Is this rape?

[Ran]

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.

[mormont]

[quote name='Barry the Bobbit Worm' post='1733814' date='Mar 26 2009, 10.18']That is a big statement. Way to give him a fair go.[/quote]

I should have said 'alleged rape', my bad. But then, other people in the thread have apparently concluded that he's innocent... which is also a pretty big statement.

[quote name='Ran' post='1733816' date='Mar 26 2009, 10.22']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]

But in his version of events, he's saying "she gave me the come-on". If he's capable of judging that, by his own account, it would be hard to also claim to be incapable of giving (or assessing) consent.

So far as I can see, on the accounts of the two people present it isn't disputed that she was considerably more drunk than he was.

[Chaldanya]

Oh this will end so, so well.

N

[Goldaline]

Wow, that seems an awfully balanced article for the Mail... Most of the tabloids are putting plenty of emphasis on the word "alleged" and pointedly writing "victim" in inverted commas.

[buy one get one free]

Either you are responsible for your actions while voluntarily being under the influence of alcohol or drugs, or you're not.

If this is rape (assuming the woman was not passed out at the time, and that would be kinda hard to do while giving a blow job (presumably)), then all DUI laws should be eradicated from the books.

"Well, yah, I had his dick in my mouth, but I was [i]drunk[/i] so I couldn't possibly be responsible for him thinking I wanted to have intercourse,"

is no different than

"Well, yah, I turned the ignition key and was was steering and accelerating, but I was [i]drunk[/i], so I couldn't possibly be responsible for hitting that person and killing them."

[mormont]

bogof: well, you're right up to a point. However, this is not about doing something while drunk, but someone doing things [i]to you[/i] while you were too drunk to say 'no'. The only suggestion that the woman was an active participant, so far as I can see, comes from the defence lawyer when cross-examining her.

[MinDonner]

[quote name='buy one get one free' post='1733823' date='Mar 26 2009, 10.35']Either you are responsible for your actions while voluntarily being under the influence of alcohol or drugs, or you're not.

If this is rape (assuming the woman was not passed out at the time, and that would be kinda hard to do while giving a blow job (presumably)), then all DUI laws should be eradicated from the books.

"Well, yah, I had his dick in my mouth, but I was [i]drunk[/i] so I couldn't possibly be responsible for him thinking I wanted to have intercourse,"

is no different than

"Well, yah, I turned the ignition key and was was steering and accelerating, but I was [i]drunk[/i], so I couldn't possibly be responsible for hitting that person and killing them."[/quote]

I knew I should have stayed out of this thread.

How can the victim be responsible for something that was [i]done to her[/i]? Did she rape herself? Maybe we can put the responsibility where it belongs, the bloke saying "Well, yah, I didn't bother asking if she wanted to have sex with me, but I was [i]drunk[/i] so I couldn't possibly be responsible for where I put my dick?"

Oh wait, everyone already thinks it was her fault anyway, so he doesn't need to start making excuses.

[kungtotte]

[quote name='MinDonner' post='1733815' date='Mar 26 2009, 11.20']Why all this assumption that "consenting" is the default state until someone says No? If you were browsing round a car showroom one evening, and woke up with a hangover to find a rusty old banger parked outside and £3000 missing from your bank account, you'd rightly assume that you'd been taken advantage of by the car salesman. It's not always the "no" that makes it rape, often it's the lack of "yes". You wonder why the rape conviction rates are so low? Take a good look at all the attitudes in this thread. :tantrum:[/quote]
[i]If what the article says is true[/i], your analogy fails. According to the article, the woman helped the man undress her and performed oral sex on him before they had intercourse. In what universe should the man interpret that as she is unwilling and/or unable to give consent?

To modify your analogy to fit the situation as described by the article, it's more like getting smashed and then going to a car showroom with a cheque for £3000, and then finding a rusty old banger parked outside when you woke up the next morning. Surely you didn't want that rusty old banger, but alcohol impaired your judgment to the point where you went and got it anyway.

I am not saying the man is without guilt in this situation, but people are responsible for their own actions. She got hammered and, according to the article, had sex with this man voluntarily. The man got drunk and took advantage of a (presumably) drunker woman. A douchy thing to do certainly, but rape?

[quote name='mormont' post='1733824' date='Mar 26 2009, 11.42']The only suggestion that the woman was an active participant, so far as I can see, comes from the defence lawyer when cross-examining her.[/quote]
And this automatically qualifies the statement as false?

[buy one get one free]

[quote name='mormont' post='1733824' date='Mar 26 2009, 06.42']bogof: well, you're right up to a point. However, this is not about doing something while drunk, but someone doing things [i]to you[/i] while you were too drunk to say 'no'. The only suggestion that the woman was an active participant, so far as I can see, comes from the defence lawyer when cross-examining her.[/quote]


[quote name='MinDonner' post='1733825' date='Mar 26 2009, 06.43']I knew I should have stayed out of this thread.

How can the victim be responsible for something that was [i]done to her[/i]? Did she rape herself? Maybe we can put the responsibility where it belongs, the bloke saying "Well, yah, I didn't bother asking if she wanted to have sex with me, but I was [i]drunk[/i] so I couldn't possibly be responsible for where I put my dick?"

Oh wait, everyone already thinks it was her fault anyway, so he doesn't need to start making excuses.[/quote]

Mormont and Min,

Again, I am presuming she participated because of the statement of her performing a sexual act on him. If that is true, then she [i]was[/i] doing something, much if she were driving.

If she is saying she doesn't remember [i]anything[/i], and it is a he-said/she-said scenerio, obviously it becomes a much harder case to try. I think trying to pin down the motivation of the dude voluntarily going to the police would help, in this case.

[Ran]

Maybe she's the one who didn't bother to check his BA level before engaging in intercourse?

Seriously, I'm trying to figure out why the onus is necessarily on him in this particular case. If they were both drinking, then by law neither was able to give consent, right? Why is it that just because he has a penis and just because he can remember what was going on, he's the person on the hook?

I can understand the purpose of this law, but it seems to me it casts way too wide a net.

[MinDonner]

But: performing one sexual act does NOT mean that she consented to all possible sexual acts. Nobody (I hope) would suggest that, say, giving someone a hand-job was an invitation for them to tie you up and piss on you, so why the assumption that blow job=consent to intercourse?

[quote name='Ran' post='1733830' date='Mar 26 2009, 10.56']Maybe she's the one who didn't bother to check his BA level before engaging in intercourse?

Seriously, I'm trying to figure out why the onus is necessarily on him in this particular case. If they were both drinking, then by law neither was able to give consent, right? Why is it that just because he has a penis and just because he can remember what was going on, he's the person on the hook?

I can understand the purpose of this law, but it seems to me it casts way too wide a net.[/quote]

Ran: probably because he's not denying that he consented. If HE had been the one to wake up and be appalled that he'd had unwanted sex, then she'd be the one on the hook. That doesn't seem too hard a concept to me.

[Altherion]

[quote name='mormont' post='1733794' date='Mar 26 2009, 10.02']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]
Let's not take political correctness to the point of absurdity. The onus you speak of is very clearly on men: had she taken advantage of him in exactly the same manner, no court or jury in any Western nation would have even thought of calling that rape (not of the man, anyway -- she might still have the same argument she has now, which is that they were both very drunk and had sex).

[kungtotte]

[quote name='MinDonner' post='1733831' date='Mar 26 2009, 11.57']But: performing one sexual act does NOT mean that she consented to all possible sexual acts. Nobody (I hope) would suggest that, say, giving someone a hand-job was an invitation for them to tie you up and piss on you, so why the assumption that blow job=consent to intercourse?[/quote]
Ah yes, the strawman. Because we all know that blowjobs are the gateway to hardcore BDSM and golden showers, amirite? I always thought [url="http://www.youtube.com/watch?v=Q-gu6s0eGOk"]kontraband's sexual contract[/url] sketch was this extreme parody, but reading your posts makes it seem like less of a parody and more of a good idea to safeguard against any rape allegations.

[buy one get one free]

[quote name='MinDonner' post='1733831' date='Mar 26 2009, 06.57']But: performing one sexual act does NOT mean that she consented to all possible sexual acts. Nobody (I hope) would suggest that, say, giving someone a hand-job was an invitation for them to tie you up and piss on you, so why the assumption that blow job=consent to intercourse?[/quote]


Of course it doesn't, but if you are a willing participant in one sexual act and don't say 'no' to the next one, then that implies consent. If the only reason she didn't say 'no' is because she had passed out after 'performing a sexual act' on the guy, then she would have a case. Unfortunately, if she's saying she doesn't remember a thing, the only person who knows the truth of that is the guy. So that's where a jury has to decide his credibility.

[MinDonner]

[quote name='kungtotte' post='1733837' date='Mar 26 2009, 11.09']Ah yes, the strawman. Because we all know that blowjobs are the gateway to hardcore BDSM and golden showers, amirite? I always thought [url="http://www.youtube.com/watch?v=Q-gu6s0eGOk"]kontraband's sexual contract[/url] sketch was this extreme parody, but reading your posts makes it seem like less of a parody and more of a good idea to safeguard against any rape allegations.[/quote]

Yeah, damn those allegations, they're a much more serious matter than, yanno, actual rape, which everyone knows is a great subject for comedy. :rolleyes:

Why is this a strawman? Bondage and golden showers are both acceptable sexual practices, as long as both parties agree to them, so why should the consent assumptions be any different for regular sex?

Not so long ago there was a case in Australia (IIRC) where a guy on a stag night got a dildo shoved up his arse by a stripper, without his consent. He (quite rightly) filed for sexual abuse, though I'm not sure how the case went. Now, he was drunk, he'd agreed to let the stripper take his pants off and put the dildo near his arsehole... but does that actually mean he'd (by default) consented to a buggering?

[sio]

Yes, the guy was clearly able to consent - but we only know this from his own statements. He could just as easily have claimed that he didn't remember anything and was unable to consent, and that the woman was therefore the rapist.

The way I see it, the only evidence of rape here is the woman's claim of being unable to consent - and since when does an accusation imply guilt?

[Xray the Enforcer]

[quote name='kungtotte' post='1733837' date='Mar 26 2009, 07.09']Ah yes, the strawman.[/quote]

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?

[mormont]

[quote name='buy one get one free' post='1733828' date='Mar 26 2009, 10.53']Mormont and Min,

Again, I am presuming she participated because of the statement of her performing a sexual act on him. If that is true, then she [i]was[/i] doing something, much if she were driving.[/quote]

Yes, but that's from the defence lawyer's cross-examination - which doesn't make it necessarily untrue, but does make it partisan and possibly unreliable. The same cross-examination, after all, alleges that she actively undressed herself, which contradicts the police statement given by the accused.

[quote]I think trying to pin down the motivation of the dude voluntarily going to the police would help, in this case.[/quote]

Apparently, she told him he could be charged with rape and he went to the police to report what happened in order to see if this was true. Not the brightest move ever.

[quote name='Ran' post='1733830' date='Mar 26 2009, 10.56']Seriously, I'm trying to figure out why the onus is necessarily on him in this particular case. If they were both drinking, then by law neither was able to give consent, right?[/quote]

No, wrong, I'm afraid. The test is not whether alcohol had been taken (that [i]would[/i] be ridiculous) but whether either or both parties' judgment was impaired by alcohol to the extent that they could not give consent.

As I said above, there appears to be no suggestion at all that the accused was in or even near this state. By relying on the defence that he thought the sex was consensual, he has pretty much foregone the defence that he was incapable of giving consent himself, and indeed probably also the defence that he was incapable of judging consent.

[quote]Why is it that just because he has a penis and just because he can remember what was going on, he's the person on the hook?[/quote]

His penis is irrelevant, and that's a straw man, as I've said. The reverse situation would have been prosecuted too - indeed it has been. (I need to go google the details of the precedent, but I don't have time just now.)

That he can remember what happened is not conclusive proof that he was capable of giving consent or assessing consent from his partner, but it's pretty suggestive. Cases where both parties are admitted to be incapable are not prosecuted, of course. But in this case, as I say, there is no suggestion [i]even from the defence[/i] that the defendant was incapable. Which makes sense: as I said above, it's kind of hard to say 'I thought the sex was consensual' and also maintain that you weren't legally capable. The judge would effectively have to rule that you were much drunker than you claim to have been. Possible but unlikely.

[quote]I can understand the purpose of this law, but it seems to me it casts way too wide a net.[/quote]

I don't think it does. The test, as I said, is not just about 'being drunk'. It's more complex and tougher than that.

It's also the case that without laws like this, you can legally have sex with someone by deliberately rendering them incapable of giving consent. Now, that to me sounds like rape. I think most people would agree, but would like to make sure that there was some defence where both parties were genuinely incapable and that there is a standard for judging incapability that is more than 'I'd had a few'. What they don't seem to realise is that these things are already true.

[kungtotte]

[quote name='Xray the Enforcer' post='1733861' date='Mar 26 2009, 12.42']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]
It [i]is[/i] a strawman because S&M and piss-sex is nowhere near normative sexual behaviour. Drinks -> oral sex -> vaginal intercourse isn't exactly an uncommon sequence of events and while you and MinDonner are right on the surface of things (a blow job doesn't mean consent to vaginal intercourse) you are both misrepresenting the case as we know it from the article. Are you really saying that both parties must secure an unequivocal consent from each other before engaging in any form of sexual behaviour [i]even immediately following a consentual sexual act[/i]?

If that's really the case I posit that [i]she[/i] raped him first by sucking his dick, and that she should stand trial for it.

[mormont]

[quote name='kungtotte' post='1733875' date='Mar 26 2009, 11.57']If that's really the case I posit that [i]she[/i] raped him first by sucking his dick, and that she should stand trial for it.[/quote]

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.