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Machjo

The dilemma between sexual freedom and deterrence under the law.

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One dilemma society seems to be facing is that between sexual freedom and deterrence under the law. If every sexual act between two consenting adults in a private room are legal, then assault and coercion become extremely difficult to prove beyond reasonable doubt. This greatly reduces the deterrent effect of the law against rapists and even lesser agressors who use more subtle means of coercion which can be just as traumatic.

One solution is to lower the burden of proof through rape-shield laws, but then they increase the risk of a wrongful conviction.

One hypothetical solution I remember reading somewhere (though I can't remember where now) was to give the individual the freedom to choose for himself how much sexual freedom he wants under the law. For example, just as a person can self-exclude from gambling in some jurisdictions, why not allow a person to self-exclude from fornication? This would mean that if he fornicates, he could face a heavy fine for fornication; but anyone who encourages him to do so could face a heavy fine for incitement to fornicate. The details of such a law would need to be worked out such as how a self-excluded person could formally inform another of his status as a way to warn the person away, etc. Details aside, though, the principle of it seems reasonable. After all, a person who has no interest in exercising their legal freedom to sleep around would naturally see that freedom as a disadvantage when facing rape or other forms of coercion since that freedom just removes deterrence against such actions. So for a person for whom that legal freedom is more of a disadvantage than an advantage, why not allow that person to forfeit that freedom in exchange for more legal protection?

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1 hour ago, Machjo said:

1. One dilemma society seems to be facing is that between sexual freedom and deterrence under the law. If every sexual act between two consenting adults in a private room are legal, then assault and coercion become extremely difficult to prove beyond reasonable doubt. This greatly reduces the deterrent effect of the law against rapists and even lesser agressors who use more subtle means of coercion which can be just as traumatic.

2. One solution is to lower the burden of proof through rape-shield laws, but then they increase the risk of a wrongful conviction.

3. One hypothetical solution I remember reading somewhere (though I can't remember where now) was to give the individual the freedom to choose for himself how much sexual freedom he wants under the law. For example, just as a person can self-exclude from gambling in some jurisdictions, why not allow a person to self-exclude from fornication?  

1. What 'act' between consenting adults has been made legal in the last 50 years ?  Why are we facing this now ?  How was rape easier to prove when whatever 

2. Solution to what ?  There is a presumption of a 'new' problem here that I don't see.  Sexual assault has been a worse problem in the past and efforts to change attitudes are already underway.  Whatever your approach it seems like you're looking at it backwards out of the gate.

3. Fornication ?  Did you study law in the Republic of Gilead ?

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You might not be aware of historical laws. Historically (and still today in some US states even), fornication if an offence. In some US states, you can pay a fine for it (misdemeanor). The advantage is that if a prosecutor can't prove sexual assault, they can still charge him with fornication as a deterrent against sexual aggressors.

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13 minutes ago, Michael Hardner said:

https://en.wikipedia.org/wiki/Adultery#United_States

Prosecutions are rare.  Not sure what this amounts to... a legal wild goose chase I reckon.

From my understanding, fornication at least in the US states is usually used in a plea bargain in cases of paying for sex or sexual assault or rape when the latter can't be proved but fornication can be, as a deterrent. From my understanding, it's usually just a few hundred dollars. It still serves as a deterrent against assaults and such though. If you know that all your partner has to do is report you for assault and you could pay a fine for fornication, you'll be careful not to pressure her and ensure you get appropriate consent and clear consent too, no?

Edited by Machjo

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You can consider the Canadian sodomy laws up until the 1960's. Even though it was illegal, not one charge was ever laid in cases involving two consenting adults in private, probably because the police had no way to know abou it. Fornication essentially works the same way in jurisdictions where it's illegal. As long as it's done in private between two consenting adults, the police would never know about it anyway. Only if done in public or one reports the other to the police or if cought in a prostitution sting would the police actually find out about it. If they can't prove sexual assault or prostitution, then fornication becomes their next bet if they can prove at least that beyond reasonable doubt.

Edited by Machjo

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