it is the standard articulated by (what I assume to be) Israel's highest court. .
sorry but can someone point to a source here? is this area of law in Israel even settled? I understand CMF has presented what he believes to be "the common law test," but where is the source for this? all I've read definitively on the matter is that a lower court made a ruling and that it's being appealed.
it is the standard articulated by (what I assume to be) Israel's highest court. .
sorry but can someone point to a source here? is this area of law in Israel even settled? I understand CMF has presented what he believes to be "the common law test," but where is the source for this? all I've read definitively on the matter is that a lower court made a ruling and that it's being appealed.
Haaretz reports that in 2008 the High Court of Justice (which I assume to be the highest court, but which could be an intermediate appellate court) seems to have articulated the "reasonable woman" standard in the context of a dude whose version of game consisted of impersonating an official in the Housing Ministry.
it is the standard articulated by (what I assume to be) Israel's highest court. .
sorry but can someone point to a source here? is this area of law in Israel even settled? I understand CMF has presented what he believes to be "the common law test," but where is the source for this? all I've read definitively on the matter is that a lower court made a ruling and that it's being appealed.
Haaretz reports that in 2008 the High Court of Justice (which I assume to be the highest court, but which could be an intermediate appellate court) seems to have articulated the "reasonable woman" standard in the context of a dude whose version of game consisted of impersonating an official in the Housing Ministry.
It's actually not clear if it came in a written opinion, or a comment from one of the justices, but I would assume the former.
Laist also said the court's verdict was paternalistic toward women. "The test the court adopted is problematic, because it means that every time a man tells a woman he loves her, based on which she sleeps with him, he could be convicted of rape."
Ha!
Srsly it's a problematic ruling for sure. My prediction: no way it stands up on appeal. The appellate case will hopefully bring about the overturning of that earlier precedent as well.
I don't think reasonableness is part of the criminal law unless its determining if someone acted recklessly and even there I'm not 100% sure how it applies.
the article faux posted suggests that the standard is employed in determining culpability for criminal fraud. at least in Israel. not sure what the standard for fraud is where I live though.
I don't think reasonableness is part of the criminal law unless its determining if someone acted recklessly and even there I'm not 100% sure how it applies.
the article faux posted suggests that the standard is employed in determining culpability for criminal fraud. at least in Israel. not sure what the standard for fraud is where I live though.
The general elements of fraud are:
1. a representation of an existing fact;
2. its materiality;
3. its falsity;
4. the speaker's knowledge of its falsity;
5. the speaker's intent that it shall be acted upon by the plaintiff;
6. plaintiff's ignorance of its falsity;
7. plaintiff's reliance on the truth of the representation;
8. plaintiff's right to rely upon it; and
9. consequent damages suffered by plaintiff.
In my experience, most courts compress them into four or five elements.
The only point where "reasonableness" really comes into the analysis is in determining whether the defrauded party reasonably relied upon the representation. What the Israeli courts seem to be doing is substituting a very limited and culturally specific idea of the values of a "reasonable woman" for the element of materiality. And they're inventing damages where none exist.
it is the standard articulated by (what I assume to be) Israel's highest court. .
sorry but can someone point to a source here? is this area of law in Israel even settled? I understand CMF has presented what he believes to be "the common law test," but where is the source for this? all I've read definitively on the matter is that a lower court made a ruling and that it's being appealed.
Haaretz reports that in 2008 the High Court of Justice (which I assume to be the highest court, but which could be an intermediate appellate court) seems to have articulated the "reasonable woman" standard in the context of a dude whose version of game consisted of impersonating an official in the Housing Ministry.
It's actually not clear if it came in a written opinion, or a comment from one of the justices, but I would assume the former.
Laist also said the court's verdict was paternalistic toward women. "The test the court adopted is problematic, because it means that every time a man tells a woman he loves her, based on which she sleeps with him, he could be convicted of rape."
Ha!
Srsly it's a problematic ruling for sure. My prediction: no way it stands up on appeal. The appellate case will hopefully bring about the overturning of that earlier precedent as well.
Problematic implies some degree of complexity. I'd say it's just dumb. Let adults be adults.
it is the standard articulated by (what I assume to be) Israel's highest court. .
sorry but can someone point to a source here? is this area of law in Israel even settled? I understand CMF has presented what he believes to be "the common law test," but where is the source for this? all I've read definitively on the matter is that a lower court made a ruling and that it's being appealed.
Haaretz reports that in 2008 the High Court of Justice (which I assume to be the highest court, but which could be an intermediate appellate court) seems to have articulated the "reasonable woman" standard in the context of a dude whose version of game consisted of impersonating an official in the Housing Ministry.
It's actually not clear if it came in a written opinion, or a comment from one of the justices, but I would assume the former.
Laist also said the court's verdict was paternalistic toward women. "The test the court adopted is problematic, because it means that every time a man tells a woman he loves her, based on which she sleeps with him, he could be convicted of rape."
Ha!
Srsly it's a problematic ruling for sure. My prediction: no way it stands up on appeal. The appellate case will hopefully bring about the overturning of that earlier precedent as well.
Problematic implies some degree of complexity. I'd say it's just dumb. Let adults be adults.
I guess I meant that the "i love you" example would be problematic for me personally were I to find myself in a jurisdiction applying this standard.
it is the standard articulated by (what I assume to be) Israel's highest court. .
sorry but can someone point to a source here? is this area of law in Israel even settled? I understand CMF has presented what he believes to be "the common law test," but where is the source for this? all I've read definitively on the matter is that a lower court made a ruling and that it's being appealed.
Haaretz reports that in 2008 the High Court of Justice (which I assume to be the highest court, but which could be an intermediate appellate court) seems to have articulated the "reasonable woman" standard in the context of a dude whose version of game consisted of impersonating an official in the Housing Ministry.
It's actually not clear if it came in a written opinion, or a comment from one of the justices, but I would assume the former.
Laist also said the court's verdict was paternalistic toward women. "The test the court adopted is problematic, because it means that every time a man tells a woman he loves her, based on which she sleeps with him, he could be convicted of rape."
Ha!
Srsly it's a problematic ruling for sure. My prediction: no way it stands up on appeal. The appellate case will hopefully bring about the overturning of that earlier precedent as well.
Problematic implies some degree of complexity. I'd say it's just dumb. Let adults be adults.
I guess I meant that the "i love you" example would be problematic for me personally were I to find myself in a jurisdiction applying this standard.
What about dudes that exaggerate their prowess--is this not a "critical matter" to a "reasonable woman"?
"I don???t think reasonableness is part of the criminal law unless its determining if someone acted recklessly and even there I???m not 100% sure how it applies."
The reasonable person standard is used in many aspects of the U.S. criminal law. First, it is used to establish the self-defense excuse. Second, it can be used to establish any of the mental elements required for criminal liability--purpose, knowledge,, recklessness or negligence. Without direct evidence about what the defendant believes, courts sometimes use the reasonable person standard to establish that a defendant knew some material offense was likely to result form his or her conduct.
In the situations listed above, juries use the reasonable person standard to make inferences about what a defendant knew or should have known. The use of this standard in the 2008 decision differs in that the judge used it to define the material offense in rape by fraud. While it is relatively clear that a reasonable person knows that driving 100 mph near a school-zone presents an unjustified risk to human life, it is not at all clear what matters are of critical importance to reasonable person in determining who they will sex. Since the notion of a reasonable person is mostly a heuristic for evaluating beliefs or whether someone took the appropriate precautions, it's not clear what "critical matters to the reasonable woman" even means.
But even if we spot the judge some sort of meaning to that phrase, the notion of a reasonable woman has no place in defining rape by deception. If it is rape to have sex through deception, it is because deception undermines consent. If I am deceived about something that is important to me and have sex on that basis, how does a reasonable person's agreement or disagreement with me about what is critical make my act any more or less consensual? The reasonable person standard makes no sense in this context. But if you drop that clause the judge's proposal will be too broad, including many acts which are obviously not rape.
i hope you have a good weekend too, even though we never seem to see eye to eye on anything. out of curiosity why did you want to know what part of bc i come from?
It wasn't a serious question.
who ever said a religious person can't also be a hypocrite?
Then we're nowhere in the conversation.
A woman is not so devout that she partakes in pre-marital sex but so devout she requires her sex partner to be that same religion of which a major edict she doesn't follow.
Anything is possible, but it would be hard to take it seriously.
I don't know what to say about disagreeing...we see the world differently?
1. a representation of an existing fact;
2. its materiality;
3. its falsity;
4. the speaker's knowledge of its falsity;
5. the speaker's intent that it shall be acted upon by the plaintiff;
6. plaintiff's ignorance of its falsity;
7. plaintiff's reliance on the truth of the representation;
8. plaintiff's right to rely upon it; and
9. consequent damages suffered by plaintiff.
In my experience, most courts compress them into four or five elements.
The only point where "reasonableness" really comes into the analysis is in determining whether the defrauded party reasonably relied upon the representation. What the Israeli courts seem to be doing is substituting a very limited and culturally specific idea of the values of a "reasonable woman" for the element of materiality. And they're inventing damages where none exist.
It seems to me that the third element is exclusive to the first element. If you are representing a fact that is false, how can the fact exist? If I represent to you that X is red when X is blue, my representation is false, and the fact that I have represented to you is not an existing fact. The existing fact is that X is blue.
In Canada, "fraud" is actually fraudulent misrepresentation, and we define like so:
1. the representations complained of were made by the defendant
2. the representations were false
3. they were known to be false when made
4. the representations induced the plaintiff to act to his detriment
1. a representation of an existing fact;
2. its materiality;
3. its falsity;
4. the speaker's knowledge of its falsity;
5. the speaker's intent that it shall be acted upon by the plaintiff;
6. plaintiff's ignorance of its falsity;
7. plaintiff's reliance on the truth of the representation;
8. plaintiff's right to rely upon it; and
9. consequent damages suffered by plaintiff.
In my experience, most courts compress them into four or five elements.
The only point where "reasonableness" really comes into the analysis is in determining whether the defrauded party reasonably relied upon the representation. What the Israeli courts seem to be doing is substituting a very limited and culturally specific idea of the values of a "reasonable woman" for the element of materiality. And they're inventing damages where none exist.
It seems to me that the third element is exclusive to the first element. If you are representing a fact that is false, how can the fact exist? If I represent to you that X is red when X is blue, my representation is false, and the fact that I have represented to you is not an existing fact. The existing fact is that X is blue.
In Canada, "fraud" is actually fraudulent misrepresentation, and we define like so:
1. the representations complained of were made by the defendant
2. the representations were false
3. they were known to be false when made
4. the representations induced the plaintiff to act to his detriment
That's probably awkward phrasing (and it isn't mine). "Fact" refers not to the truth of the representation but to its objective nature. "Existing" refers to to the general requirement that it be a representation of the present and not some future state of affairs.
As I said, most courts here articulate them as four or five elements, which are essentially the same as the way the Canadian courts articulate the tort:
1. Representation of material fact
2. Knowledge of its falsity and intent that plaintiff rely thereon
4. Reasonable reliance
5. Damages
Some of the secondary elements, like the reasonableness of the reliance or materiality of the fact, are often not articulated unless they're at issue in the case.
That's probably awkward phrasing (and it isn't mine). "Fact" refers not to the truth of the representation but to its objective nature. Existing refers to to the general requirement that it be a representation of the present and not some future state of affairs.
As I said, most courts here articulate them as four or five elements, which are essentially the same as the way the Canadian courts articulate the tort:
1. Representation of material fact
2. Knowledge of its falsity and intent that plaintiff rely thereon
4. Reasonable reliance
5. Damages
Some of the secondary elements, like the reasonableness of the reliance or materiality of the fact, are often not articulated unless they're at issue in the case.
Thanks for the clarification. We have achieved consensus.
Coincidentally, I'm arguing a motion next week where an issue is the elements of fraud. Our discussion is timely.
Deuteronomy 22:23
'If, while in a town, a man happens to meet a woman who is engaged to be married...'
Deuteronomy 22:23
'...and he has sex with her...'
Deuteronomy 22:24
'Take them both to the gate of the town and stone them to death: the girl, for not having cried for help in the town; the man, for having violated another man's wife. You must banish this evil from among you.'
Deuteronomy 22:25
'But if, while out in the country, a man happens to meet a girl engaged to be married...'
Deuteronomy 22:25
'...and seizes her and rapes her...'
Deuteronomy 22:25
'...the rapist alone must die.'
Deuteronomy 22:26
'You must do nothing to the girl. She has not committed a sin worthy of death, for she may have called out for help without anyone coming to her rescue.'
Deuteronomy 22:28
'If a man happens to meet a virgin woman who is not engaged to be married...'
Deuteronomy 22:28
'...And he seizes her and rapes her...'
Deuteronomy 22:28
'...but is caught in the act...'
Deuteronomy 22:29
'...the rapist must pay the girl's father fifty silver shekels.'
Deuteronomy 22:29
'She must marry the rapist, because he has violated her. And so long as he lives, he may not divorce her.'
Unfortunately there wasn't anything about false-rape claims.
Not to open up this can of worms again, but it made for an interesting discussion. Turns out, that we were all kind of wrong about the facts. Here is an article. I don't know much about the source.
"It turns out, however, that the victim actually accused the perpetrator of ???simple??? violent, forcible rape, and the charge of ???rape by deception??? was a plea bargain (original Hebrew, but here???s an English translation) agreed to by the defendant to avoid trial on the real charge, and agreed to by the prosecutor because the victim, a past victim of significant sexual violence, would have been traumatized by pursuing the case."
Comments
sorry but can someone point to a source here? is this area of law in Israel even settled? I understand CMF has presented what he believes to be "the common law test," but where is the source for this? all I've read definitively on the matter is that a lower court made a ruling and that it's being appealed.
Haaretz reports that in 2008 the High Court of Justice (which I assume to be the highest court, but which could be an intermediate appellate court) seems to have articulated the "reasonable woman" standard in the context of a dude whose version of game consisted of impersonating an official in the Housing Ministry.
http://www.haaretz.com/print-edition/news/jurists-say-arab-s-rape-conviction-sets-dangerous-precedent-1.303109
It's actually not clear if it came in a written opinion, or a comment from one of the justices, but I would assume the former.
Laist also said the court's verdict was paternalistic toward women. "The test the court adopted is problematic, because it means that every time a man tells a woman he loves her, based on which she sleeps with him, he could be convicted of rape."
Ha!
Srsly it's a problematic ruling for sure. My prediction: no way it stands up on appeal. The appellate case will hopefully bring about the overturning of that earlier precedent as well.
the article faux posted suggests that the standard is employed in determining culpability for criminal fraud. at least in Israel. not sure what the standard for fraud is where I live though.
The general elements of fraud are:
1. a representation of an existing fact;
2. its materiality;
3. its falsity;
4. the speaker's knowledge of its falsity;
5. the speaker's intent that it shall be acted upon by the plaintiff;
6. plaintiff's ignorance of its falsity;
7. plaintiff's reliance on the truth of the representation;
8. plaintiff's right to rely upon it; and
9. consequent damages suffered by plaintiff.
In my experience, most courts compress them into four or five elements.
The only point where "reasonableness" really comes into the analysis is in determining whether the defrauded party reasonably relied upon the representation. What the Israeli courts seem to be doing is substituting a very limited and culturally specific idea of the values of a "reasonable woman" for the element of materiality. And they're inventing damages where none exist.
Problematic implies some degree of complexity. I'd say it's just dumb. Let adults be adults.
I guess I meant that the "i love you" example would be problematic for me personally were I to find myself in a jurisdiction applying this standard.
This is a very strange case.
"We didn't talk about it, your honor, she just grabbed my unit and there we went."
And was he circumcised?
I'm not understanding a whole lot of how this prosecution came to be.
What about dudes that exaggerate their prowess--is this not a "critical matter" to a "reasonable woman"?
The reasonable person standard is used in many aspects of the U.S. criminal law. First, it is used to establish the self-defense excuse. Second, it can be used to establish any of the mental elements required for criminal liability--purpose, knowledge,, recklessness or negligence. Without direct evidence about what the defendant believes, courts sometimes use the reasonable person standard to establish that a defendant knew some material offense was likely to result form his or her conduct.
In the situations listed above, juries use the reasonable person standard to make inferences about what a defendant knew or should have known. The use of this standard in the 2008 decision differs in that the judge used it to define the material offense in rape by fraud. While it is relatively clear that a reasonable person knows that driving 100 mph near a school-zone presents an unjustified risk to human life, it is not at all clear what matters are of critical importance to reasonable person in determining who they will sex. Since the notion of a reasonable person is mostly a heuristic for evaluating beliefs or whether someone took the appropriate precautions, it's not clear what "critical matters to the reasonable woman" even means.
But even if we spot the judge some sort of meaning to that phrase, the notion of a reasonable woman has no place in defining rape by deception. If it is rape to have sex through deception, it is because deception undermines consent. If I am deceived about something that is important to me and have sex on that basis, how does a reasonable person's agreement or disagreement with me about what is critical make my act any more or less consensual? The reasonable person standard makes no sense in this context. But if you drop that clause the judge's proposal will be too broad, including many acts which are obviously not rape.
It wasn't a serious question.
Then we're nowhere in the conversation.
A woman is not so devout that she partakes in pre-marital sex but so devout she requires her sex partner to be that same religion of which a major edict she doesn't follow.
Anything is possible, but it would be hard to take it seriously.
I don't know what to say about disagreeing...we see the world differently?
It seems to me that the third element is exclusive to the first element. If you are representing a fact that is false, how can the fact exist? If I represent to you that X is red when X is blue, my representation is false, and the fact that I have represented to you is not an existing fact. The existing fact is that X is blue.
In Canada, "fraud" is actually fraudulent misrepresentation, and we define like so:
1. the representations complained of were made by the defendant
2. the representations were false
3. they were known to be false when made
4. the representations induced the plaintiff to act to his detriment
That's probably awkward phrasing (and it isn't mine). "Fact" refers not to the truth of the representation but to its objective nature. "Existing" refers to to the general requirement that it be a representation of the present and not some future state of affairs.
As I said, most courts here articulate them as four or five elements, which are essentially the same as the way the Canadian courts articulate the tort:
1. Representation of material fact
2. Knowledge of its falsity and intent that plaintiff rely thereon
4. Reasonable reliance
5. Damages
Some of the secondary elements, like the reasonableness of the reliance or materiality of the fact, are often not articulated unless they're at issue in the case.
Thanks for the clarification. We have achieved consensus.
Coincidentally, I'm arguing a motion next week where an issue is the elements of fraud. Our discussion is timely.
Deuteronomy 22:23
'If, while in a town, a man happens to meet a woman who is engaged to be married...'
Deuteronomy 22:23
'...and he has sex with her...'
Deuteronomy 22:24
'Take them both to the gate of the town and stone them to death: the girl, for not having cried for help in the town; the man, for having violated another man's wife. You must banish this evil from among you.'
Deuteronomy 22:25
'But if, while out in the country, a man happens to meet a girl engaged to be married...'
Deuteronomy 22:25
'...and seizes her and rapes her...'
Deuteronomy 22:25
'...the rapist alone must die.'
Deuteronomy 22:26
'You must do nothing to the girl. She has not committed a sin worthy of death, for she may have called out for help without anyone coming to her rescue.'
Deuteronomy 22:28
'If a man happens to meet a virgin woman who is not engaged to be married...'
Deuteronomy 22:28
'...And he seizes her and rapes her...'
Deuteronomy 22:28
'...but is caught in the act...'
Deuteronomy 22:29
'...the rapist must pay the girl's father fifty silver shekels.'
Deuteronomy 22:29
'She must marry the rapist, because he has violated her. And so long as he lives, he may not divorce her.'
Unfortunately there wasn't anything about false-rape claims.
Probably because the BBC never presented this to you as an acceptable narrative.
;-)
Henry showed-up. Yet still he is vilified. Racism!
:-P
http://www.mideastyouth.com/2010/09/05/israel-rape-by-deception-turns-out-to-be-brutal-rape-of-a-vulnerable-and-abused-woman/
And here is some commentary by a trustworthy, albeit conservative, legal website.
http://volokh.com/2010/09/06/rape-by-deception-turns-out-to-be-a-plea-bargain/
"It turns out, however, that the victim actually accused the perpetrator of ???simple??? violent, forcible rape, and the charge of ???rape by deception??? was a plea bargain (original Hebrew, but here???s an English translation) agreed to by the defendant to avoid trial on the real charge, and agreed to by the prosecutor because the victim, a past victim of significant sexual violence, would have been traumatized by pursuing the case."
here's a feminist perspective on the initial plea bargain and the reaction to it (from an Zionist-critical Israeli perspective):
http://www.haaretz.com/print-edition/opinion/believe-in-each-other-1.312429