How crazy the world can be...
Jan. 28th, 2020 01:11 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
johnpalmerThis blog post:
http://www.lawyersgunsmoneyblog.com/2020/01/the-facts-in-the-kobe-bryant-sex-assault-case
... indicates an interesting blind spot in cases of sexual assault and harassment.
The money quote:
This is the "she didn't say no" defense. And this is one of the big blind spots in sexual assault cases. Sex takes time; it requires proximity; it doesn't forbid verbal interaction during most interactions, and those interactions can be paused.
That's the roundabout way of saying "Dude... she was *RIGHT THERE*. Why didn't you make sure she was at least not-unhappy?"
To more modern people (definitely more modern women, but hopefully all modern men!) this may sound like a ludicrous question. There's been a big movement to go from "no one says no" to "enthusiastic acceptance".
That is: if you're going to have sex with someone, and you have any question about whether they want it, the rule to be one of the "good guys" is to make sure they're enthusiastically accepting the activity.
(Okay, yes, granted: sex can be complicated; sometimes trades are made. "I don't like oral sex, but I do consider it a fair trade, you get some, I get some." Here, you might say "enthusiastic acceptance" isn't really the right standard. Yeah, granted, but trades are an edge case, and really don't belong in preliminary encounters. Not everyone is skilled at saying "no" in edge cases, so enthusiastic acceptance is the right standard to use until you've had plenty of time to learn limits and negotiate.)
Again, this might sound strange to more modern people, but in the 70s, and 80s, and 90s, "she didn't say no" was a sort-of rallying cry. It couldn't have been rape, if she didn't at least say "no". And so many people talked about that, and so many Very Serious People agreed that a person ought to say "no," as if the only possibly way a person can indicate a lack of consent is verbally.
Of course, "she didn't say no" leads to the famous "he said, she said" case; and even today, you can see folks like Weinstein and Cosby act imperiously innocent, even though, with enough mutually similar stories told, we can be pretty sure they're guilty of a significant number of crimes.
Of course, we know part of the issue: men, especially powerful men, want their crimes to vanish. We got to see a great example of that in the SCOUTS hearings of Kavanaugh. That one was a doozy.
Seriously: think about this. You have a judge on the bench, right? And a clear question of fact arises, that impacts his fitness for the Supreme Court. And this is a person who is supposed to be impartial to both the accused, and the accuser.
Was Kavanaugh impartial? No - he considered this question of fact to be an assault on him, and vowed revenge.
That he couldn't respond, impartially, to a question of fact, proved that he can't be impartial.
I mean, this is like the old joke "will you have sex with me for a million dollars? Yes? How about for $50? What kind of woman do I think you are? We've already determined *that*. We're just haggling over the price!"
Kavanaugh showed that he would not be impartial over the mere *asking* of the question - it was unfair to *ask*. And then, in prepared testimony, under oath, in a hearing dedicated to that question of fact, he vowed revenge.
In any healthy republic, the Republicans would have voted against him en masse. He'd sworn he'd be biased (albeit against their political rivals); he shouldn't be on the bench.
Heck, in any healthy republic, that he so much as felt insulted by the question should have killed his nomination, because, again, it showed he can't be neutral over a question that is clearly relevant.
Further, he insisted, in a written response (that is submitted under oath) that he wasn't at "the" party where the alleged incident occurred. That's an interesting tell, because it naturally raises the question of "oh? and what party was that? The one where she was assaulted? But you say that you aren't aware of any assault; are you accusing her of fabricating the story?
Those questions deserved to be answered, but the Republicans realized that the question of having to answer for decades-old accusations was riling up their base. They had to confirm Kavanaugh, or they might be at risk of losing their jobs - the very jobs they won't do properly, which would require them to reject him.
It must be fun to be a GOP Senator - you're supposed to do your job poorly, whenever doing so helps your party; you get to ignore any sense of responsibility or duty, that pesky "Constitution" thing (except when you have to swear you love it, and revere it, so long as you can convince everyone it means only what the wealthy and powerful want it to mean).
I mean, so long as you're someone like Inhofe, who is missing his brain, or his conscience, or his heart. (Mathematically, "OR" includes "or both/each/all".) If you had all three, it would probably require excessive amounts of drugs to help numb guilt, and the various effects on the body thereof.
http://www.lawyersgunsmoneyblog.com/2020/01/the-facts-in-the-kobe-bryant-sex-assault-case
... indicates an interesting blind spot in cases of sexual assault and harassment.
The money quote:
I also want to make it clear that I do not question the motives of this young woman. No money has been paid to this woman. She has agreed that this statement will not be used against me in the civil case. Although I truly believe this encounter between us was consensual, I recognize now that she did not and does not view this incident the same way I did. After months of reviewing discovery, listening to her attorney, and even her testimony in person, I now understand how she feels that she did not consent to this encounter.
This is the "she didn't say no" defense. And this is one of the big blind spots in sexual assault cases. Sex takes time; it requires proximity; it doesn't forbid verbal interaction during most interactions, and those interactions can be paused.
That's the roundabout way of saying "Dude... she was *RIGHT THERE*. Why didn't you make sure she was at least not-unhappy?"
To more modern people (definitely more modern women, but hopefully all modern men!) this may sound like a ludicrous question. There's been a big movement to go from "no one says no" to "enthusiastic acceptance".
That is: if you're going to have sex with someone, and you have any question about whether they want it, the rule to be one of the "good guys" is to make sure they're enthusiastically accepting the activity.
(Okay, yes, granted: sex can be complicated; sometimes trades are made. "I don't like oral sex, but I do consider it a fair trade, you get some, I get some." Here, you might say "enthusiastic acceptance" isn't really the right standard. Yeah, granted, but trades are an edge case, and really don't belong in preliminary encounters. Not everyone is skilled at saying "no" in edge cases, so enthusiastic acceptance is the right standard to use until you've had plenty of time to learn limits and negotiate.)
Again, this might sound strange to more modern people, but in the 70s, and 80s, and 90s, "she didn't say no" was a sort-of rallying cry. It couldn't have been rape, if she didn't at least say "no". And so many people talked about that, and so many Very Serious People agreed that a person ought to say "no," as if the only possibly way a person can indicate a lack of consent is verbally.
Of course, "she didn't say no" leads to the famous "he said, she said" case; and even today, you can see folks like Weinstein and Cosby act imperiously innocent, even though, with enough mutually similar stories told, we can be pretty sure they're guilty of a significant number of crimes.
Of course, we know part of the issue: men, especially powerful men, want their crimes to vanish. We got to see a great example of that in the SCOUTS hearings of Kavanaugh. That one was a doozy.
Seriously: think about this. You have a judge on the bench, right? And a clear question of fact arises, that impacts his fitness for the Supreme Court. And this is a person who is supposed to be impartial to both the accused, and the accuser.
Was Kavanaugh impartial? No - he considered this question of fact to be an assault on him, and vowed revenge.
That he couldn't respond, impartially, to a question of fact, proved that he can't be impartial.
I mean, this is like the old joke "will you have sex with me for a million dollars? Yes? How about for $50? What kind of woman do I think you are? We've already determined *that*. We're just haggling over the price!"
Kavanaugh showed that he would not be impartial over the mere *asking* of the question - it was unfair to *ask*. And then, in prepared testimony, under oath, in a hearing dedicated to that question of fact, he vowed revenge.
In any healthy republic, the Republicans would have voted against him en masse. He'd sworn he'd be biased (albeit against their political rivals); he shouldn't be on the bench.
Heck, in any healthy republic, that he so much as felt insulted by the question should have killed his nomination, because, again, it showed he can't be neutral over a question that is clearly relevant.
Further, he insisted, in a written response (that is submitted under oath) that he wasn't at "the" party where the alleged incident occurred. That's an interesting tell, because it naturally raises the question of "oh? and what party was that? The one where she was assaulted? But you say that you aren't aware of any assault; are you accusing her of fabricating the story?
Those questions deserved to be answered, but the Republicans realized that the question of having to answer for decades-old accusations was riling up their base. They had to confirm Kavanaugh, or they might be at risk of losing their jobs - the very jobs they won't do properly, which would require them to reject him.
It must be fun to be a GOP Senator - you're supposed to do your job poorly, whenever doing so helps your party; you get to ignore any sense of responsibility or duty, that pesky "Constitution" thing (except when you have to swear you love it, and revere it, so long as you can convince everyone it means only what the wealthy and powerful want it to mean).
I mean, so long as you're someone like Inhofe, who is missing his brain, or his conscience, or his heart. (Mathematically, "OR" includes "or both/each/all".) If you had all three, it would probably require excessive amounts of drugs to help numb guilt, and the various effects on the body thereof.
