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Lucienne -> RE: Ever heard of using a safe word for vanilla sex? (12/9/2009 6:26:05 AM)
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ORIGINAL: LafayetteLady
A football player doesn't consent to battery. They assume a risk that they may become injured during the game.
We're talking about different degrees of injury here. If you're just walking down the street and some guy comes flying through the air like a strong safety and wraps you up, do you think you can call the police and press charges? Just because players don't get carried off the field after every play doesn't mean they aren't being subject to physical actions that would be, in another context, battery.
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It isn't the same thing. If another player starts punching you on the field, that is different from being injured during a play.
Yes it is different, because that's not the kind of touching the player consented to.
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It would be like comparing this to a boxing match and saying that there was consent to being punched. Not the same thing.
By "this" do you mean the charges against Jetton? If he and the lady sat down and agreed to a scenario where he would punch her in the face, exactly how is her consent to being punched legally distinguishable from that of the boxer's consent?
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If you have a gun and someone tells you to shoot them, you can't shoot them and then use as a defense "they consented to me shooting them." The charge won't be defeated.
Depends on the circumstances. I don't know how it works in other jurisdictions, but in Missouri, consent can be a defense to all levels of battery. There's not a lot of guidance on when courts can disallow the defense (other than failure to offer evidence to support a jury instruction), it seems to be determined on a case by case basis. Generally speaking, no, a court probably wouldn't allow consent as a defense to shooting unless there were special circumstances that made the shooting reasonable at the time.
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ORIGINAL: Lucienne
The defense might want to call an expert, but I doubt they'd be legally required to do so to support the defense. Consent is something a jury can understand without assistance from experts. They may not understand why the hell someone would consent to such a thing, but they still know what consent looks like.
That's the whole point though isn't it? Without the use of an expert who can explain the "why" the concept that they don't know "why the hell someone would consent to such a thing" can easily and likely become "a person wouldn't consent to such a thing."
As a legal matter, I disagree. If I was his defense attorney, the last thing I'd do is let an expert on breathplay anywhere near a jury. In terms of the social judgment factor, I think there are problems on both sides.
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ORIGINAL: Lucienne
they'll just blame it on the trashy slut and a democratic conspiracy to undermine him. And, I never underestimate Missouri politicians in the shameless department. His attorney is going to have to make some pretty aggressive slut-shaming noises in the direction of the complaining witness if he wants to work out a decent deal.
That goes to putting the victim on trial and not permitted. Just like they can't use the fact that one is a prostitute to say she wasn't raped.
I'm sorry, have you been involved in sex crime trials? First, you can make aggressive slut shaming noises directed at the complaining witness long before anything goes to trial. Second, you don't even need to scratch the surface of her sexual history. She invited a guy over, that she was not involved with, for rough sex. Part of a defense attorney's job is to attack the credibility of the complaining witness. This shit leaks through despite the good intentions of rape shield laws.
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ORIGINAL: Lucienne
Well, of course the prosecution will argue those things. It still all comes back to consent. There's a MO case where a guy faced similar charges for injuring his girlfriend while fisting her. The court wouldn't let him argue consent because the girlfriend had a bac of .30 and was incapable of consenting. Not because no one can consent to being fisted.
There is a world of difference between fisting and face slapping and choking. Since you didn't list the citation for the case, you have the advantage of knowing the case particulars that I don't, but I'm willing to bet there was more to that case than simply injuring her during sex because of fisting.
209 SW3d 515. (A fine read, they censor "fuck," but not "cunt") There is more to the case than him injuring her during sex. But the "serious physical injury" necessary to support the more severe degree of assault was from the fisting. He was good for lesser degrees, but argued that consent to the fisting defeated that element of the more serious degree.
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Actually, if they argue consent, it won't simply come down to whether or not she consented. Certainly there will be the issue of whether or not she was capable of consent, based on the wine. But there will also be whether or not she withdrew consent.
Whether or not she had the capacity to consent or withdrew consent still boils down to whether or not she legally consented to the acts. If you're trying to suggest that consent is more complicated than just saying "yes," then I agree with you.
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Right now, the article presented really told us less than the bare minimum about what happened. I will say though that based on her "fading in and out" and "losing consciousness" several times really leads one to believe that either something was in that wine or other drugs were involved. The fact that her fading in and out and such occurred BEFORE the sexual activity is what will be his undoing.
The hints of drugs are interesting. I'm not quite sure what to make of it. If the prosecution believes she was drugged, why not charge him with rape as well? According to her, they had sex. As it stands, she consented to the intercourse, but not to the choking and slapping. Also, the reported physical evidence of injury is bruises on her breasts and thighs. I tend to believe the woman got more than she bargained for, but I'm not sure how it will shake out legally.
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But I actually don't think the case will ever go to trial, I think it there will be a plea bargain. Whether or not there is a civil trial is a whole different issue.
Since over 90% of cases end in a plea bargain, that seems like a safe bet. But Jetton has already shuttered his business and might have the incentive to take this one all the way.
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