Judge Mowat comments: Is it impossible to have a proper discussion on rape?

[brennan]

You're a rational person, I know this from previous conversations with you, so surely you can see that it is simply a logical impossibility for the jury to have found that the victim consented and had the capacity to consent.

It's logically impossible for some people to make an apparently illogical decision?

Perhaps you didn't read all of the text you have linked, there's a detailed discussion of why the two decisions could have been different, indeed the judge's directions to the jury were to that effect owing to the facts of the case. Besides which, inconsistent decisions are quite common in all legal systems as far as I know. That's part of the reason we have a court of appeal.

In grounds of appeal the first issue was the suggestion that the verdicts reached by the jury were inconsistent. Counsel for the applicant submitted that if the jury acquitted McDonald, there could be no sensible basis on which they could convict the applicant. The court noted in argument that it was not alleged that McDonald was a party to the rape of the complainant by the applicant. The verdict was not related to that count; he was acquitted of raping her himself. The court also noted that in his sentencing remarks the judge was satisfied that the complainant lacked the capacity to consent to sexual activity: “That was simply his view; he would not know how the jury had reached its own decision, but we must respect his analysis. But however it is examined, and assuming that he was wrong about the basis on which the jury reached its conclusion, we find nothing illogical or inconsistent about the verdicts”.

The jury was directed as follows: "When you come back .... you will be asked to return separate verdicts in respect of each of the two defendants. Accordingly, when you retire you must consider the case, that is to say the evidence for and against each of the two defendants separately. Whilst there is a considerable overlap in that evidence, the evidence is not identical, and whilst your verdicts may very well be the same in the case, they might be different. The important thing for you to remember is your approach to the case for and against the defendants must be considered separately."

Given that direction, it was open to the jury to convict both defendants, to acquit both defendants, or to convict one and not the other defendant. That was the point of a joint trial in which separate verdicts were to be returned. It was open to the jury to consider that even if the complainant did not, in fact, consent to sexual intercourse with either of the two men, that in the light of his part in what happened -- the meeting in the street and so on -- McDonald may reasonably have believed that the complainant had consented to sexual activity with him, and at the same time concluded that the applicant knew perfectly well that she had not consented to sexual activity with him (the applicant ) The circumstances in which each of the two men came to be involved in the sexual activity was quite different; so indeed were the circumstances in which they left her. Those were matters entirely open to the jury; there was no inconsistency.

n.b. 'The Applicant' is the man convicted: Evans, NOT McDonald, who was acquitted.

McDonald went back to the Hotel room with the victim, they apparently then had sex, the Jury has clearly decided that it was reasonable to assume that McDonald had consent, likely since the victim had gone to the room with him. Evans turned up later and entered the hotel suite apparently with some subterfuge. It's quite clear where the grounds that the decisions were not related come from and that is reflected in the judge's direction to the jury.

It is also not clear where the judge's comments on her lack of ability to consent came from. An Expert witness stated that it was very doubtful that she had been even drunk enough to suffer from memory loss (only 2.5 time over the drink drive limit at the time of the sex). It seems likely to me that the judge made this comment on the basis that subterfuge had been used, not on the grounds of her level of intoxication.

The summing itself up is also criticised in your link for lack of clarity on this issue:

A criticism of the summing-up involves an analysis of the directions given to the jury about the issue of consent in the context of the consumption of alcohol and/or drugs. The written submissions also criticised selected passages in the summing-up. There were two broad complaints. Firstly, that nowhere in the summing-up was it made clear to the jury that, even if the complainant was drunk, it did not necessarily mean that she had not consented; "a drunken consent is still a consent".

As such, it's simply not true that "basically unconscious" (whatever that means) is enough for "capacity to consent". The woman was quite clearly conscious in this case, as seen on CCTV and heard by witnesses, but nonetheless could not consent.

...so given all the above I think there are several grounds for finding your conclusion on this unsound: we know why the decisions could have different and that the Judge specifically instructed the jury to make two separate judgements.

I'm not sure where your confusion on what 'basically unconscious' might mean comes from, perhaps the judge's directions to the jury might help you:

There are two ways in which drink and/or drugs can affect an individual who is intoxicated. First, it can remove inhibitions. A person may do things when intoxicated which she would not do, or be less likely to do if sober. Secondly, she may consume so much alcohol and/or drugs that it affects her state of awareness. So you need to reach a conclusion upon what was the complainant's state of intoxication, such as you may find it to be. Was she just disinhibited, or had what she had taken removed her capacity to exercise a choice?"

He went on to explain: "A woman clearly does not have the capacity to make a choice if she is completely unconscious through the effects of drink and drugs, but there are various stages of consciousness, from being wide awake to dim awareness of reality. In a state of dim and drunken awareness you may, or may not, be in a condition to make choices. So you will need to consider the evidence of the complainant's state and decide these two questions: was she in a condition in which she was capable of making any choice one way or another? If you are sure that she was not, then she did not consent. If, on the other hand, you conclude that she chose to agree to sexual intercourse, or may have done, then you must find the defendants not guilty.

It seems quite clear to me that the judge understands that 'too drunk to consent' lies somewhere on the spectrum between sober and passed out. But not actually at passed out.

 

[Mise]

The application leave for appeal was dismissed, you realise? The detailed discussion in the appeal application concluded that those criticisms of the judge's summary, instructions to the jury, and so on, were unfounded, which is why Evans's application for an appeal failed. The criticisms were levied by Evans's lawyers when applying for an appeal; none of them were upheld, and the application failed. So you telling me about the criticisms of the judge's summary and so on don't exactly help your argument -- because the courts dismissed them all. You're using the arguments used in a failed appeal application to support your argument.

FYI, a BBC article quoted the judge as saying:

"As the jury have found, she was in no condition to have sexual intercourse. When you arrived at the hotel, you must have realised that."

The part you quoted even repeats this:

The court also noted that in his sentencing remarks the judge was satisfied that the complainant lacked the capacity to consent to sexual activity

I mean, this couldn't be any more explicit: she lacked the capacity to consent, despite being quite obviously awake, talking and walking.

 

[Farm Boy]

The California legislature has passed an innovative law that turns the definition of rape on its head. It isn't "no means no," but "yes means yes." Affirmative assent is obligatory rather than a previous presumption that a passive acquiescence may or may not be permissible.

It is an interesting concept. I can foresee a lot of possible problems, but I think it is a very progressive law for the victims of sexual violence.

Also, while we are on the topic of rape, I'd like to acknowledge the rape of men. In America, more men are raped then women. That the vast, vast majority of these victims are in prison serving for crimes does nothing to diminish the evil done against them.

That's not to take away, at all, from the rape of women which is obviously a serious concern. In fact, the issues related to prison rape (and other instances of sexual assault on men) are quite a bit different from those regarding the sexual assault of women.

I forgot to mention that this is an excellent post. I also wonder at the almost total apathy towards the environment in prisons, save for the occasional NPR article that centers around women's prisons. I would be happy to be wrong though, am I simply missing media coverage and robust advocacy people are paying attention to that's already there?

 

[Mise]

I'm not sure where your confusion on what 'basically unconscious' might mean comes from, perhaps the judge's directions to the jury might help you:

There are two ways in which drink and/or drugs can affect an individual who is intoxicated. First, it can remove inhibitions. A person may do things when intoxicated which she would not do, or be less likely to do if sober. Secondly, she may consume so much alcohol and/or drugs that it affects her state of awareness. So you need to reach a conclusion upon what was the complainant's state of intoxication, such as you may find it to be. Was she just disinhibited, or had what she had taken removed her capacity to exercise a choice?"

He went on to explain: "A woman clearly does not have the capacity to make a choice if she is completely unconscious through the effects of drink and drugs, but there are various stages of consciousness, from being wide awake to dim awareness of reality. In a state of dim and drunken awareness you may, or may not, be in a condition to make choices. So you will need to consider the evidence of the complainant's state and decide these two questions: was she in a condition in which she was capable of making any choice one way or another? If you are sure that she was not, then she did not consent. If, on the other hand, you conclude that she chose to agree to sexual intercourse, or may have done, then you must find the defendants not guilty.

It seems quite clear to me that the judge understands that 'too drunk to consent' lies somewhere on the spectrum between sober and passed out. But not actually at passed out.

Yeah, that helped a great deal when I read it the first time. A second or third read is always enlightening, so thanks for that. If you are describing various stages of consciousness as "basically unconscious", then I applaud your creative use of the English language.

I mean, come on, you can't seriously tell me that what the judge is describing here is the same as being "basically unconscious"? The judge is quite clearly describing someone who is not unconscious. How "not unconscious" turns into "basically unconscious" I don't know. Why can't you just admit that "basically unconscious" simply isn't a reflection of the laws as they stand at present?

 

[brennan]

The application leave for appeal was dismissed, you realise?...

You mean the courts agreed with me that the apparent inconsistency you declared logically impossible really wasn't an issue?

The judge's comment in sentencing by the way were apparently taken to reflect the decision of the Jury to convict, rather than the facts of the case itself: it "accurately reflected the way in which the verdict should be interpreted" (emphasis mine). This was decided to be appropriate, even if, as you acknowledge it appears clearly contradictory.

How "not unconscious" turns into "basically unconscious" I don't know.

Um... i'm going to go out on a limb here and suggest it is somewhere in the "various stages of consciousness, from being wide awake to dim awareness of reality" that the judge describes. It's a little like how someone can approximate 0.1 to being zero. If we put, say, fully awake at 1 and unconscious at 0. Basically unconscious might mean having a 'dim awareness of reality' and rate a 0.1.

 

[BvBPL]

I would be happy to be wrong though, am I simply missing media coverage and robust advocacy people are paying attention to that's already there?

Only if there's death.

Here are two articles about deaths in the Department of Corrections "hospital" where my clients are committed. These articles, and a limited others like them, have driven my governor to call for reforms to the hospital.

Of course, that isn't the only issue. The code between the police extends to correctional officers and DAs. In the first article, the medical examiner found the death could be classified as a homicide, but the DA declined to prosecute anyone involved. Now, five years later the AG is looking into the DA's choice not to prosecute.

As for rape, that gets some lip service. There are posters in the visiting rooms where I interview clients that mention the prison's commitment to end sexual violence and the intended compliance w/ the Prison Rape Elimination Act. The poster highlights how the prison should deal with the reporting requirement of that law. On one poster, someone has scrawled with a pen "what about the victim?" It is an unanswered question. The prison closes ranks to cover its own butt with little concern for the butts of those in its care.

As for other issues, like whether or not a department of corrections facility actually corrects anyone or whether or not a pysch medicine given to a prison is causing gross and unhealthy weight gain, well, good luck with that.

 

[Mise]

You mean the courts agreed with me that the apparent inconsistency you declared logically impossible really wasn't an issue?

What? Where are you getting this from? Do you understand that the girl could be incapable of consent -- and yet the defendant could still be acquitted, because he reasonably believed that she consented? This is what happened with McDonald, because the way she was acting before hand gave McDonald reasonable belief. But it didn't happen with Evans, because Evans wasn't there before hand and thus didn't have reasonable belief. In neither case, however, was the girl capable of consenting. They both had sex with her at the same time (well, McDonald first, then Evans, in quick succession), so if she was capable of consenting with McDonald then she was capable of consenting with Evans, too. However, as the judge said, she was clearly not capable of consenting. The case rested not on whether she was capable of consenting (she was not), but on whether each defendant had reasonable belief. Do you understand this?

The judge's comment in sentencing by the way were apparently taken to reflect the decision of the Jury to convict, rather than the facts of the case itself: it "accurately reflected the way in which the verdict should be interpreted" (emphasis mine). This was decided to be appropriate, even if, as you acknowledge it appears clearly contradictory.

What? Where am I saying it appears contradictory? I'm saying there is no contradiction, because the case rested not on "consent" but on "reasonable belief". Do you understand what I'm saying or should I say it in a different way? The really frustrating thing is I'm trying to help you. Because what you're saying makes a hell of a lot more sense if you were talking solely about "reasonable belief", rather than "consent". If you were talking about reasonable belief alone, then this case would fit perfectly into what you're saying -- in fact, it would actually support your position.

Honestly I'm more than a little exasperated... The judge clearly said that she did not have the capacity to consent. Yet, she was clearly awake, walking, talking, and "capable of slurrily muttering 'yes'". She was not "basically unconscious". Are you really going to persist in claiming that "if you're not basically unconscious then you're sober enough to consent" and "if you can slurrily mutter 'yes' then you've consented"? Because it plainly isn't true.


EDIT: Oh, and the CPS guidance says the following:

Further, they identified that capacity to consent may evaporate well before a complainant becomes unconscious.

Are you honestly trying to tell me that we can "round down" "well before becoming unconscious" to "unconscious"? Come on...

 

[brennan]

Mise, you just don't have a case here, give it up.

We can both see that the conviction of one of the accused and the acquittal of the other derive most likely from the jury's opinion on the accuseds' respective belief in the victim's consent. McDonald had grounds to believe he had consent, Evans didn't. You appear to agree with me on this. This case then cannot possibly have any bearing on anything I said about what consent is or isn't - other than a judge's comment - since the final decision was not based upon that factor.

Further: taking the judge's comments (or indeed the decision of a jury) to have any logical force would be quite ironic given the nature of this thread and would be the obvious comission of an ad-authoritum fallacy - as in: 'a judge said it so it's true' or 'a jury said it so it's true' - I think, if we're being rational, that we can both see the problem there. Both my law student friend and my brother, who took a Masters a few years back, were constantly raging about how stupid it was that the decisions in various cases they had to study contradicted each other. We're talking about human beings here, not Vulcans.

The really frustrating thing is I'm trying to help you. Because what you're saying makes a hell of a lot more sense if you were talking solely about "reasonable belief", rather than "consent"

Mise, I never attempted to make such a distinction, quite the reverse in fact. You yourself highlighted that there are two possible defences on rape: proof of consent, or of reasonable belief in consent. I have merely highlighted the impossibility of knowing what was going on in two people's heads, if you are confused, it is because we cannot know for sure what happened by the nature of the event, not because I am confused about what I am talking about.

As to the ridiculous fuss you are making over the term 'basically unconscious' - I can only say:

 

[El_Machinae]

Manfred’s got the right idea here, sadly. Date rapes are probably going to remain difficult to prosecute legally. But, unlike him, I wouldn’t want that to mean we should just throw up our hands, and leave it at that. If the law has these various impediments to very effectively punishing cases of date rape, then we have to turn our attention to what we can do to supplement the law. Here, we have the things we’ve already mentioned. Teach men (because in 99.9% of cases it’s men) to understand what constitutes rape and exhort them to secure authentic consent. And, yes, I think, encourage women to realize that it may be in their best interest not to get so inebriated that their testimony, should they be raped, would be discounted by a jury.

Reread the thread. There's already a serious misconception regarding what counts as molestation.

The idea might make more sense from an American perspective, where a victim can choose to 'press charges'. In Canada (and I assume elsewhere in the Commonwealth), the Crown is the org that presses charges. Victims are just witnesses

 

[jackelgull]

Why do people go out to pubs and other public places to drink? I have mentioned this before, but why don't people just drink in the safety of their own home where there is less of a chance for regret? Occasionally I can see people inviting out a co worker they want to get to know better, but unless the two of you spend the whole time drinking with little to say, than you shouldn't be able to drink alcohol fast enough to get drunk.

And don't some states have laws that make bar tenders legally obligated to not serve drinks to people if they are getting too tipsy?

Actually wait, here it is, Texas:
http://www.austinchronicle.com/news/2013-07-05/who-says-you-re-drunk/

But let me repeat this once again, stay away from alcohol completely- it is the mother of all evils.

 

[Mise]

@Brennan: Well, what can I say. A judge says that a girl who was walking, talking and clearly conscious lacked the capacity to consent. The Crown Prosecution Service says that capacity to consent can evaporate well before the person becomes unconscious. And yet you still insist that a rape victim has to be "basically unconscious" before they lack the capacity to consent.

So yeah, I give up. You "basically" win. You've ignored a judge and the actual freaking Crown Prosecution Service, and concluded that you are, in fact, more knowledgeable on the law than either of those things. Well done you.

 

[useless]

@Brennan: Well, what can I say. A judge says that a girl who was walking, talking and clearly conscious lacked the capacity to consent. The Crown Prosecution Service says that capacity to consent can evaporate well before the person becomes unconscious. And yet you still insist that a rape victim has to be "basically unconscious" before they lack the capacity to consent.

So yeah, I give up. You "basically" win. You've ignored a judge and the actual freaking Crown Prosecution Service, and concluded that you are, in fact, more knowledgeable on the law than either of those things. Well done you.

I have to wonder why he thinks the CPS and the judge, who both have actual dealings with the law, are less knowledgeable than he is.

 

[brennan]

*Sigh* Mise. I've already pointed out three reasons why 'but the Judge said...' is a poor argument. You seem to be willfully ignoring the fact that his comments were affirmed by the appeal statement to reflect the jury's verdict, not the facts of the case - if the facts of the case had clearly shown that a woman who was walking around, talking to people and ordering pizza was unable to consent, then his directions to the Jury would have said so. They didn't. Taking this fact as red following the verdict is to affirm the consequent and argue from the authority of the judge/jury. It also requires you to believe that a single decision or statement from a judge or jury has some kind of definitive force, which rather begs the question - could I easily find a dozen cases that went the other way, in which a jury clearly decided that a woman walking around, talking to people and ordering pizza obviously could consent? Almost certainly I could.

Your entire methodology is wrong here. Treating the decision in a single case as indicative of general legal guidelines is attempting to bring a hard-science falsifiability approach where it simply does not belong. Law and the courts are places where inconsistent things happen and human beings who are not brilliant at using logic frequently make perverse decisions - as I have also mentioned already. Plus of course the particular case you are using to is more full of holes than a swiss cheese.

 

[useless]

I have to wonder, why isn't the onus on the man, when he drinks, as well? I seem to be hearing "Don't get too drunk girls" yet i rarely hear the same applied to men.

 

[Farm Boy]

Is "don't get that hammered" as applied to men purely an American concern over drunk driving? Because I've been hearing that general sentiment for a long time. Hell, the state chants threats of incarceration regularly over the media and from billboards.

 

[PhroX]

I have to wonder, why isn't the onus on the man, when he drinks, as well? I seem to be hearing "Don't get too drunk girls" yet i rarely hear the same applied to men.

Do you mean specifically to do with rape? If so, is there a serious risk of men being raped if drunk? (and I mean that as a serious question, it's not something I've heard of, but given how hushed up the rape of men usually is, it's certainly a possibility)

In terms of general "don't get drunk", yeah, I see a fair bit of it.

 

[brennan]

I have to wonder, why isn't the onus on the man, when he drinks, as well? I seem to be hearing "Don't get too drunk girls" yet i rarely hear the same applied to men.

Afaik rape is still illegal even if the guy is drunk.