Is this rape?

[MinDonner]

[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 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 [b]agreement isn't always verbal[/b]. 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?[/quote]

This is true - but the same is true for disagreement, which is actually much less likely to be verbal (or explicit, even if it is verbal). "I'm very tired," for example, can mean exactly the same thing as the firm "NO!" that some people here think is necessary to establish lack-of-consent. Direct refusals are actually very rare in human conversation, but in most circumstances we all know how to interpret them; the only time there ever seems to be a problem is in situations like this.

[TrackerNeil]

So this woman gets roaring drunk alone in her flat with a man she didn't know, and is then shocked to find herself in a situation she hadn't anticipated? I wonder...at some point does this woman ask herself what she might have done differently to avoid this whole mess?

I'm not on the jury, don't know the law, and I haven't heard all the facts of the case, but really. I can't help but think the harm done here was to her pride, and not to her body or mind.

[Laron]

[quote name='Ser Scot A Ellison' post='1733941' date='Mar 26 2009, 14.23']There's no 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.[/quote]
I think we all agree that the later would be simply rape. But if the woman was actively participating (undressing him, giving oral sex), I would hesitate to call it rape.
Otherwise, would you still call it rape, when two men awake next to each other in a similar situation (assuming there are signs of sex but neither remembers anything)?
[quote name='Ser Scot A Ellison' post='1733941' date='Mar 26 2009, 14.23']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.[/quote]
How long after this night did he go to the police? If he went there straight away, his BAC might have been too high to present details properly. Of course he could be a lying scumbag rapist, but to me it looks like that will be hard to find out.

[denstorebog]

[quote]Otherwise, would you still call it rape, when two men awake next to each other in a similar situation (assuming there are signs of sex but neither remembers anything)?[/quote]

I'm pretty sure people who'd consider the scenario in question to be rape would also consider this to be rape. Why would they consider this different, as long as one of the parties feels victimized?

[Laron]

[quote name='denstorebog' post='1733962' date='Mar 26 2009, 14.43']I'm pretty sure people who'd consider the scenario in question to be rape would also consider this to be rape. Why would they consider this different, as long as one of the parties feels victimized?[/quote]
I meant to imply that both men feel at least awkward, but neither could swear who initiated what.

[Lyanna Stark]

[quote name='TrackerNeil' post='1733959' date='Mar 26 2009, 14.40']So this woman gets roaring drunk alone in her flat with a man she didn't know, and is then shocked to find herself in a situation she hadn't anticipated? I wonder...at some point does this woman ask herself what she might have done differently to avoid this whole mess?

I'm not on the jury, don't know the law, and I haven't heard all the facts of the case, but really. I can't help but think the harm done here was to her pride, and not to her body or mind.[/quote]


Um, are you really aware of what you just said? I have been getting drunk with men I didn't know as well, does that mean I deserve to get raped, or sexually abused for it? What century do we live in? Please tell me you are not serious as I used to have the highest respect for you.


[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]

It is not at all true that she was, or that she knew what she did. Lany has already pointed this out and I have as well, in a previous thread dealing with something extremely similar. In my case, Raidne labelled it "date rape", but it is not vastly different from this, really.

Also, just because she may have agreed to giving him a blowjob does not at all necessarily mean she agreed to intercourse. It also seems in doubt whether she was conscious enough to consent to anything.

[denstorebog]

[quote]I meant to imply that both men feel at least awkward, but neither could swear who initiated what.[/quote]

Then it's not really the same situation. If this was just a case of a man and a woman waking up and both feeling awkward, then there'd not be much to discuss in the first place.

[Exa Inova]

First of:
The woman ages 10 years when comparing the Mail article to the BBC link.

Second.
If, according to British law, a drunk person is incapable of giving consent, that state means that ANY sex with a drunk person is without consent and de facto rape (in a definition of rape as sex without consent). Only exception is when both involved are equally drunk.
According to this, whatever the man says (I Thought this and that) is irrelevant. The only relevant point is; was he also drunk or at least equally drunk.

In my opinion he was right going to the police only he shouldve asked for an alcohol test to determine if he was capable of giving consent.

This is how I interpreted British law based on the articles. Personally I think its flawed but thats irrelevant.

[Chaldanya]

[i]I wonder...at some point does this woman ask herself what she might have done differently to avoid this whole mess?[/i]

Do you realise how this sounds, TN? Do you realise that it sounds suspiciously akin to either "She deserved it" or "She was asking for it"?

I don't know why I come in these threads - they're always the same whether the case is cut and dried or not. We get people in here bringing up the false accusations (as this one appears to be treated as) from the victims (neglecting the mention the horribly low conviction rate for rape cases) and we get the people who just insinuate that it's somehow the victim's fault for walking in such a place, for getting drunk or for wearing such clothes.

N

[GoN]

[quote]So this woman gets roaring drunk alone in her flat with a man she didn't know, and is then shocked to find herself in a situation she hadn't anticipated? I wonder...at some point does this woman ask herself what she might have done differently to avoid this whole mess?[/quote]

Did you really just say that? Did I miss some intended sarcasm? I'm really at a loss for words here. I think we can all agree that I have a right to get 'roaring' drunk in my flat without being raped.

I guess everyone who assumes that this is not a crime should be vindicated by the numbers I posted earlier. It is very unlikely that this rape will end in conviction, like any rape accusation in the UK. Lets all rejoice I guess :unsure:

[john]

[quote name='mormont' post='1733947' date='Mar 26 2009, 14.26']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]

But disregarding his statement has the same effect as believing it, unless there is some evidence that contradicts it.

[Annelise]

Lot of alcohol involved. She was still x2 the legal driving limit when she went for the medical exam.

I was reading over the case Snake linked and it brings the general question.. if intoxication cannot be used as a defense for the accused, that is, if criminal intent is deemed possible no matter how drunk, shouldn't consent also be possible, no matter how drunk?

I realize the OP case is in the UK, while Snake's is Canadian. Is it possible to be too drunk to be held legally accountable for rape in the UK? I'm not saying it would be applicable in this case, just mulling it over generally.

[Laron]

[quote name='denstorebog' post='1733972' date='Mar 26 2009, 14.56']Then it's not really the same situation. If this was just a case of a man and a woman waking up and both feeling awkward, then there'd not be much to discuss in the first place.[/quote]
Maybe I should write more than one sentence to get my point across. I wrote "at least awkward", this could also mean that one or both feel victimized. What I was aiming at, is that the question "is it rape or not" should be decided by what happened during the night and not by the emotions of the involved people on the next morning.

[Lany Freelove Cassandra]

[quote name='TrackerNeil' post='1733959' date='Mar 26 2009, 09.40']So this woman gets roaring drunk alone in her flat with a man she didn't know, and is then shocked to find herself in a situation she hadn't anticipated? I wonder...at some point does this woman ask herself what she might have done differently to avoid this whole mess?

I'm not on the jury, don't know the law, and I haven't heard all the facts of the case, but really. I can't help but think the harm done here was to her pride, and not to her body or mind.[/quote]

And this I see as the major problem. "She shouldn't have put herself in that situation, therefore it is her fault."

That goes right back to blaming the victim.

[kungtotte]

[quote name='Lyanna Stark' post='1733970' date='Mar 26 2009, 14.54']It is not at all true that she was, or that she knew what she did.[/quote]
But we don't know the truth of this case. I also don't understand what you mean by her not knowing what she did. Do you mean to say that if she, in her drunken state, consented to sex and then regretted or did not remember it the next day it would be rape?

[quote]Also, just because she may have agreed to giving him a blowjob does not at all necessarily mean she agreed to intercourse.[/quote]
Agreed. My point is that if she was able to agree to giving him a blowjob, she is also able to disagree to have intercourse.

[quote]It also seems in doubt whether she was conscious enough to consent to anything.[/quote]
Yes. And the debate springs from the doubt. If she wasn't conscious enough to consent to anything it was clearly rape. Pretty much the whole reason for the case and the trial is to determine if she was able to give her consent.

[mormont]

[quote name='Exa Inova' post='1733975' date='Mar 26 2009, 13.59']If, according to British law, a drunk person is incapable of giving consent, that state means that ANY sex with a drunk person is without consent and de facto rape (in a definition of rape as sex without consent). Only exception is when both involved are equally drunk [....] This is how I interpreted British law based on the articles. Personally I think its flawed but thats irrelevant.[/quote]

I think your understanding is flawed. Being drunk [i]per se[/i] doesn't make you incapable of consent under British law, only being at a particular level of intoxication. I have said this before...

[quote name='john' post='1733982' date='Mar 26 2009, 14.04']But disregarding his statement has the same effect as believing it, unless there is some evidence that contradicts it.[/quote]

Sure. But Ep seemed to be citing one part of his statement as if it were an established fact that supported the later part (about consent to sex). I suspect she was confused about what's an accepted fact and what's a defence claim: that's happened a couple of times now.

[john]

[quote name='Laron' post='1733969' date='Mar 26 2009, 14.53']I meant to imply that both men feel at least awkward, but neither could swear who initiated what.[/quote]

If one of them feels victimised and was in fact victimised then, yeah, it's the same. If they feel they might have had some hand in what went down, then it isn't.

[quote name='Exa Inova' post='1733975' date='Mar 26 2009, 14.59']If, according to British law, a drunk person is incapable of giving consent, that state means that ANY sex with a drunk person is without consent and de facto rape (in a definition of rape as sex without consent). Only exception is when both involved are equally drunk.[/quote]

Very drunk, not drunk. Drunk to the point where you are physically incapable of giving consent. That rule replaced the insensibility rule because it was seen from the facts of cases that the insensibility rule wasn't good enough to reflect the meaning of rape.

[kungtotte]

[quote name='mormont' post='1733994' date='Mar 26 2009, 15.16']Sure. But Ep seemed to be citing one part of his statement as if it were an established fact that supported the later part (about consent to sex). I suspect she was confused about what's an accepted fact and what's a defence claim: that's happened a couple of times now.[/quote]
Considering that this is an on-going trial, very few things are accepted facts. That they were both intoxicated and had sex is pretty much the only things both sides agree on, which means that the rest are just claims from either side.

[Fatuous]

Enough waiting, I'll say it: The guy felt guilty enough for him call the police to report the incident while she talked with a friend of hers about it. There are other parts of her story that I find odd for someone with a blood alcohol level twice the legal limit yet still aware of her legal rights.

[quote]I'm not on the jury, don't know the law, and I haven't heard all the facts of the case, but really. I can't help but think the harm done here was to her pride, and not to her body or mind.[/quote]

I'm not accusing her as a woman of "asking for it", I'm accusing her as a lawyer of extracting revenge for their impaired judgment {Not just hers but both of them, considering how he reacted}. Doesn't anybody else think that's part of this: how can she both claim that she didn't know for certain she had sex until she was examined later in the day but still tell the guy that by the new rule of law he raped her? Oh right, by his testimony, she had asked him if they had sex and he said "yes". But she didn't report to the police until after she was examined so he gave his report of the incident while under stress and the effects of a hangover most likely while she must have had a clearer head.

[quote]Um, are you really aware of what you just said? I have been getting drunk with men I didn't know as well, does that mean I deserve to get raped, or sexually abused for it? What century do we live in? Please tell me you are not serious as I used to have the highest respect for you.[/quote]

Getting drunk with men alone in your apartment? I wouldn't call it the best of choices for anyone involved. "Deserve to get raped or sexually abused for it." Ah, presupposing guilt again.

[Annelise]

[quote name='john' post='1733996' date='Mar 26 2009, 10.17']Very drunk, not drunk. Drunk to the point where you are physically incapable of giving consent.[/quote]

I don't read that as meaning unconscious. If so, does that go the other way, do you know? That you are legally unable to rape someone because you are too drunk to understand what you're doing?