Analecto

2 de novembro de 2020

Since when?

Filed under: Notícias e política — Tags:, , — Yure @ 15:22

Did I miss something? Because the São Paulo court of justice said today that certain libidinous acts involving children under 14 are not rape.

Here’s what happened: a guy was reported for putting a girl on his lap and feeling her breasts. Okay, for me, it is a libidinous act and, according to article 217-A of the Penal Code , it is rape with vulnerable victim. But here comes the interpretation of the judge, so pay attention: the act is not serious enough to deserve such name. Therefore, he will not be convicted of rape with vulnerable victim, but sexual harassment, a crime that I didn’t even know existed in our Penal Code. Then again, I am not a lawyer.

Today, I was reading Saint Augustine’s De Magistro , a discussion of signs and words. In this book, Augustine states, in discussion with his son, Adeodato, that the study of things is better than the study of the words used to refer to things. This is for several reasons, of which I mention two: sometimes the person who uses a certain word does not know what he is saying and it may also be that the use of some words is dishonest. Although I think that the natural thing is to comply with the law as it is in article 217-A, I agree with the judge when he says that the act, as it is not penetrative, should not be called rape. And because of that, the judge may have been genuinely confused at the sentence writing step.

That term, “rape with vulnerable victim,” sucks. 217-A says that any carnal conjunction or libidinous act involving a person who is not 14 years old is rape with vulnerable victim, even with a consenting victim . Notice this: the act does not even have to be forced to be considered “rape” with vulnerable victim. So can even the consensual, non-penetrative relationship be considered rape? What has become of the original meaning of the word “rape”, which is “forced penetration”? Of course, the judge would be hesitant to call rape what the guy did.

Article 217-A is very poorly written. The label used in the United States, “statutory rape”, is much better, because it makes it clear that it is rape only from the legal point of view, not from the literal point of view. But “rape with vulnerable victim” is an absolute term, which implies inherent harm . But how? Two five-year-olds doing “naughty play” with each other, in mutual agreement, while their parents are away, are two minors who are not fourteen years old practicing libidinous acts, therefore minor offenders who committed an offense analogous to rape with vulnerable victim (“analogous”, because no child or adolescent in Brazil can be tried as an adult under any circumstances, meaning that they are exempt from the punishments found in the Penal Code). But can you call this “naughty game” an act that is “analogous” to rape?

It is necessary, for the sake of fidelity to the language, that the term “rape” be reserved for forced penetration and that libidinous acts different from forced penetration have another name, with a neutral charge. Because such language gets in the way of sane reason. I’m not saying that the guy shouldn’t be punished for what he did, since I assume the girl wasn’t even a consenting participant (and even if she were, the guy wouldn’t escape law enforcement). But we need to go back to sanity and change the name of this crime, because it is difficult to call “rape” or “analogous to rape” all libidinous acts, penetrative or not, consented or not, with an adult partner or a minor partner, as long as one of the participants is not yet 14 years old.

Furthermore, this term biases the interpretation of the act by people who come into contact with the story. In one study from the nineties , Biased Terminology Effects and Biased Information Processing in Research of Adult-Nonadult Sexual Interactions, the authors took an account of a consensual relationship between an adult and an adolescent and rewrote it, changing the terms “minor” to “victim”, “adult” to “perpetrator” and “sexual contact” to “sexual abuse”. Then, they gave the original text to one group and the modified text to another group. The group that received the forgery evaluated the report more negatively than the group that received the original, even though both texts reported the same experience, making it clear that the adolescent in question wanted the relationship. Why did the groups evaluate the same story differently? What was different? The language of the text. A biased language leads reason to conclude different things from those that would be concluded when the language used is neutral. Even I, reading the report on Brazil 247, tend to think that the act took place without consent, although the report does not say whether consent existed or not (although this is not legally relevant).

The higher court judge who puts hands a sentence that says “rape with vulnerable victim” will be predisposed to assume that coercion or damage took place, even if both things are absent, as neither is necessary to classify the act as “rape with vulnerable victim”. Unless the act is detailed in the sentence, the judge will be predisposed to give a disproportionate penalty to the act, even if such an act has been consented or non-penetrative. Now it occurs to me that maybe that was what the São Paulo judge thought. He probably imagined that someone is going to appeal to the higher court and used his sentence to avoid a disproportionate penalty to the defendant.

In short: although I do think the guy should receive penalty for rape with vulnerable victim, I admit that the use of this term gets in the way of sane thinking and that the term should be changed, reserving the “rape” tag for forced penetrative acts and using another term for others libidinous acts. This, of course, until consensual, harmless sex is not fully decriminalized.

Fonte: Google Translate

6 Comentários »

  1. The word “rape” has been bastardized so wickedly, that it’s now pretty much weaponized against anyone doing anything theoretically sexual which falls outside of approved social norms.

    Curtido por 1 pessoa

    Comentário por eqfoundation — 3 de novembro de 2020 @ 17:06

    • Indeed… That judge is probably a boomer, tho. He is unfamiliar with ideas that are barely 10-years-old, such as “rape is a spectrum”. Ugh… It’s unbelievable. I’m glad he probably never heard of that.

      Curtido por 1 pessoa

      Comentário por Yure — 4 de novembro de 2020 @ 13:38

      • So much of what has psychologically come out of the last three decades, is just insanity…

        …soul destroying, life killing, impoverishing insanity.

        Curtido por 1 pessoa

        Comentário por eqfoundation — 5 de novembro de 2020 @ 04:49

  2. It is this maddened legal nonsense which caused the issue to begin with. If no harm is done, there should be no criminal charges. Did anyone even asked the girl of her opinion? Not to mention the notion of rape with no penetrative act makes little to no sense.

    Curtido por 1 pessoa

    Comentário por Drako L Bluewing — 2 de novembro de 2020 @ 17:23

    • I think too, that, if it’s harmless and consensual, then it should not cause a criminal charge. I couldn’t find the girl’s opinion at all.

      Curtir

      Comentário por Yure — 2 de novembro de 2020 @ 18:58


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