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

[Farm Boy]

Unless you meant that yes it's absurd in some way, but it's the price to pay to have functionning rape laws ?

That's pretty much it. Yup!

 

[Borachio]

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

Sorry about that. It was a very brief comment. I pride myself on writing very concise and yet full posts, but there are limits.

 

[Farm Boy]

It's hard to believe that any human beings still don't get "unwanted sexual contact is bad"

I think they get it for the most part. I think humans are selfish and that in some situations they just don't care. It's bad for the other party. It's good for them.

 

[Borachio]

I think some, if not all, humans really, really want it (though maybe not all the time, and that's where the problem comes if one partner does and the other doesn't). Sex is an addiction like any other. Except that you really, really want to do it before you've had any experience of it.

 

[bhsup]

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.

They're not both rapists. To be a rapist, you have to have been convicted of rape. Nobody has been convicted of rape. Neither are rapists. Innocent until proven guilty...

Something that would fit the legal definition of rape if it was established as such in court has occurred. But without going to court and establishing the facts, no rape has occurred in law. And without a conviction, nobody is a rapist.

Mise, I swear I am not trying to pick on you here. I am honestly trying to understand what you view as consenting when it comes to someone being drunk. What is too drunk to consent and what isn't? I, personally, have a huge problem with one's personal responsibility going out the window just because they've been drinking.

So when is drunk too drunk to consent? When they cannot legally drive? When they're walking a bit cockeyed? When the take a couple of tries to complete a sentence correctly? Or do you flat out mean when they're passed out? If you mean the last then I completely agree with you. If you mean any of the first three, then I absolutely do not agree with you. Is it something between the first three and being passed out? If so, where?

I sincerely hope you don't think I am trying to be a rape apologist. I think it's a brutal, horrible crime that merits the death penalty (and frankly, castration before that.) But I am also leery as hell at giving people an out for a night they regret the next day getting to potentially be called rape because they wish they hadn't gotten drunk and gone home with that looker that turned their head the night before.

(Notice I have tried to keep this gender neutral, though frankly I am far less sympathetic to the idea of men getting raped, though I acknowledge it can happen.)

 

[El_Machinae]

We already have laws regarding consent and alcohol. For example, you cannot sign a contract when you're drunk. Er, you can. But it cannot be enforced.

It's not an easy thing to deal with, but it's a real problem. Being a legal issue, it requires a line in the sand.

 

[JollyRoger]

Retracted in light of Red Diamond

 

[Arwon]

Mise, I swear I am not trying to pick on you here. I am honestly trying to understand what you view as consenting when it comes to someone being drunk. What is too drunk to consent and what isn't? I, personally, have a huge problem with one's personal responsibility going out the window just because they've been drinking.

So when is drunk too drunk to consent? When they cannot legally drive? When they're walking a bit cockeyed? When the take a couple of tries to complete a sentence correctly? Or do you flat out mean when they're passed out? If you mean the last then I completely agree with you. If you mean any of the first three, then I absolutely do not agree with you. Is it something between the first three and being passed out? If so, where?

I sincerely hope you don't think I am trying to be a rape apologist. I think it's a brutal, horrible crime that merits the death penalty (and frankly, castration before that.) But I am also leery as hell at giving people an out for a night they regret the next day getting to potentially be called rape because they wish they hadn't gotten drunk and gone home with that looker that turned their head the night before.

(Notice I have tried to keep this gender neutral, though frankly I am far less sympathetic to the idea of men getting raped, though I acknowledge it can happen.)

There's two parts to this.

The line for "not being an awful person who rapes and hurts people" is quite different to "what can a person get away with without probably being prosecuted". Unfortunately in these discussions there's way too little emphasis on the existence and importance of the former line. The focus tends exclusively to the latter, often on rare or glib or extreme hypotheticals, which can be exasperating.

I'd also suggest that our culture as a whole is also focused overly on the latter line and this is something that aids and abets people getting away with rape. Firstly, people quite often are not even realising what they're doing is rape. Secondly, though, these ideas that there's blurred lines and this stuff is complicated is something that predators use to get away with rape both legally and socially. You're a decent well-meaning bloke, but remember that maybe 4% or 5% of the men you have known, they are not. How we as a culture behave regarding consent has direct consequences in that way.

 

[Old Hippy]

They're not both rapists. To be a rapist, you have to have been convicted of rape. Nobody has been convicted of rape. Neither are rapists. Innocent until proven guilty...

Something that would fit the legal definition of rape if it was established as such in court has occurred. But without going to court and establishing the facts, no rape has occurred in law. And without a conviction, nobody is a rapist.

based on that reasoning, if I rob a bank, I would only be a bank robber if I got caught and convicted

 

[Mise]

Mise, I swear I am not trying to pick on you here. I am honestly trying to understand what you view as consenting when it comes to someone being drunk. What is too drunk to consent and what isn't? I, personally, have a huge problem with one's personal responsibility going out the window just because they've been drinking.

So when is drunk too drunk to consent? When they cannot legally drive? When they're walking a bit cockeyed? When the take a couple of tries to complete a sentence correctly? Or do you flat out mean when they're passed out? If you mean the last then I completely agree with you. If you mean any of the first three, then I absolutely do not agree with you. Is it something between the first three and being passed out? If so, where?

I sincerely hope you don't think I am trying to be a rape apologist. I think it's a brutal, horrible crime that merits the death penalty (and frankly, castration before that.) But I am also leery as hell at giving people an out for a night they regret the next day getting to potentially be called rape because they wish they hadn't gotten drunk and gone home with that looker that turned their head the night before.

(Notice I have tried to keep this gender neutral, though frankly I am far less sympathetic to the idea of men getting raped, though I acknowledge it can happen.)

Again, I'm not a lawyer, so if you're superkeen I suppose you should ask a real lawyer. The Crown Prosecution Service guidelines online say this:

Statutory definition of consent

Section 74 defines consent as 'if he agrees by choice, and has the freedom and capacity to make that choice'. Prosecutors should consider this in two stages. They are:

Whether a complainant had the capacity (i.e. the age and understanding) to make a choice about whether or not to take part in the sexual activity at the time in question.
Whether he or she was in a position to make that choice freely, and was not constrained in any way. Assuming that the complainant had both the freedom and capacity to consent, the crucial question is whether the complainant agrees to the activity by choice.

The question of capacity to consent is particularly relevant when a complainant is intoxicated by alcohol or affected by drugs.

In R v Bree [2007] EWCA 256, the Court of Appeal explored the issue of capacity and consent, stating that, if, through drink, or for any other reason, a complainant had temporarily lost her capacity to choose whether to have sexual intercourse, she was not consenting, and subject to the defendant's state of mind, if intercourse took place, that would be rape. However, where a complainant had voluntarily consumed substantial quantities of alcohol, but nevertheless remained capable of choosing whether to have intercourse, and agreed to do so, that would not be rape. 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.

In cases similar to Bree, prosecutors should carefully consider whether the complainant has the capacity to consent, and ensure that the instructed advocate presents the Crown's case on this basis and, if necessary, reminds the trial judge of the need to assist the jury with the meaning of capacity.

Prosecutors and investigators should consider whether supporting evidence is available to demonstrate that the complainant was so intoxicated that he/she had lost their capacity to consent. For example, evidence from friends, taxi drivers and forensic physicians describing the complainant's intoxicated state may support the prosecution case. In addition, it may be possible to obtain expert evidence in respect of the effects of alcohol/drugs and the effects if they are taken together. Consideration should be given to obtaining an expert's back calculation or the opinion of an expert in human pharmacology in relation to the complainant's level of alcohol/ drugs at the time of the incident.

See Rook and Ward On Sexual offences Law & Practice 4th Edition for a comprehensive discussion on the meaning of consent.

So I suppose if you want to know more about how it's handled in UK law you can look at that book. From the above, it appears as though UK law has no strict line in the sand; "lack of capacity" must be demonstrated by the prosecution.

Again, though, this is still only half the story. Intent is the other half, and I feel like this point still isn't getting across. If you reasonably believe that the other person has given consent, and you can prove this (e.g. even though she was drunk, she said "I want to bang you" and took off your shirt, and you otherwise had no reason to believe that she was incapable of giving consent), then you can't be convicted of rape. So you seem to be fixated on one half of the law, and ignoring the other half. It's the other half, the requirement of intent, which solves a lot of the problems you perceive in the law as it stands. Specifically, it means that someone can't "change their minds" the next day, and claim that they were too drunk to consent, because the prosecution still has to prove that the other person didn't reasonably belief that the victim couldn't or didn't consent. This is a really, really hard thing to do, and it is, in fact, the entire point of this thread -- if the girl is so drunk then there is no reliable witness to the crime, and thus it's incredibly difficult to prosecute. So these problems you're coming up with get neatly taken care of by the other half of sexual offence laws - the half you keep skipping over.


@Graffito: Yes, in the eyes of the law, you're not a bank robber until you've been convicted of being a bank robber. This goes towards what Arwon is saying: what we ought to do and what you can legally get away with doing are two different things...

 

[Commodore]

Alcohol impairment in victims is not even close to the only reason, or even main reason, why rapists aren't being reported, charged or convicted. Our culture remains incredibly adept at finding ways to doubt, minimise, dismiss and blame victims of rape.

Exactly. I remember getting a sexual assault briefing in the Army that said precisely this. I think it said something like one in seven soldiers (both male and female) get sexually assaulted, but an overwhelming of those assaulted do not report it. The report rate was lower for male victims than female victims because of the extra stigma of being seen as "unmanly" for being raped. Still, even most female victims are afraid to report it because of the stigma that it will ruin their military career (a fear that is not entirely unfounded)

 

[Borachio]

Just don't go raping people. OK? If they show even the least reluctance, or hesitation, to engage with you, don't do it. It's their loss, after all.

 

[El_Machinae]

I used to have a ton of friends (very nearly 2000 lbs worth) that worked in sexual assault counseling. It's certainly given me an aberrant view, and I like that view. We worked with the idea of total consent, where both partners can look back and say "yeah, I'm okay with having done that" as they learn more and more about the consequences. We included lies, fraud, lack of capacity, etc. all as variables. Following these rules, there's a lot less sex to be had. On the other hand, you're much, much less likely to have someone say "Oh, I got used"

 

[Farm Boy]

I like the onus of collecting most of the people you know and marching around for an hour or so yammering on about what a big important thing you're doing by having sex tonight(heya Dad, banging your daughter to-nite! Yeeaaaa). Not without its problems, but kinda sorta the same general outcome. Didn't take you for such a traditionalist E!

 

[El_Machinae]

I'm pretty prudish with regards to molestation. Not sure if that makes me a traditionalist.

 

[Borachio]

Given droits de seigneur, and all that, I'd say the traditionalists tend to be rather keen on molestation.

 

[warpus]

I used to have a ton of friends (very nearly 2000 lbs worth) that worked in sexual assault counseling. It's certainly given me an aberrant view, and I like that view. We worked with the idea of total consent, where both partners can look back and say "yeah, I'm okay with having done that" as they learn more and more about the consequences. We included lies, fraud, lack of capacity, etc. all as variables. Following these rules, there's a lot less sex to be had. On the other hand, you're much, much less likely to have someone say "Oh, I got used"

The problem I guess is that enough people go out to bars just so that they can use someone for a night, or get used.. but they might not necessarily think about it from that perspective. As such, some of these scenarios can easily lead to rape, if alcohol is involved, and someone really needs.. that fix.

 

[Farm Boy]

Given droits de seigneur, and all that, I'd say the traditionalists tend to be rather keen on molestation.

That's a fairly obscure interpretation of traditionalist. You know, speaking as an American. Not sure how many people still rustle around for that across the pond.

 

[Borachio]

Well, maybe not. But it's an indication of what the traditionalist mindset used to be (and still is, in SOME "Asian" communities). Women as disposable chattel, basically.

 

[Farm Boy]

Well, maybe not. But it's an indication of what the traditionalist mindset used to be (and still is, in SOME "Asian" communities). Women as disposable chattel, basically.

The traditionalists here tend to think of the sexual progressives as having that mindset. Odd, isn't it?