A prostitute can be raped?
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Phil Ayesho
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Okay- so you clearly have NO experience in law. and none in logic, either.
CONTRACT LAW IS TORT law.
Breach of contract is not a CRIMINAL violation, its a Violation in TORT. Which is adjudicated in CIVIL suit, and NOT in criminal courts.
Tort law covers any infringement of rights causing damages or injury in which a plaintiff can prove the defendant had a legal obligation that was not met.
That can cover someone hitting your car with theirs... they have a legal obligation to not only obey traffic laws, but also a legal responsibility to carry insurance to cover that liability.
But it ALSO covers legal obligation arriving from CONTRACTS or agreements.
If you rent a scooter and refuse to pay the agreed sum for mileage, then you are in breach of contract and the rental store can sue you in civil court for damages. Their damages are limited to the MONEY they did not get that you agreed to pay. They can not claim your USE of the Scooter DAMAGED them in any way since THAT is specifically what they were selling. USE of the scooter.
The only way in which they were damaged is in not being paid the agreed sum for that use.
If you rent unknowingly an unsafe scooter and it falls apart, injuring you - the rental store has not breached contract... you have a case in that agreement to the contract places a liability on the rental store regarding the safety of the equipment for the usage of which you agreed to pay rent.
You suffered damages from their failure to provide a safe scooter so they are liable.
NO ONE COMMITTED A VIOLENT OFFENSE and NO one gets tried in criminal court under criminal law.
Get it?
TORT has nothing to do with RAPE. ( although, a victim of rape might- in addition to the criminal accusations heard in criminal court- sue the rapist under Tort law for damage to her clothing, emotional distress and harm costing her for therapy, and other such damages- but again, if she prevails, the Rapist SERVES NO TIME. She can win a judgement, and that is all she can win- see the OJ civil suit )
Your example of botched surgery is the same.... However... in the OP scenario the hooker can not claim ANY physical injury because ALL that happened was SEX- which is the very commodity she was WILLING to sell.
It was, in every reasonable metric, a RENTAL agreement. And nothing more- she STILL has her pussy- and she can RENT IT OUT in the future.
Nothing the john did damaged her goods or her 'equipment' nor in any way prevented her from earning more money with future pussy rentals.
So the most she can claim is non-payment in a simple breach of contract.
She can ASK for punitive damages, and if the court agrees the john had no reasonable excuse for not keeping his contract then she might well win additional monies... But, once more. he doesn't go to jail. Its not heard in criminal court.
Still and again... you don't get to accuse a doctor who fucked up of being a rapist. He doesn't get to accuse YOU of being a rapist if you don't pay your bill.
And what's more, even if he fucks up- YOU CAN NOT REASONABLY CLAIM THAT YOU NEVER AGREED TO SURGERY.
OR- if you don't pay, he can not claim he never agreed to operate on you.
The ENTIRE VALIDITY of either of your claims rests SOLELY on the fact that you BOTH willingly entered into an agreement.
It is the AGREEMENT and ONLY the agreement that makes either of you liable.
Ergo- retroactively rescinding 'consent' is retroactively saying no agreement was signed.
That is incorrect and more importantly meaningless.
IF the hooker can claim the agreement was contingent upon payment so there was no agreement.... then the JOHN OWES HER NO MONEY. He can claim, oh- there was NO agreement to pay because she says there was no agreement to pay- so she must have come up to my hotel room, undressed, and spread her legs and let me fuck just for the fun of it.
Her counter that it only wasn't agreement because he did not pay.... proves there was in fact an agreement to pay and that it was a simple RENTAL agreement.
How was she wronged?
NOT by the sex... because the consent was NOT retroactively rescinded until AFTER he refused to pay.
She was wronged by non-payment in an agreement to pay for sex.
She's OUT only the sex she intended to get money for.
SHE HAD EVERY INTENTION TO ENAGE IN SEX- ergo she was not forced to have sex.
The chief mistake in your analysis is the statement: "that wouldn't change the consent". Fraud in the inducement negates consent.
Wow. I'm amazed. I'll stack my legal education, practice, clerkship, etc. against yours anyday.
You've entirely missed the point by trying to shoehorn this into a contract situation. You assume that the cause of action arises from a contract. It doesn't. Instead, the existence of a contract would serve as a defense to a tort or criminal cause of action. By the way, it bespeaks profound sloppiness of legal analysis to say, as you did, that tort law is contract law. The fundamental difference between the two is that torts involve actions that arise in law, while contracts are a form of "private" law that arise only when a promise is enforceable because of some form of either consideration or estoppel. It's a basic difference. If a contract exists, the pertinent question is what precisely was agreed to. If, as the hypos in this thread suss out, the "client" goes beyond what's agreed to, or pays less for the agreed upon services, there's a breach by the client and the defense of an agreement falls short.
In any event, perhaps you shouldn't practice law online. You may encourage behavior that is legally questionable by suggesting it is unquestionably defensible.
Not true. Fraud in the inducement negates the obligations and duties created by the consent.
For example, I agreed to sell you my watch for the sum of $200.
If you actually committed fraud in your offer, I am no longer obligated to sell you my watch. Most courts would even say that, despite the fraud, if you paid the $200, I would still be obligated to turn over my watch, because that was to what I consented.
True, I didn't give consent to selling the watch for free. If I gave you possession of the watch and you refused to pay, the consent to sell still exists and you are in breach of our contract. I can go to a civil court and ask for an order demanding your performance (paying the $200).
The consent never changes, only the obligations and duties bound by that consent change.
Applying back to our hypothetical... (presuming there was an agreement about the "extra") the worker consented to sex and had the rights to money. The worker then fulfilled their duty to have sex, and the client was in breach when they didn't pay.
If the client committed fraud, then the worker wasn't obligated to have the sex to which they consented. Since the performance was complete, they cannot later deny that they consented to have sex.
You're wrong. Most courts would not enforce the fraudulently induced deal, they'd restore the status quo pre fraud. In your analogy, I'd be given the option to return the watch and get back my $200. I would have the option to enforce the deal and keep the watch, and you would keep the $200. No court would require me to eat the $200 and keep the watch if you defrauded me.
But more problematic with your analogy is the equation of a "contract" for personal/sexual services with one for the transfer of chattel. The aspect of consent is too much at the center of dividing sexual assault from consensual contact to parse the "parts" agreed upon from the "parts" not agreed upon. There is simply no reasonable basis to assess the fair market value of the services agreed upon versus those taken without agreement.
In case my last response was not steeped enough in legalese, let me translate: The perpetrator of the fraud (you, in your analogy) cannot enforce the agreement induced by fraud; the dupe (me, in you analogy) may enforce the agreement, but I'm not required to.
To refine your analogy: Suppose you sell me a watch that you fraudulently advance as belonging to JFK, and I am a JFK collector. I agree to pay you $200 for that watch. It turns out that the watch wasn't one owned by JFK, but by Abraham Lincoln, and it's worth $2000, rather than the $200 I paid you. In those circumstances, the court would allow me to enforce the contract against you (I'd reap the windfall from your fraud) or rescind the deal and get back my money in exchange for returning the watch. If, on the other hand, you passed a JFK watch for the Lincoln watch I wanted and I got one worth one-tenth the value of what you fraudulently offerred, I would not be stuck with the watch. The court would award me back what I'd paid so long as I returned the watch.
@tarheel6 I'm not going to quote each one in order to respond. I hope you don't mind, but I'll lump them together, since they are all basically the same.
First, I am sorry for the choice of analogy. You are correct that I should have used a service oriented analogy, such as 'mopping a floor'. I was not attempting to change the nature of the transaction, nor was I comparing sex worker to selling a 'thing'.
However, you are still not addressing the difference I pointed out. I agree that misrepresentation by one party may make a contract unenforceable, voidable, or void. But to look more closely you need to clarify 'why the court may be involved'.
A court may only intervene in a case of controversy. If there is no contract, then there is no case of controversy.
You are saying that the misrepresentation removes the consent. If that is true, then there is no contract to enforce by a court of equity.
It is the agreement that creates the rights and duties. And an agreement cannot exist without consent. So, the two parties made an agreement, consented to their rights and duties, and one party reneged. The consent doesn't change, but now you have a controversy that a court of equity can adjudicate. One party didn't meet their duty and the other party was denied their right.
So, you are correct, that a court would not make you suffer for misrepresenting the watch, or any other analogy. But it is not because the court changes the consent, but rather addresses the rights and duties to which the consented agreement applies.
The sex worker consented to sex, in exchange for money. For the sex worker... performing sex is the duty, and receiving payment is the right. For the client... making payment is the duty, and receiving sex is the right. The sex worker consented to sex and the client consent to make payment.
Let's switch this and ask the question in reverse... You have said the sex worker performed but didn't get paid, thus the worker didn't consent. But, what if the client paid, and the sex worker didn't perform sex, how can you say that the client didn't consent?
First, I am sorry for the choice of analogy. You are correct that I should have used a service oriented analogy, such as 'mopping a floor'. I was not attempting to change the nature of the transaction, nor was I comparing sex worker to selling a 'thing'.
However, you are still not addressing the difference I pointed out. I agree that misrepresentation by one party may make a contract unenforceable, voidable, or void. But to look more closely you need to clarify 'why the court may be involved'.
A court may only intervene in a case of controversy. If there is no contract, then there is no case of controversy.
You are saying that the misrepresentation removes the consent. If that is true, then there is no contract to enforce by a court of equity.
It is the agreement that creates the rights and duties. And an agreement cannot exist without consent. So, the two parties made an agreement, consented to their rights and duties, and one party reneged. The consent doesn't change, but now you have a controversy that a court of equity can adjudicate. One party didn't meet their duty and the other party was denied their right.
So, you are correct, that a court would not make you suffer for misrepresenting the watch, or any other analogy. But it is not because the court changes the consent, but rather addresses the rights and duties to which the consented agreement applies.
The sex worker consented to sex, in exchange for money. For the sex worker... performing sex is the duty, and receiving payment is the right. For the client... making payment is the duty, and receiving sex is the right. The sex worker consented to sex and the client consent to make payment.
Let's switch this and ask the question in reverse... You have said the sex worker performed but didn't get paid, thus the worker didn't consent. But, what if the client paid, and the sex worker didn't perform sex, how can you say that the client didn't consent?
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I have actually done a little more research on this since, and have found a similar case in the UK, which could certainly be used as precedent to support your viewpoint from a legal standing.
R v. Linekar (1994) - I would post a source on this but you can Google it yourself easily enough. There was no concept of "overtime" in this case as per the hypothetical, but the scenario is basically equivalent: the defendant skipped out on payment after the fact and rape charges were brought against Linekar. At least, that was the defense -- the prostitute's contention in the original case was actually that she insisted on payment before the act and that she was forcibly raped (if we accept her version of events there would be no ambiguity as to the law).
The judge directed the jury to rule that the consent would be vitiated if obtained by fraud, and the jury therefore convicted Linekar by majority of 11-1 since he essentially admitted to the fraud. However the case went to appeal and the conviction was quashed on the grounds that consent may only be vitiated by deception if either a) the identity of the perpetrator is presented fraudulently or b) the nature of the sex act itself is based on fraud (as in the Assange case).
I would still argue that there is no real moral line between concealing one's identity (there was a bizarre case of this a couple of years ago here involving a young woman pretending to be a man) and fraudulently obtaining consent from a prostitute without paying, but regardless, that was how the Court of Appeal ruled. The act of prostitution itself is legal in the UK, so the law could easily be amended to include such cases of deliberate, premeditated fraud as vitiating consent. Even if we accept the defendant's version of events, I would think it callous to deny that her body was violated given the context, or to consider the idea that the motivations of her complaint were purely mercantile, which was apparently the defense's rather cynical contention.
As @ronin001 and others have pointed out, our definitions of rape have changed over time including (but not limited to) rape within a marriage. So I stand by my previous statements.
N.B. I also found a case in the US where a judge ruled not guilty against two defendants who raped a prostitute at gunpoint because, in her words, the judge considered the case "theft of services" as opposed to rape.
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The judge, Teresa Carr Deni of Municipal Court in Philadelphia
The chancellor of the Philadelphia Bar Association, Jane Leslie Dalton, said: “The victim has been brutalized twice in this case, first by the assailants, and now by the court. We cannot imagine any circumstances more violent or coercive than being forced to have sex with four men at gunpoint.”
The controversy grew after Deni told the Daily News that the victim's complaint "minimizes true rape cases and demeans women who are really raped."
The Philadelphia Bar Association called Deni's handling of the case an "unforgivable miscarriage of justice." The District Attorney's Office refiled the rape charges in Common Pleas Court, where the defendant pleaded guilty.
Deni calls that guilty plea proof "the system worked."
as of Dec. 3 2016 http://www.philly.com/philly/news/p...to_challenge_DA_Seth_Williams_in_primary.html
Philadelphia District Attorney Seth Williams will face yet another Democratic primary challenger Monday, when Municipal Court Judge Teresa Carr Deni declares her candidacy.
Another hot button issue.
I can't really speak to the specifics of this case, since I'm not familiar with the details, however, I can see where "sex at gunpoint" could be something other than assault, although I can't picture it as "theft of services". That's a new one on me. It's difficult to picture what "theft of service" would really entail.
The "sex at gunpoint" could have been part of a roleplay scenario, and there are lots of people that get off on the power of dominance and submissiveness.
However, the whole idea that a "guilty plea" = "system worked" is off. Our current legal system puts so much power in the prosecution that a vast quantity of plea deals are simply the "the better of two evils" choice. The choice between "going bankrupt and destroying your (and your family's) life" versus "giving up some freedom".
When you add the political pressure to re-file charges because of a primary challenge... The system can't work.
Phil Ayesho
Superior Member
No- it doesn't-
Sorry- you are just wrong. It might invalidate the contract. But it does NOT mean there was no contract, it merely means that one party to the contract willfully misrepresented themselves or their side of the deal.
ONE MORE TIME.... It is the AGREEMENT itself that is the evidence of fraud. If there was no consent, then there was no agreement and that means you can not have been defrauded.
You are trying to argue that an act of fraud in a contract negotiation revokes the original consent- so there was no contract- and so the willfully engaged in sexual contact magically becomes an assault.
That's quite a chain of weak links.
And the next link in that chain is that IF there was no contract, and the john did not force himself on the hooker, then the hooker must have just wanted to have sex for free. You can not prove she was wronged in any way, WITHOUT invoking the agreement that was violated. So there must have been an agreement.
Fraud is a separate crime from rape.. Prosecutable AS fraud. And fraud also requires an agreement in which one party was acting in bad faith. Ergo- your initiating event that you propose to have rescinded consent can only be a crime if there WAS consent.
That's a paradox.
Whether a contract is valid or not has nothing to do with 'consent'- And whether the agreement was KEPT or not has nothing to do with consent. Kept or not,- there WAS AGREEMENT. The violation centers on the fact that one side did not reveal to the other intentions or conditions or the truthful nature of the agreement.
A 17 year old can not enter into a lawful contract because it is assumed they are too naive to form legal consent.
NEGATING that contract DOES NOT MEAN there WAS no contract- It simply means its an INVALID contract and that the other party can not enforce it.
Getting a teen to sign a contract is NOT a jailable offense. You simply can't enforce the agreement. You can not argue that convincing a teen to agree to a contract is a form of assault.
If illegal or negatable contracts were a form of criminal assault- then 80% of attorneys in the world would be in jail right now.
But BEYOND all the finer points of legal argument... you are dissembling. There is no way that a deal, broken, BECOMES a Woman being forced, intimidated, or coerced into having sex against her will. That HAS to occur within the act, itself.
I can NOT have retroactively assaulted you.
If we agree to something and shake hands on it... and I break the agreement- the HANDSHAKE does NOT magically turn into battery.
Rape is an assault. She took off her own clothes and spread her own legs. He may have misrepresented his intentions... but that would mean that every guy who told a girl he was well off to get into her pants was a rapist , regardless of her enthusiastic participation.
...Which is, sadly, where this trend toward idiocy is heading...
But the whole Foundation of that trend is the notion that people have NO responsibility for due diligence and no responsibility for their own choices... exclusively in the matter of sex.
Sorry- but that is infantilism.
If a woman invited my caress, that caress CAN NOT later be converted into violence. I have a say, myself, in my own actions and if I was neither violent nor coercive, then I was not. If she said yes and did not change her mind while my hand was upon her, then she did NOT tell me no.
If I was supposed to PAY for it... then she ought to be able to make me pay. But she can not claim I took liberties against her will.
So- this begs the question... if I had sex with a woman, because she said she WANTED to have sex with me and she represented that she was on birth control... but it turns out she was NOT on Birth control, and ends up pregnant... Was I raped?
Surely she defrauded me in the initial agreement by lying about her use of birth control... Does that not revoke MY consent and make her a rapist?
alcor972
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the new year eve fireworks have already begun on lpsg...
lol
alcor972
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... this sentence is somewhere in the gospels... no?...
yes yes... it's the priest caïphe... who pronounced theses kind of words during jesus' trial... no?...
but I don't remember why...
ro?...
and please, ro... give the sources of your quotations... because not everyone has your knowledge in litterature...
lol...
I remember when I suggested you were the author of your signature...
lol!...
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LOL Alcor. I am not 100% sure where the quote came from, My mind is full of philosophical, Literal and Biblical terms that are all jumbled together .
Hope you are doing well
Ro
I will apologize in advance if the points I make here were not in response to your earlier comments, but to someone else.
The central and continuing problem with your analysis is that you continue to regard this scenario as one of a contractual dispute. It is not. Firstly, in most US jurisdictions, a contract for sex is unenforceable as against public policy. Therefore, the cause of action is not one that lies in contract.
Secondly, the question posed is whether a sex worker can prosecute a case of rape against a john who exceeds agreed upon activity. The action is either, in criminal law, a prosecution of rape, or in civil law, a battery. If it's criminal rape that's prosecuted, consent (and the idea of a contract) is a defense. Fraud in the inducement would negate consent. Also, forced activity beyond that agreed upon (which was the scenario set out by the OP) would go beyond any implied consent.
If this were a civil case of battery, the same analysis would apply as to whether the objected to activity was consented to.
What makes the scenario unclear is that something is consented to, and something is not. If it were a simple matter of contract, and it were possible to cleanly parse the agreed-upon acts from the non-agreed-upon acts, a monetary award for the difference would be possible. Unfortunately, it would be extremely difficult to parse the "damages" from the unconsented activity from the consented.
Let me note that the scenario advanced by the OP is, in some respects, less cloudy than a lot of cases of rape or sexual battery. It's not a "he said/she said" situation. There is no doubt from the facts in the hypothetical that at least some of the activity went beyond consented to activity. Nor is it a situation where the person claiming rape can't even prove the sex act occurred. So, it seems to me, we are going beyond the looking glass in trying to say that this is a case of contract that absolves a sexual aggressor.
