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

[El_Machinae]

Huh?

Not overwhelmingly difficult. A person can wake up and say "Yeah, I really wanted that."
It's a variant of the 'cooling off period' we see in a variety of contracts.
It's the thing we deny the underage teen. They're never legally empowered to say "No, truly, 's cool" and have the Crown care one whit.

edit: the downside of this system is that I can have three shots of tequila before raping a drunk chick and then just threaten to counter-charge her if she goes to the cops. This seems like a serious problem with the arrangement.

 

[brennan]

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

Because that wouldn't be open to abuse.

 

[Akka]

Any "retroactive" concept is rather terrible when it comes to the law. I'd even say that defining retroactively if something is legal or not is borderline insane.

 

[Mise]

In both situations this person seems capable of consenting (because they are responsive to external stimuli).

This really isn't the definition of "capacity". To be clear, if you are saying that "capacity" in sexual offences law is defined as "capable of responding to external stimuli" then I think you're simply mistaken. All living things are capable of responding to external stimuli, but we know that not all living things have the capacity to consent. I'd like to know exactly what you mean by "basically unconscious", and "responsive to external stimuli". I think that the law is far less permissive than you believe it is. C.f. Ched Evans's rape conviction. In this case, the fact that the woman did not consent was established quite clearly: she did not have the capacity to consent, despite, apparently, being conscious and walking around and stuff before and after the rape. Rather, the case centred around whether Evans and McDonald reasonably believed that she consented. The jury found that McDonald did, but Evans did not, and thus convicted Evans but acquitted McDonald. If she was capable of consent, then neither would have been convicted.

Again, IANAL, but what I know about the law just doesn't square up with what you're telling me.

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.

This is where I think you are on firmer ground, legally. As I said, I really think that most of what you are saying refers not to "consent" or "capacity to consent", but to what qualifies as a "reasonable belief". However, I think your understanding of this part of the law is again still too permissive. I doubt if any rape case involving two drunk participants would result in conviction if your understanding of the law was the correct one.

Only in the second instance can there really be any doubt. You could make the suggestion that people must always ask for explicit consent.

Actually, the law does require the defendant to prove that s/he took steps to ensure that the other person consented:

The defendant (A) has the responsibility to ensure that (B) consents to the sexual activity at the time in question. It will be important for the police to ask the offender in interview what steps (s)he took to satisfy him or herself that the complainant consented in order to show his or her state of mind at the time.

Note that the burden of proof is not explicitly on the prosecution. The phrase "the defendant has a responsibility" shifts the burden of proof towards the defendant. This isn't the same as asking for explicit permission, but doing so would certainly put you a safe distance from any rape charges. If we're still talking about what we should teach people w.r.t. consent and rape, then this would be a decent place to start. Tell them what the law says: that you have a responsibility to ensure that your partner consents.

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.

Personally, I'm not even talking about changes yet. I'm talking about the law as it currently stands. There already appears to be a disagreement over what the law says.

For the record, I don't think El Mac's idea is any good. I think we just need to be clearer on what consent and reasonable belief is. And I think we need to do that not just in criminal court rooms, but also in wider society, too. I think this discussion is facilitating that, simply by establishing what the law as it presently stands says.

 

[Akka]

You can't legiferate every interaction between humans, especially ones which rely so much on cues instead of crude affirmations, unless you become a nightmarish totalitarian state or a hole-filled set of laws mostly unused and prone to huge abuses.

 

[Manfred Belheim]

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.

The vast majority of men already know and respect that. Not from being "told", but because most people just have an inherent aversion to doing horrible things to other people believe it or not.

You want to shout down good, sensible advice because you see it as victim blaming (even though it isn't if you actually analyse it), and replace it with empty rhetoric that has no benefit to anyone, just because it sounds nice.

 

[El_Machinae]

Any "retroactive" concept is rather terrible when it comes to the law.

Happens all the time. Firstly, there's the cooling of period, which is a legal term. Secondly, whenever you choose to not enforce a contract when you could have, you're deemed to have retroactively consented.

Because that wouldn't be open to abuse.

Frankly, so is your system.

 

[brennan]

In this case, the fact that the woman did not consent was established quite clearly: she did not have the capacity to consent, despite, apparently, being conscious and walking around and stuff before and after the rape.

The case does not look, at a first glance to be the sort of scenario we are discussing. They obviously appeared as predators on CCTV and there's a suggestion that they additionally spiked her drink. We'd have to read more than the wiki page on this one.

Actually, the law does require the defendant to prove that s/he took steps to ensure that the other person consented:

Yeah like, 'notice that they're 'into it' '. I don't think you have a good point there, there's no requirement for the defendant to show they have tried to obtain explicit consent.

Note that the burden of proof is not explicitly on the prosecution. The phrase "the defendant has a responsibility" shifts the burden of proof towards the defendant.

As noted above, this 'burden' is actually trivial.

 

[Manfred Belheim]

Happens all the time. Firstly, there's the cooling of period, which is a legal term. Secondly, whenever you choose to not enforce a contract when you could have, you're deemed to have retroactively consented.

There's surely a very fundamental difference between being retroactively excused from a commitment, and being able to retroactively decide that someone else committed a criminal offence.

 

[Gori the Grey]

In consumer rights legislation and practice, a cooling-off period is a period of time following a purchase when the purchaser may choose to cancel a purchase, and return goods which have been supplied, for any reason, and obtain a full refund.

Cooling off period requires that one return goods that have been supplied.

Is the problem here that this represents a unique confounding of tort and contract law? We're trying to devise a contract law solution to a crime (rightly) treated as a tort?

Or a civil solution to a criminal problem, whatever the right language would be.

IANAL either (interesting acronym)

 

[El_Machinae]

Cooling off period requires that one return goods that have been supplied.

Yes. It's an analogy, nothing more. Obviously, the guy cannot give the girl back her virginity. And she cannot put the toothpaste back in the tube.

 

[Gori the Grey]

I was thinking any orgasm that might have occurred. How will that be returned to the appropriate party?

I was trying to point out why the analogy was a bad analogy.

 

[Akka]

And she cannot put the toothpaste back in the tube.

Man, this metaphor is really, REALLY horrible >_<

 

[El_Machinae]

I was thinking any orgasm that might have occurred. How will that be returned to the appropriate party?

Hi. Something you need to know, because it's really, really important.
Just because there was an orgasm, it doesn't mean the sex was consensual.

You're right, the person can never return the memory of the event. It's part of what makes molesting someone so bad, the ongoing trauma of the memory or the shame.

 

[Loppan Torkel]

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

A better idea would be to enforce chastity belts on men and women, that only could be unlocked after blowing an alcometer. Fairer and more easily employed.

 

[Manfred Belheim]

So, in summary, rape is a really horrible crime, it's hard to prove, and it's hard to legislate against it fairly. I think that about covers it.

(oh and where the hell did the "virginity" comment come from? Aside from always assuming the rapee is a woman, she's now to be depicted as a virgin as well?!)

 

[Manfred Belheim]

A better idea would be to enforce chastity belts on men and women, that only could be unlocked after blowing an alcometer. Fairer and more easily employed.

I would assume this was a tongue-in-cheek comment, but it's getting really hard to tell in this thread.

 

[Gori the Grey]

Hi. Something you need to know, because it's really, really important.
Just because there was an orgasm, it doesn't mean the sex was consensual.

Whoever said it did? Dude, I&#8217;m using reductio ad absurdum to suggest that maybe consumer law isn&#8217;t going to be the thing that moves us forward here. I know full well what you&#8217;re trying to do: devise a mechanism that creates an legal obligation for sexual partners to insure that what occurs between them not be experienced by either as molestation. And I appreciate the attempt to think outside the box to devise such a strategy. But it&#8217;s just not going to work, legally, to give people a power of &#8220;retroactive consent.&#8221; A cooling off period lets people have a second consideration whether they want to go forward with a contract. It&#8217;s not a license to relabel an entire completed exchange.

Manfred&#8217;s got the right idea here, sadly. Date rapes are probably going to remain difficult to prosecute legally. But, unlike him, I wouldn&#8217;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&#8217;ve already mentioned. Teach men (because in 99.9% of cases it&#8217;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.

Not entirely apposite but John Milton speaks of the legislation as involving a great art: "but here the great art lies, to discern in what the law is to bid restraint and punishment, and in what things persuasion only is to work." It needn't be exclusively law or persuasion. But that also means, it needn't be exclusively law, either.

 

[Timsup2nothin]

I would assume this was a tongue-in-cheek comment, but it's getting really hard to tell in this thread.

I actually took it as an admission of defeat...as in nothing short of that is going to really work.

 

[Mise]

The case does not look, at a first glance to be the sort of scenario we are discussing. They obviously appeared as predators on CCTV and there's a suggestion that they additionally spiked her drink. We'd have to read more than the wiki page on this one.

It isn't identical, but it is similar enough to highlight the flaws in your conception of "capacity" and "consent". In order to find Evans guilty, the jury had to believe either that (a) the girl didn't consent, OR (b) the girl didn't have the capacity to consent. Additionally, they had to find that (c) Evans didn't reasonably believe that the girl consented and had the capacity to consent. In order to find McDonald not guilty, they had to find either that (a) the girl did consent AND (b) the girl had the capacity, OR (c) that McDonald reasonably believed that the girl consented and had the capacity to consent.

Note that the case was heard jointly, but the jury was asked to deliver two separate verdicts: one for McDonald and one for Evans. It was the same jury, hearing the same evidence at the same time, just with two different defendants and two different verdicts.

Now, Let's call the "consent" element (I) and the "reasonable belief" element (II). If the jury acquitted McDonald on the basis of (I), i.e. that the girl consented and was capable of consent, then they must also acquit Evans on the same basis. Conversely, if they found Evans guilty, then they must believe that (I) is untrue: that the victim didn't and/or couldn't consent. It is a logical impossibility for (I) to be true, given the result of the case. 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. 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.


FYI, here is a detailed summary of the case, as well as Evans' appeal: https://www.crimeline.info/case/r-v-ched-evans-chedwyn-evans.

Yeah like, 'notice that they're 'into it' '. I don't think you have a good point there, there's no requirement for the defendant to show they have tried to obtain explicit consent.


As noted above, this 'burden' is actually trivial.

Yes, well, I literally said that this wasn't the same as asking for explicit consent

My point was that we need to teach people that they have a legal responsibility to ensure that their partner consents and is capable of consenting. We started this thread by talking about what we should tell women about avoiding rape. Gori the Grey raised, IMO, a really good point earlier which I think has been missed in all this. Rather than telling women not to get drunk because they might get raped, perhaps we should tell women to drink less, in order to be better witnesses to crimes such as rape.

In other words, our suggestion is that we tell people what steps they can take such that they have the best possible chances of ensuring that justice is done. I don't think it is unreasonable to teach people about their responsibilities vis a vis consent. Not merely the minimum legal requirement to avoid being prosecuted for rape, but to make sure that you're as far as possible from being accused of rape. It's not a legal requirement to ensure explicit consent in order to avoid raping someone; but neither is it a legal requirement to not get drunk so that we can be good witnesses. Being a good witness to a crime increases conviction rates. Similarly, ensuring explicit consent reduces the incidence of rape.

So if we're talking about sensible precautions we can take to reduce the incidence of rape, then I think that encouraging people to ensure explicit consent would be a great first step in the right direction.