This ticked me off, so I’m going to write about it; even though, I know I shouldn’t. It’ll just cause grief.
OK, in a Spider-Man comic, a guy called the Chameleon disguised himself as Peter Parker and had sexual encounter with Peter’s female roommate that may or may not have been actual sex. When asked if sex between the roommate and the disguised Chameleon was rape because the roommate did not know that she was sleeping with the Chameleon, the author said:
My understanding of the definition of rape is that it requires force or the threat of force, so no. Using deception to trick someone into granting consent isn’t quite the same thing.
Which is not to say it isn’t a horrible, evil, reprehensible thing that Chameleon did. He is a bad man.
He insults parapelegics[sic] and dips people in acid too.
Most people looking at the question seem to fall into two camps.
- Those who say, “Sex by deception in NY does not constitute rape under NY law, so the author was correct, but the act was still despicably immoral.” (I would be in this group.)
- Those who say “Even though NY does not call it rape and would not prosecute the act as rape, it is still a form of rape because it is sex without actual consent, no matter what the law says.”
As far as I’m concerned either stance is fine. Although I would absolutely take issue with someone saying the act was not immoral, no one appears to be saying that. Everyone is saying the act was despicable.
However, some people looking at responses say that the people responding in the first option above (“It’s not rape as it is defined but it’s still evil.”) are also saying one or more of the following:
- Therefore, sex by this kind of deception is ethical
- Therefore, sex by this kind of deception is not a big deal.
- Therefore, sex by this kind of deception should not be illegal.
I haven't seen anyone support any of those "therefores," and I know I don't. I think the act, had it been real, would have been terribly unethical, a big deal, and should be illegal. Despite the fact that no one seems to be supporting any of the "therefores" hasn't stopped people from claiming that people support them. One of the people in the “You are claiming that therefore ...” camp is a person going by the name Seafire. Seafire writes:
kalinara: one last thing though, I am still not sure the place of legal analysis in this discussion.
I'd give 2 reasons:
1. Just b/c it doesn't meet the legal definition of rape doesn't mean that it isn't rape.
2. More importantly I find it pretty odd that we are willing to have a discussion/analysis on the issue. there have been so many murders in comics have they ever been legally analyzed? I doubt it.
I have a feeling that the only reason why the legal analysis is being used is to say, "Ah well its not legally rape therefore..."
And I would argue that this type of mixing and confusing of legal issues with moral issue that give lawyers the bad reputation that they have.
And continues:
Madthinker: okay so I give up: why the legal analysis? What purpose does it serve unless it is being used to somehow say, hey its NOT rape.
Why not a legal analysis of the different types of murder that have occurred in comics?
Why not a legal analysis of Black Cat's actions as a thief?
I love analysis of comics for new insights etc. But I am not sure what the purpose of the legal analysis of whether it was rape under the law was.
Okay let's contextualize this; an event occurs, that possibly is a crime. That happens alot in comics. The character has not asked for a lawyer, there is no court room involved, no police action... why the legal analysis?
Are you saying that the purpose of the legal analysis by various blogs of this comic was a lesson in law?
- Seafire, not attacking but genuinely perplexed
Not attacking, she says. I’ll give you three guesses where this ends up. Keep watching:
Madthinker: And just to clarify, we are not even talking about an analysis that involves legal policy; i.e. should this type of situation be considered rape. This is plain and simple an IRAC analysis of a crime. If that is the case, why not IRAC other comic crimes? UNLESS the purpose of the IRAC analysis is to show legally it wasn't rape and therefore absolve Chameleon of his crime.
I personally am a little uncomfortable with the story-line but not as much as other ppl b/c it isn't a violent rape. As notintheface has mentioned in his blog there are other comic stories of this type of deceipt rape. And such stories are also common in folklore, fairy-tales and myths, so I beleive that they have a purpose and reason for existence. That being said I just find it perplexing that we are IRAC-ing this issue. Obviously ppl are not mad over whether it is legally rape or not but whether it is morally/ethically rape or not. And IRAC-ing it does not add anything to the discussion unless you want to make ppl aware about the law to
a. have ppl change the law
b. let ppl know that it wasn't rape and therefore ok
-Seafire
Not attacking, just saying that I’m OK with deceiving people into having sex. How could that be seen as an attack on my character? But wait, there’s more “not attacking” to come!
(For those of you not in the legal profession, IRAC is an acronym for a method of doing legal analysis that stands for:
Issue: this is the question you are trying to answer. In this case, under NY law is obtaining consent for sex by disguising yourself as another person with whom that person would give consent an act of rape?
Rule: this would be all the legislation, case law (decisions of previous cases that were similar to this one), legal definitions, etc. that fit the facts above. kalinara dug that law up, which included a case where a twin pretended to be his brother to have sex with his brother’s girl friend and that was found not to be rape. (Yeah, I was a little surprised too.)
Application: combining the facts of the issue with the rules that you discovered on the topic. In this case, looking at the facts of the Chameleon case and comparing them to the facts of the twin case and the legislation.
Conclusion: your answer to the question posed in the issue. As the facts of the twin case are almost identical to the twin case, one would have to conclude that the Chameleon would not be found guilty of rape in NY; although, he would in other states and countries where the rape laws are written differently.)
Seafire continues:
Now as to why this is so upsetting, well for me its upsetting b/c I am a law student. I know that lawyers have a reputation for being amoral, immoral, arrogant, cold-hearted, greedy, while other professionals such as say doctors who probably prorportionally have the same amount of ppl who are amoral, immoral, arrogant, cold-hearted, greedy, are generally viewed more favorably.
This is 2x in as many days that I have seen lawyers/law students use either legaleese or legal reasoning in what I personally think are inappropriate ways. In this situation we are having lawyers trying to prove that this "rape" does not fit the criminal definition of rape and therefore isn't rape. Thereby we are absolving the Chameleon of having committed "rape".
Not attacking just suggesting that we're contributing to the reputation that legal people have for being amoral, immoral, arrogant, cold-hearted, greedy. And then Seafire ends with this gem:
In the end you never responded why this issue is being IRAC-ed and not other issues in comics. Its because at the heart of it many guys hate rape issues and automatically take the stance it wasn't rape. And in this case a lot of guys want to absolve Chameleon of rape. Oh it wasn't rape it was lie.
Okay so Chameleon came to Spider man in the form of MJ and had anal sex. Oh that's not rape, why its only a lie... Peter quit feeling violated. Its kind of cute when you get all upset over this thing. Aww look he's blushing. Poor Peter. Well at least you enjoyed it. And don't press any charges cause you are not going to win. What you want to kick his @$$. Ok Peter that is against the law, you are acting like a vigilante.. hold on let me get my law book out and IRAC it for you.
Totally not attacking my character, right?
Anyway, let me respond to Seafire’s question of why this issue is being IRAC-ed and not other issues in comics.
First, it was IRAC-ed because if you ask people involved in the legal profession something that looks like a legal question, we tend to respond with a legal answer. “Is this rape?” can be looked at as a religious question, a moral question, a semantic question, or a legal question. All are valid. Legal people, like me and kalinara (a woman who is generally opposed to rape in comics), will tend to give a legal answer.
Second, most murders and thefts in comics are pretty clearly crimes. There is no need to IRAC the Joker gassing people to death or the Black Cat steeling jewelry. The answer is clear. The thing speaks for itself.
Third, the premise that other issues are not IRAC-ed is absolutely false. Just off the top of my head I remember arguing all of the following comic book legal questions online:
1. Would a confession obtained by Wonder Woman’s lasso be admissible in court? (I decided that it would not be, but given that she is not part of the government, other evidence that she obtained from the confession might be. Evidence based on that confession by agents of the government would probably not be admissible. However, it is entirely possible that a court might find that nothing obtained from the confession would be admissible, no matter who discovered it.)
2. Was Wonder Woman guilt of the murder of Maxwell Lord? (Under laws in the US, I think she would have been. Although, Max made it clear that he would eventually get free to kill again, the affirmative defense of self-defense requires that the threat be eminent. Max was helplessly tied up, so the threat was not eminent so much as it was potential or even eventual. Wonder Woman would not be allowed to kill anyone she thought might pose a serious threat in the future, no matter how correct she might be)
3. Would magical evidence be admissible in a comic book universe court? (The main opponent to magic evidence said that the thought it would be looked at as too suspect to be allowed. I think that magic is so common that it couldn’t be discounted entirely because there would be no way of clearly defining what “magical” even meant. For instance, could a person who had been raised from the dead be prevented from testifying because he was magically alive? Would elves be prevented from testifying? And then there was the problem of convicting people of committing crimes with magic. How could you convict a person of murder by magic if evidence of magic was not allowed in court? I decided that there could be no ban on magical evidence but that its value might be weighed in the same way other questionable evidence might be weighed.)
4. Was Marvel’s Registration Act that sparked the Civil War storyline Constitutional? (I found that the government could draft people for all sorts of reasons, e.g. genetic traits (men but not women, and men registered but women didn’t), abilities (excluding people below a certain level of physical or mental fitness which would appear to allow them to draft people while excluding people below a level of super physical or mental fitness), skill (although I’d never heard of it, I knew there had to be law that would allow the govt. to draft people with medical skills because the govt. could draft regular folks and immediately give them those skills, and sure enough, there is; similarly there would in a comic book universe have to be a way that the govt. could draft people to fight threats that normal people couldn’t like magical or telepathic threats. Add in the fact that people who want to drive or use dynamite have to be registered to do so and it seems pretty likely that people who fly or summon volcanoes would also have to be registered. Some suggested that the deciding what was superhuman was too vague a concept, so it couldn’t be enforced and would be too vague to be Constitutional. I countered by saying that finding people disabled, i.e. significantly below norms of ability was Constitutional, so it seems that a similar system of finding people significantly above norms would also be. All in all, I couldn’t find any reason why people with superhuman abilities couldn’t be forced to register and be drafted into service. Having said that, it is illegal to use the military to arrest someone like a police force, so if super being were drafted into service, they would have to drafted into something that was not considered a branch of the military if you wanted them to be crime fighters. The question then becomes: can you draft someone into the FBI or CIA? And given that the Initiative would be battling mainly people breaking state laws, could these federal crime fighters be used? In short, it’s a very complex issue.)
Seafire’s conclusions of my character based on my legal analysis of a comic book are that I’m hoping to get away with rape and/or that I love rape loopholes. I’ll remind you that this is based entirely on my legal analysis of a comic book, not my rapey actions or any knowledge of my character beyond an IRAC of a comic book. Not only is this kind of judgmental attack on my character unjustifiable based on this scant evidence (which would also apparently stick to kalinara, a feminist woman who dislikes rape in comics), but one has to wonder why Seafire thinks I would support this loophole? Does Seafire think I’m hoping to develop shape sifting abilities so I can take advantage of this loophole? That I’ll get a clone or discover a long lost identical twin, who can pick up guys that I would fail at, and that I’d ditch my husband and piss off my clone/twin and his partner so I could get a piece of my clone/twin’s partner because I couldn’t be convicted of rape?
The staggering gall of Seafire’s accusation is mind-boggling rude.
Read and post comments |
Send to a friend
]]>
