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

[Borachio]

I agree. It is one person's word against another's. Whom do we believe? Might both be telling the truth as they saw it?

 

[Mise]

In the UK if you're not basically unconscious then you're sober enough to consent. If you can slurrily mutter 'yes' then you've consented, if you're sober enough to act like you are 'into it' then you've given adequate grtounds for your partner to think you've consented.

Well then, your laws are stupid. Help change them.

No and: no they're not.

Do you seriously think that it should be legal to have sex with a girl who is in that state?


Additionally, your post contradicts the Crown Prosecution Service's guidance on this:

Further, they identified that capacity to consent may evaporate well before a complainant becomes unconscious. Whether this is so or not, however, depends on the facts of the case.

Are you sure you are talking about the definition of "consent"? Or are you talking about "reasonable belief" (i.e. a defence that the defendant can make), rather than "consent" per se?

 

[useless]

As she said herself, it's word against word. If the word of one party is "I was so drunk that I can't remember a thing" the idea that that party was able to give consent is a joke. The question is only if you believe that parties testimony.

The truth is that rape conviction rates will never be high because rape isn't easily defined.

Alternatively it could be because there is a culture of disbelief in this society, where victims of rape aren't taken as seriously as they should be, or are dismissed.

See:

Steubenville
John Worbouys case
Current scandal in Rotherham etc

 

[Timsup2nothin]

Alternatively it could be because there is a culture of disbelief in this society, where victims of rape aren't taken as seriously as they should be, or are dismissed.

See:

Steubenville
John Worbouys case
Current scandal in Rotherham etc

The culture of disbelief isn't limited to rape victims.

 

[El_Machinae]

No, their testimony on anything is surely compromised by their inebriation.

Compromised, yes. But not completely.

A drunk woman would be able to testify that she had drunken sex much more convincingly than she can testify that she's really sure she wasn't really clear that she wasn't really into it.

By analogy, an underage girl could be blotto and testify that she was molested much more convincingly than she could testify that she wasn't giving signs that she was secretly asking for it.

 

[Commodore]

I still think this is an excellent rebirth of the traditionalism of the old marriage ceremony. We might take California's idea and run with it. Have a tiny little recorded sexual consent ceremony before intercourse can be engaged in, unless, of course nobody complains. But no consent ritual, no consent. Different parts can include things like field sobriety tests. That could probably be highly amusing.

This kind of reminds me of a College Humor (I think it was them) video I saw a few years back where two people were about to have sex and they brought in their lawyers to discuss the terms of the intercourse they were about to have. It was pretty funny, but maybe that is what we all should do to avoid any trouble from the reckless sex we all love to have in our early adult years.

 

[Old Hippy]

I have consent forms printed in triplicate. With a space for witnesses to sign.

threesoms with witnesses present? surely not Mr B

 

[Borachio]

No. Though I wish!

I meant one copy for me, one for her, and one for... lodging with a solicitor, I suppose.

And the witnesses are witnesses to the signatures.

But this is all besides the point. As has been pointed out, consent now doesn't imply consent in five minutes time. (Though hospital consent forms imply it does.)

The only way forward is for me to video my entire life.

Even that wouldn't work, as someone's sure to point out: video can be faked, photoshopped, and otherwise interferred with.

It's the hermit's life for me, I'm afraid.

 

[brennan]

Do you seriously think that it should be legal to have sex with a girl who is in that state?]?

'With a girl' - why are we distinguishing between the sexes here?

'That state' i.e. very drunk but still sober enough to verbally confirm that I wanted sex and physically respond as though I was enjoying it? Yes I seriously think that should be legal. Been there, done that, not a rape victim, thanks.

Additionally, your post contradicts the Crown Prosecution Service's guidance on this[/URL]:

Er, no it doesn't. I said 'basically unconscious' not 'actually unconscious'. The term used was 'non-responsive' if I recall correctly i.e. not responding to stimuli, which while not necessarily being unconscious is clearly different to the above: "sober enough to verbally confirm that I wanted sex and physically respond as though I was enjoying it"

right now the only mechanism you have for punishing people for raping too drunk girls is "don't get too drunk, girls"

Er, no. The legal system requires - and I happen to think that this is extremely sensible - proof that a crime has occurred before punishing people. A crime that essentially consists of analysing two people's thoughts about an act (and an extremely common act at that) i.e. one parties' consent and the other's knowledge of that consent, is necessarily going to be hard to prove beyond the standard reasonable doubt.

To go back to something Mise said earlier. If I accepted that rape convictions were indeed low, I would still not agree that they were 'shockingly low', but rather that they were 'predictably low'. It's a hard crime to prove, of course convictions will be low - the only remedy is to throw out valuable principles such as 'innocent until proven guilty' in the case of rape trials - which I have to say I find utterly unacceptable.

There's also an issue of people just not understanding what counts as rape in legal terms. You and Mise want to classify rape so that i've been raped. Again I find that utterly unacceptable.

I'm just trying to be reasonably pragmatic here. If the ways of reducing rape are to outlaw a large amount of sex or throw out notions of innocent until proven guilty then I can't see how the solution is better than the problem. 'Stop getting pissed all the time' on the other hand is plain good advice.

 

[useless]

Or you could alternatively tell men to respect a woman's right to not be sexually assaulted or to respect her right to reject sex if she doesn't want to, even if both of them are drunk.

You seem to shift the onus on the woman, not the man and it's pretty weird.

 

[brennan]

Actually i'm trying to post from a gender neutral point of view. So that's a particularly silly comment.

This 'right not to be assaulted' thing is particularly bizarre. I don't run around calling for the 'right not to be murdered' because I understand that making something a criminal offence with a significant tariff is enough.

 

[Mise]

Er, no it doesn't. I said 'basically unconscious' not 'actually unconscious'.

You'll forgive me if I mistook "basically unconscious" for "actually unconscious", given the meaning of the word "basically".

 

[brennan]

This is the internet Mise, what in God's name are you doing apologising. Attack! Attack! Attack!

 

[Mise]

Can you also clear up the following statement, please?

you've given adequate grtounds for your partner to think you've consented

Note that what you're saying here is "you've given adequate grounds for your partner to think you've consented", and not "you've consented". It is a statement about the defendant's reasonable belief, not about the victim's consent: it is saying that you've given your partner a reason to believe that you have consented. I think you're mistaken when you say that you're talking about consent. From the words that you're actually saying, you're talking about reasonable belief, and not about consent. Perhaps, from the words that you're basically saying, you mean something different?

 

[El_Machinae]

Er, no. The legal system requires - and I happen to think that this is extremely sensible - proof that a crime has occurred before punishing people. A crime that essentially consists of analysing two people's thoughts about an act (and an extremely common act at that) i.e. one parties' consent and the other's knowledge of that consent, is necessarily going to be hard to prove beyond the standard reasonable doubt.

I agree with all that. So, the realistic trick is to figure out how to raise the necessary standards of consent to 'reasonable'. As you say, we need proof that the crime has been committed. What we didn't do with statutory rape was raise the burden of proof, but just defined away the ability of the teen to consent. We've also already done this with power imbalances, too.

 

[metatron]

Can you also clear up the following statement, please?



Note that what you're saying here is "you've given adequate grounds for your partner to think you've consented", and not "you've consented". It is a statement about the defendant's reasonable belief, not about the victim's consent: it is saying that you've given your partner a reason to believe that you have consented. I think you're mistaken when you say that you're talking about consent. From the words that you're actually saying, you're talking about reasonable belief, and not about consent. Perhaps, from the words that you're basically saying, you mean something different?

No, as i understand it, he means what you deem to be correct, not what you infered he might have "mistakenly" thought/said.
You asked about legality (which would include both consideration you differentiated) and brennan made two seperate arguments to that end in one sentence.

 

[Mise]

Yes, well, I'm asking him to clarify that, because the standard for "capacity to consent" is clearly different, according to the CPS, to the standard for "reasonable belief". I'll also point out that "consent" and "capacity to consent" are two different things; if we take brennan's literal words, he's been talking about whether person A has consented, and whether person B has reasonable belief that A has consented, but not whether A has the capacity to consent.

We've already got into a muddle over my misunderstanding "basically unconscious" to mean "actually unconscious". I'd like to be very clear on what brennan is saying before we get into any further muddles.

 

[brennan]

If you can slurrily mutter 'yes' then you've consented, if you're sober enough to act like you are 'into it' then you've given adequate grounds for your partner to think you've consented.

In both situations this person seems capable of consenting (because they are responsive to external stimuli). In both cases it seems to me that their partner also has grounds to believe they have do indeed have consent, explicitly in the first instance and implicitly in the second.

Only in the second instance can there really be any doubt. You could make the suggestion that people must always ask for explicit consent. But an awful lot of people will find that both silly and a turn off, besides which we're already talking about situations where people can't remember what's happened the next morning and have no record of events either so really, what difference would it make in court?

So, the realistic trick is to figure out how to raise the necessary standards of consent to 'reasonable'. As you say, we need proof that the crime has been committed.

What changes would you suggest? I'd suggest that since we can't read minds, especially after the fact - which is the essential problem - unless you want to break the criminal justice system in some way it's simply an insurmountable issue.

 

[El_Machinae]

What changes would you suggest? I'd suggest that since we can't read minds, especially after the fact - which is the essential problem - unless you want to break the criminal justice system in some way it's simply an insurmountable issue.

We make it so that people who are reasonable tipsy cannot legally consent, but that they can retroactively consent.

This is different to statutory rape, where we just say that the teen cannot consent, even retroactively. There is no mind-reading involved here. She cannot retroactively consent the day she turns 16*. It's just deemed sexual assault.


*Think about that. We never, ever give the adult the ability to say "no, it was cool".

 

[Gori the Grey]

retroactively consent.

Huh?




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