You have to hand it to the American legal system. Trump is found liable and George Santos is indicted, all in one day. You can't ask for more. Just a brief note about why the jury did not find Trump liable for rape. Apparently, in her testimony, E Jean Caroll said that she felt Trump penetrate her with his fingers and then she thought he pushed his penis into her, but she could not be sure because she could not see what was happening. I think that explains the otherwise puzzling nature of the decision, which was reached by the jury in an astonishingly short period of time.
Tuesday, May 9, 2023
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That demonstrates that the jury was paying attention and weighing the evidence and testimony. Adds to the credibility of the decision.
Prof. Wolff is correct. Rape requires phallic penetration. Digital penetration constitutes aggravated sexual assault, but not rape.
Talk about splitting hairs.....
Damn.... that came out wrong.... Metaphor TOTALLY unintended.
Ten to one, Santos will plead insanity to the federal charges levied against him. Would insanity disqualify him from serving in Congress? It doesn't disqualify any one else.
Right, Marc... That "tsk, tsk" is in order.
I just meant that the physical distinction invoked here--- between "rape" and "sexual abuse"--- is very much one without a difference. Think first, David, before you go all metaphorical.
Do people ever plead insanity to fraud charges? Isn't that usually reserved for crimes of violence?
A creative and inventive attorney can come up with anything - like distinguishing between phallic rape and digital sexual assault.
"Your Honor, my client is charged with deliberately defrauding donors to his charities, and fraudulently applying for Covid benefits, when he did not suffer from Covid. Your Honor, I ask, would any sane person do what my client has been accused of? I submit, your Honor, that my client is delusional and did not possess the mens rea to intentionally engage in the crimes he is accused of. My client pleads that he is innocent, by reason of insanity, your Honor."
I have a question that will perhaps seem nonserious, but though of little moment it seems to me serious enough to be asked: MS says that rape requires “phallic penetration.” So, does this mean that a woman can’t rape anybody? Derivatively, can a lesbian rightfully claim that she has been raped by another woman? Can a woman in a same-sex marriage rightfully claim marital rape by her wife? And so on. Does this sort of abuse/assault have any legal standing as rape? (I’m just curious, since definitions play such a big role in the law. I remember when Bill Clinton averred that he hadn’t had “sexual relations” with Monica Lewinsky and reading in the Washington Post at the time that technically what Clinton was saying was in keeping with some federal definitions of the term he was using (to mislead people, ad infinitum, ad nauseam.))
If it is his penis, the rapist forces into the rapist's vagina, then maybe. Let's wait for MS
Or the law might have different standards for woman on woman. Just to be perfectly speculative.
I wonder whether in a wilder age like the seventies and eighties someone on the jury would have sided with Trump
If the law defines rape as phallic penetration, then only a person with a phallus -- either one that they were born with or one that's been surgically constructed -- can be guilty of rape.
I do not have time right now to conduct any legal research on Fritz’s intriguing question (I am writing an appellate brief which has to be filed in the 6th Circuit Court of Appeals), here is my educated guess:
If the charge of rape is made by a biological woman against a biological man, rape requires phallic penetration. If the charge is made by a biological woman against a biological woman, rape of course cannot be accomplished by phallic penetration, but would be modified to include use of a phallic object (you know the term) to penetrate the woman’s vagina without her permission. Digital penetration by a woman of another woman would still not constitute rape, but would be aggravated sexual assault.
After I finish my brief (which is due Friday, by midnight), I will do a more thorough search to determine if there are any cases on point.
By the way, the use of the term “rape” does not have a specific definition in Michigan criminal law. In Michigan, the crime is “criminal sexual conduct,” and has four degree levels, depending on the act in question and the age of the victim. New York law is apparently different, and has a specific statutory provision for rape.
I wonder whether in a wilder age like the seventies and eighties someone on the jury would have sided with Trump.
A good question.
Having grown up in the 60's and 70's when the left was sexually permissive, I'm always amazed at how puritanical the left has become. That keeps me from swearing full allegiance to the tribe. Not that I would have voted in favor of Trump, but I still have my 60's permissive beliefs about sex.
I am of your generation.... but I do not think that "60's permissive beliefs about sex" included an approval of sexual assault.
When I said that I would not have voted in favor of Trump, I meant as a juror in the Carroll trial.
However, in general I tend to be much more permissive about sex than most of today's left and as I recall, 60's feminists were also very permissive as was Simone de Beauvoir.
I have feminist friends of my generation and they more or less share my point of view.
What sort of "permissiveness" do you have in mind, which was approved of by the 60's left but is now frowned upon by the post- MeToo left ? Sexual harrassment? What?
I don't understand what point you are trying to make about the contrast of sexual views across generations of the left
Simone de Beauvoir herself has been criticized by contemporary feminists for having affairs with her students, even though they were over the age of consent. By the way, we're talking about a young, beautiful Simone de Beauvoir, around age 30.
I don't see the problem with professor-student relations, unless the student is in the professor's class. However, getting to know Simone de Beauvoir was a privilege, even if the student was in her class.
We're back in the 1950's again.
That's just one thing. The list is very long.
By the way, the British philosopher John L. Austin, who specialized in ordinary language philosophy, drew a lot of his examples and analysis from the law and legal cases. His concept of verbal acts – statements which do not make a truth-functional assertion, but which by their expression constitute an action – is critical in the rules of evidence and what constitutes hearsay.
(a) The Legislature finds and declares that all forms of nonconsensual sexual assault may be considered rape for purposes of the gravity of the offense and the support of survivors.
(b) This section is declarative of existing law.
(Added by Stats. 2016, Ch. 848, Sec. 1. (AB 701) Effective January 1, 2017.)
Re J.L. Austin
Thomas Nagel has a recent review in The New Statesman of a "popular" book by a British philosopher about that period in Oxford philosophy. The book is called _A Terribly Serious Adventure_.
Btw, in the '50s Ernest Gellner, whom Prof Wolff has had occasion to refer to earlier here (involving his watching British election results at Gellner's home) set off a now mostly forgotten controversy when he attacked ordinary language philosophy in a book called _Words and Things_.
Thank you for your comment. I was not familiar with Gellner, so I checked the Wikipedia article about him. It indicates that Gilbert Ryle was so incensed by Gellner’s “Words and Things” that he refused to have it reviewed in the journal Mind. Bertrand Russell objected to this action by Ryle.
I would be interested in reading about the controversy and the exchanges between the philosophers. Are they discussed in the book you refer to, “A Terribly Serious Adventure”?
I just checked a review of the book on the internet. Sounds like an interesting read, so I'll purchase it.
MS et al.: I don’t believe that “A Terribly Serious Adventure” has been published yet—looks like it’s coming out this summer. But if one is interested in that period of British philosophy, one might want to first read a different take on it, by Ray Monk in an article he wrote in 2019 for the magazine “Prospect,” and which is available online for free. The title etc. of the piece is: “How the untimely death of RG Collingwood changed the course of philosophy forever.” … “The passing of this eclectic and questioning man in his prime allowed the narrower and more imperious Gilbert Ryle to dominate British philosophy. Had Collingwood lived, could the deep and damaging schism with continental thought have been avoided?” There are a lot of good photographs in the article, too. (By the way, one of the philosophers who’s mentioned in that forthcoming book is Philippa Foot, who was Grover Cleveland’s granddaughter. Philippa’s mother (Esther) was born in the White House. Esther’s (older) half-brother was illegitimate, and this then unseemly fact was used against Grover in his campaign against Republican James G. Blaine. The Republicans taunted Cleveland with the chant, “Ma, Ma, Where’s My Pa?” But Grover prevailed, and after the election the Democrats chanted back, “Gone to the White House, Ha, Ha, Ha.”)
I don't know whether the Gellner controversy is discussed in that book. It was not mentioned by Nagel in his New Statesman review, but the review was fairly short.
Thank you for the reference. I will download it.
And thank you for the great Jeopardy question: What President’s grand-daughter was a British philosophy professor?
P.S.: The Jeopardy Tournament of Masters is being broadcast every night at 8 P.M. on ABC. The participants are amazing.
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