Disqus - Latest Comments for Picklegnome

Re: This Man Makes No Sense

Picklegnome — Thu, 29 Jun 2006 22:33:16 -0000

I think he's quite comprehensible, despite my desire for him to look like a simpering fool. What he said makes sense and is consistent with the "liberal media" blame game that the conservative establishment plays. His message is clear, even if it's wrong.

Re: Thoughts About Sex and Sexism, Spawned by a “Sexist” Advertisement

Picklegnome — Mon, 09 Jun 2008 03:35:24 -0000

Just one note - men and women don't have the same ranges, or at least, the distribution over those ranges is different for each gender. There are more males at both the lower and the higher end, in general.

Re: The 10 Manliest High Tide Sea Shanties | The Art of Manliness

Picklegnome — Wed, 24 Sep 2008 16:40:20 -0000

Can we get drinking songs next? Not that sea shanties aren't wonderful, but it would be cool to have both.

Re: We'll Tell You If You Were Raped, Little Lady

Picklegnome — Mon, 09 Jun 2008 14:11:27 -0000

The judge is correct. Since "rape" is a technical, legal term, it is for the jury to decide whether the defendant actually committed an act that meets the technical, legal definition of rape. Allowing witnesses to use an emotionally charged word to describe how they feel will intrude on the technical, legal definition, and because that is essentially the only issue the jury is being asked to decide - whether or not that definition was met - it is important to keep the definition intact.

Also, I disagree with the idea that "sexual intercourse" connotes consent. To me, it is the most sterile term we have for that particular act. "Making love" and even "fucking" have the connotations of consent, but "sexual intercourse" is about as far from that as possible. Please let me know if you have a suggestion for an even more sterile term.

Do you really think a jury will be persuaded by "He raped me" if it's not persuaded by "He made me have sex with him, even though I didn't want to", all other facts being the same?

Re: We'll Tell You If You Were Raped, Little Lady

Picklegnome — Mon, 09 Jun 2008 14:24:47 -0000

Ken, why is it exactly that the witness can't testify to "rape"? How is that objectionable? Under FRE and Nebraska RoE 704, testimony otherwise admissible is not objectionable just because it embraces ultimate issue. Is this being excluded as prejudicial? I think that's the right call, but I was interested in what your take on the proper objection would be.

Re: We'll Tell You If You Were Raped, Little Lady

Picklegnome — Mon, 09 Jun 2008 14:31:53 -0000

bettyboondoggle, no, it doesn't. It smacks of a good legal system. No prosecutor who has gone through law school - and they all have - is stupid enough to not be able to rephrase a question.

Re: We'll Tell You If You Were Raped, Little Lady

Picklegnome — Mon, 09 Jun 2008 14:43:12 -0000

Ok, I'm giving up. Take Evidence in any accredited law school in the United States. Then you'll understand. Also, wait to jump to conclusions until the jury reaches a verdict.

Also, you're shrill (I mean the commenters, here). It would behoove you to stop being so. I actually agree with much of what you say, when it doesn't have anything to do with law. Your shrillness just turns people away.

Re: We'll Tell You If You Were Raped, Little Lady

Picklegnome — Mon, 09 Jun 2008 15:24:24 -0000

Flewellyn, I apologize - the issue here isn't rule 704, it's rule 403. "Rape" is prejudicial.

Also, to all the people I offended with my comment about shrillness: There is a reason feminists are described as such. They are, unfortunately frequently, shrill. Your arguments are well-formed, but not appropriate for the context. This is a specific legal question, not a gender-bias one.

In *On Liberty*, John Stuart Mill, a definite feminist, pointed out that "Opinions contrary to those commonly received can only obtain a hearing by studied moderation of language, and the most cautious avoidance of unnecessary offence." *Please* take this advice. Your cause is a good one, but your methods of advancing it are all-too-often alienating.

bettyboondoggle, I'm not asking you to be nice and pretty and sweet. I'm asking you to be measured, calm, and rational. Even when you are upset by what you perceive to be a gross miscarriage of justice. And everyone should be nice, regardless of gender. You say "isn't it funny how we're 'shrill' and just don't understand, but it's NEVER the other way around. Convenient that." Here's the simple truth: you just don't understand. Ken is correct, and he has the proper legal training to see the issue the way our society has decided *all matters of law* should be viewed. You don't, it appears. Without that legal training, you really just don't understand. That's not to say you *can't* understand - pick up a book about Evidence (I recommend Arthur Best's "Evidence" from Aspen Publishers' "Examples and Explanations" series - it actually discusses the issue at hand in this very case within the first ten pages).

Re: We'll Tell You If You Were Raped, Little Lady

Picklegnome — Mon, 09 Jun 2008 15:28:24 -0000

Also, one more comment: It would help if you would stop seeing this from a "How the woman experienced it" point of view, and start seeing it as a "What the Nebraska statute reads" point of view.

You can still make the argument that the Nebraska statute is incorrect, but the judge is nonetheless bound by it in making his decision.

Re: We'll Tell You If You Were Raped, Little Lady

Picklegnome — Mon, 09 Jun 2008 15:38:02 -0000

kate217 - what juries can or cannot know is not at question. Current Nebraska law has certain requirements, including that unduly prejudicial testimony be restricted. Since the actual facts of the case can be described just fine without using the word "rape", the judge is practically bound by law to disallow its use.

Re: We'll Tell You If You Were Raped, Little Lady

Picklegnome — Mon, 09 Jun 2008 15:41:45 -0000

Ok, here's the fundamental question:

Can the facts of the case, from the perspective of the woman who was allegedly raped, be described factually accurately without using words that push the jury to assume guilt?

My answer would be yes. "He forcibly penetrated my vagina" is factually accurate. So is "he raped me". But one carries far more prejudicial, emotional weight, and it is therefore a better legal decision to substitute the less prejudicial version.

Re: We'll Tell You If You Were Raped, Little Lady

Picklegnome — Mon, 09 Jun 2008 15:46:06 -0000

J.Goff: I am not at all offended that women are daring to question sexism. I just don't see this as a sexist issue - in a court of law, it's a legal one.

Also, I am deeply sorry for changing my mind about giving up on you all. I had thought that it was worthless to continue, since all you women are irrational sub-humans who can't understand an argument, but then I realized how much more pleasure I could get from displaying my obvious superiority as a male. (/snark)

Re: We'll Tell You If You Were Raped, Little Lady

Picklegnome — Mon, 09 Jun 2008 15:48:02 -0000

Yes, J.Goff, I insist that it is a bug. Just as an assault victim having to say "he hit me with a baseball bat" rather than "he assaulted me" has nothing to do with whether the person who was hit is male or female.

Re: We'll Tell You If You Were Raped, Little Lady

Picklegnome — Mon, 09 Jun 2008 15:52:52 -0000

kate217 and CE - of course there have been laws with sexist slants. The judge is still bound by them, in a trial court. Only in a court of Appeals can that be overturned.

Re: We'll Tell You If You Were Raped, Little Lady

Picklegnome — Mon, 09 Jun 2008 15:54:53 -0000

kate217 - "He hit me with a bat" doesn't imply consent, but neither does "I woke up and he was having sex with me against my will." How does that imply consent? How is it factually inaccurate? It states the facts very straightforwardly, and with no doubt whatsoever that it wasn't consensual.

Re: We'll Tell You If You Were Raped, Little Lady

Picklegnome — Mon, 09 Jun 2008 15:57:01 -0000

Mr Furious (not Todd) - I agree entirely that it doesn't convey the emotional experience of the victim. But the victim's emotional experience is not an issue under Nebraska law in a rape trial. Certainly, in a civil case, it may be. But in determining guilt, the only issue is whether the sex was consensual or not. Bringing in how much the victim was hurt only serves to prejudice the jury.

Re: We'll Tell You If You Were Raped, Little Lady

Picklegnome — Mon, 09 Jun 2008 15:58:50 -0000

CE - how is the victim unable to indicate a violation of person? "He penetrated me without my consent" indicates that it was non-consensual, doesn't it?

Raging Hippie - we've moved on from that, I think. The issue at hand, as I realized about halfway through the discussion, isn't whether it's a technical legal term, but whether it is prejudicial to the jury.

Re: We'll Tell You If You Were Raped, Little Lady

Picklegnome — Mon, 09 Jun 2008 16:01:46 -0000

kate217 - except that the option is left wide open to add "without my consent" onto the end. Also, I'm unsure of what words are more sterile than "sexual intercourse". I agree, there are connotations (which are not necessarily universal) but is there a better alternative that avoids the emotion, etc.?

madaha - "Having sex without my consent" works, because it doesn't imply consent. Why is this so difficult to understand? The judge wasn't limiting anyone to saying only "having sex". Everyone is still free to say "having sex without my consent" or "having sex against my will" or "forcibly penetrating me", all of which convey the facts of the case accurately.

Re: We'll Tell You If You Were Raped, Little Lady

Picklegnome — Mon, 09 Jun 2008 16:02:43 -0000

kate217 - even if we accept that "having sex" implies consent, surely "having sex against my will" balances that out, especially when said repeatedly throughout the trial.

Re: We'll Tell You If You Were Raped, Little Lady

Picklegnome — Mon, 09 Jun 2008 16:08:10 -0000

J.Goff, the issue of prejudice is this: does it make the jury think a fact of the case is more or less likely? Saying "rape" prejudices in making them associate an emotion with the defendant, even though he is presumed innocent.

I understand where you're coming from. Correct me if I'm wrong, but it seems that you think it is right and even necessary that this be presented in an emotionally charged manner to the jury. If that is indeed your position, the law, which the judge is bound by, disagrees.

Re: We'll Tell You If You Were Raped, Little Lady

Picklegnome — Mon, 09 Jun 2008 16:10:11 -0000

<quote>
It's because, to people like Picklegnome, who are deeply needful of the rape culture as it exists, rape is sex. It's one of the core beliefs that perpetuate the rape culture. Better every rapist go free than have one rapist in jail "because he thought she was asking for it."
</quote>

You go too far, J.Goff.

Re: We'll Tell You If You Were Raped, Little Lady

Picklegnome — Mon, 09 Jun 2008 16:11:04 -0000

Raging Hippie - Sorry, I actually had brought up that point earlier in the discussion.

Re: We'll Tell You If You Were Raped, Little Lady

Picklegnome — Mon, 09 Jun 2008 16:13:40 -0000

J.Goff, is there a way you can describe the facts of the case without using words that are incredibly charged with emotion? The word "rape" makes me boil inside. The word "sex" doesn't.

Also, it's been brought up in this discussion that "sex" isn't an appropriate descriptor of what happened. What should we call it when a penis penetrates a vagina? What is the most general term for that action?

Re: We'll Tell You If You Were Raped, Little Lady

Picklegnome — Mon, 09 Jun 2008 16:23:51 -0000

Here's the definition of what the defendant is being tried for: (thanks to Raging Hippie for finding this)
a) Any person who subjects another person to sexual penetration

How is any confusion introduced by excluding the word rape, and requiring the woman to say "He penetrated me forcibly, against my will" ? The jury knows the exact wording of the law. When someone says "He forcibly penetrated me, against my will" is there any doubt whatsoever that the person "subject[ed] another person to sexual penetration" ? Any at all?

Re: We'll Tell You If You Were Raped, Little Lady

Picklegnome — Mon, 09 Jun 2008 16:28:09 -0000

Facts are allowed in criminal guilt phase trials. Not emotional pleas.

Astraea made a fundamental point in saying "That action is penetration. What is happening between the two people involved is either sex or rape, as everyone else has said."

The action is the only admissible fact. The emotions associated with the action, horrific though they may be, are not relevant to the guilt of the defendant. Therefore, they are excluded as unduly prejudicial.

Re: We'll Tell You If You Were Raped, Little Lady

Picklegnome — Mon, 09 Jun 2008 16:35:33 -0000

Astraea, I certainly did not intend to misconstrue what you said, but I quoted you directly.

What is admissible is the action: the penis penetrated the vagina. Also admissible is the victim's consent: absent. Anything much further than that is irrelevant to guilt. Those are the only facts that matter, legally. Did he penetrate? Did she consent?

bettyboondoggle, anyone who hears a woman say "He penetrated me against my will" will have very little doubt about her certainty.

Re: We'll Tell You If You Were Raped, Little Lady

Picklegnome — Mon, 09 Jun 2008 16:36:42 -0000

bettyboondoggle, can you please stop employing straw men? I'm not asserting any of the things you seem to be attributing to me.

Re: We'll Tell You If You Were Raped, Little Lady

Picklegnome — Mon, 09 Jun 2008 16:37:51 -0000

madaha - I'm still unconvinced that "sex" isn't a reasonable compromise. And the prosecution will use "penetration" as much as possible. The jury will get the message.

Re: We'll Tell You If You Were Raped, Little Lady

Picklegnome — Mon, 09 Jun 2008 16:50:03 -0000

Broce, it's also reasonable to say "the man penetrated me, without my consent."

madaha, it's been nice talking with you. I'll leave you with this point: in a trial, both sides try to represent the bare-bones facts of a case in different ways. Even if the defense can say "I had sex with her", it is trivial for the cross-examining attorney to ask "did she agree to let you have sex with her?" That illuminates all the necessary facts of the case - at least in the guilt phase of the trial. A fair trial is one in which the facts are considered, not the emotions.

J.Goff, I can't reiterate this enough "He had sex with me without my consent" CANNOT be misconstrued to mean that it was consensual.

Re: We'll Tell You If You Were Raped, Little Lady

Picklegnome — Mon, 09 Jun 2008 16:52:57 -0000

CE - and if there is no consent, it's trivial to ask "Was the sex consensual?"

The important point here is not the emotional impact of the words. It's the actual facts of what happened. The relevant questions are "Did penetration occur?" and "Was it consensual?" There are many ways of conveying the answers to those questions without using the word "rape", and thus without introducing emotion into the courtroom. Why is it so important to use that word when others can also convey the factual elements of the case?

Re: We'll Tell You If You Were Raped, Little Lady

Picklegnome — Mon, 09 Jun 2008 17:00:56 -0000

CE, obviously our differences stem from our different definitions of "sex". I call sex any penetration of a penis into a vagina. You limit it to consensual penetration. The law, though, agrees with me. This isn't sexism, it's the fact that we need to have a general term for penile penetration.

You don't bother to answer the question - why is using this specific word so important, if not for its emotional impact? It is important to avoid because of its emotional impact, and the likelihood that it will make the jury assume guilt. But what's your argument?

Re: We'll Tell You If You Were Raped, Little Lady

Picklegnome — Mon, 09 Jun 2008 17:03:00 -0000

J.Goff, according to that graphic linked above, in cases in which an arrest is made and there is a prosecution, such as this one, there is a 58% conviction rate. Is that the number you refer to?

Re: We'll Tell You If You Were Raped, Little Lady

Picklegnome — Mon, 09 Jun 2008 17:08:10 -0000

bettyboondoggle, the straw men to which I refer are of statements like "No you see it is because it's a woman saying it and we all know chicks never say anything logical or rational - they're always so emotional."

Mr Furious (not Todd) - Fine. There are many other ways to say it. "He penetrated me without my consent." "He inserted his penis into my vagina, even though I screamed 'no'." "He forced me into sex." "I didn't have a choice - he was sticking it in despite my objections." "I was completely helpless - I tried to stop him from penetrating me, but I couldn't."

Broce - the issue isn't whether the witness is saying the person is guilty, it's whether the witness is saying something which attaches undue weight to the idea - such as the emotional "baggage" (for lack of a better word) that comes with the term "rape" (as compared to the relatively "baggage-free" "forcible penetration").

Re: We'll Tell You If You Were Raped, Little Lady

Picklegnome — Mon, 09 Jun 2008 17:09:05 -0000

kate217 - but that's not the case we're dealing with here. Here, it was reported, there was an arrest, and there is a prosecution.

Re: We'll Tell You If You Were Raped, Little Lady

Picklegnome — Mon, 09 Jun 2008 17:10:24 -0000

Good point, Broce - My point is, "sex" has never implied consent to me, but rather the basic fact of sexual contact.

Re: We'll Tell You If You Were Raped, Little Lady

Picklegnome — Mon, 09 Jun 2008 17:14:11 -0000

CE - the point that the law agrees with me does make me right, in this limited case. That isn't to say that the law itself is correct, but that the judge, who is bound by existing law made the right decision.

"Penile penetration" is fine with me, and the prosecution will be using it ad nauseam.

Also, hoping to lay this one to rest finally, the "shrill" comment was not in regards to the rational arguments put forward in the discussion, but to things like bettyboondoggle's straw-man arguments.

Re: We'll Tell You If You Were Raped, Little Lady

Picklegnome — Mon, 09 Jun 2008 17:17:23 -0000

Raging Hippie - It's not that forcible penetration is no big deal, it's that, due to our culture, it has less of an emotional impact. The crime is still a terrible one.

J.Goff, you last spoke of "convictions", not of jail time. And I'm not including unreported rapes in this number, because this one was reported. For the circumstances we have here - report, arrest, prosecution - 58% are convicted, correct?

Re: We'll Tell You If You Were Raped, Little Lady

Picklegnome — Mon, 09 Jun 2008 17:20:12 -0000

SKM, the witnesses are free to say he committed a crime. Just not to use the terms "rape" or "sexual assault" which have been ruled prejudicial.

Also, the victim is not forced to use the same framing. The prosecution is free to frame it as "forcible penetration".

As for the sexism issue, the law itself may be a sexist issue; the judge's decision, bound by that law, is not.

Re: We'll Tell You If You Were Raped, Little Lady

Picklegnome — Mon, 09 Jun 2008 17:21:07 -0000

CE - we are making no progress. Even if the law is sexist, the judge can't help that.

Re: We'll Tell You If You Were Raped, Little Lady

Picklegnome — Mon, 09 Jun 2008 17:24:43 -0000

No, we moved past that about two hours ago, CE. The whole point is that the word rape is prejudicial.

So your argument now is that he should have also disallowed "sex", but disallowing "rape" is ok?

Re: We'll Tell You If You Were Raped, Little Lady

Picklegnome — Mon, 09 Jun 2008 17:26:38 -0000

No, J.Goff. The discussion was about this specific case and this specific ruling. And for that, the number is 58%.

Lu - I incorrectly made that argument very early on. In fact, the word "rape" was disallowed because of the likelihood of it prejudicing the jury.

Re: We'll Tell You If You Were Raped, Little Lady

Picklegnome — Mon, 09 Jun 2008 17:30:20 -0000

Mr Furious (not Todd) and kate217 - This looks like a good stopping point, as you both seem to have come to the conclusion that my reaction to the words involved is, perhaps, unusual. Maybe it is, and maybe that's why I see the judge's decision as reasonable. In any case, I think we understand each other's arguments pretty fully. Thank you for the discussion.

Unless there's anything else you want to clear up, I need to go to bed.

Re: We'll Tell You If You Were Raped, Little Lady

Picklegnome — Mon, 09 Jun 2008 17:32:41 -0000

Broce - I disagree. Which seems to be where most of the contention is.

J.Goff - I had started out respecting your willingness to engage in debate. You've disappointed repeatedly. As far as I'm concerned, the truth is equally that she was forcibly penetrated against her will and that she was raped. I have no problem with her expressing the truth, just with expressing it in a certain way.

Re: We'll Tell You If You Were Raped, Little Lady

Picklegnome — Mon, 09 Jun 2008 17:35:37 -0000

Also, Broce, thank you for being so calm throughout this. You haven't resorted to name-calling, straw men, or trying to inflate the conversation into a referendum on my "deep investment in the rape culture".

Re: Thoughts About Sex and Sexism, Spawned by a “Sexist” Advertisement

Picklegnome — Mon, 09 Jun 2008 03:35:24 -0000