False allegations and attrition

[Francesca R]

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

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

 

[Francesca R]

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.

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

 

[Francesca R]

To me the issue for this thread is that there is an unjustified and overblown fear of false rape allegation, not justified by actual laws nor by evidence of the effects of those laws

I am having another moment of frustration realising that the views of others just do not really shift

Never mind.

 

[tyr_13]

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

No.

Does that mean it isn't a problem? No. Do I think we should just assume guilt? No. Do I think an increase in convictions would in general be good? Yes, but I don't think it's worth switching to an inquisitional system for the adversarial one.

Why do you feel that people are arguing against an increase in conviction rates? Just because there is concern about the false allegation? Is it really that important to you that everyone says they want an increase in convictions, damn the other effects, and that false allegation is in no way a problem?

Want the primary problem with rape? That would be the rape part.

 

[Fiona]

What is the issue here?

It is a fact that one's judgement is impaired when one has been drinking. That applies to everyone, though of course to different degrees. We all know that. We have laws about drinking and driving precisely because we know that. And so far as I can see the law acknowledges that this is true in many other contexts, including the law of contract.

Some have said that they believe that each person is responsible for their own actions and uses this to complain of a situation when an allegation of rape is made based on impaired capacity to judge through voluntary consumption of alcohol.

It seems to me that we are gliding over the other person's responsibility for their own actions. We all know that drink impairs judgement. We all know that the law takes that into account (though not in a simple way, in practice). If you found on personal responsibility for the consequences of your actions it seems to me that this cuts both ways: if you choose to have sex with someone who has been drinking then you have taken the decision in full knowledge that the consent may not be full and informed.

The solution proposed is to deny that judgement might be impaired, and to assume full capacity. How does this make sense? Are we to deny all that is known about the effects of alcohol? Why should we do this?

It seems to me that this is predicated on the idea that people should only be responsible for themselves in terms of never putting themselves in a position where they are not fully in command of their decisions: but not in terms of acting on the information about the effects of drugs or alcohol and the state of the law. Looks like a one-way street to me

I still do not see any equity in this, although some are very gung-ho about responsibility of the other. There is no difficulty I can see in taking a personal decision not to have sex with someone who is not a regular partner and whose capacity is in doubt because they have been drinking: that goes for both sexes and it seems perfectly reasonable to me. It is in line with the cry of "accept responsibility for yourself" so I do not see at all why this is seen as unfair.

 

[Smackety]

It seems better to give women the power to withdraw or deny giving consent at any time than to allow rape to occur due to a legal technicality. It gives potentially abused power to the woman, but that is OK, men can just avoid situations where they could get in trouble, right?
The part I struggle with is the occasional rape allegation leveled during divorce proceedings. At that point it is no longer always a question of IF the sex was consensual, but rather HOW consensual it was, and there is no practical defense I can see. It makes me think the statute of limitations should be very short or something?

 

[Francesca R]

No.

And yet, for the rest of your post and for your other posts in this thread, false allegation, and the idea that female complainants are instantly believed, is all you write about.

Why?

It is as if you believe that those are the biggest issues. And this was a thread started to dispel that idea as a myth.

A lot of evidence has been posted, and (from me) a lot of detail about the way the legal system works in my country. You don't seem very interested in those parts of the discussion. You (not just you) seem intent on swerving it back to the observation that is it bad that false allegation happens and is sometimes believed. We know that. That was never in question. It is a problem but it is an overblown one.

 

[Francesca R]

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

That's the same as the UK. Almost as if the lawmakers talk to each other . . .

 

[PhantomWolf]

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

Wow, talk about drawing a long bow. The primary problem with rape is that it happens. However, having a clear cut definition of what rape is would certainly allow for the law to focus fully on the cases of real rape and not the false ones. Since the law is rather airy fairy about what actually consitutes consent, and since it appears that some people seem to think that anything short of two totally sober people with a written and witnessed contract isn't consent, then there is still a lot of room to debate the issue of whether a claim of rape after having said yes, or initiated the sex, is actually a false claim.

 

[PhantomWolf]

That's the same as the UK. Almost as if the lawmakers talk to each other . . .

Actually it's not, the Australia law says if you are drunk and say yes, that's consent, you can't go screaming rape afterwards even if you wake up next to someone and think, good grief what did I sleep with.

The UK laws says that the man (and I note it's only the man) must attempt to determine if the woman (or other guy) is capable of consent, but fails to adress exactly what that means they have to do, or how it can be determined.

Some here seem to think that anyone that's been drinking can't make an informed consent even if they are lucid.

Where does that leave us?

 

[gumboot]

I should be pointed out that many countries, including New Zealand, Australia, and the UK, are common law countries which means legislation is only part of the law, and is intended to be relatively vague and all encompassing to give courts room to interpret it.

There was a landmark case recently in New Zealand where the court ruled that an intoxicated person was still capable of giving informed consent, and therefore could not cry rape upon sobering up and regretting their decision. This is now common law in New Zealand and all future court cases at that level or lower must align with this ruling. Only a higher court can overturn this legal precedent.

This is, of course, the way common law is meant to work, and it makes it a much more functional legal system because it allows for shades of grey and recognises the uniqueness of individual cases.

 

[Lothian]

This is now common law in New Zealand and all future court cases at that level or lower must align with this ruling. Only a higher court can overturn this legal precedent.

Is that right? I am happy with lower but I thought most courts could overturn their own decisions.

 

[gumboot]

Is that right? I am happy with lower but I thought most courts could overturn their own decisions.

It depends. Some courts can over turn their own rulings, but a court must have good reason for changing its position on a ruling. They would need to demonstrate that the specific circumstances of the case in question differed sufficiently from a previous case that they could justify a matter of first impression.

The US Supreme Court, for example, must abide by the rulings of all other courts in its circuit.

The House of Lords has a special power of last resort - the Practice Statement - which allows it to overturn its own decisions (previously any ruling made by the House of Lords could only be over turned by Legislation). Since its creation in 1966 it has only been used 20 times.

Under the English legal system (which includes countries like New Zealand, Australia, Canada, Hong Kong, Pakistan, and Singapore) the rulings of a higher or equal court are binding, and the rulings of a lower court must be taken into account.

In other words if the Auckland High Court makes a ruling on a case, the Wellington High Court cannot make an opposite ruling in a legally equivalent case.

Judges who disagree with a previous finding can, of course, subvert this system by making spurious arguments that the case before them is distinct from the previous case and justifies a ruling of "matter of first impression". This would then need to be over-turned by a higher appeals court.

 

[Francesca R]

Wow, talk about drawing a long bow.

Meaning what? The question arises because all you seem to be able to write about is the spectre of false allegations of rape and the ease with which they will be believed. Like this is the number one issue to you. It is truly baffling.

However, having a clear cut definition of what rape is would certainly allow for the law to focus fully on the cases of real rape and not the false ones.

The legal definition of rape is clear cut. At least I do not see how it can be made clearer

Since the law is rather airy fairy about what actually consitutes consent

No it isn't. You just want something that will somehow circumvent the "infinite circumstances of human behaviour, usually taking place in private without independent evidence". And that is impossible. Or would you like to suggest legislation yourself?

and since it appears that some people seem to think that anything short of two totally sober people with a written and witnessed contract isn't consent

Such as who? Or is this an assertion from paranoia?

then there is still a lot of room to debate the issue of whether a claim of rape after having said yes, or initiated the sex, is actually a false claim.

This is what jury trials do.

 

[Francesca R]

Actually it's not, the Australia law says if you are drunk and say yes, that's consent, you can't go screaming rape afterwards even if you wake up next to someone and think, good grief what did I sleep with.

And that is the same in the UK "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."
(see post 103). Your issue is that you want the law to draw the line that divides intoxicated but capable of freely deciding from intoxicated and incapable of freely deciding. And it won't. So you make these "what if?" scenarios up to beat on the law with.

What is it that you really want? I think it is a law that says: "no matter how ****faced the other person is, if you get a "yes" out of them, and if they voluntarily got ****faced, then goforit!!" Is that correct?

The UK laws says that the man (and I note it's only the man) must attempt to determine if the woman (or other guy) is capable of consent, but fails to adress exactly what that means they have to do, or how it can be determined.

See my posts 91 and 103. You must have failed to read them. And as for it "only being the man", this does not mean it only applies to males (except for where the law mentions the penis). It applies to a person.

Some here seem to think that anyone that's been drinking can't make an informed consent even if they are lucid.

You might want to withdraw unspecified allegations or else quote who said this. Otherwise it can be assumed to be a lie on your part.

 

[Ivor the Engineer]

http://www.ncbi.nlm.nih.gov/pubmed/...nel.Pubmed_DefaultReportPanel.Pubmed_RVDocSum

This is the first study of unwanted sexual experiences in the collegiate "hooking-up" culture. In a representative sample of 178 students at a small liberal arts university. Twenty-three percent of women and 7% of men surveyed reported one or more experiences of unwanted sexual intercourse. Seventy-eight percent of unwanted vaginal, anal, and oral incidents took place while--"hooking up,"--whereas 78% of unwanted fondling incidents occurred at parties or bars. The most frequently endorsed reason for unwanted sexual intercourse was impaired judgment due to alcohol. The most frequently endorsed reason for unwanted fondling was that it happened before the perpetrator could be stopped. Of those affected by unwanted sexual intercourse or unwanted fondling, 46.7% and 19.2% reported unwanted memories, 50% and 32.7% reported avoidance and numbing responses, and 30% and 26.9% reported hyperarousal responses, respectively. A preliminary model of unwanted sex and collegiate social dynamics is proposed to provide a heuristic for further research.

http://www.ncbi.nlm.nih.gov/pubmed/12022716?ordinalpos=1&itool=EntrezSystem2.PEntrez.Pubmed.Pubmed_ResultsPanel.Pubmed_DiscoveryPanel.Pubmed_Discovery_RA&linkpos=5&log$=relatedreviews&logdbfrom=pubmed

OBJECTIVE: To evaluate the empirical associations between alcohol use and risky sex at two levels of analysis. Global associations test whether individuals who engage in one behavior are more likely to engage in the other, whereas event-specific associations test whether the likelihood of engaging in one behavior on a given occasion varies as a function of engaging in the other on that same occasion. METHOD: Studies examining the association between drinking and risky sex in samples of college students and youth were reviewed. Those published in the past 10 years and using event-level methodology or random sampling were emphasized. RESULTS: Findings were generally consistent across levels of analysis, but differed across types of risky behaviors. Drinking was strongly related to the decision to have sex and to indiscriminate forms of risky sex (e.g., having multiple or casual sex partners), but was inconsistently related to protective behaviors (e.g., condom use). Moreover, the links among alcohol use, the decision to have sex and indiscriminate behaviors were found in both between-persons and within-persons analyses, suggesting that these relationships cannot be adequately explained by stable individual differences between people who do and do not drink. Analysis of event characteristics showed that drinking was more strongly associated with decreased protective behaviors among younger individuals, on first intercourse experiences and for events that occurred on average longer ago. CONCLUSIONS: Future efforts aimed at reducing alcohol use in potentially sexual situations may decrease some forms of risky sex, but are less likely to affect protective behaviors directly.

http://www.ncbi.nlm.nih.gov/pubmed/17396398?ordinalpos=1&itool=EntrezSystem2.PEntrez.Pubmed.Pubmed_ResultsPanel.Pubmed_DiscoveryPanel.Pubmed_Discovery_RA&linkpos=2&log$=relatedarticles&logdbfrom=pubmed

Researchers have established that alcohol is a risk factor for date rape for both victims and perpetrators. OBJECTIVE: The authors tried to experimentally address the link between alcohol consumption and women's risk detection abilities in a risky sexual vignette. PARTICIPANTS: The authors recruited 42 women from undergraduate classrooms at a large midwestern university and randomly assigned them to drink an alcoholic (.04 blood alcohol content) or a placebo beverage. METHODS: Participants completed self-report inventories and listened to a date-rape audiotaped vignette, which began with consensual sexual behavior and culminated in date rape, and the authors asked them to determine if and when the man should refrain from making further sexual advances. RESULTS: Student's t tests and Pearson r correlations showed that women who consumed alcohol and exhibited high levels of rape myth acceptance showed a significant decrease in risk recognition (p = .000 and .001, respectively). CONCLUSION: These findings highlight the significance of even small amounts of alcohol on behavior and cognition in women who are self-reported experienced drinkers.

 

[tyr_13]

And yet, for the rest of your post and for your other posts in this thread, false allegation, and the idea that female complainants are instantly believed, is all you write about.

Why?

Perhaps because you keep posting as if all rape allegations are to be believed instantly. You keep saying it, and I'll keep disagreeing.

Also, you seem to forget some things I've said, right on the first page.

I think false accusations are a problem with all crimes, but not as big as under reporting.

It is as if you believe that those are the biggest issues. And this was a thread started to dispel that idea as a myth.

It is if I believe that those are the issues we're are figging discussing.

A lot of evidence has been posted, and (from me) a lot of detail about the way the legal system works in my country. You don't seem very interested in those parts of the discussion. You (not just you) seem intent on swerving it back to the observation that is it bad that false allegation happens and is sometimes believed. We know that. That was never in question. It is a problem but it is an overblown one.

I'm not as interested in the legal workings because they do not reflect society. 10% of rape allegations are false? No, only 10% of those investigated by the police. I'd say only 10% of all alleged rape are false anyway, but for some reason, because it is only 1 in 10, you think it isn't a problem at all? We shouldn't be talking about it in a thread about it? Rare means it doesn't matter? We shouldn't be discussing the facets and details of something rare?

A lot of evidence has been posted by gumbot too, that you've pretty much ignored. No one is saying that false allegations are as big a problem as rape, or that rape allegations should automatically be disbelieved but neither should they be instantly believed either (with the obvious exception of being someone the victim is leaning on for support, then it is likely reasonable to believe without any evidence at all).

 

[PhantomWolf]

Meaning what? The question arises because all you seem to be able to write about is the spectre of false allegations of rape and the ease with which they will be believed. Like this is the number one issue to you. It is truly baffling.

I suggest you go back and read my posts in this thread, there is nothing about the "spectre of false allegations of rape and the ease with which they will be believed." My posting here has been about the topic of drinking and consent.

The legal definition of rape is clear cut. At least I do not see how it can be made clearer

Reading deeper into the act, I'll have to admit that I missed the section where consent is clarified (it was about 5:30am.) Having read that it doesn't appear to be quite as open to interpretation as it first appeared.

No it isn't. You just want something that will somehow circumvent the "infinite circumstances of human behaviour, usually taking place in private without independent evidence". And that is impossible. Or would you like to suggest legislation yourself?

No what I wanted was a clear difinition of consent. Sections 75-76 on page 5 clarify it.

Such as who? Or is this an assertion from paranoia?

Read a few of Ivor the Engineer's posts.

This is what jury trials do.

However, as has been discussed in other threads, since many people have the belief that if a person is tried they are guilty even if they get off, then by the time it goes to trial you are branded a rapist regardless of the outcome of the trial.

The best solution is one where we can make sure the ones on Trial are guilty and found so, and the innocent get exonerated before they get plastered all over the local paper as a rapist.

 

[gumboot]

What concerns me, honestly, is not the high attrition rate in rape cases, but the percentage of attrition that occurs in a court room. I am of the opinion that a case should not go to trial until the Police have a fairly robust case, and the majority of cases should end in a conviction. Crimes should be investigated before they reach the court house.

The nature of rape cases is unfortunately that there won't be many convictions. I don't think anything can actually be done about that, at least until we have some sort of legally robust mind-reading method.

Police should drop or hold cases that they cannot build strong cases for, and focus on the cases they have a good case for. This serves several positives:

1) Less rape victims will have to go through the ordeal of a trial only to have the offender walk free.
2) Less men will be dragged through court and have their lives ruined due to accusations that will never be proved.
3) Less guilty rapists will be put on trial prematurely and found not guilty, thus preventing any future evidence ever convicting them.

Another measure that should be implemented is that name suppression for both the accused and victims in sexual assault cases should be mandatory. The stigma and frenzy that surrounds sexual assault cases is brutally harmful to both innocently accused people and genuine victims, and does not serve any benefit to society. It's also a major reason many victims never come forward.

Several sexual assault cases have actually been dismissed in New Zealand because the media frenzy pre-trial was so intense the judge ruled it was impossible to build an impartial jury.

 

[PhantomWolf]

And that is the same in the UK "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."
(see post 103). Your issue is that you want the law to draw the line that divides intoxicated but capable of freely deciding from intoxicated and incapable of freely deciding. And it won't. So you make these "what if?" scenarios up to beat on the law with.

Funnily enough one of the cases you pointed to in 103 was exactly the same as the "what if" senario proposed initially, and it took through to the court of appeal and months in jail to fix the situation. This is where my position is coming from, that innocent people should be found guilty and jailed, or even just be guilty in the court of public opinion because someone regrets a drunken one night stand after the fact. Now admitly the law doesn't state that drunkeness is a reasin for consent to be invalidated, but the article about Mr Bree states that it is being considered.

What is it that you really want? I think it is a law that says: "no matter how ****faced the other person is, if you get a "yes" out of them, and if they voluntarily got ****faced, then goforit!!" Is that correct?

I find this a little rude really. You know nothing about me, but you presume to do so. For your edification, I'm not into one night stand so would never find myself in the situation anyway. I believe that sex should only be inside marriage and though I currently live with my gf and we sleep in the same bed, we aren't sexually active, mostly because of my beliefs on the matter. So what do I want. I want to make sure that cases like Mr Bree's don't keep happening, that innocent people don't end up losing months if not years in jail, their jobs and more, and have a rapist tag stuck to them for the rest of their lives because of a stupid one-night stand that then ends up being regretted and turned into a rape. I want the law to be able to define and deal with real rapists like a tonne of bricks being dropped from a very high height while the innocent accused don't have their lives ruined.

See my posts 91 and 103. You must have failed to read them. And as for it "only being the man", this does not mean it only applies to males (except for where the law mentions the penis). It applies to a person.

Perhaps you should re-read the law.

Rape:
(1) A person (A) commits an offence if—
(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,
(b) B does not consent to the penetration, and
(c) A does not reasonably believe that B consents.

It states clearly that Rape is penetration by a penis, thus under UK law only a male can be a rapist.

You might want to withdraw unspecified allegations or else quote who said this. Otherwise it can be assumed to be a lie on your part.

Try reading a few of Ivor's postings.