Tuesday, February 9, 2016
Is the Law Actually Behind on Sexual Assault?
This was mentioned in class, but I'm not sure what to think of it. The way I understand it, whenever consent is not given to ANY sexual act, then it is sexual assault/rape. So, in the example, when the woman mentioned in class gave consent to sex, but not to what she experienced, the MOMENT she said "no" or "stop" or ANYTHING that communicates that she no longer consents, EVERYTHING that follows is sexual assault/rape. This understanding- as long as it's a correct understanding- seems to be exhaustive. ANYTHING that happens after no communication of consent OR after it is communicated that one does not consent, is sexual assault. If two people are having sex, and at ANY POINT (that is, at the beginning, in the middle, right before climax, whatever possible example you can think of) a person says they no longer want to continue or they are no longer giving consent or they say to stop, ANYTHING that follows qualifies as sexual assault/rape. I may have said the same thing multiple times here, but I wanted to ensure that I got what I was thinking out clearly, so you can all respond as best as possible.
Being Held to Ignored Contracts
This was a topic we glazed right over in class, but one I don't think should be allowed to be. The point Professor Tresan made was that there are contracts that we don't read but agree to nevertheless, and that because of that we shouldn't be held to them. I don't think that's quite true. I have two examples to illustrate why, and some additional reasoning of my own.
First, Professor Tresan mentioned specifically how most people don't read the Terms of Service, and as such, we shouldn't really hold ourselves to the contract otherwise created by clicking the "I agree" box. Well, a while ago (I apologize for not having an exact date), a customer who was installing a PC Pitstop program read the EULA (end user license agreement, which is essentially the same as terms of service, and you still have to click "I agree") and found in there a clause that said if they e-mail the company, they'd receive a $1,000 check. The person did so, and received that $1,000 check.
Now the point of this example is if we can expect to hold companies to anything they say in these "generally not read" contracts, why is it they can't expect us to be held to them? That seems hypocritical and completely contradictory; for one party to have to agree to a contract but the other to be allowed to ignore it doesn't make sense, and shouldn't be allowed.
The second example spawns from the same point Professor Tresan made, but a different part of it. He went on to say we shouldn't hold people to whatever is in the terms of service *because it is generally understood that no one reads them.* This seems extremely problematic.
An example: when congress received the official intelligence report for whether or not there are weapons of mass destruction in Iraq, ONLY ONE CONGRESSPERSON READ IT. The rest of them had their secretaries or someone else that works for them read it, then brief them on it. Now, in that intelligence report was a disclaimer that said something along the lines of "It is my professional conclusion that based on all intelligence gathered, it is highly unlikely that there are WMDs in Iraq." (The reason that was JUST a disclaimer was because of the actual project and how it was worded; the analysts were told to "Find evidence that there are weapons of Mass Destruction in Iraq" instead of "Collect intelligence to see if there are WMDs in Iraq or not," so everything that followed the disclaimer was whatever evidence could be found to prove there are WMDs.) That ONE Congressperson that read it voted against the war in Iraq. We all know how that war turned out.
Now, I'm inclined here- and I believe with good reason- to say that Congress did something wrong here. I'd charge that they failed to do their duty, and that they should face some sort of consequence for it (maybe it's outdated now, but then they SHOULD HAVE). But almost no one read the report, but instead got briefings. It was generally understood that almost no one was reading it, and instead getting briefed on it, So, if the claim made in class is correct, then they shouldn't be held to having to read that intelligence report, and so they did nothing wrong by not reading it which led them to vote to go to war. This line of reasoning shouldn't stand.
For my own reasoning: the fact that you (and most people) simply didn't read it doesn't grant any immunity. That's why there are lawyers to make sure contracts are read and understood- because the contract is supposed to be binding whether read or not (as long as it is agreed on and consented to). So, if it's available to you, and you agree, it should be binding no matter how many people do or do not read. The fact that a person doesn't read it is no one's fault but their own. They are still giving consent by clicking "I agree," and thus should be held to what is explicitly said, even if there seems to be an implicit consensus that most people haven't read it.
I'm interested to see how others think.
First, Professor Tresan mentioned specifically how most people don't read the Terms of Service, and as such, we shouldn't really hold ourselves to the contract otherwise created by clicking the "I agree" box. Well, a while ago (I apologize for not having an exact date), a customer who was installing a PC Pitstop program read the EULA (end user license agreement, which is essentially the same as terms of service, and you still have to click "I agree") and found in there a clause that said if they e-mail the company, they'd receive a $1,000 check. The person did so, and received that $1,000 check.
Now the point of this example is if we can expect to hold companies to anything they say in these "generally not read" contracts, why is it they can't expect us to be held to them? That seems hypocritical and completely contradictory; for one party to have to agree to a contract but the other to be allowed to ignore it doesn't make sense, and shouldn't be allowed.
The second example spawns from the same point Professor Tresan made, but a different part of it. He went on to say we shouldn't hold people to whatever is in the terms of service *because it is generally understood that no one reads them.* This seems extremely problematic.
An example: when congress received the official intelligence report for whether or not there are weapons of mass destruction in Iraq, ONLY ONE CONGRESSPERSON READ IT. The rest of them had their secretaries or someone else that works for them read it, then brief them on it. Now, in that intelligence report was a disclaimer that said something along the lines of "It is my professional conclusion that based on all intelligence gathered, it is highly unlikely that there are WMDs in Iraq." (The reason that was JUST a disclaimer was because of the actual project and how it was worded; the analysts were told to "Find evidence that there are weapons of Mass Destruction in Iraq" instead of "Collect intelligence to see if there are WMDs in Iraq or not," so everything that followed the disclaimer was whatever evidence could be found to prove there are WMDs.) That ONE Congressperson that read it voted against the war in Iraq. We all know how that war turned out.
Now, I'm inclined here- and I believe with good reason- to say that Congress did something wrong here. I'd charge that they failed to do their duty, and that they should face some sort of consequence for it (maybe it's outdated now, but then they SHOULD HAVE). But almost no one read the report, but instead got briefings. It was generally understood that almost no one was reading it, and instead getting briefed on it, So, if the claim made in class is correct, then they shouldn't be held to having to read that intelligence report, and so they did nothing wrong by not reading it which led them to vote to go to war. This line of reasoning shouldn't stand.
For my own reasoning: the fact that you (and most people) simply didn't read it doesn't grant any immunity. That's why there are lawyers to make sure contracts are read and understood- because the contract is supposed to be binding whether read or not (as long as it is agreed on and consented to). So, if it's available to you, and you agree, it should be binding no matter how many people do or do not read. The fact that a person doesn't read it is no one's fault but their own. They are still giving consent by clicking "I agree," and thus should be held to what is explicitly said, even if there seems to be an implicit consensus that most people haven't read it.
I'm interested to see how others think.
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