When is being raped at gunpoint not being raped?

October 20, 2007 7:28 AM

Hooker raped & robbed by justice system.Apparently, if you're a prostitute and you're gang-raped at gunpoint, that's not actually rape, but "theft of services". In Philadelphia, judge Teresa Carr Deni ruled exactly that in a case where a woman posted a Craigslist ad offering sex for money -- but when she met with her John, instead of the agreed upon exhange, he pulled a gun on her, raped her, then invited four other men to rape her as well. As if this weren't sad enough, a near-identical case -- with the same defendant -- came up four days later, and the prosecutor decided not to even try it as to not put the woman through the misery of being so resoundly denied justice. Devolution is real, spuds.
posted by Rev. Syung Myung Me (61 comments total)

Where I practice, armed robbery is only really a notch below first degree rape. I agree that a first degree rape clearly occurred, but the defendant is not exactly getting away with too much by having the armed robbery case go forward.

It might, however, allow the bizarre defense to be put on that there was no agreement for the woman to be paid -- they simply decided to rape her. As such, there could not possibly have been a robbery because the men were not taking anything of monetary value. I doubt it will go that way, but it probably would if it was an episode of some television show.

But I certainly agree that it should have been left up for the jury to decide they weren't guilty of rape. Juries are not sympathetic to prostitute and drug dealers as victims, but we should still let them ultimately decide.
posted by flarbuse at 7:36 AM on October 20, 2007

Also, [via] .
posted by Rev. Syung Myung Me at 7:36 AM on October 20, 2007

Holy fucking shit.

What part of AT GUN POINT does the freaking judge not get? How the hell is this NOT rape?! Theft of fucking services my ass. Actually, I'd rather know what the hell is up her ass. Holy shit.

*steps away from the computer* *breathes deeply* *comes back*

Okay. Alright. Let's try to look at this somewhat rationally and calmly. I can't figure out a way to attack her logic, beyond it being batshitinsane. It makes theoretical sense, if you want to compare it to service industry employees being forced to serve a customer despite being clearly uncomfortable about it, or I suppose, despite being held at gunpoint.

It's the transition from "selling someone a piece of clothing" and "having sex" that causes my brain to break.

It was not consensual. Consent doesn't go on indefinitely, once given. Hasn't all the Sex Ed in elementary school taught you that? Consent can always be revoked, and while it's not stated explicitly in the article that she did revoke said consent, the GUN and the crying and the pressing rape charges are clue enough, I should think. She is a person first, and a prostitute second. Just because her means of paying her bills are looked down upon by society doesn't make her any less worthy of our attention, nor does it make the actions of those men any less despicable.

I don't understand how the judge "slept well" that night. I don't understand how she failed to feel even a twinge of guilt. And man, what a bitch.
posted by Phire at 7:44 AM on October 20, 2007 [6 favorites]

If, in the judge's view, she consented, what was the gun for? Since when does a prosecutor decide not to bring charges for, in essence, pre-judging the judge. That sounds ridiculous and unbelievable. The whole situation sounds dreadful, but that writing is so terrible and disjointed it's hard to tell what the f is going on.
posted by psmealey at 7:46 AM on October 20, 2007

Leaving aside the outrageous behaviour of the judge, I saw a comment elsewhere that one unintended effect of her ruling may be to legalise prostitution in that jurisdiction. Is that right?
posted by Abiezer at 7:51 AM on October 20, 2007

As if this weren't sad enough, a near-identical case -- with the same defendant -- came up four days later, and the prosecutor decided not to even try it as to not put the woman through the misery of being so resoundly denied justice.

I think you're fudging the facts. There's no need to be outraged with the prosecutor. It clearly states that they're going to refile with a different judge where they actually have a chance of winning.

Devolution is real, spuds.

This is a shock to you? Three threads down a bunch of morons can't look at a silouhette of a drawn woman without making comments on her breasts.
posted by dobbs at 7:53 AM on October 20, 2007 [2 favorites]

Rev. Syung Myung Me posted "Devolution is real, spuds. "

You mean the statutory granting of powers from the central government of a state to government at national, regional, or local level? Yeah, I don't think there's much disagreement about that.

You mean the Creationist term based on a complete failure to understand the idea of evolution? One which could at best be defined as "a continued chain of changes in a species which results in them not surviving and procreating"? Doesn't work, the whole "not surviving and procreating" thing kinda cancels out the "continued chain" part.

Or do you mean the Devo-popularized joke?

It's a pretty horrific case, no need to put random governmental, nonsensical Creationist, or 80's pop-culture terminology at the end of the post.
posted by Bugbread at 8:07 AM on October 20, 2007 [1 favorite]

There is something interesting here, though. One of the implicit concepts behind prostitution is that sex is a service. One of the implicit concepts behind rape laws is that sex is something special that deserves special protection (a concept that I instinctively support).

There is friction between these two notions.
posted by Joseph Gurl at 8:11 AM on October 20, 2007

Joseph Gurl: Actually, it's fairly simple. The two states are not mutually exclusive. It can be theft of services and rape.
posted by JHarris at 8:31 AM on October 20, 2007

Magistrate Judge Deni is up for retention (re-election) in less than a month. Maybe she just wanted to retire, and this was how she decided to go about making sure she didn't get retained for another 10 years.
posted by goatdog at 8:40 AM on October 20, 2007

A case like this "minimizes true rape cases and demeans women who are really raped."

She could be seen by some as a "callous" judge , maybe needing psycological counseling..but also, from the point of view of law I find her finding to be weak.

Assuming that "having an intercourse" falls under "providing a service"

1. the prostitute agreed to have a number of intercourses
2. she may have agreed to have sex with more then one client at a time , or with one at a time
3. regardless, the service she provided is provided necessarily with her persistant consent because

a. such service cannot be produced in advance or stored
b. it is therefore produced on-demand

As she decided to pause producing her service, any further event cannot fall under the exercise of production of service, as no service was being
produced. Therefore, she was certainly raped.

It's also curious to notice that the judge took a periolous road, of suggesting that once given the consent cannot be withdrew at any time. So I guess that a woman just can't change her mind while having sex if she is selling sex as a service. That's ridicolous, because another worker refusing to further work could be held at gunpoint in order to force him/her to work and the tug menacing him would only get "theft of service".

It's better to note down the name of the judge and to read the complete text of the sentence, because if the allegation is true this judge is dangerous for anybody, but for some criminals.
posted by elpapacito at 8:43 AM on October 20, 2007

Jospeh Gurl, I don't think you've got it right. Rape law is not about treating sex as something special, it's about protecting the bodily integrity and dignitary interests of people.

Tattoos are a service. If a tattoo artist held a customer at gunpoint and then gave him tattoos he/she didn't want, we would consider that a battery (and a gross violation of someone's bodily integrity). I don't see a problem there.
posted by allen.spaulding at 8:47 AM on October 20, 2007

clarification: prostitution is legal in philly? if not, ht ruling makes almost no sense. if so, the situation exemplifies why legal prostitution is at odds in many ways with a culture and legal system that uses the concept of "consent" to decided rape cases.

i've always found the idea of consent as both problematic but also unavoidable for ensuring safety (usually associated with woman and children, but of course applicable to all). there are still cases that muddy the issue, mainly date rape cases which become one person's word against the other and the like.

this particular case, however, shows how legal prostitution is pretty much incompatible with the consent concept unless heavily, heavily regulated.

anyone know how such things are supposed to work where prostitution is legal? what regulations and guidelines are there for prostitutes and johns in places like Nevada?
posted by es_de_bah at 8:48 AM on October 20, 2007

by the way, that's a request for clarification at the beginning there.
posted by es_de_bah at 8:49 AM on October 20, 2007

If I recall my college business law classes correctly, a contract to enter into an illegality is illegal and unenforceable. Therefore, there is no contract here. There is a rape, however.
posted by Benny Andajetz at 9:00 AM on October 20, 2007

According to his most recent docket sheet the perp has been charged with 27 crimes including rape and sexual assault.

Web Dockets is an amazing resource, it has all Philadelphia criminal records stretching all the way back to the 1960s. I use it all the time at work to build profiles on new clients and try to locate current clients who have gone MIA. It's updated very quickly, new information tends to appear the day after the record has been changed.

Plug in your friends! It's fun for the whole family!
posted by The Straightener at 9:01 AM on October 20, 2007 [2 favorites]

There is something interesting here, though. One of the implicit concepts behind prostitution is that sex is a service. One of the implicit concepts behind rape laws is that sex is something special that deserves special protection (a concept that I instinctively support).

There is friction between these two notions.

That's apparently how the judge sees it, but the fact that this logic shocks the conscience of most of us should cause us to re-examine it. Here's a quick go at an alternate logic:

Prostitutes are selling consensual sex. Rape is not a service being offered any more than murder is a service being sold in shooting ranges. If someone went to a shooting range and shot a person rather than a silhouette of a person in the head, we wouldn't call that "theft" of the service of shooting; we'd call it murder. Focusing on the superficial similarities of these two acts without considering how they affect the victim is ridiculous.
posted by scottreynen at 9:03 AM on October 20, 2007

Actually, I see now on page 5 where the rape charge is dismissed.
posted by The Straightener at 9:04 AM on October 20, 2007

JHarris writes "Joseph Gurl: Actually, it's fairly simple. The two states are not mutually exclusive. It can be theft of services and rape."

I don't think Joseph Gurl is saying that they're mutually exclusive. He's just saying that there are two ways of thinking about sex itself that conflict. Prostitution is an example of that conflict being bridged, and this case is an example of something that violates both of those contradictory positions simultaneously.

allen.spaulding writes "Tattoos are a service. If a tattoo artist held a customer at gunpoint and then gave him tattoos he/she didn't want, we would consider that a battery (and a gross violation of someone's bodily integrity). I don't see a problem there."

I think that example fails because the service provider and the person being violated are different people.

I've been trying to come up with a more fitting example, but I can't, really. It's an unusual and interesting case of two conflicting simultaneous beliefs coexisting. None of that justifies the judge's decision, but, again, I don't think Joseph Gurl is arguing that it does, just that it's interesting.
posted by Bugbread at 9:08 AM on October 20, 2007

scottreynen writes "Prostitutes are selling consensual sex."

Actually, that's the most succinct summary. I get the idea that people here generally think "it's not theft of services, it's rape!". Personally, I think "it's theft of services, AND rape!"
posted by Bugbread at 9:10 AM on October 20, 2007 [1 favorite]

This is why they have rape shield laws because "even a prostitute can be raped" but I guess this judge skipped that day in crim law. (I realize rape shield laws wouldn't have changed anything here, but still.)
posted by whoaali at 9:16 AM on October 20, 2007

This judge needs to be removed from hearing any further cases associated with rape or assault. Frankly, she needs to be removed from the office, period. She applied her own form of puerile morality on the victim, in effect 'punishing' the victim for her actions, rather than the violators. I am disgusted with her and her 'sleeping well that night', BS. Is this Philly justice?

As for robbery being similar to rape when it comes to punishment that is not true. If a person is convicted of a sexual assault, once out of prison they must register for, and be listed in, sexual offender databases--providing a warning for other women in the area.
posted by shelleyp at 9:16 AM on October 20, 2007

I honestly wonder why this case didn't get a jury trial. Is this standard in PA criminal cases?

The judge's ruling was entirely ridiculous, and she seemed to sort of gloat over her ruling afterward. She really needs to come under review.

The defendant is obviously scum, judging from all his sexual assault charges and the similar prostitute case, and although that information wouldn't necessarily have been available to judge or jury, it makes me, as a member of the public, feel a little less safe that these sorts can get off based on one judge imposing her own beliefs on prostitution in this case.
posted by cmgonzalez at 9:24 AM on October 20, 2007

I don't exactly see what the 'friction' here is, I mean if you slept with a prostitute, and then didn't pay her, that's theft of services (1). On the other hand, if you rape her, that's rape (2). Fairly straight forward.

On the other hand, if there is evidence that a woman agreed to have sex with a man before meeting him, then that's usually considered as evidence that it's not rape.

In fact, the most logical explanation here is the story, and especially the FPP is simply wrong about what happened. From the article

"She consented and she didn't get paid . . . I thought it was a robbery."

The judge said she did consent. That's the key to this story not mentioned in the FPP. The judge believes the woman did consent to sex at some point, and that makes it not rape.

I don't know the details of the case, did the guy pull the gun on her before or after having sex with her? I'd be surprised if a judge would rule this way if he pulled the gun first.

I do wish people would think critically about things before believing every word they read in a story somewhere. It's just as possible that the reporter got it wrong as the judge. In fact, I think it's probably more likely.
posted by delmoi at 9:38 AM on October 20, 2007

I honestly wonder why this case didn't get a jury trial. Is this standard in PA criminal cases?

No, the Municipal Court is a court of limited jurisdiction where jury trials are not offered. Defendants, in order to be tried in Municipal Court, probably have to waive their right to a jury trial in order for the case to be tried there --- but they are entitled to a jury trial "de novo" (meaning, evidence is introduced, a new trial is conducted, and there is no presumption of the correctness of the trial court's fact findings or rulings on the law) upon appeal from the Municipal Court's judgment of guilty.
posted by jayder at 9:46 AM on October 20, 2007

Big Dom.
posted by The Straightener at 9:48 AM on October 20, 2007

Golly, I guess we should all be grateful that the judge didn't consider that whole gunpoint thing as part of fantasy play...
posted by Alexandra Kitty at 9:57 AM on October 20, 2007

Ah, thanks for clearing that up, jayder.
posted by cmgonzalez at 10:00 AM on October 20, 2007

Delmoi - from the article:

The prostitute, a 20-year-old single mother, agreed to $150 for an hour of oral and vaginal sex on Sept. 20, according to assistant district attorney Rich DeSipio. The arrangements were made through her posting on Craigslist.

She met the defendant, Dominique Gindraw, 19, at what she thought was his house, but which turned out to be an abandoned property in North Philadelphia.

He asked if she'd have sex with his friend, too, and she agreed for another $100.

The friend showed up without money, the gun was pulled and more men arrived.

When a fifth man arrived and was invited to join, DeSipio said, he asked why the girl was crying - and declined. He helped her get dressed so she could leave."

She agreed to have consentual sex with two men. She did not consent to having sex with 5 men at gunpoint. That's rape.
posted by echolalia67 at 10:15 AM on October 20, 2007 [4 favorites]

I do wish people would think critically about things before believing every word they read in a story somewhere. It's just as possible that the reporter got it wrong as the judge. In fact, I think it's probably more likely.

I see where you're coming from, but Porter does have this down as an exact quote:

"Did she tell you she had another client before she went to report it?" Deni asked me yesterday when we met at a coffee shop.

"I thought rape was a terrible trauma."

A case like this, she said - to my astonishment - "minimizes true rape cases and demeans women who are really raped."

That's a terribly unfortunate conclusion that reads like a weak backpedal. I'd wager that the prostitute in question is a drug addict. I'd wager she saw another client before she went to report the rape because she was starting to withdrawl, was just traumatized and wanted to get herself straight before going to the police.

I talked about how casually prostitutes are raped in Philly with a street walker once. In Philadelphia the bulk of street level prostitution takes place along a stretch of Kensington Avenue, which is an old thoroughfare with a lot of low end commerce going on during the day (dollar stores, chinese take out places, used appliance shops, dumpy corner bars, adult book stores). The elevated portion of the subway runs over top of it, along a stretch of streets known for high drug activity.

At night this area becomes a heavily trafficked hooker stroll; it's convenient for the girls, who by and large are heroin and crack addicts, to work there because they can walk to cop bags and then go back and forth to work until the sun comes up. Since the concentration of prostitutes here is high, it's an area that sexual predators target. The logic is that these are just prostitutes, so no one gives a shit about them, and besides, they're all drug addicts, many with criminal histories, so who will believe them if they do press charges?

The woman I talked to had been recently dragged into the back of a van by four guys who repeatedly gang raped her, beat her and then dumped her back on the Avenue. She had previously been raped like this four times. Each time she failed to report the rape to the police for the exact reasons her rapists were counting on; she figured she was a drug addict prostitute with a criminal history so nobody would believe her.
posted by The Straightener at 10:18 AM on October 20, 2007 [3 favorites]

But you don't consent to armed robbery either, do you? I mean, if you agreed to sell someone a laptop over craigslist, and you showed up and they pulled a gun, tied you up, pistol-whipped you and ran off with the laptop, what would that be? And how would it differ from if you were just walking down the street and someone saw your laptop and did the same thing (even if you were showing off your laptop by carrying it in a cute carry-case, or having one of those sexy iBooks or whatever..)?

Basically, we've defined physical violations as worse than property violations, and this was clearly a physical violation. We've defined sexual violations as the worst form of physical violation. None of this has anything to do with "consent" because violations are already defined as NOT consensual, whether they're property violations (theft) or physical violations (assault or rape).
posted by mdn at 10:29 AM on October 20, 2007

Benny Andajetz:

That seems like a reasonable position - a service can't be provided here because prostitution is illegal and it's impossible to enter into a contract to perform an illegal act. Sounds like rape to me.

Which brings up this hypothetical: if prostitution were legal, would it still be rape? That seems counterintuitive as well.
posted by bbuda at 10:43 AM on October 20, 2007

I would bet that the judge was "raped" before. Someone's in denial and it's not the defendent.
posted by Brian B. at 11:00 AM on October 20, 2007

Ummm, wouldn't it be BOTH robbery and rape?
posted by furiousxgeorge at 11:07 AM on October 20, 2007

Via a friend when I originally posted this article on my facebook account:

You can file a complaint against the judge at this link

The Philadelphia Bar association is recommending against her retention, as you can see here.

And you can email the chair, Kenneth Shear, at [e-mail] or call him at [phone]

Please do.

posted by Rev. Syung Myung Me at 11:09 AM on October 20, 2007

(Actually one error -- I see after following the second link that they ARE RECOMMENDING her retention. Not Dis-recommending it.)
posted by Rev. Syung Myung Me at 11:13 AM on October 20, 2007

This FPP resonated for me in an unpleasant way. There's been a recent arrest here in Delaware of a man who was picking up prostitutes and raping them in an area south of Philly. To their credit, the police took these crimes seriously and found and arrested a suspect.

But some of the comments from readers of the Wilmington News Journal, our statewide paper, on this story have been depressingly dismissive:

"Seriously... we're talking prostitutes, people.... thankfully, this guy didn't harm any innocents in his neighborhood."

And.

"Raping a prostitute.... Is it really rape, sounds more like theft to me considering they probably never say "NO". These bizotches just aren't getting paid."

Sometimes my fellow citizens leave me deeply ashamed.
posted by mmahaffie at 11:25 AM on October 20, 2007

I saw the movie Monster recently. Let's just say that, if I were in this woman's case, I might start getting very similar ideas to what I saw in that film as far as profitable and safe career options are concerned.
posted by koeselitz at 11:36 AM on October 20, 2007

Which brings up this hypothetical: if prostitution were legal, would it still be rape?

again, the difference between prostitution and rape is consent, just as the difference between sale and robbery is consent. But the difference between robbery and rape is NOT about consent: it is a different axis.

_________consensual for fun___consensual for $$_______non consensual

property........gift...............................sales...............................................theft
physical.........massage......................professional massage.................assualt
sexual...........sex...............................prostitution....................................rape

prostitution being illegal has no bearing whatsoever on this.
posted by mdn at 12:31 PM on October 20, 2007

prostitution being illegal has no bearing whatsoever on this.

Philosophically, legality never has a bearing. Whatever happens between humans falls between right and wrong.

But, since this case went to court, then legalities are the determining factors. I still maintain that "theft of services" is impossible because "sale of services" was illegal and unenforceable in the first place.

I believe this is what Bob Dylan meant when he said "to live outside the law, you must be honest".
posted by Benny Andajetz at 12:47 PM on October 20, 2007

I think that example fails because the service provider and the person being violated are different people.

Yes, I think that's right. The better example would be someone who was willing to act as a "human billboard" and allow, say, companies to tattoo their logos all over his body. Then if someone tattoed him against his will -- battery? Or theft of services?

Rape law is not about treating sex as something special, it's about protecting the bodily integrity and dignitary interests of people.

Not that I support the judge's decision, but I guess the idea is that by selling sex for money, you are implying that your body is something commodifiable -- not something which is so critical to your dignity. If it were, it wouldn't be sold for "mere" cash...
posted by Malad at 1:11 PM on October 20, 2007

This judge needs to be removed from hearing any further cases associated with rape or assault. Frankly, she needs to be removed from the office, period.

So when Rush Limbaugh calls for the firing of activist judges then he's a loudmouth political windbag. When you do it its right. Relativst much? How about we let the system work it out instead of these feel-good self-serving "protests?"

Not to mention the article linked to is almost fact-free and is a shitty editorial. I wouldnt be surprised if lots of facts are left out and as we all know judges never make mistakes and according to you they should be fired for anything a newspaper writer criticizes them for? Kinda pathetic.

Put the torch and pitchfork down. KTHX!
posted by damn dirty ape at 1:26 PM on October 20, 2007

A case like this minimizes true rape cases and demeans women who are really raped.

It wasn't a true rape case and she wasn't really raped. She was forced at gun-point to have non-consensual sex with multiple men. Can't go about calling that sort of thing "rape" now, can we?

It's like if she were a street musician and several people stopped and listened but then didn't chuck a buck into the hat. And put a gun to the performer's head. And told her to do the YMCA song. Non-consensual singing and dancing for multiple men, you know. No real harm!

Hey, I wonder if we could have a prosecutor put a gun to the judge's head and force her to render a better verdict? I mean, heck, she gets paid to render verdicts all day, so she shouldn't have any problem with a freebie!
posted by five fresh fish at 1:46 PM on October 20, 2007 [2 favorites]

I hope this judge gets the seat next to Joe Arpaio in Hell.
posted by Pope Guilty at 2:02 PM on October 20, 2007

five fresh fish writes "Hey, I wonder if we could have a prosecutor put a gun to the judge's head and force her to render a better verdict? I mean, heck, she gets paid to render verdicts all day, so she shouldn't have any problem with a freebie!"

Uh...not to point out the obvious, but she would have a problem, and would probably take the gunman to task for theft of services. That's what she did here. This case seems to be one that people (myself included) have a really, really hard time making analogies for.
posted by Bugbread at 2:30 PM on October 20, 2007

I see where you're coming from, but Porter does have this down as an exact quote:

I see. I does look more like the judge is crazy, which does happen.

Which brings up this hypothetical: if prostitution were legal, would it still be rape? That seems counterintuitive as well.

I imagine that if a prostitute changed her mind under a legal framework, the client would be owed a refund, but would not just get a chance to rape her.
posted by delmoi at 2:31 PM on October 20, 2007

Delmoi, what I don't necessarily agree with in your comment is that.. well, consent is revokable, right? Because she consented at one point in time doesn't mean she's not allowed to change her mind, just because she's a prostitute.

It's like if you agree to have sex with someone, and as you get ready to do the act, they tell you they have HIV and don't have a condom on them. You revoke your consent, so if they still force you to have sex with them, it's definitely considered rape.

Same way that she agreed to have sex for money, but when the gun was pulled, it's clear that this is more than she bargained for, so she revokes her consent - but they rape her anyway. But somehow, the judge seems unable to separate her profession from her basic human rights.

(That guy's a total scumbag who needs to have this on his record, but that's a whole other kettle of fish.)

mmhaffie, your links make me want to cry and give up on humanity.

But like damn dirty ape said, we don't have much in terms of facts. Any other articles on this?
posted by Phire at 2:58 PM on October 20, 2007

I'm not a lawyer, but I think this may be a more complex case than it at first appears. The thing is, because prostitution is not legal, prostitutes who offer their services from places like craigslist often do so euphemistically -- typically what's offered is a massage or a lapdance or something, often with the note that anything that may or may not happen sexually is not part of the arrangement, and simply an act that may occur between consenting adults. Technically speaking, sex under these circumstances is not the service that's offered for sale. A key component of the judge's ruling is that sex was absolutely the service offered, which leads me to wonder how exactly the prosecution presented its case. Abhorrent as what happened to this woman surely was, I too have to vote for placing the torches and pitchforks in reserve until such a time as some serious reporting makes it clearer what the judge was really ruling on. Something isn't adding up here.
posted by kittens for breakfast at 3:49 PM on October 20, 2007

It'll have to be a doozy, if the bit about not consenting to the act is at all true. She may have said yes to two, but doesn't make it okay for the other two to stick their dicks in even thought she's now saying no.
posted by five fresh fish at 4:55 PM on October 20, 2007

IMO the court should have ruled that failure to pay a prostitute is rape, even to go so far as to specify that failure to pay her in advance is rape. This is more consistent with prostitution being illegal - and much more morally defensible.
posted by aeschenkarnos at 5:18 PM on October 20, 2007

I wonder if one would do well if, having raped a woman, one tossed her a c-note. In this judge's eyes, the woman would be a prostitute, and the rape but a exchange of service.
posted by five fresh fish at 5:45 PM on October 20, 2007

five fresh fish writes "I wonder if one would do well if, having raped a woman, one tossed her a c-note. In this judge's eyes, the woman would be a prostitute, and the rape but a exchange of service."

I actually started a comment about that earlier, but I nixed it. I think the answer would be "no". It's a bit of a circular reasoning, but this woman did not get any money for her sex, but in the judge's eyes, this was due to the fact that she had prostituted herself in the past and intended to prostitute herself here. So the past (getting paid for sex) outweighed the present (getting raped, no money). In your hypothetical, likewise, the past (not getting paid for sex) would probably outweigh the present (getting raped, and then paid).
posted by Bugbread at 8:16 PM on October 20, 2007

"When is being raped at gunpoint not being raped?"

When you're sitting in your robes, with the gavel in your hand, and the law to play with.

So, kids, remember:

a) Fucking a prostitute with/without her consent is alright.
b) Fucking her at gunpoint is moot since she's already offered up her services to you.
c) Fucking her with four other guys is hardly something to consider since she's a prostitute anyway, and hey--that's just a part of her daily routine.
posted by hadjiboy at 10:15 PM on October 20, 2007

So what happens next? Is there some sort of public oversight that will result in her being removed from the bench, or the case being overturned, or somesuch?

Or does she just plain lose. Sorry the system failed you, here's a dollar for the bus.
posted by five fresh fish at 10:43 PM on October 20, 2007

The Straightener writes 'Big Dom.'

Mmm. He gotta nice watch by Facob the Jeweller.
posted by PeterMcDermott at 1:22 AM on October 21, 2007

hadjiboy writes "So, kids, remember:

"a) Fucking a prostitute with/without her consent is alright.
"b) Fucking her at gunpoint is moot since she's already offered up her services to you.
"c) Fucking her with four other guys is hardly something to consider since she's a prostitute anyway, and hey--that's just a part of her daily routine."

Yeah. It's not like the judge decided to try the guys for theft or anything. Just threw the case out entirely.

Oh, wait.

This situation is mighty fucked up as it is. The judge throwing out the rape charge is reprehensible. There's no need to spice things up by distorting things.
posted by Bugbread at 6:47 AM on October 21, 2007

Philosophically, legality never has a bearing. Whatever happens between humans falls between right and wrong.

But, since this case went to court, then legalities are the determining factors. I still maintain that "theft of services" is impossible because "sale of services" was illegal and unenforceable in the first place.

I've been trying to think about how to respond to this as I still think it's a separate issue. The point is clearly that somehow the woman consented to some degree by prostituting herself.

But as I've been saying, the issue can't be consent, because theft is not consensual either, and theft at gunpoint is a different kind of theft than just tricking the person, giving them fake money or running off at the last minute. So as I said earlier, if we did a comparison of the exact same things with someone selling a laptop over craig's list, and someone selling sex over craig's list, it would be consensual if all parties got what they wanted, and non consensual if they were tricked, and violent if the perpetrator whipped out a gun to get what he wanted. So the rape differs from the theft specifically because he's violating her sexually rather than taking her property, but they fall along the same lines when it comes to consent.

But, I guess the complicated part here is that she is ok with selling him the right to sexual contact as if it is just on par with selling a laptop, supposedly. So the argument would be, if she doesn't differentiate the consensual act of selling laptop or selling sex, then why should the judge differentiate the nonconsensual level of having sex stolen or having the laptop stolen. So the judge is just trying to conflate the "property" and "sexual" categories, not change what was or wasn't consensual, but argue that we should not consider sexual violation worse than property violation for someone who sells their sexual wares. But this isn't well backed, because why do we assume "it's no different" than selling property? It may be very different, and a much greater and more complicated undertaking for the woman doing it, for all we know. That doesn't mean she won't choose to do it, but because she chooses to do it doesn't automatically make it equivalent to selling a laptop.

Consider the middle category I listed, of physical assault. If someone is a massage therapist, is a physical assault automatically"equivalent to a property violation? No, these categories remain separate, whether people choose to form consensual transactions or whether or whether their rights over them are violated. If we're going to differentiate between rights of the body and rights of property, then we make that distinction regardless of what a person chooses on their own terms to do with their body (sexually or otherwise).

It has to be a law universally applied to be a law. A policeman can't beat a citizen, even a citizen really into BDSM [as private citizens of course they can do whatever they want; i mean in the professional context].
posted by mdn at 8:44 AM on October 21, 2007

Here in Western Australia, armed robbery carries a life sentence. Even in circumstances of aggravation, rape does not.
posted by robcorr at 9:35 PM on October 21, 2007

Wow, robcorr. I wish those two were treated the same. They should be.
posted by agregoli at 8:38 AM on October 22, 2007

Better would be if armed anything carried life, while non-armed is a lessor sentence.
posted by five fresh fish at 7:16 PM on October 22, 2007

The chancellor of the Philadelphia Bar Association issued a statement Tuesday that questioned [the judge's] understanding of state law.
posted by Rumple at 10:43 AM on November 1, 2007