Rafael wrote:
Isn't that what what is being discussed? The ability to prove intent, or conversely, consent? Isn't that what separates rape from consensual sex and the entire basis for reasoning behind diminished consent?
The ability to prove intent or consent varies from case to case. In general, it's hard to prove in rape cases but not impossible. However that difficulty of proof is the foundation of the issue - it makes rape a difficult crime to prosecute, which is an acknowledged fact no one really disputes.
Because of this, one of the easiest ways to make a rape case is to get the accused to admit to something that would constitute rape; i.e. even if he doesn't say "yes I raped her", he admits "I did X" where X meets the criteria of rape. Therefore, the discussion is really more over what
constitutes consent - i.e. what values of X are rape and what are not?
Even if a fact is, in fact, true, if it can't be demonstrated in court it may as well be not true insofar as the outcome is concerned. Therefore, as far as hypotheticals are concerned, it should not be necessary to stipulate that something is provable in court; if it isn't provable it's moot whether its true or not in actuality.
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It seems to me that if intent were almost irrevocably provable through neurocognitive forensics, there wouldn't be an problem surrounding the questions of when rape happened or not.
There wouldn't be under the current system, nor in the minds of most people, but the problem is a substantial and vocal minority that is claiming intent and consent are irrelevant - that the only thing that matters is how the female experiences it, and that she can change her mind about her "experience" at any given point.