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To: caligatrux
I was pointing out that the risk wasn't statutory rape (sex where everybody involved consented), it was assault and rape, being in a boys bathroom at his invitation to have sex.

The other point I assert is that defendant isn't barred from the defense of assumption of the risk on account of plaintiff's age.

If she was under duress, the affirmative defense fails, because in order to assume the risk, one has to act voluntarily, of free will. Same goes for mental incapability, maybe she didn't really understand the risk (i.e., she assumed, incorrectly, that a protector would be there, based on the school's implied promise to protect her).

You had originally said that the affirmative defense fails because she is a minor. That is incorrect as a matter of law. You also said the risk was statutory rape, which I say is wrong because statutory rape is a consensual but illegal act. The risk was rape or assault. In a criminal trial against the rapist, the rapist can't use the affirmative defense of assumption of the risk. I also provided a link to a piece that discusses negligence in light of criminal acts, where negligent defendant doesn't get out of liability just because the act committed (by others) was a crime. I blockquoted a case where the crime was a rape, at a school, and the defendant was the school.

82 posted on 09/19/2014 12:13:07 PM PDT by Cboldt
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To: Cboldt
I was pointing out that the risk wasn't statutory rape (sex where everybody involved consented), it was assault and rape, being in a boys bathroom at his invitation to have sex.

First of all, I disagree that statutory rape is "only" used in cases where everybody agrees to have sex, but I'll get to that later.

The crime I focused on was statutory rape because, on a purely technical level, the girl said "yes". She did not legally consent to the sex, because she cannot legally consent to sex under the law. I am not discounting more serious charges. I think you could also argue that it was assault and rape because of the circumstances. But because there were some outward indicia of agreement to have sex, at the very least, statutory rape is applicable.

The other point I assert is that defendant isn't barred from the defense of assumption of the risk on account of plaintiff's age.

While that may be true generally, it cannot be true with respect to statutory rape, because statutory rape disregards consent.

If she was under duress, the affirmative defense fails, because in order to assume the risk, one has to act voluntarily, of free will. Same goes for mental incapability, maybe she didn't really understand the risk (i.e., she assumed, incorrectly, that a protector would be there, based on the school's implied promise to protect her).

Agreed. I think clearly she was at least under duress. There is a more detailed article at one of the links that describes the actions she took to "stall" the boy while in the bathroom, waiting for the teachers to come rescue her.

You had originally said that the affirmative defense fails because she is a minor. That is incorrect as a matter of law.

The affirmative defense does fail as a matter of law. Statutory rape is not a consensual act. In fact, the entire reason statutory rape exists as a crime is because society deems certain persons as legally incapable of consenting to having sex (i.e., minors, mental incompetants, people under duress).

You are asserting that the criminal charge of statutory rape is only used in cases where the parties "agreed" to have sex, and thereby stating that it is a "consensual" crime. That is wrong on two counts. First, the charge of statutory rape is used in cases where the parties did not "agree" to have sex. I've seen it used specifically in instances where the D.A. wanted to avoid allowing the defense create a he said/she said situation during trial when a minor was involved.

Secondly, and more importantly, a minor cannot legally consent to sex. The crime of statutory rape itself disregards what the minor said or did, and focuses only on the minor's age vitiating the ability to give consent.

While a minor may be able to assume the risk in certain situations, it is legally impossible for a minor to consent to statutory rape. No one can consent to statutory rape, that's the whole point.

I blockquoted a case where...

What point of law do you think that block quote establishes? You are quoting the arguments of the parties involved, not the findings of the trier of fact. Then the parties settled out of court. You did not quote a court ruling or holding. That was meaningless.

83 posted on 09/19/2014 12:55:12 PM PDT by caligatrux (...some animals are more equal than others.)
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