False allegations and attrition

[CyCrow]

I'm sure Fiona will have something to say about this comment.

I'll let her be the judge of that. It's not really the same as her story anyway.

I did not suggest that.

Pretty close. You seem to suggest that intoxication at that level makes consent questionable. What's the difference?

// CyCrow

 

[gumboot]

It is again curious that everyone (except Darat) is focussing on the responsibility of the victim for her behaviour while her judgement is impaired: and not on the responsibility of the other.

We're debating whether there is a victim or not.

To come back to the drunk driving example which gumboot finds so difficult: people are not allowed to drive when they have a certain (fairly low) level of alcohol in their blood. This is because their judgement is known to be impaired and thus they are more likely to be involved in a crash. They are not given the right to use their own judgement about their capacity to drive because their judgement is not to be trusted.

The reason behind drunk driving isn't so much impaired judgement as impaired physical functioning. Judgement plays a part in that, but ultimately the reasoning is that a person driving a car poorly is dangerous.

The reason there's a set limit is because it makes enforcement easier. Same reason there's a legal age of consent. You have to draw a line somewhere.

The fact that people are prosecuted for drunk driving shows they are given the right to make their own decisions - because they have to face the consequences if they make the decision to break the law. If what you're claiming is true, you could not prosecute someone for drunk driving because it could not possibly be argued it was their fault they chose to drink drive.

What you seem to be missing in my analogy is that the accused is not the prospective driver: he is the prospective passenger. For me the responsible adult will attempt to dissuade someone who had been drinking from driving: at the very least he or she should refuse to get in the car as a passenger. If he or she does get in the car and the worst happens I would consider them at least as culpable as the driver.

You think the passenger in a car should be at least equally at fault (that implies they can potentially be more at fault than the driver) if the driver crashes the car and is drunk?

As I said, you are very happy to demand perfect behaviour from the victim and you have " no sympathy" for someone raped while incapable of consent.

Don't put words in my mouth that I have never said. I have no expectation that the victim's behaviour is "perfect". I am saying if the victim's behaviour is imperfect it's their fault, not anyone else's.

As for the second point, you couldn't be more wrong. I do not have the least hesitation giving my sympathy to someone who is raped while incapable of consent. I am in disagreement about when a person becomes incapable of consent.

It puzzles me why you have a different attitude towards the accused. On your rather high expectations of behaviour he is no more prepared to take responsibility for himself than the other. I do not understand this double standard and I have been asking you about it for quite a while. You have said he is an "idiot": perhaps you meant to convey that you have no sympathy for him either and that your hope is that his experience of a rape trial will teach him not to do that again? If so then I think your position is unrealistic and harsh, but at least it is consistent. It just hasn't come across very clearly to me

Sex is not something that one person does to another person. It is something that two people mutually take part in. Stop qualifying sex as something that the "accused" does to the "victim". It's nonsense.

There are two parts to a rape trial. The first is proving a rape actually occurred. People forget that. The second is proving the accused knew it was rape. This argument has focused on the first part. Because rape is defined as a lack of consent, any debate about whether rape occurred will of course focus entirely on the complainant. The "responsibility" of the accused simply does not enter into it.

Only once you can establish that rape has occured, do you get into the subject of the accused's responsibility - because at that point their actions constitute an illegal act, and they are responsible for that. If, as a reasonable person, they are aware their action is rape, they have a responsibility to stop/not proceed with their action. That goes without saying. If I felt the accused had no responsibility, I would be arguing that rape is not a crime. I'm clearly not saying that.


Perhaps this could be cleared up with some hypothetical scenarios?

Why doesn't someone present a series of hypothetical scenarios involving sex, consent, and alcohol, ranging from obviously not rape (perfectly sober people, agreeing to have sex and having sex, thoroughly enjoying it, breakfast in the morning, long term relationship, marriage, three kids, white picket fence, the whole works) right up to quite obviously rape (guy puts alcohol into woman's non-alcoholic drink, waits till she's hammered, drags her into alley, woman fights back, guy hammers her, rapes her, leaves her lying in alley).

Then each of us can go through each scenario and present why they would say this was or was not rape, and why. Then we could stop these frustrating discussions at cross purposes where we're clearly not understanding each other.

 

[LashL]

Well the main reason I think they're enormously different is that the woman is not consenting to let someone do something to her, let alone do something potentially dangerous or even fatal. In the case of sex she is herself agreeing to partake in something.

As for informed consent... I do not believe informed consent is required for legal sexual intercourse. The law only requires consent. I'm not sure how you would even go about defining what "informed" consent would be in the case of sex.

This is a bit of a semantic game on your part, but okay, let's play. "Informed" consent is, in fact, required. Thus the laws that preclude minors and incapacitated persons from "consenting" to sex (since they are deemed incapable of making an informed decision), and thus the laws that vitiate consent given by a non-incapacitated adult if, for instance, the sexual partner misrepresents his HIV-positive status in order to obtain putative consent.

I do not have the least hesitation giving my sympathy to someone who is raped while incapable of consent. I am in disagreement about when a person becomes incapable of consent.

When do you, personally, think a person becomes incapable of consenting? When they are slurring, staggering, behaving otherwise out of character, vomiting, incoherent, comatose, dead, some other point in between any of these, or other?

And, do you not think it appropriate that there should be some onus on the person initiating sexual activity to ascertain that he or she has obtained legitimate - and informed - consent to the sexual activity that he or she is initiating? If one's intentions are legitimate, why wouldn't one want to be sure that one had legitimate and informed consent?

Sex is not something that one person does to another person. It is something that two people mutually take part in. Stop qualifying sex as something that the "accused" does to the "victim". It's nonsense.

This goes back to the entire consent issue, obviously. But sexual contact is, in fact, sometimes something that one person does to another person and sometimes not at all something that two people mutually agree upon or mutually take part in. What an odd thing for you to say.

There are two parts to a rape trial. The first is proving a rape actually occurred. People forget that. The second is proving the accused knew it was rape. This argument has focused on the first part. Because rape is defined as a lack of consent, any debate about whether rape occurred will of course focus entirely on the complainant. The "responsibility" of the accused simply does not enter into it.

No, that is not accurate at all. There is no "proving a rape actually occurred" unless and until each and every one of the elements of both the actus reus and the mens rea are established. That includes, by definition, the " 'responsibility' of the accused' ". Your suggestion to the contrary makes no sense whatsoever. There is no bifurcation of these issues, and the rest of your post is nonsense.

 

[gumboot]

This is a bit of a semantic game on your part, but okay, let's play. "Informed" consent is, in fact, required. Thus the laws that preclude minors and incapacitated persons from "consenting" to sex (since they are deemed incapable of making an informed decision), and thus the laws that vitiate consent given by a non-incapacitated adult if, for instance, the sexual partner misrepresents his HIV-positive status in order to obtain putative consent.

Hrm. This may be a matter of varying jurisdictions. In most places, having consensual sex with someone while HIV positive, and failing to disclose that information, would not be considered rape. Instead a separate crime (varying from criminal nuisance to murder) would apply to the act of infection.

There's numerous cases of people being acquitted of rape yet convicted of the infection charges.

Perhaps the problem is that Canadian Law incorporates sexual crimes as a type of assault, whereas most nations separate them out.

When do you, personally, think a person becomes incapable of consenting? When they are slurring, staggering, behaving otherwise out of character, vomiting, incoherent, comatose, dead, some other point in between any of these, or other?

Well I think my proposal of a gradient of hypothetical scenarios is probably the best way to answer that.

And, do you not think it appropriate that there should be some onus on the person initiating sexual activity to ascertain that he or she has obtained legitimate - and informed - consent to the sexual activity that he or she is initiating? If one's intentions are legitimate, why wouldn't one want to be sure that one had legitimate and informed consent?

No. Informed consent is a term that requires quite a substantial level of understanding. In contrast simple consent - as in the form of medical consent - requires a much lower threshold. I think the high threshold required for informed consent is simply unrealistic and impractical in the context of sex.

I tend to hold with the position of the Supreme Court of Victoria for consent:
A) that what is proposed to be done is the physical fact of penetration of her body by the male organ
(or if A) is unproved
B) that the act of penetration proposed is one of sexual connexion as distinct from one of totally different character

Alternatively, I think I would accept the slightly higher threshold of many US states that in addition to above, they must be aware that the act can lead to pregnancy.

I am not sure on the last one because the District Court here has ruled that if a person uses a condom they do not have to disclose that they are HIV positive, so I would argue if they used a condom there was no need to ensure the other person was aware that the act could lead to pregnancy.

This threshold is more in keeping with medical consent whereby you are aware that the doctor intends to make physical contact with your body. Detailed understanding of the procedure, the reason for it, what it will achieve, and all of the most common consequences/side effects of consenting or not consent, is not required for medical consent, but is for informed consent.

This goes back to the entire consent issue, obviously. But sexual contact is, in fact, sometimes something that one person does to another person and sometimes not at all something that two people mutually agree upon or mutually take part in. What an odd thing for you to say.

If the two people have not mutually agreed to it, it is rape.

No, that is not accurate at all. There is no "proving a rape actually occurred" unless and until each and every one of the elements of both the actus reus and the mens rea are established.

The proof of actus reus and mens rea apply to a specific individual defendant. We're not talking about a specific scenario, but the generic question of whether a crime has occurred. That's like the difference between discussing what needs to be proved to show that Tom was murdered, and what needs to be proved to show that Johnny murdered Tom.

The question of whether Tom was murdered can be discussed independent of Johnny. The question of whether Johnny murdered Tom can only be discussed once it is agreed Tom was murdered.

 

[PhantomWolf]

Not if it is not in the public record.

The thread has sort of run away from here, but thought I'd poke in that all names of parties are including in court records. Name suppression is only in regard to whether the media can publish the name, it doesn't hide it from those actively looking at the public court records or going into the courtroom itself.

 

[gumboot]

Just noticed on the Herald website today that a man has been convicted of sexual violation of several underage boys. Name suppression was granted during the trial and was lifted at the time of sentencing.

 

[Francesca R]

The fact that people are prosecuted for drunk driving shows they are given the right to make their own decisions - because they have to face the consequences if they make the decision to break the law. If what you're claiming is true, you could not prosecute someone for drunk driving because it could not possibly be argued it was their fault they chose to drink drive.

Sounds a bit odd to say that criminalising something still preserves the right of an individual to be a criminal. I think it is more correct to say that citizens do not have the right to commit crime, and that is why the state will punish them by withdrawal of liberty, for the purpose of correction, deterrence of other putative crimes and to protect society.

I am saying if the victim's behaviour is imperfect it's their fault, not anyone else's.

Well I'm sure you're not, since that would take the debate back to wrong-headed victorian-era-style "first principles". Someone who is the victim of rape is not required to have behaved perfectly in order to be completely free of any contributory fault for the crime. And I think you agree so your comment might just mean something rather more nuanced.

Sex is not something that one person does to another person. It is something that two people mutually take part in. Stop qualifying sex as something that the "accused" does to the "victim". It's nonsense.

I don't see where that was said anyway.

There are two parts to a rape trial. The first is proving a rape actually occurred. People forget that. The second is proving the accused knew it was rape. This argument has focused on the first part.

Eh, not really. If the accused cannot be adduced to reasonably know "it was rape" then it generally isn't (but the accused being intoxicated does not qualify in this regard--in exactly the same way that it doesn't get someone off the hook for illegal driving etc.)

Because rape is defined as a lack of consent, any debate about whether rape occurred will of course focus entirely on the complainant. The "responsibility" of the accused simply does not enter into it.

Incorrect and I thought this had been fully covered.

Only once you can establish that rape has occured, do you get into the subject of the accused's responsibility - because at that point their actions constitute an illegal act, and they are responsible for that.

This is muddled too. This "two-step" aspect you have just brought in is wrong.

Perhaps this could be cleared up with some hypothetical scenarios?

I doubt it. Probably better to refer to case precedents.

 

[Francesca R]

Just noticed on the Herald website today that a man has been convicted of sexual violation of several underage boys. Name suppression was granted during the trial and was lifted at the time of sentencing.

Do you know why?

http://www.courtnews.co.nz/story.php?id=1547

 

[Francesca R]

The thread has sort of run away from here, but thought I'd poke in that all names of parties are including in court records. Name suppression is only in regard to whether the media can publish the name, it doesn't hide it from those actively looking at the public court records or going into the courtroom itself.

I'm not sure I get this. If courts release names, what stops the press reporting the names? That appears to step into restricting press freedom to publish information already in the public domain, which I don't understand.

And of course, the press exists precisely to disseminate public information that would otherwise be more costly to obtain. Most people do not have the ability to attend court proceedings or scrutinise court records, which is why society is better served by the press doing that.

 

[Wudang]

Ok, here is a scenario. 2 gay men both drunk. They simultaneously initiate sexual contact in a reciprocal fashion.

Are they now both guilty of raping each other?

 

[Wudang]

Sex is not something that one person does to another person. It is something that two people mutually take part in. Stop qualifying sex as something that the "accused" does to the "victim". It's nonsense.

I don't see where that was said anyway.

Actually, that's something that has ooccurred to me. There appears to me to be an unspoken assumption in some posts that sex is something that men do to ladies.
I find threads like this interesting as they make me reconsider my asumptions which can sometimes be inconsistent.

 

[Smackety]

Ok, here is a scenario. 2 gay men both drunk. They simultaneously initiate sexual contact in a reciprocal fashion.

Are they now both guilty of raping each other?

I know, huh?! Perhaps rape is simply too generic of a term. Can we come up with a list of specific types of rape so it is more clear who is taking what position?

I mean, it seems like there are some guys in jail who are saying, "Wait a minute, she came on to me, she was on top the whole time, she came - twice! - and then the next day as I am getting arraigned the judge was saying I shoulda known she was blissed out so tough nuts buddy!"
well, hopefully not that extreme, but some examples of this common, non-violent rape would be appreciated.

 

[Wudang]

I can see why my hypothetical was taken as it was. However it was genuinely intended as an intellectual exercise. How do the various "rules" posted thus far apply to that scenario?
Those who favour UK (etc) case law which recognizes that such cases are a bugger (sorry) don't have this problem.

 

[gumboot]

Well I'm sure you're not, since that would take the debate back to wrong-headed victorian-era-style "first principles". Someone who is the victim of rape is not required to have behaved perfectly in order to be completely free of any contributory fault for the crime. And I think you agree so your comment might just mean something rather more nuanced.

Huh? I said someone who has behaved imperfectly is responsible for their behaviour. They're not responsible for a rapist's behaviour.

 

[gumboot]

Do you know why?

http://www.courtnews.co.nz/story.php?id=1547

Because the defendant asked for it. *shrugs*

 

[Darat]

Ok, here is a scenario. 2 gay men both drunk. They simultaneously initiate sexual contact in a reciprocal fashion.

Are they now both guilty of raping each other?

There is not enough information in your hypothetical to provide a reasoned answer however in more general terms all these types of hypotheticals are addressed by the current UK legislation.

 

[Darat]

Huh? I said someone who has behaved imperfectly is responsible for their behaviour. They're not responsible for a rapist's behaviour.

You still seem to be holding out that for rape there should be a defence against rape that depends on someone being drunk?

Earlier I put it this way:

If I am drunk and rape someone I cannot use the excuse that I was drunk as a defence and if I am drunk and someone rapes me they cannot use the defence that I was drunk.


Do you disagree with that principle?

 

[Francesca R]

I can see why my hypothetical was taken as it was. However it was genuinely intended as an intellectual exercise. How do the various "rules" posted thus far apply to that scenario?
Those who favour UK (etc) case law which recognizes that such cases are a bugger (sorry) don't have this problem.

I find it instructive that there is this underlying query behind this and other sexual crime threads of: "Well we must be able to spell out exactly what the rules are and where they do and do not apply and who they bind and in what circumstance . . . ". Not to trivialise it by comparison, but I see a similar thing emerging time and again on the "forum management" board where some members want to know exactly how their posting behaviour will be circumscribed, to very little avail.

It seems to be a combination of "fear of being caught out by the system" and some belief that if such a methodological treatment is not provided then the process is inconsistent and apt to be replete with injustice. But in this case, the injustice that seems to be of the most (or only) concern to those raising these arguments is false conviction of sexual offences. Yes--I know--that is the thread title. But so is "attrition", and that a great injustice in the system too, and happens in greater numbers.

 

[Wudang]

Sorry, Francesca I was unclear. My own view is basically as UK law, that every case i individual etc. But I do find the debate on rules useful to clarify to myself my own assumptions, not just about the actual crime of rape but the wider issues of sexual conduct and attitude.
As I said, my hypothetical is not an issue for those who do not see a need for rules to be laid out clearly.

eta: It's also interesting in these threads how often people know what other people's underlying attitudes are.

 

[gumboot]

You still seem to be holding out that for rape there should be a defence against rape that depends on someone being drunk?

How on earth did you come to that conclusion?

Earlier I put it this way:

If I am drunk and rape someone I cannot use the excuse that I was drunk as a defence and if I am drunk and someone rapes me they cannot use the defence that I was drunk.


Do you disagree with that principle?

Yes, I agree with that principle. That's not what we're debating. The issue is someone rapes me. I don't think the mere fact that you're drunk can be used to argue that you were raped.

The only legitimate defense for rape, IMHO, is that no rape occurred, or that you were somehow forced to commit a rape (rape this woman or we'll kill your daughter, or whatever).