'm sure that it probably happened and went unreported, like most of them do.

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I think so much of this depends on how we are defining terms.

Somebody feeling upset over being rejected is one thing -- and I've seen people describe that as being 'friendzoned.' But I think a better definition actually encompasses the common negativity of the term. That it is specific to a set of people who don't really want friendship with another human as much as they are interested in leveraging the relationship towards sexual intimacy. (And according to a number of people this definition should probably also encompass a certain amount of anger or possessive entitlement as well)

I think Myshkin (and any subsequent thread starter for this topic) should open with a fixed definition, otherwise a host of people will respond (as we have seen here) arguing -due to unstated competing perspectives -  over the breadth and definition of these terms.

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I'll elaborate on this later when I have more time, but imo there's been a sudden surge in the redpill attitude on the Internet (and of course to an extent in real life , though now that I think about it, never seen one of these 'pickup artists' in real life). There is a normalisation of the MRA attitude which followed the backlash and ridicule of rising progressive social media and portals and was itself followed by what is now being collectively referred to as alt right. It started on comment sections in general and today you have these people writing opinion pieces and having their own subreddits 

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Regarding the Turner discussion let's also not forget the tremendous role Race and Class played in the case. Not trying to open a can of worms here but the apologists would've been singing a very different tune if it wasn't a wealthy elite white boy we were talking about. If Bryan Banks case has shown us anything it's that society and the system reserve their skepticism only for a certain kind of men 

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