November 02, 2005

• Only in Canada, I tell you. Only in Canada.
• Thought I was going to have to use this defense myself about two years ago when I had a client who was accused of having anal sex with a six year old. Luckily, I did not have to do that.
• Justice Margaret Eberhard must weigh the evidence, including the plastic model. I'd be curious as to how much it weighs too.
• Even after reading the article I'm not sure exactly how you weigh the fact that he has a very large penis. Can men with large penises not rape people?
• panopticon: My understanding is that if he has a penis that is in the "top 5%" (quite a few standard deviations to left of a Gaussian) in size, that he would done much more damage to the woman. Whether the man does have such a large penis and whether it is large enough that nonconsenual sex would have done so much more damage because of it is what the judge has to weigh. The defendants seems to have a decent case, but one that could be attacked, and attacked well by a skilled prosecutor. (Note: IANAL, but I like pretending to be one online.) The defendant basically as to say that say that first the woman would not be "naturally lubricated" but this is obviously false. The natural reaction is for some lubrication to occur even under nonconsenual stress. (In fact, some raped women have a small part of their brain that gives them a pleasure response. This, of course, is not saying that these woman "want it", quite the opposite: They do not want it but feel even more guilty because some part of their brain reacted they way it is supposed to do when they are penetrated. It is an unfortunate left over stimulus that makes women feel even worse about a terrible situation.) Anyway, the prosecutor could claim a) not much damage would be done (I find this suspect because.. well.. nevermind about that, but it depends on the anatomy of both parties) and b) that this natural lubrication could reduce the damage caused. The defendant would, of course, respond that even with naturally occurring lubrication that he would have done much more damage. The judge is in quite the pinch. I can only hope that what is decided is what happened.
• Even after reading the article I'm not sure exactly how you weigh the fact that he has a very large penis. Can men with large penises not rape people? The defense's point is that if he had raped her then there would be obvious damage (on account of his ginormous member). Since there wasn't, it couldn't have been him.
• What odds a hung jury?
• But where does it say anywhere that there wasn't obvious damage? I suppose it's implied. Anyway in most cases, there is damage. So wouldn't a proper adjudication require some examination of the damage relative to the large penis?
• sbutler - this wasn't random rape, it was a friend sleeping over in his dorm room. So not a case of 'You've got the wrong guy'. More a case of did she consent or not. And I don't know about Canada, but in the U.S. the rule is that you can say no at any time - even after you've been making out for an hour and are plenty, ah, lubed. So I don't see any Cochranesque 'If a condom won't fit, you must acquit' defense working.
• yentruoc: I cant believe I forgot that part of the case. Your scenario would definitely fit even if there was minimal damage and even lubricated sex would cause damage. Sigh.. And without actually seeing the trial through we are all are left with no evidence here in the article (it seems) to decide between the two possible scenarios (yours and the "completely consensual"). Damn you, judicial system. You and your fact finding. *shakes fist*
• *applauds* Abiezer_Coppe.
• yentruoc - I'm just playing the Devil's Advocate, not saying I particuarly believe the defense.
• Bhangu also said the "size theory" was never put to the complainant on the witness stand for her account IANAL, but this seems to suggest the courtroom tactic of introducing an argument after witnesses in a position to rebutt have already testified and left. Not a tactic usually used if you have no fear of rebuttal.
• It seems to me the prosecution could counter with the possibility that the assailant need not have been fully engorged when the attack took place. Also they could point out to the male jurists that he's only proven he's an incorrigible braggart.
• If the penis doesn't fit, you must acquit
• It wasn't me. I swear.
• A practical thought; if a guy has a huge dick, he either adapts how he uses it in order to not cause damage, or resigns himself to whacking off the rest of his life. If this was a confused consent rape, as opposes to a sadistic rape, buddy most likely used his tool the way he would on a woman he wanted to fuck, not damage.
• Shouldn't Eberhard and Bhangu automatically be recused from cases involving penises?
• Timefactor, had I been drinking milk, it would most certainly have been blown out my nose at your last remark.