False allegations and attrition

[gumboot]

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

How easy is it to get access to sufficient details in these cases to build an actual scenario, and can we isolate the court ruling from the scenario?

The purpose of these hypotheticals is not to test the law, but to see where posters personally stand in regards to what does or does not constitute consent/sex/rape.

If we take the story that Fiona recounted in the other thread, this could be presented as a brief hypothetical in the following way:

A girl is out on the town with a friend and her boyfriend. The boyfriend's brother from out of town, is also there. The girl has never met the brother. All of them are drinking and having a good time. There is no intimate behaviour between the girl and the brother. Come the end of the evening, the girl offers a bed to the brother as the friend and boyfriend do not have a spare bed.

During the night the girl wakes up to find the brother entering her bed. She asks him what he is doing and tells him he is in the wrong room.

The brother does not reply, and instead commences to attempt sexual intercourse. The girl responds by freezing and says nothing. Once sexual intercourse is complete the brother falls asleep.

From this, various posters can then look at the scenario and say "I think this is rape, and here's why" or "I think this is consensual sex, and here's why".

It's not about the law, or arguing "this, in law, is rape/not rape", it's about individual posters offering their opinions. With a series of different scenarios of varying nature, we can then establish a picture of what each poster's stance is on the matters being discussed, and where their position changes from consent to rape.

This can be done simply by altering facts in the hypothetical:

(Please note this is not intended as a reflection or comment on Fiona's experience, of which I have made my position perfectly clear in the other thread. I use this account as a hypothetical scenario simply because it's a detailed account that was ready at hand)

A girl is out on the town with her friend and the friend's boyfriend. The boyfriend's brother from out of town, is also there. The girl and brother have met before and get on well. All of them are drinking and having a good time. During the night there is some kissing and fondling exchanged between the girl and brother, which the friend and boyfriend do not approve of. Come the end of the evening, the girl suggests the brother stay the night at her place and argues that the friend and brother do not have a spare bed. The friend and boyfriend warn that "nothing better happen".

Once back at her place, the brother and girl continue with their kissing and so forth, which gradually escalates. The girl comments that she would never do this if she was sober because she's too shy, and that they probably shouldn't do this because the friend and boyfriend will be angry.

They eventually move to the bedroom where they have sex.

In the morning the brother has gone and the girl recalls that she had sex with the brother and regrets it.

Now, in this scenario we have a very different set of circumstances, and a very different outcome. As demonstrated in Fiona's thread, most people quickly consider the first scenario rape. I suspect many people would consider the second scenario not to be rape, though others might argue it is.

By gradually altering specific details, and creating a range of scenarios, we can begin to establish where the threshold between rape and consensual sex is for different people.

That's much easier than trying to answer the question "how drunk do you think a person needs to be before they cannot consent", and other such issues which have been the focus of the last few pages.

 

[Francesca R]

The purpose of these hypotheticals is not to test the law, but to see where posters personally stand in regards to what does or does not constitute consent/sex/rape.

Oh, I see. Maybe a new thread is better for that? (I am not sure I would join it)

 

[gumboot]

Oh, I see. Maybe a new thread is better for that? (I am not sure I would join it)

Yeah, it probably would. I have no desire to start it however. There's far too many threads on this topic as it is.

 

[PhantomWolf]

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.

Name supression exists for publication (which can include everything from Websites to news broadcasts) outside of the court documents. We don't have a First Admendment here so quite simply the press are not free to publish whatever they like without consequences, in the case of breaking a suppression order then it's likely that Comtempt of Court charges would be laid against the individuals and corperations involved.

Esentially our press have freedom up until a certain point. They can't breach court rulings, established protocols, or breach an individuals privacy without running the risk of legal action against them. The "Public's right to know", is not an acceptable defence for breaking the law in NZ.