Is this rape?

[Seventh Pup]

[quote name='Xray the Enforcer' post='1733861' date='Mar 26 2009, 04.42']Not a straw man at all. If a woman consents to give you a hand job, it does [b]not[/b] mean that you automatically have a right to stick your penis in her vagina. No, she must consent to that act as well (and lack of a NO does [b]not[/b] mean consent). Why is this so hard to understand?[/quote]

If a woman lets her virtue slip, then she loses all right to avail herself of the masuline hunger her wanton ways have unleashed.Consent does not need to be asked for, it can be implied because she must really want it. After all the only time you give head, or a hand job is when you want it. :bang:

[Guest Raidne]

I agree with the judge:

[quote]But he added: '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.'[/quote]

IMO, if you're not passed out, you probably remain capable of choosing whether or not to have intercourse. From the facts here, as presented, it looks like she was capable of choosing. From the facts presented here, she was an equal participant. If the facts turn out to be otherwise, than I might change my opinion.

OTOH, if you're in bed with a person who's barely conscious, you verbally ask them if they want to have sex, and they basically blurt out a "sure" but give no other response whatsoever and just lie there, then I think you really could be charged with rape even though oral consent was officially given. That's a scenario where the person was not capable of choosing.

It's helpful in this case that the parties at least seem to agree on the facts as that is not often the case.

I'd guess that the charges will be dropped or that he will be acquitted. I don't [i]really[/i] have a problem with the fact that he was initially charged, and I think the change in the law is an important one, and the facts need to be sorted out. But I would have a problem if he were found guilty under the facts presented here.

Kung - the accused is not alleging that he was too intoxicated to consent, so there's no basis for a rape charge with him as the victim. If he [i]did[/i] so allege, than, yes, there would be a basis for that charge based on the oral sex that occurred. In both cases, I believe the other sexual acts that occurred would be admissible as evidence and would go to the jury so they could evaluate what those acts meant regarding the intent of the parties.

[Ser Scot A Ellison]

Mormont,

[quote name='mormont' post='1733794' date='Mar 26 2009, 05.02']As for the whole 'poor guy' attitude: his version of events doesn't do him much credit, frankly. "I thought she was giving me the come-on." That's a direct quote. Can someone explain the difference between that and 'she was asking for it'? The [url="http://news.bbc.co.uk/1/hi/england/kent/7964085.stm"]BBC[/url] version also differs from the linked report: in the above version, the defence lawyer claims she helped him to undress her, but the BBC reports the police interview in which the accused says that [i]he[/i] undressed her and she 'did not stop him'. That's a world of difference. And this was after she had got into bed fully clothed, which doesn't support the idea that she was intending to have sex with him.[/quote]

I agree the different accounts of the alleged rape make all the difference. That said, given that this is "he said" v. "she said" isn't it going to be very hard to get a conviction? That is assuming the standard of proof in the UK is the same as in the U.S. "Beyond a reasonable doubt."

[Guest Raidne]

Yeah, agreed, from the BBC account of the facts it [i]is[/i] possible, IMO, that a rape occurred. In that version, she doesn't seem capable of choosing whether or not to have sex, and there are no actions in that version that indicate that she intended to choose to have sex.

I guess there are some factual disputes after all.

[Lany Freelove Cassandra]

[quote name='kungtotte' post='1733875' date='Mar 26 2009, 07.57']Are you really saying that both parties must secure an unequivocal consent from each other before engaging in any form of sexualal behaviour [i]even immediately following a consentual sexual act[/i]?[/quote]

YES! Just because I allowed the guy to suck my breast did not mean he had the right to have sex with me.

When I was first in the army, I had a drinking problem (largely due to not being able to handle relationships with men because of being raped at 16). So I am drinking with a guy in his room (in the barracks we had to drink in rooms, not public areas. I get a pretty drunk and try to leave. He stops me. Parts are a bit fuzzy, but I KNOW I wanted to leave and I KNOW I didn't want to have sex, but my next memory is of having sex with him.

In 1984 no one would have called this rape, or if they did they would have said it was my fault for being in his room and drinking with him, just like my rape at 16 was my fault because I went into a room with the guy and even took off my bra.

Read both reports, not just the one from the Mail. The BBC one Mormont linked where the guy is telling his story is actually very disturbing.

[Black Dow]

[quote name='mormont' post='1733794' date='Mar 26 2009, 05.02']I'd disagree. It's rape, as the article says, if the person cannot physically say 'yes'. And that's the case here.

It also appears from the article that she didn't report it to police - he did. He went to the station to ask what his legal position was. The police arrested him, presumably by way of an answer.

As for the whole 'poor guy' attitude: his version of events doesn't do him much credit, frankly. "I thought she was giving me the come-on." That's a direct quote. Can someone explain the difference between that and 'she was asking for it'? The [url="http://news.bbc.co.uk/1/hi/england/kent/7964085.stm"]BBC[/url] version also differs from the linked report: in the above version, the defence lawyer claims she helped him to undress her, but the BBC reports the police interview in which the accused says that [i]he[/i] undressed her and she 'did not stop him'. That's a world of difference. And this was after she had got into bed fully clothed, which doesn't support the idea that she was intending to have sex with him.

I know that many of the women on this board have been in situations which are fairly similar to this, though I don't know of any that ended in an actual rape, as this did. The fact is that there are guys out there who are willing to persuade themselves that a very drunk woman really wants to have sex with him, when in fact she may be barely aware of his presence.

Also, let's not cast this as a 'battle of the sexes' thing. The law puts the onus on [i]both[/i] men [i]and[/i] women to be sure that their partner has consented. Had she taken advantage of him in exactly the same manner, the same thing would have happened.[/quote]

When you say, ''and that's the case here'', you are making a big assumption. It's not 'AND that's the case here'; it should be, 'IF that's the case here'.

It's possible that she was incapable of saying yes.

It's possible that she was capable of saying yes, but, having woken from a blackout, assumes that she wasn't in a position to say yes or that she wouldn't have said yes under the circumstances.

Or, it's possible that she's just flat-out lying.

It's hard to know exactly what happened, many times, in this type of case, or in any type of case, for that matter, even after sitting through an entire trial. Much less to, after reading a newspaper article.

BTW- ''she was asking for it'' is a pretty pitiful defense if the accused is trying to justify his conduct by arguing that short skirts or walking home alone at dark equates to an invitation. It's not necessarily a pitiful defense if it's to be taken literally. If she WAS asking for it, literally, well, then that's a hell of a consent defense.

[Balefont]

[quote name='ldygrffn' post='1733696' date='Mar 26 2009, 01.23']where is the friend who invited the guy over? wouldn't she be in a decent position to clear up some of the details?

that said, if this was totally non-consentual, then it should be treated as rape. but if he was invited over, drank as much as her, and misread her co-operation, then it is much gray, much. though again, where is the friend?[/quote]

This is what I'm still wondering. What happened to the "friend" that left the two to get it on?

[Guest Raidne]

[quote name='Black Dow' post='1733904' date='Mar 26 2009, 08.29']It's possible that she was incapable of saying yes.

It's possible that she was capable of saying yes, but, having woken from a blackout, assumes that she wasn't in a position to say yes or that she wouldn't have said yes under the circumstances.

Or, it's possible that she's just flat-out lying.

It's hard to know exactly what happened, many times, in this type of case, or in any type of case, for that matter, even after sitting through an entire trial. Much less to, after reading a newspaper article.[/quote]

Well, it is probative that it's [i]his[/i] version that tends to make it look the most like a rape, by which I mean the version he gave at the police station. Seems like his lawyer has been at him since then.

Funny, because it seems if he hadn't gone to the police station and made those statements before lawyering up, he might not have even been charged since she doesn't remember what happened at all and there has to be [i]some[/i] evidence other than her lack of memory to support a charge, much less a conviction.

[Ser Scot A Ellison]

Raidne's absolutely right the fact that he's changed his story since getting a lawyer looks very bad for him. Changing the story is probative and will hurt him at trial.

[kungtotte]

[quote name='mormont' post='1733881' date='Mar 26 2009, 13.03']Well, I found that precedent and it is quite relevant to kungtotte's remark.

[url="http://www.guardian.co.uk/world/2005/apr/28/2"]http://www.guardian.co.uk/world/2005/apr/28/2[/url]

Of course, in the case being discussed in this thread there is nothing but the defence's cross-examination to suggest that the woman performed oral sex at all, let alone any suggestion that the man was legally incapable of consenting to it. But I hope we can at least put to bed the straw man that, had that happened, no court would ever regard it as rape.[/quote]
Do you agree that being asleep is quite different from being very drunk and conscious? If the woman in this case had passed out there wouldn't be any doubt that it was rape, under the "cannot consent"-law.

[quote name='Seventh Pup' post='1733886' date='Mar 26 2009, 13.08']If a woman lets her virtue slip, then she loses all right to avail herself of the masuline hunger her wanton ways have unleashed.Consent does not need to be asked for, it can be implied because she must really want it. After all the only time you give head, or a hand job is when you want it. :bang:[/quote]
I don't know if you're trying to put these words into my mouth or into someone elses, but I'm pissed off just the same. Rape is horrible and not saying no is not the same as giving consent, but you cannot have it both ways. If she was cognisant enough to willingly perform oral sex on him she would have been cognisant enough to say no to vaginal intercourse. I guess you, MinDonner and Xray could be arguing that she was not cognisant at all during any of this in which case I would agree that it was rape.

[quote name='Lany Cassandra' post='1733903' date='Mar 26 2009, 13.28']YES! Just because I allowed the guy to suck my breast did not mean he had the right to have sex with me.[/quote]
I am not claiming that anybody has a right to anything. I am just protesting the notion that you cannot ever progress from oral sex to intercourse without express consent, unless you want to be called a rapist.

I also don't think the situation you describe is similar to this case, because attempting to leave the room is a pretty unequivocal expression of your unwillingness to have sex with this person so there was no question that you did not consent. The 'she was asking for it'-"defense" makes me sick to my stomach, but given what we "know" about this particular case I don't think we can tell one way or the other regarding consent.

[Black Dow]

[quote name='Ser Scot A Ellison' post='1733922' date='Mar 26 2009, 08.48']Raidne's absolutely right the fact that he's changed his story since getting a lawyer looks very bad for him. Changing the story is probative and will hurt him at trial.[/quote]

Am I missing something here? Not seeing where exactly he changed his story. A newspaper article is just going to summarize what he allegedly told the police, anyway, not give a full printout of his entire statement.

Now, he'd really be fucked if he had initially told the police, 'no, we never had sex'. And, then, upon being told by the police of physical evidence confirming sex, 'ok. Well, we did have sex. But it was consensual'.

[mormont]

[quote name='Raidne' post='1733889' date='Mar 26 2009, 12.14']IMO, if you're not passed out, you probably remain capable of choosing whether or not to have intercourse.[/quote]

Well, whether you agree with it or not, judges in the UK* have been given guidance specifically saying that 'as a matter of fact' it is possible to be conscious but legally incapable of consent, although it is rare, and judges must bear this in mind in cases of this type. I'm not actually sure that whether the accused was actually conscious is established as a fact, though. Clearly he says she was, she says she can't remember.

*there are two different legal systems in the UK, but similar guidance has been issued in each on this issue.

ETA - I think this answers kungtotte's question too, actually, which is that it is possible to be in a state where you are 'conscious', or at least awake, but for that to be effectively the same as asleep for the purposes of giving consent. Again, you might not agree but the UK legal system recognises this as an established fact.

[john]

[quote name='Ran' post='1733816' date='Mar 26 2009, 11.22']Surely the real problem is that the fellow may have been too drunk to consent as well, and so they've both raped one another? It seems they went through a few glasses + two more bottles of wine.[/quote]

A woman can't rape a man in England. She can be charged with a sexual assault which carries the same fixed penalty but you'd have to prove she inserted the penis herself. Allowing it is not an assault.

It seems clear that this will come down to facts. The law's straightforward (although not tested much). You rape a drunk person if you have sex with them when they are impaired beyond a reasonable level. You have a defence if you thought the victim wasn't impaired beyond that reasonable level, but only if the belief is also reasonable.

If there's nothing else to go on but the stuff reported here, and given the victim can't remember anything, then it comes down to whether a jury finds the guys statement convincing. This area of law is totally messed up.

[Eponine]

I see "she was asking for it" as being a different statement than "she was giving me the come-on" in this situation, insofar as they were already engaging in sexual activity and he believed her behavior to be requesting a continuation of the sexual activity that she had already allegedly consented to.

I know we've had this discussion before, and that both parties are responsible for asking at each step if the other person wants to go further, but agreement isn't always verbal. If you're already in the heat of things and the other person is making strong physical indication that they want to continue, are they giving agreement?

[Ser Scot A Ellison]

BD,

[quote name='Black Dow' post='1733929' date='Mar 26 2009, 09.01']Am I missing something here? Not seeing where exactly he changed his story. A newspaper article is just going to summarize what he allegedly told the police, anyway, not give a full printout of his entire statement.

Now, he'd really be fucked if he had initially told the police, 'no, we never had sex'. And, then, upon being told by the police of physical evidence confirming sex, 'ok. Well, we did have sex. But it was consensual'.[/quote]

According to the BBC report Mormont linked he told the police they got drunk and [i]he[/i] undressed [i]her[/i]. In the story his lawyer is telling [i]she[/i] undressed [i]him[/i]. If he told the police one thing and is now saying something different the question becomes, "which story is a lie" and hurts his credibility. Further, it raises the specter that he's not just fudging the truth but changing the story to make himself look less guilty.

[snake]

[quote]This area of law is totally messed up.[/quote]

It does seem to be. It reminds of the case in Quebec about 10 years ago where a guy got acquited of rape because he was too drunk to know what he was doing.

I found a [url="http://en.wikipedia.org/wiki/R._v._Daviault"]link.[/url]

[Laron]

[quote name='Ser Scot A Ellison' post='1733934' date='Mar 26 2009, 14.10']According to the BBC report Mormont linked he told the police they got drunk and [i]he[/i] undressed [i]her[/i]. In the story his lawyer is telling [i]she[/i] undressed [i]him[/i]. If he told the police one thing and is now saying something different the question becomes, "which story is a lie" and hurts his credibility. Further, it raises the specter that he's not just fudging the truth but changing the story to make himself look less guilty.[/quote]

Um, there is no contradiction between "He undressed her" and "She undressed him".

[Ser Scot A Ellison]

Laron,

[quote name='Laron' post='1733939' date='Mar 26 2009, 09.19']Um, there is no contradiction between "He undressed her" and "She undressed him".[/quote]

There's no direct contradiction but if the issue is her willing participation in sexual intercourse her undressing him looks like implied consent. Him undressing her could be him undressing a semi-comatose person. Further, it's a different story from what he told the police initially. I would think that if he's worried about a rape charge he would be very clear to the officers that she was undressing him for the reason's I state above.

[mormont]

[quote name='Eponine' post='1733932' date='Mar 26 2009, 13.06']I see "she was asking for it" as being a different statement than "she was giving me the come-on" in this situation, insofar as they were already engaging in sexual activity[/quote]

But, as I have pointed out before, we have only his word for this. The alleged earlier sexual activity has the same status as his whole claim of her giving consent.

[quote name='Laron' post='1733939' date='Mar 26 2009, 13.19']Um, there is no contradiction between "He undressed her" and "She undressed him".[/quote]

Scot got this slightly mixed up. The defence lawyer version is 'she helped him to undress her'. The police statement version is 'he undressed her and she didn't stop him'. These are contradictory, or at least not wholly consistent.

[Arlingzen Bill]

The moral of the story is never have sex with a person after you or they have drank anything. That or get a signed and witnessed consent form. (Of course the consent form can be invalidated by a change of mind)

Back in the late ninties when I was a substitute teacher I had to teach 8th grade Health class for over a quarter of the year. That was an interesting experience. We actually discussed this type of case with the classes. I told them the best assumption was that after one sip of alcohol the woman cannot give consent. I also told them that consent can be withdrawn at any point, including during the act. I opened eyes with the explanation of a sexual history tree.