Should rape laws used as an equality policy tool?
That question discusses lawyer Torstein Ulserød Aftenposten (18.11.14) and in a longer document that is prepared on behalf of the think tank Civita.
His answer is no. From a liberal view that government should be denominational (and that it therefore should not be engaged with advocacy efforts to combat rape), go Ulserød through drawbacks of a so-called consent legislation and analyze the ideological context that the proposal was tabled.
Error on legislation
Ulserød should have thanks to highlight a debate that the current government seems to have left lying in a drawer since they captured the government offices last year.
Yet I have several objections. The most serious is a reproduction of facts.
In Civitas memo alleges Ulserød that all unwanted sex covered by existing legislation, and that the Penal Code §200 can be used in cases of sexual intercourse without consent (p. 4).
It is wrong. It is not so sexual intercourse (which includes forced penetration or masturbation) alternatively punishable under this provision. According Ot. Proposition. 22 (2008-2009) covers the Penal Code §200 only “less serious” sexual action as unwanted fondling surface or under clothes.
The difference in sentencing framework between the two paragraphs is significant. Judged one under the Criminal Code §200 provides that a maximum of one year in prison, while the penalty for rape under the Criminal Code §192 carries a maximum of ten years.
As Ulserød not put into legislation in the field and otherwise not have empirical evidence for their statements, the road is short to dismiss the whole issue as principled and ideological.
To set gives it perhaps also meaning for him primarily to comment that the debate over amendment including has been justified by lovers raising potential, rather than going into the substance of the UN criticism of Norway legal treatment of rape.
Incorrect acquittals
In my work with the book Behind closed doors and in my fellowship, where I’m researching legal system treating rape cases, I have come across several examples of prosecutions of involuntary sexual intercourse that have ended in acquittal.
In some, but far from all, applies that subjective fault requirement could not be proved, because the court operated with an old-fashioned understanding that woman bear the main responsibility for opposing sexual intercourse.
acquittal does not seem to concern that found direct evidence that the victim lied.
Ministry of Justice requested the consultation document on concrete examples of so-called “residual categories» who might not be prosecuted with the current wording as a starting point. In STKS submission politicians received such examples from the period 2010-2011 and new research on screening mechanisms in criminal justice is underway.
Parliament and government are doing here is wise to listen to the scientists before they draw hasty conclusions in either the other direction.
Critics fear that the legal standard of proof will be lowered, that everyone in principle can report someone for rape and be judged for it, or that “angresex” now being included in the legislation, if the change direction of emphasizing voluntariness or consent.
acquittal terms, however, not cases where a woman has had half bad sex that she regrets the day after, or where a person has gone to police without more than a loose assertion that she has had unwanted sex. With today’s evidentiary requirements can or should such events course not judged as rape.
In the appropriate acquittal cases have been exercised coercion that court by one reason or another do not define violence; alternatively believed the court that plaintiff was not drunk enough to qualify to have been unconscious in a legal sense, or that she had not contributed enough resistance.
These acquittals is, in my view, not adopted according to the legislator’s intention that sex should be voluntary.
Opponent of consent regulation
Although I am an opponent of consent regulation, but for entirely different reasons than Ulserød.
My prejudice is based on an analysis which is reproduced in Centre for interdisciplinary gender research submission to the Ministry of Justice consent provision.
My – and STKS – view is that the main improvements of the legal system treating rape cases is in practice, not legal text.
We do not mean that rape provision ‘increasingly be expanded “so Ulserød alleges that followers of amended legislation wishes.
A legislative amendment must clarify the existing one. There must be a better correlation between legislators’ intentions as expressed in the legislative history and the wording.
Of the preparatory work states that sex should be voluntary and that it is not a requirement that the victim should have sat physically or verbally resisted (Ot. Prp. 22, 2008-2009). Therefore, all references to the victim’s resistance omitted §192b and in addition should the word “coercion” is defined and added to §192a (click here to see the current legal text).
Furthermore, acquittals as well as convictions, subject to justification duty in jury cases, so that the public, victims and convicted persons have full access. The principle of verifiability and transparency must be ensured better, not least considering that people convicted of rape to know which interpretations of the law and evidence based.
tendentious use of research
Torstein Ulserød act tendentiously and fraudulent in their dealings with rendering research on violence and rape field.
Most worrisome is the claim of note that “we know a great deal about who the men who commit rape.” Please refer to the characteristics of convicted offenders, who rightly often convicted of another crime, the psychiatric diagnoses and are socially and economically marginalized.
However, only approximately 10 percent of all rapes are reported, and a tiny part ends with conviction. According to a recently scope examination of NKVTS talking about 2 percent of their respondents.
To generalize from the small population of convicts to the larger proportion of offenders in the population does not keep scientific and methodological objectives.
The reality is that we know too little about what characterizes the vast majority of Norwegian predators that are never in contact with the justice sector.
From American research we know that some young men in college account for a large part of the rapes, and that many of these are serial offenders. The question of whether this may apply in a Norwegian context, are currently open.
Rape is complex
With Kjetil Rolness (who is known for his deep ideological opposition to feminism) as a witness alleges Ulserød further states that “the official Norway has only one explanation for rape: Lack of equality and bad attitudes.”
This is wrong. It is a thorough, interdisciplinary work as a basis for research reports and Norwegian public reports about domestic violence and rape, which lays the foundation for official policy on violence and rape field.
The work is partly penned by sober social scientists, who see gender power as one of several dimensions that must be considered, as well as lawyers who openly admits the obvious limitations using legal strategies on social issues.
Some research on violence in Norway is conducted organized by the Norwegian Centre for Violence and Traumatic Stress Studies. In a knowledge status from 2013 beats center states that rape must be understood as a fine mesh of complex problems that can not be reduced to one-to-one ratio.
Many factors and mechanisms – including bad attitudes – must work together that someone commits rape.
Gender Neutral violence?
There is little to suggest that Ulserød have read the available violence and rape research. This applies especially to research on maternal violence against children, research he Civita-note otherwise refers to to show that women are equally violent as men, if not more.
This study concludes namely not unambiguously that women turn their kids more than men or that this should be understood as an individual action regardless of gender – on the contrary.
The survey states that mothers are responsible for a significant proportion of what in research terminology calls it “less serious” violence against children.
Men are still overrepresented in the gravest violence cases in close relationships, without the reason should trivialize the violence women stand for.
As with rape, must violence against children and partner violence is analyzed as a complex phenomenon. It does not Ulserød. His concern is rather to use the individual-oriented deviates explanation for violence to define away the gender dimension, and – in good liberal spirit – thus also the community as a partial cause and solution to the problem.
Theoretical polemics
Ulserød ending a long theoretical polemic against Amnesty International, radical feminists and Discrimination Ombud with the assertion that “a bourgeois government must put the interests of legal protection of citizens in front of a possible need to send equality policy signals. “
Here commits Ulserød a fundamental error in its analysis and thus their conclusions.
For it is not only an bourgeois Government undertakes to put right the safety of consideration of equality; the responsibility rests with any Government, regardless of party political color.
It knew the previous government very well.
The question of introducing consent Norwegian Law was first discussed by Sexual Offences Commission in 1997. Stoltenberg government has had two government periods to introduce provision if they wanted. When they have not done it, it is precisely because they have heard in consultative bodies skepticism or have not drawn hasty conclusions without empirical evidence.
A question about the rule of law
To reduce the issue of stable high dismissal rates – approximately 84 percent – and stable, low conviction rates – approximately every third or fourth case ends in acquittal – to politically tug on principles, is in my view not debate worthy.
Ulserød reduces an important debate on the rule of law for victims of sexual violence to be theoretically and ideologically, and coater not their conclusions with empirical data. From there is also a short way to write it all as a hypothetical problem.
But there are quite real part matters that do not provide women and men legal protection against abuse that they are entitled to by Norwegian law and international human rights conventions.
The ongoing rape debate is as much about justice and right confidence on equality. It affects real people and their issues do not deserve to be simplified in Civitas general resistance against Discrimination Ombud or feminist gender power theory.
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