Hmmmm. And what about this man, who is in fear of false allegation, and who voluntarily has sex with a woman he knows to be drunk? I am rather sick of these people who get themselves in utterly stupid situations by behaving irresponsibly and then expect everyone else to fix it for them.
I'd suggest that any sober male who truly "is in fear of false allegation" but "voluntarily has sex with a woman he knows to be drunk" is an idiot. That's like someone who is scared of heights climbing up an old, rickety ladder.
Cases are tried when the prosecutors believe there is a better than 50% probability of conviction. That is a majority (ex-ante).
To be honest, taking a case to court when there is only a 50-50 chance is dumb, if you lose and then more evidence turns up, you're screwed, you can't retry it. Surely it's better to wait till you have a 75-80% chance of conviction than to go early and hope for the best.
I don't understand this at all. They are. And by the same token, they should not be tried (e.g. by police or solicitors) before they reach a court house.
I think what
Gumboot was trying to say is that the Police should investigate the matter to a point where they convinced that the evidence shows that the crime was committed and that the person charged is guilty beyond reasonable doubt. That means that when it goes to trial, the jury should also see that the evidence proves guilt beyond reasonable doubt. We shouldn't be saying "Well we're think there's a 51% chance he's guilty, but let's let a jury sort it out."
The system is doing a rape victim no "favour" by refusing to try a case because it won't succeed. So I would not describe it as a "positive" to say "We are not pursuing your case, sorry" relative to "We tried but failed".
While I have to admit I have been in neither person's shoes, I'd suspect that while it'd still be devastating to have the police say "Look we believe you, but we know that there isn't enough evidence to convict if we go to trial right now, but we'll keep looking at your case and try to get there," it'd be way better than having the person you know did it get off scott free and loudly proclaim you as a liar to the world simply because there wasn't enough evidence but the police went forward with the case anyway. Having said that, the victim should have a say, if the police inform them that they don't believe proceeding at the current time would be advisable, but the victims says they want to, then do it, then if the case fails, the victim can only blame themselves.
There are some valid reasons for defendant anonymity but there are much stronger ones for identity to be made known which are a vital benefit to society. Open justice pretty much requires it. If people are convicted by the state (or tried then acquitted) and you never find out who they are, that is a route to police-state secrecy and "disappearances". It is the standard for identities to be disclosed, as it is for witnesses too. But sexual offences, (and offences involving children) are a special case where anonymity for the complainant is brought back in. Contrary to what you say, rape reports would undoubtedly plummet if this was abolished.
I doubt they would plummet if name suppression were kept. I think that in this sort of case where the defendant is pretty much considered by the public as guilty even if found not guilty, that name suppression should apply until a guilty verdict is given, then they can release the name publicly.
As I said--I do see the reason for defendant anonymity, and it is also stronger than for crimes less abhorrent to society. But notwithstanding that there are much more powerful reasons IMO for no anonmity, once a person has been charged of a criminal offence by the state.
The only reason I can see for giving the name is other victims might come forward with complaints, but if the system we want to see has 95% or more of victims coming forward anyway, that would likely remove this need too
No that was not what I was doing. I asked what law you wanted and suggested one. That is not a comment about your own preferences nor was it a question about them. Sorry you took it that way--it was not meant.
Fair enough. Want I want from the law is a something that is consistent so people know exactly where they stand. I sort of hate the idea of a BAC level for consent like we do for driving, but at least with that sort of measure people would know where they were, otherwise we have everything from Ivor who seems to stand at any drinking = not able to consent, to the ruthless members of society who think that if they get a mummer out of an unconscious drunk that means it good to go. The answer has to be somewhere between the two and while it might be like nailing jello to the wall, until it is done a lot of lives are going to keep getting screwed up.
Yes this is fairly representative of a viewpoint I frequently hear from men. I guess we have gone over and over it a lot on these threads and all I can really say again is that I find it very odd and (depressingly) unhelpful. It swerves back to the idea that rape is the kind of super-aggressive uber-crime that is at once obvious and crying out for venal retribution, and that the more run of the mill incidents should all be re-defined away as silly mistakes*.
*This is not a comment on R v Bree, and I know your post was. I am not attributing the above viewpoint to you even though I used your quote.
I'm glad you put the disclaimer in because this isn't what I was getting at, at all. When I say "a silly one night stand that is then regretted" I'm not talking about the man regretting it, but the woman (or really I should say the alleged victim because I guess though rare it could go the other way too.)
I know you hate scenarios but try to follow with it. Imagine a guy and a girl out on the town, clubbing, drinking. They meet up, get on well and end up going back to her place where they do a lot of fondling and finally leapt into bed, all with apparent consent on both sides.
Now the next morning, after he's gone, she starts to feel a bit regretful, maybe she has a boyfriend off in Iraq or somewhere, she rings a friend.
"Oh I did something really stupid last night, I went clubbing and got drunk and brought a guy home, I don't know what I was thinking, and now I feel really awful."
How hard is it to go from there to the friend convincing her that because she was drunk it was rape?
Apparently not very hard because it happens. Yet from the guy's POV everything that happened was totally consensual. This is what I am talking about when I say "stupid one-night stands."
What I am not talking about is the drunk guy that finds a girl passed out in the hallway, gets her to her feet and the nearest bed and has his way with her, that's rape quite pure and simply, even if in the morning he regrets it and thinks it was a "silly mistake." I'm meaning where there is clear and obvious consent, even when it's drunk consent.
Rape is not always a "violent" crime. This is important too. It is because the stereotypical image of rape is a violent one involving brutal physical force, that so much "non violent" rape is in danger of being viewed as non-serious, and avoidable if only the victim behaved differently. "Non violent rape" is still a gross and abhorrent violation of another person and a crime of the utmost seriousness.
Going to have to disagree because personally I think that a violation of another person even if it doesn't involve injury or force, is still a form of violence.
No. The "honest belief" provision is in process of being abolished here for very good reason. But that is a bit beside the point I was making, actually.
I do not think it is a question of degree. I think that the prudent thing to do is not to sleep with anyone who is not a regular partner if they have been drinking. I see absolutely no reason why these men should wish to put themselves at risk like that when they are so fearful of allegations: and in fact I see no reason for doing it even if they are not fearful. Just as with driving over the limit, it is no excuse to say you could not tell you were over: you only had 2 pints. Why is this a difficult idea? Though there is an objective measure in the breathalyser for drink driving most people do not actually use a breathalyser in deciding whether and how much to drink if they are driving: sensible folk don't do it at all. How is this different?
Because it's a total reverse of social norms. Most people that "hook up" have been out socialising and being out socialising mean they've been drinking. Essentially what you propose turns every single case of a one night stand into a rape.
