I'm unsure what the point is that this judge was trying to make. If the woman has 'shut down' and is dryed up and the would-be raper has to use some force to insert something into her vagina, is it then not rape because she didn't engage in the act.
I think the point was that since there was no such injury reported, it is hard to prove or assume that vaginal rape occurred. Remember that this was during a sentencing discussion, where the defendant was already found guilty (of multiple offenses), and the question was a matter of degree of the sentence. It had nothing to do with whether he was guilty of a given offense, but the severity (and extraneous circumstances) and thus the degree of sentence.
Obviously it is still rape even though the woman has shut down and is not mentally or perhaps physically engaged. She's still getting @#%^ed and she still can get pregnant and it's still a physical act against her and against her will.
Which had nothing at all to do with this particular case. A jury had already convicted the guy of whatever charge he was convicted of. Based on the article, it looks like the prosecution was arguing for a maximum sentence based on an assumption of the violence of the rape, and the judge rightly pointed out that in the absence of physical evidence of that particular act (there were others btw, which were taken into account) he could not pass out a maximum sentence.
So, maybe the judge saying that if the woman doesn't shut down and doesn't have bleed and is self-lubricated then she's not being raped?
...or is the judge simply attempting to expand the gbaji definition - no marks, no blood, no rape.
Yes. Heaven forbid that a judge use the same logic that we should make a distinction between causes where there's clear physical evidence of rape and those where there isn't. It's not "no marks, no rape", but "no marks, can't prove it's rape" (assuming no other evidence of course). I mean, if your neighbor accuses you of hitting him over the head with a hammer, you kind of expect he'd better have some hammer marks on his head to prove that it happened, right? Why should a rape case be any different?
Indeed. Do we make an exception in our law for rape? In every other kind of criminal charge, the plaintiff has to provide sufficient evidence to prove guilt on the part of the defendant (or even to prove that the claimed event occurred in the first place), but not in the case of rape? If you walk up to me and manage to hit me without leaving any marks and there are no other witnesses, guess what? I'm not going to be able to charge you with assault. If I accuse someone of turning me into a newt, I'd better be a newt or no one will believe me. I know that this can be a painful issue for women who are victims of rape, but I also strongly believe that weakening our burden of proof in order to make ourselves feel like we're more sympathetic to one specific crime isn't a great thing to do. Our laws and how we prosecute them should be consistent. Edited, Dec 14th 2012 6:37pm by gbaji