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

[Mise]

If we phrase it that way, we can even minimize the reference to drinking, which, again, provokes our reflex reactions on such issues (since “oh, she was drunk” has been one of the main ways of blaming the victim). Instead, the emphasis should fall on being an alert observer of potential crime. In the wake of the Ferguson shooting (and Tim’s analysis of it), I’ve been toying with the idea of getting certified as a “trained observer” (if there’s a way civilians can do so), so that should I ever witness a crime, my observations of it would have that status (also I’d just like to become a more observant person).

As some here have said, if you tell women they can’t get as drunk as men, that will feel unfair. But if you encourage people to be alert potential witnesses, some might, on those grounds, voluntarily curtail their own consumption of alcohol. If that means that one victim notices one thing that helps secure one more conviction, we can all celebrate that. (While working on the other things that would secure more convictions and decrease the incidence. It needn't be an either/or).

I think there's value in that, definitely. And as a man, I think there's value in the "trained observer" stuff too. I want to be vigilant, lest I get too drunk, fail to recognise that the girl is incapable of giving consent, and accidentally rape someone. I sure as hell don't want any of that on my conscience, even if, statistically, I would probably get away with it.

 

[El_Machinae]

I mean, what are women supposed to do with this information?

Agitate to change the laws to change the burden of consent.

Seems like a fairly easy thing to do, tbh.

Why is the onus so heavily placed on the victim, not the perpetrator?

There is very little onus being placed on the victim, or (I'll grant). We live in a society where you need to be convicted beyond a reasonable doubt. The entire system is arranged to discover whether the accused might be innocent.

 

[EgonSpengler]

Why is the onus so heavily placed on the victim, not the perpetrator?

I think there are a number of answers to this, but I can offer three:

First, there's a common, cynical idea that some people are just criminal and will just commit crimes regardless of the circumstances. "Rapists gonna rape", if you will. I think this is too cynical and regressive; change can be made. So a common reaction to crime is to work to protect oneself from it. I carry my wallet in my front pocket instead of my back pocket. Is that an admission that it's okay to pickpocket me? Of course not, I'm just taking a precaution.

Second, attempting to empower victims or potential victims is frequently (mis-)characterized as "victim blaming." I once wrote a college paper on the benefits of teaching women and girls some basic self-defense techniques (this was a research paper, incidentally, not just an opinion piece), and the first response I got was "So when I got mugged, you're saying it was my fault for not fighting back?" Even women, even feminists, are so subconsciously uncomfortable with the idea of women showing some teeth they can hardly get their heads around the notion (no kidding - one of the problems a lot of women have with physically fighting back against an attacker is that they're worried about hurting him).

Third, in the context of a court of law (in this country, and in others with similar justice systems), the onus is placed on the victim because the victim is the accuser, and the onus is on the accuser to provide sufficient evidence. I'm no expert on legal theory, but I cannot imagine what nightmare of a system would put the burden of proof on the defendant. (EDIT: Of course I don't need to imagine it, we've seen it.)

 

[PhroX]

I think there are a number of answers to this, but I can offer three:

First, there's a common, cynical idea that some people are just criminal and will just commit crimes regardless of the circumstances. "Rapists gonna rape", if you will. I think this is too cynical and regressive; change can be made. So a common reaction to crime is to work to protect oneself from it. I carry my wallet in my front pocket instead of my back pocket. Is that an admission that it's okay to pickpocket me? Of course not, I'm just taking a precaution.

Second, attempting to empower victims or potential victims is frequently (mis-)characterized as "victim blaming." I once wrote a college paper on the benefits of teaching women and girls some basic self-defense techniques (this was a research paper, incidentally, not just an opinion piece), and the first response I got was "So when I got mugged, you're saying it was my fault for not fighting back?" Even women, even feminists, are so subconsciously uncomfortable with the idea of women showing some teeth they can hardly get their heads around the notion (no kidding - one of the problems a lot of women have with physically fighting back against an attacker is that they're worried about hurting him).

Third, in the context of a court of law (in this country, and in others with similar justice systems), the onus is placed on the victim because the victim is the accuser, and the onus is on the accuser to provide sufficient evidence. I'm no expert on legal theory, but I cannot imagine what nightmare of a system would put the burden of proof on the defendant. (EDIT: Of course I don't need to imagine it, we've seen it.)

Interestingly, this reminds me of an article I saw on the BBC today. A group of (male) college students developed a nail polish that can be used to detect common "date rape" drugs. They were criticised by anti-rape actvists for putting the onus on women to avoid rape.

http://www.bbc.co.uk/news/blogs-trending-28958365

Four male college students at the North Carolina State University are developing a new kind of nail polish that changes colour in the presence of date-rape drugs, like GHB and Rohypnol.

The goal of their company, Undercover Colors, is "to invent technologies that empower women to protect themselves," specifically against sexual assault, they said on their Facebook Page.

...

However, the inevitable internet backlash came from a surprising source - anti-rape advocates.

...

"Women are already expected to work hard to prevent themselves from becoming the victims of sexual assault," writes Tara Culp-Ressler for Think Progress.

"Now, remembering to put on anti-rape nail polish and discreetly slip a finger into each drink might be added to that ever-growing checklist-something that actually reinforces a pervasive rape culture in our society."

 

[Gori the Grey]

Yes. The person at fault is the person who (a) caused actual harm, and (b) didn't ensure that the other person consented. So if the man claims that he was raped (i.e. that actual harm was caused), and the woman didn't ensure that the man consented (or couldn't prove that she did), then yes, the woman can be prosecuted for rape, just as in the case if the genders were reversed.

That's insane. I know I am going to catch 20 kinds of hell for this, but that's not rape. That's two drunk people bumping uglies and maybe wishing they hadn't drunk so much the next day. Being drunk does not (or at least should not) absolve you of being responsible for your actions. You CHOOSE to get into that inebriated state. We sure as hell don't tell drunk drivers, "Well, you killed 8 nuns in a microbus, but you were drunk so were not responsible for your actions, so yeah have a nice day."

What? No, it's the exact opposite: it's saying "just because you were drunk doesn't mean you can get away with sleeping with someone without their consent". Why should the fact that you're drunk absolve you of the responsibility to ensure that the other person consents?

As for your second sentence, if they both regretted having had sex, then there is basically no chance that either of them will be convicted of rape. You would be very hard pressed to prove that neither people gave consent, neither people wanted to sleep with each other, but both people went ahead with it anyway. Regretting having sex is not the same as not giving consent beforehand.

Finally, I think there is a reason why these cases are basically never seen or heard of outside of ridiculous hypothetical thought experiments on internet forums. Meanwhile, 93% of rapes go unpunished. Would be nice if we could focus on that instead, being as that is what rape laws are actually made for, and actually used to prosecute in practice.

We haven't sharply framed up the question that arises from this (bhsup's driving at it), but it's an interesting one. If both were too drunk to consent (had the other been sober), can a rape have taken place?

Yes, it's an internet hypothetical, I realize that.

 

[Borachio]

If a drunk man shoots another, is it murder? I think the answer has to be yes.

If a drunk man rapes a drunk woman, is it rape? I can't see why it isn't.

 

[Farm Boy]

We haven't sharply framed up the question that arises from this (bhsup's driving at it), but it's an interesting one. If both were too drunk to consent (hat the other been sober), can a rape have taken place?

Yes, it's an internet hypothetical, I realize that.

In absence of Romeo and Juliet laws I believe children under the age of consent are determined have molested each other, with whatever leniency the system builds in for them being children guilty of molestation. They might even sometimes be held as having molested themselves, such as in the case of pornographic images still being child pornography if they're of one's self. How that plays out in the real world I'm not sure enough to put a stake down.

 

[Gori the Grey]

If a drunk man shoots another, is it murder? I think the answer has to be yes.

If a drunk man rapes a drunk woman, is it rape? I can't see why it isn't.

Because being shot and also having sex are not commensurate. This line of reasoning assumes that the male is somehow specially the initiator of sex, a view feminists generally don't want to take.

Remember, B, this is under Mise's conditions that either gender can be charged with rape.

In absence of Romeo and Juliet laws I believe children under the age of consent are determined have molested each other, with whatever leniency the system builds in for them being children guilty of molestation.

Oh, interesting, they can be held as having raped one another.

 

[brennan]

Urg: what's wrong with the rhetoric on rape culture?

1) All claims of rape are treated as actual rape. Even ones that do not even match legal definitions of rape. According to many feminists i've been a rape victim multiple times -and here's the thing: i've never been raped.

2) The vast majority of rape claims are one person's word against another. That's inadequate grounds for a conviction so it's hardly surprising that a lot of cases either fail to get to court or do not result in a conviction. The CPS increased the conviction rate last year by reducing the number of cases going to court.

3) Our courts rely entirely on the ability of the defence to show that there are resons for doubting the prosecution's case. This is a normal part of our criminal justice system, but apply it to rape or sexual assault and it's victim blaming. That's silly.

4) The notion of 'rape culture' itself is stupid. Rape is a crime. A serious crime. In fact if you poll people on which they'd rather be accused of: murder or rape, people say 'murder'.

5) As well as a fundamentally perverted look at the justice system (see 3), 'rape culture' includes any attempt to place the alleged crime in context: women who go out to nightclubs and go home with guys they don't know while wearing very little and acting flirtaciously are 'victim blamed' if they cry rape. But hang on, those factors are a totally legitimate part of the defence case since the crime requires the perpetrator to know that he does not have consent. Those factors can all suggest to a man, especially one who knows about casual sex, that he has consent. Therefore it is fatuous to cite them as 'rape culture'.

5) Rape in UK law at least is a discriminatory law. It is legally impossible for a woman to rape someone in the UK. (File under female privilege).

There are probably others. I could mention the ludicrous notion of 'rape myths' for example.

If a drunk man shoots another, is it murder? I think the answer has to be yes.

If a drunk man rapes a drunk woman, is it rape? I can't see why it isn't.

We'll have to have a trial to find out if he did rape her first, presumably...?

 

[Borachio]

There's something very, very similar to being shot and being raped, imo.

Both involve the injection of small things into one's body. Probably involving shouting, at the same time.

 

[Akka]

What? No, it's the exact opposite: it's saying "just because you were drunk doesn't mean you can get away with sleeping with someone without their consent". Why should the fact that you're drunk absolve you of the responsibility to ensure that the other person consents?

If a drunk man shoots another, is it murder? I think the answer has to be yes.

If a drunk man rapes a drunk woman, is it rape? I can't see why it isn't.

You don't seem to realize that your reasoning makes any drunken sex a mutual rape - and yet it looks like the only one to blame is the man.

 

[brennan]

Quite a lot of the time this debate hinges on whether someone was really 'too drunk to consent'. In UK law that's basically unconscious. Any accusation of drunken sex=rape where the woman was still sober enough to either act horny or say 'yes' isn't rape.

I suspect an awful lot of alleged rape falls into that category.

 

[Borachio]

You don't seem to realize that your reasoning makes any drunken sex a mutual rape - and yet it looks like the only one to blame is the man.

I do seem to realize it. Because I do.

And I'd place money, real money (and I don't bet) on the man being the one to blame.

 

[El_Machinae]

You don't seem to realize that your reasoning makes any drunken sex a mutual rape - and yet it looks like the only one to blame is the man.

No, both are to blame. Here's a giant, thing, it's only rape legally. No judge on the planet is going convict someone if the other person testifies that they were totally into it, even in retrospect. I guess, unless it's a child.

 

[brennan]

You realise that any drunken sex is rape?

That's just...I mean... it's legally incorrect. I don't know how you could 'realise it'. It's like 'realising' that walking on the pavement is being guilty of walking on the grass.

 

[BvBPL]

There's an unfortunate fact that if women consumed less alcohol there would be fewer instances of rape. Voluntary intoxication by women facilitates subsequent rape.

This places the onus on the victim class to monitor their alcohol consumption. However, it isn't particularly a good idea to place the responsibility on the potential victim to prevent crime.

 

[Mise]

We haven't sharply framed up the question that arises from this (bhsup's driving at it), but it's an interesting one. If both were too drunk to consent (had the other been sober), can a rape have taken place?

Yes, it's an internet hypothetical, I realize that.

Yes rape can have taken place. In fact, if neither person was capable of consent, then two rapes have taken place. But you're not really asking that, are you. You're really asking another question: can we convict someone for rape under these circumstances. The problem we have here is in the use of the word "rape". "Rape" means "sex without consent". Well, there is clearly sex without consent. But we also use "rape" to mean "sex without consent wherein one person (the rapist) has been deemed by a court of law and a jury of their peers to have raped someone". So we have a problem with the use of the word "rape" to mean both things simultaneously -- hence a lot of shock and incredulity at the idea that the legal definition can be satisfied in unusual ways. Fortunately, these are mopped up by the requirement in English law for intention.

Anyway. Note that I'm not a lawyer, so you'd have to ask a proper lawyer to know the real answer. But, from what I do know, in order to convict someone of a crime in English law, you need to prove intent. Intent in the case of rape (as I explained above; also please see the link I posted to the CPS guidance on rape prosecution) is defined in a "sort of" statutory way: in order to prove intent, the prosecution needs to prove that the defendant didn't take adequate steps to ensure that the victim gave consent. If they can do that for one or both parties, then yes, you can convict someone of rape in that case. If not, then no, no conviction.

So rape has, in fact, taken place, but we don't have enough information in the hypothetical to say whether either or both are actually rapists. I think it would be next to impossible to actually convict both parties of rape, for the reason I mentioned in my reply to bhsup. And again, "regret" is not the same as "didn't consent in the first place".


I know you fleetingly acknowledged it, but the fact that 93% of rapes go unpunished, and the fact that this entire thread is about the astonishingly low rate of rape conviction in the UK, should tell you all you need to know about the hypothetical.

No. Nobody would get convicted. And I would bet my bottom dollar on that.

 

[Borachio]

Hold on, hold on. A properly drunk man isn't capable of very much at all. The problem isn't too much alcohol but too little. What is wrong with you, Britain?

 

[Farm Boy]

Hold on, hold on. A properly drunk man isn't capable of very much at all. The problem isn't too much alcohol but too little. What is wrong with you, Britain?

Depends on the man.

 

[Akka]

I do seem to realize it. Because I do.

It really, REALLY doesn't show from your post.