False allegations and attrition

[Darat]

While this particular post was not directed at me, I must say that as a skeptic, I have problems with using completely subjective "tests" in such a way as to imply that they are not subjective. What is reasonable to one person is not reasonable to another, and what is common sense to one person is not common sense to another. So, who's definition of reasonable is being used? Who's definition of common sense? If we're going by what the judicial system or government says is reasonable... Well, lets just say that I have very little confidence in the applicability of the definition, as judicial systems and governments are quite often completely unreasonable. Heck, the general population is quite often unreasonable. Take a look at some of the crazy laws that get passed (and subsequently upheld in court) if you want examples.

So when you throw "reasonable" into the mix, a subjective situation is being judged by subjective rules, and we have to hope and pray that the people enforcing those rules see them the same way someone else does. You do realize that is like asking a jury to agree on which shade of blue is the "bluest" just by looking at it, right?

"Reasonability" is at the heart of much common law and current legislation, for instance the test for a guilty verdict is often characterised as "beyond a reasonable doubt".

 

[Darat]

You're making two assumptions here.

a) That they know how much the other had to drink
and b) That they are sobber enough to realise the other isn't sobber.

Besides, some people can still be fully with it after 8 vodkas, while others aren't after one, how are you supposed to know.

If you don't know consent (as defined by the law) is being given why would you assume it has been?

 

[Francesca R]

Some more relevant material from the UK on consent while drunk:

This is the the complainant's story in R v Dougal in a press interview about six months after the case collapsed and Mr Dougal was acquitted. I can't find anything from Mr Dougal.

In R v Bree (Bournemouth-2006) Benjamin Bree was sentenced for 5 years for the rape of a 19 year old woman after both had been drinking heavily, and in March 2007 the Appeal Court quashed this conviction. Previously the jury had decided that the complainant had not had the ability to consent, and so consent was not given. The appeal judges ruled that this verdict was unsafe so Mr Bree was freed. The Appeal Court also ruled that the 2003 Sexual Offences law did not need any overhaul or clarification since it already covers the capacity to consent as much as it is possible for a statute to do so.

Here is an interview from Mr Bree.

For those who are opposed to any law that does not carry with it an analytical objective standard:

If, through drink (or for any other reason) the complainant has temporarily lost her capacity to choose whether to have intercourse on the relevant occasion, she is not consenting, and subject to questions about the defendant's state of mind, if intercourse takes place, this would be rape. However, where the complainant has voluntarily consumed even substantial quantities of alcohol, but nevertheless remains capable of choosing whether or not to have intercourse, and in drink agrees to do so, this would not be rape. We should perhaps underline that, as a matter of practical reality, capacity to consent may evaporate well before a complainant becomes unconscious. Whether this is so or not, however, is fact specific, or more accurately, depends on the actual state of mind of the individuals involved on the particular occasion.

Considerations like these underline the fact that it would be unrealistic to endeavour to create some kind of grid system which would enable the answer to these questions to be related to some prescribed level of alcohol consumption. Experience shows that different individuals have a greater or lesser capacity to cope with alcohol than others, and indeed the ability of a single individual to do so may vary from day to day. The practical reality is that there are some areas of human behaviour which are inapt for detailed legislative structures. In this context, provisions intended to protect women from sexual assaults might very well be conflated into a system which would provide patronising interference with the right of autonomous adults to make personal decisions for themselves.

For these reasons, notwithstanding criticisms of the statutory provisions, in our view the 2003 Act provides a clear definition of "consent" for the purposes of the law of rape, and by defining it with reference to "capacity to make that choice", sufficiently addresses the issue of consent in the context of voluntary consumption of alcohol by the complainant. The problems do not arise from the legal principles. They lie with infinite circumstances of human behaviour, usually taking place in private without independent evidence, and the consequent difficulties of proving this very serious offence.

 

[MikeMangum]

If you don't know consent (as defined by the law) is being given why would you assume it has been?

If you have been given full and unambiguous consent by a sexual partner, and you don't know that they are for whatever reason incapable of giving consent, why would you assume they are incapable?

That is my problem with this whole thing. Maybe I'm misunderstanding people's positions on this, so let me see if I can state them.

My understanding is that some of the respondents here feel that if a person is beyond some level of intoxication and freely and clearly gives consent to having sex, that free and clear consent (even to the point of being the initiator) to having sex is irrelevant because the person was too drunk? If that person, who was clearly a willing participant during the act of sex wakes up the next morning and decides that he/she wishes that he/she hadn't engaged in sex, they are the victim of rape.

Is that an accurate summation?

 

[Francesca R]

My understanding is that some of the respondents here feel that if a person is beyond some level of intoxication and freely and clearly gives consent to having sex, that free and clear consent (even to the point of being the initiator) to having sex is irrelevant because the person was too drunk? If that person, who was clearly a willing participant during the act of sex wakes up the next morning and decides that he/she wishes that he/she hadn't engaged in sex, they are the victim of rape.

Is that an accurate summation?

No, not for me and not according to my read of anything anyone else has written either.

 

[MikeMangum]

No, not for me and not according to my read of anything anyone else has written either.

Well, apparently you read the following differently than I did:

Ah, so your defence would be ignorance or incompetence?

"How was I supposed to know the 8 vodkas and 3 tequilas she drank impaired her judgment?"

If a person is drunk he/she does *not* have all his/her faculties.

So as long as it's a talkative drunk you have sex with it's not rape?

If that talkative drunk says yes they want sex, or even instigates it, why should that be considered rape?

If a talkative drunk asks for a tattoo, should the tattooist do what they ask?

Going along with the decisions of a drunk is no defence.

 

[Ivor the Engineer]

I'm always suprised how low a standard some people hold themself and others to.

But hey, when you've got a hard-on which needs to be serviced, to hell with ethics.

 

[tyr_13]

Excuse me Ivor, but the, 'an erection impairs reasoning' defense is one I don't recall seeing on this thread.

 

[MikeMangum]

I'm always suprised how low a standard some people hold themself and others to.

But hey, when you've got a hard-on which needs to be serviced, to hell with ethics.

I know, I know. It really is pathetic that I believe in holding myself and others accountable for our own actions and decisions, legally. It's hard to have lower standards than that.

And if we are going to talk about ethics, it's my belief that people shouldn't be having sex outside of a committed, long term relationship nor should they engage in adultery, nor should they drink to the point of insensibility...but I'm not going to agitate to make those illegal, and would indeed fight against making them illegal. Take your aspersions about my ethics elsewhere.

 

[Fiona]

Sorry, but I am still wondering: what is the hurry?

 

[PhantomWolf]

If you don't know consent (as defined by the law) is being given why would you assume it has been?

If someone says yes, or even intiates the sex, why is it wring to assume that they have given consent?

Reading responces, either some people aren't getting the senario and think that drunk=paralytic and unable to respond, or they think that anyone under the influence of alcohol is unable to give consent.

The senario I have been putting forth is where one or both partners are drunk, but lucid and through actions and voice specify they want sex. Why should a reasonable person consider a "Yes" as a "No" especially when the one saying yes is initiating the contact?

 

[tyr_13]

And how can someone who is drunk enough to not be able to give consent legally, tell if someone else who has initiated or requested sex acts is too drunk to give legal consent? Isn't this a double standard?

@ Fiona
Hurry for what? I'm sorry, I'm completely missing what you are trying to say.

 

[Fiona]

I was just wondering why it had to be now: if one or both have been drinking there is a doubt about consent: but real consent will still be there when you are sober. I cannot see any reason not to be sure

 

[tyr_13]

I was just wondering why it had to be now: if one or both have been drinking there is a doubt about consent: but real consent will still be there when you are sober. I cannot see any reason not to be sure

Neither can I, but I've never been drunk. Of course people are really messed up and perhaps some will only let themselves have sex when they are drunk, or something equally as stupid.

I don't know, but that doesn't mean there isn't a reason.

 

[Francesca R]

And how can someone who is drunk enough to not be able to give consent legally, tell if someone else who has initiated or requested sex acts is too drunk to give legal consent? Isn't this a double standard?

What is the purpose of concoting these ever more elaborate scenarios? The legal issue of consent (at least here in the UK--see my quite detailed previous posts on this page and the last) seems pretty clear to me. Yet you (not just you) keep coming up with precise hypotheticals and expecting others to "rule" on them. What point are you trying to make?

Again--it is as if you think "I can't construct a detailed decision tree/flowchart that can be consistently applied ex-ante to any prospective situation of sexual contact, . . . so I have a problem with rape laws".

Is it too much to ask to understand how matters of law work in real life? The arena of sexual interaction and violent crime does not conform to lab conditions.

 

[PhantomWolf]

What is the purpose of concoting these ever more elaborate scenarios? The legal issue of consent (at least here in the UK--see my quite detailed previous posts on this page and the last) seems pretty clear to me. Yet you (not just you) keep coming up with precise hypotheticals and expecting others to "rule" on them. What point are you trying to make?

Again--it is as if you think "I can't construct a detailed decision tree/flowchart that can be applied ex-ante to any situation of sexual contact, . . . so I have a problem with rape laws".

Is it too much to ask to understand how matters of law work in real life? The arena of sexual interaction and violent crime does not conform to lab conditions.

Will the problem is that these "Hypotheticals" have played out in the courts, and people's lives have been ruined because of it occuring even if found not guilty by the Jury.

 

[Magenta]

So many hairs to split, so little time... How consent is defined obviously varies across jurisdictions and then, if the charge proceeds (see the Jordan case study linked earlier addressing factors weighed by the police in determining whether to proceed), it's open to interpretation by the court and appeal to a higher court. So I'm not sure about the value of the ever more detailed hypotheticals unless one also has time to read the relevant legislation and court decisions.

Anyway, in Australia it's different across the states but consent and intoxication are summed up here:

Where the victim-complainant is asleep, unconscious or so affected by alcohol or other drugs that they are not able to freely agree to sexual intercourse, NT, SA, 23TAS and VIC law recognise that the victim-complainant is incapable of consenting. Under QLD and WA law, consent means free and voluntary consent, which suggests that a sleeping, unconscious or severely intoxicated victim-complainant would be viewed as incapable of consenting. 24 However, in all states and territories, a person who agrees to sexual intercourse when they are under the influence of alcohol or other drugs and who would not have agreed were it not for that influence will be treated as having consented. It is only when they are unable to make a decision about whether or not to consent that the law will invalidate any apparent consent. ACT law adds that consent caused by the complainant's "physical helplessness" will not be recognised by the law.

The law and sexual offences against adults in Australia

 

[tyr_13]

What is the purpose of concoting these ever more elaborate scenarios? The legal issue of consent (at least here in the UK--see my quite detailed previous posts on this page and the last) seems pretty clear to me. Yet you (not just you) keep coming up with precise hypotheticals and expecting others to "rule" on them. What point are you trying to make?

Again--it is as if you think "I can't construct a detailed decision tree/flowchart that can be consistently applied ex-ante to any prospective situation of sexual contact, . . . so I have a problem with rape laws".

Is it too much to ask to understand how matters of law work in real life? The arena of sexual interaction and violent crime does not conform to lab conditions.

I'm sorry, but both people being drunk and both people consenting is elaborate because?

Oh, because it might provide actual, specific examples of false allegations.

 

[tesscaline]

Will the problem is that these "Hypotheticals" have played out in the courts, and people's lives have been ruined because of it occuring even if found not guilty by the Jury.

I agree with this statement completely, and it's kind of in line with what I've been trying to say (albeit badly -- I could make excuses about pain killers and fevers, but I won't bother).

The way these cases are handled leaves the law open to very broad personal interpretations. So you have cases where people are falsely accused by law enforcement and taken to court to have their lives ruined, or where people are falsely convicted, or even cases where people are falsely found not guilty.

 

[Francesca R]

Will the problem is that these "Hypotheticals" have played out in the courts, and people's lives have been ruined because of it occuring even if found not guilty by the Jury.

In your view, the primary problem with rape and law is that people are falsely accused and/or convicted?