A few Q's on sexual consent legislation.

Treora

I understand that the most recent sexual protection legislation is designed to protect women from date rape drugs by requiring full consent. Today this comes in the form of spiking a drink with stronger drink. This good legislation appears to have unanticipated side-effects.

1st case/question: After drunk sex The women wakes and regrets or forgets giving consent, claims lack of consent and thus rape. Is this legally viable?

2nd case/question. Full sexual consent requires that a woman has to be at the same level of consent as that of signing a contract or driving a car. So - knowing that husbands can be prosecuted of raping their wives - if a women has sex with her husband after having a glass of wine, has he raped her?

3rd case/question. Women in their late 30's who have not found a partner sometimes have one night stands in order to get pregnant without the knowledge of the man involved. What if a woman found a man whom she had chosen to father her child, but he was reluctant to have sex with her. She manages to have him to walk her home - after a work night out - and rewarded him with a night cap (sleeping pill and viagra included). She then manages conception - physically possible even in his state. The following morning she goes to the gardaí and claims rape, so as the biological father can have no involvement with the child's up bringing. She then bears the child and he ends up on rape charges? On the surface it appears that she has raped him, but as legally women cannot rape men, has he technically raped her?

I understand that it is difficult to prove rape and sympathise with the victims' cause. And I also acknowledge that the DPP rarely successfully uses this legislation. But that does not take away from the gaping flaws in the legislation.

Reku

Well as to the first example if I'm not mistaken a judge recently ruled against a woman in such circumstances, saying that women who go out with the full intent of getting completely and utterly legless drunk know full well when they set out to get drunk the risk of doing something they will later regret and so if while drunk they consent to the act they cannot necessarily claim it was rape when they had the full intent of getting drunk knowing that this was a risk.
Which I'd have to agree with, afterall if they are involved in a traffic accident you don't blame the other person since this person was clearly drunk and so you shouldn't have been on the road at the same time as them, instead you blame them as, even though at the time of choosing to drive their judgement was impaired, they knew full well when they set out to get drunk what could happen.

As for the second one I wouldn't be surprised if people sign contracts after a glass of wine either with their lunch or to celebrate the closing of the deal.#

The 3rd one is a horrific example which I hope never actually happens. It's because of people like in the first and 3rd examples that all rape charges need to be kept in a skeptical mindset, if these didn't happen then I imagine far more people (male or female, damn the technicallities!) who have been raped would come forward as depressing as it may sound I think there may be more victims out there than we think. People making false accusations like this hurts those who genuinely have suffered and damages peoples' faith in the legal system. Personally I wish they'd put a little general clause in the law such that should you intentionally make an irroneous charge against someone and they be found to be innocent, if it can be shown that you knew full well the accusation was false you would then recieve a sentence equal to what they would've gotten had your accusation held up in court.

Thirdfox

Isn't it perjury if you lie in court? So if they gave evidence that s/he raped someone then they can be prosecuted under contempt of court or perjury?

Women can sexually assault men though... can get up to 15 years.

Hagar

Treora wrote:

I understand that the most recent sexual protection legislation is designed to protect women from date rape drugs by requiring full consent.

Is this correct? Surely in this day and age legislation is passed to protect a person not specifically a woman? I thought we had gone beyond treating men and women differently in the eyes of the law?
In the PI Forum in the last few days there is a thread from a male poster who believes he may have been the victim of date rape so the situation is not so improbable after all.

NUTLEY BOY

Ahem... There is a difference between knowingly lying on oath which is perjury and saying something that is factually incorrect or deemed to be wrong due to a defect of recollection.

Thirdfox

Look at the post... s/he said "...if it can be shown that you knew full well the accusation was false you would then recieve a sentence equal to what they would've gotten had your accusation held up in court."

...sounds like perjury to me...

Bottle_of_Smoke

2nd case/question. Full sexual consent requires that a woman has to be at the same level of consent as that of signing a contract or driving a car. So - knowing that husbands can be prosecuted of raping their wives - if a women has sex with her husband after having a glass of wine, has he raped her?

I knew this was the case in some states in the US but never heard it was brought in over here??? Can someone clarify???

What if they're just stoned? Serious question, Ville Valo(singer in a band I was at) pointed out at their first gig here pointed out that if he sparked up a spliff(pure cannibis presumedly) he'd get a fine of E150, light a cigarette & that gets hime a E3000 fine. Of course he could have been wrong about cannibis laws & I don't know them either . . .

So once again clarity needed!

hullaballoo

I reckon that second question would be better off in its own thread.

Personally, I haven't heard anything about the new legislation, but I think the law at present in relation to rape is as good as it gets.

Eru

The bottom line is a person must be capable of giving consent to give consent, the absence of a no is not consent. If your unconscience then no consent. if you cannot speak no consent however merely being drunk isnt enough. Wasnt the man drunk as well? Rape cases are always complicated and its because of the difficulty in prosecuting that we must be careful.

FYI, date rape drugs are extremely rare in Ireland and there is yet to be a proven case of drink spiking here. Its merely a method used by people of both sexes to A, make out they can handle more drink than they can and B, escape personal responsibility. of course this is majority, I will not make a claim that spiking has never happened. Just that ist never been proven to have happened.

As for sexual assault on a man, not in the context of fathering a child. Look up the 2 definitions of rape and sexual assault. In particular look up a Section 2 rape as its commonly known (the one that can be against a man or woman) in short a man cannot have sex unless aroused. No woman can force arousal unless feeding him viagra which was not a factor when this law was created.

I dont think a case of viagra man rape by a woman has happened yet but druging someone is a seperate crime anyway.

Treora

Karlitosway1978 wrote:

The bottom line is a person must be capable of giving consent to give consent, the absence of a no is not consent.

Not necessarily. A person does not have to say yes to give consent. However they do have to indicate a lack of consent if they were in a situation in which consent would normally be assumed, say: lets get a cab back to your place, pour me another...

Karlitosway1978 wrote:

FYI, date rape drugs are extremely rare in Ireland and there is yet to be a proven case of drink spiking here.

There is no way of knowing how common they are as there are no statistics on them. Most people would not know if their drink had been spiked as they would have no experience of it before. Only if so much of the drug in question was used as to cause a change in the person that s/he would be in no doubt that s/he had been drugged.

Karlitosway1978 wrote:

As for sexual assault on a man, not in the context of fathering a child. Look up the 2 definitions of rape and sexual assault. In particular look up a Section 2 rape as its commonly known (the one that can be against a man or woman) in short a man cannot have sex unless aroused.

Precedence through UK & US courts (which is valid here if there is no counter precedence in the Irish courts) has shown that male erection is an involuntary hormonal reflex akin to PMS.

Karlitosway1978 wrote:

I dont think a case of viagra man rape by a woman has happened yet but druging someone is a seperate crime anyway.

Crime is based on intent as well as action. Hence attempted murder. This last case would be attempted rape + what ever the appropriate drugging offence would be.

As for everyones' comments on sexual bias regarding rape legislation. Practice of this law, along with family law, is severly skewed in favour of women due to the fact that the judical mind's eye perceives that women are mostly affected by this crime. Laws only come about due to lobbying and the latest laws were due to lobbying by female protection interest groups.

Reku

Thirdfox wrote:

Look at the post... s/he said "...if it can be shown that you knew full well the accusation was false you would then recieve a sentence equal to what they would've gotten had your accusation held up in court."

...sounds like perjury to me...

Yes but the problem with perjury is that the sentence tends to be pitiful compared to the sentence which could've resulted for the other party had it not been uncovered. There should be a minimum sentence set just so people aren't tempted for trials over smaller crimes, after which the sentence will be the exact match of the maximum possible sentence which the defendent may have received due to your attempt at perjury.

As for the need for the guy to be aroused for rape, does this men if a guy is not aroused he can't be the victim of rape by another guy, or even by a woman with a dildo (although legally the latter isn't rape due to poor wording of the law)?

Eru

farohar wrote:

As for the need for the guy to be aroused for rape, does this men if a guy is not aroused he can't be the victim of rape by another guy, or even by a woman with a dildo (although legally the latter isn't rape due to poor wording of the law)?

Are you a trained solicitor? Look up the wording of Section 2 rape. It specifically states anal rape by a hand manipulated device. Thats clearly a woman raping a man with a dildo. If you didnt know that then I question your knowledge in this field.

Treora wrote:

Not necessarily. A person does not have to say yes to give consent. However they do have to indicate a lack of consent if they were in a situation in which consent would normally be assumed, say: lets get a cab back to your place, pour me another.

A person muste be CAPABLE of giving consent. If you are too drunk to know whats happening that is not consent. If you can suggest going home then clearly you are capable of consent. You are wrong in stating a person must indicate a lack of consent. This implies that a person drugged or unconscience is giving consent because they have not indicated a lack of consent. Is this your stance????

Treora wrote:

There is no way of knowing how common they are as there are no statistics on them. Most people would not know if their drink had been spiked as they would have no experience of it before. Only if so much of the drug in question was used as to cause a change in the person that s/he would be in no doubt that s/he had been drugged.

My very point is that people dont know the actual effects of date rape drugs. I do know the effects through training as does the men in DFB that assist me when a drunk on O'Connell Street is crying "I have been spiked", peoples run to it as an excuse to hide the fact they got hammered. The Gardai also have statistics on rape and there has never been a case of a date rape drug being found in a victims system. Thats the statistic.

Treora wrote:

Precedence through UK & US courts (which is valid here if there is no counter precedence in the Irish courts) has shown that male erection is an involuntary hormonal reflex akin to PMS.

US courts cannot be used in the Irish courts, they have different laws and justice system. Thats like stating we can use Japanese laws or Muslim case law. UK precedence have been used in court here but more recently not as case law merely as an indicator in a matter. If the defence brought a UK precedence into a hearing then it would still need to go before the high court and become stated in Irish case law in modern times.

Treora wrote:

Crime is based on intent as well as action. Hence attempted murder. This last case would be attempted rape + what ever the appropriate drugging offence would be.

With respect you are wrong here. The mens rea is not enough on its own. You require some form of actus reus. With attempted anything you have a failed attempt at actually commiting the offence. Planning the crime would not be an offence unless specifically written into law such as hiring a hitman. Merely thinking it is not a crime. For an example:
A, man goes to a playground and picks up a 14 year old with the sole intent of having underage sex. He then discovers that she is in fact 18.
B, A man meets an 18 year old in a night club and goes home with ther. She turns out to be 14.

B has actus reus without mens rea but A has the opposite. Who has commited the crime? (There are many cases of this). personally I am apposed to this interpretation of the law as I feel it is not reasonable to check someones ID in a bar which is restricted to adults only but I dont make the law.

Treora wrote:

As for everyones' comments on sexual bias regarding rape legislation. Practice of this law, along with family law, is severly skewed in favour of women due to the fact that the judical mind's eye perceives that women are mostly affected by this crime. Laws only come about due to lobbying and the latest laws were due to lobbying by female protection interest groups.

I completely agree with this statement. Even the Section 2 rape was introduced with women in mind and not men. Its just luck it covers men. As for family law, that needs a drastic shake up.

Reku

Karlitosway1978 wrote:

Are you a trained solicitor? Look up the wording of Section 2 rape. It specifically states anal rape by a hand manipulated device. Thats clearly a woman raping a man with a dildo. If you didnt know that then I question your knowledge in this field.

Nope, and I doubt many of the posters on these boards are trained solicitors, most seem to be law students. But anyway I could've sworn the original quote which spawned these debates on the sexist nature of the rape laws said that for it to be rape via the anus it had to be penile penetration and not a dildo, dildo based rape only applies for vaginal penetration.

Here you go:
http://www.boards.ie/vbulletin/showpost.php?p=50926753&postcount=14

Thirdfox wrote:

Rape (under s.4) can only be committed with a penis in the mouth or anus or an object in the vagina therefore technically a woman can rape a woman (using some kind of handheld object - use your imagination!) but a woman cannot rape a man... relevant provision included below:

(1) In this Act "rape under section 4" means a sexual assault that includes—

( a ) penetration (however slight) of the anus or mouth by the penis, or

( b ) penetration (however slight) of the vagina by any object held or manipulated by another person.

(2) A person guilty of rape under section 4 shall be liable on conviction on indictment to imprisonment for life.

(3) Rape under section 4 shall be a felony.


But in a gang rape a woman can still be prosecuted if acting with common design (can't remember what case this came up in).

It seems that the worst women can do to men is sexual assault (up to 5 years imprisonment) or perhaps aggravated sexual assault (up to life)... highly inconceivable that it'll happen though...

Thirdfox

Beat me to it! :eek:

I couldn't find a section 2 rape... just section 4... section 2 of the CRIMINAL LAW (RAPE) (AMENDMENT) ACT, 1990 deals with sexual assualt, which carries a maximum of 5 years imprisonment.

BTW I am a law student

Charlie

I'm not sure if this has been stated already (so many large post), but the issue of consent in cases of rape is based on whehther the accused honestly believed consent was present. The belief dosen't have to be reasonable, just honest. However, if it is clear that the accused couldn't have honestly believed that consent was present, i.e the women reapeatdly said stop, then the court will find him guilty.

Also a law student myself, with crimianl law being one of the more intereing areas (thats right, i'm talking about you land law:D )

Treora

Treora wrote:

Not necessarily. A person does not have to say yes to give consent. However they do have to indicate a lack of consent if they were in a situation in which consent would normally be assumed, say: lets get a cab back to your place, pour me another.

Karlitosway1978 wrote:

A person muste be CAPABLE of giving consent. If you are too drunk to know whats happening that is not consent.

I believe you misinterpreted what I wrote. If a person is "too drunk to know whats happening" then it is not a situation in which consent would normally be assumed. The limits of drunkenness versus capacity to give consent is up to a judge or jury based on the evidence.

Karlitosway1978 wrote:

My very point is that people dont know the actual effects of date rape drugs. I do know the effects through training as does the men in DFB that assist me when a drunk on O'Connell Street is crying "I have been spiked", peoples run to it as an excuse to hide the fact they got hammered. The Gardai also have statistics on rape and there has never been a case of a date rape drug being found in a victims system. Thats the statistic.

Dropping a shot of absinthe (or even vodka) in a cocktail - with darker motives - when the victim was expecting less alcohol is in the UK seen as spiking. Although Ireland has not picked up on this by the time the next population bulge hits 18 (13 years time) it will be tested. As for statistics, how many actual rapes are reported? Be truthful now. And as for date rape drugs not being found, well that is down to a) the drugs being beyond basic pharmacological testing , not unreasonable b) lack of reporting c) lack of realisation on the part of the victim that they had been drugged. b) and c) are just signs of devious perpetrators

Karlitosway1978 wrote:

US courts cannot be used in the Irish courts, they have different laws and justice system.

They can and have. It is up to the judge in session to judge the relevance of the precedence. Albeit, it mostly happens with civil suits where a company exists in Ireland and the US and has lost/won a similar case there.

Karlitosway1978 wrote:

With respect you are wrong here. The mens rea is not enough on its own. You require some form of actus reus.

Actus reus can come in verbal form. If a person starts shouting, with a high level of conviction, on a main street that s/he will kill someone nearby and the Gardaí know that the shouter to have a criminally violent pass, but not involving the intended victim, then the DPP can bring the case on grounds that what the person shouted is the actus reus. Actus reus is subjective to the judge and overlaps mens rea. Arguing what is the actus reus is how barristers make their money and distinguishes them in their trade.

Eru

Treora wrote:

I believe you misinterpreted what I wrote. If a person is "too drunk to know whats happening" then it is not a situation in which consent would normally be assumed. The limits of drunkenness versus capacity to give consent is up to a judge or jury based on the evidence.

Yes, I think we are on the same page with this now.

Treora wrote:

Dropping a shot of absinthe (or even vodka) in a cocktail - with darker motives - when the victim was expecting less alcohol is in the UK seen as spiking. Although Ireland has not picked up on this by the time the next population bulge hits 18 (13 years time) it will be tested. As for statistics, how many actual rapes are reported? Be truthful now. And as for date rape drugs not being found, well that is down to a) the drugs being beyond basic pharmacological testing , not unreasonable b) lack of reporting c) lack of realisation on the part of the victim that they had been drugged. b) and c) are just signs of devious perpetrator.

Granted, but we cannot speak about or estimate the ins and outs of unreported cases. We may as well discuss religious beliefs. Based on reported cases there has only ever been 1 case of spiking (Rohypnol) and that was in Northern Ireland. The Republic has not recorded such an act. Of course if you want to include alcohol then I would suggest many a man has spiked a woman and many a woman has been spiked by simple virtue of having their glass topped up or a double vodka instead of a single. Again, that allows too much scope into the discussion and cannot, in my opinion be called spiking. Shady and unsavoury yes but not spiking.

Treora wrote:

They can and have. It is up to the judge in session to judge the relevance of the precedence. Albeit, it mostly happens with civil suits where a company exists in Ireland and the US and has lost/won a similar case there..

OK then, Im discussing criminal law and this is a criminal case subject so I dont think your point really has any reason to be in this thread.

Treora wrote:

Actus reus can come in verbal form. If a person starts shouting, with a high level of conviction, on a main street that s/he will kill someone nearby and the Gardaí know that the shouter to have a criminally violent pass, but not involving the intended victim, then the DPP can bring the case on grounds that what the person shouted is the actus reus. Actus reus is subjective to the judge and overlaps mens rea. Arguing what is the actus reus is how barristers make their money and distinguishes them in their trade.

Of course shouting threats can be the actus reus, but under Section 2 Non fatal offences against the person Act 1997 or Section 6, Criminal justice (public order) Act 1994. Please show how this has any bearing on a rape case or even this subject? Again, I see no reason for your final comment. Actus reus is a physical act (verbal can be a physical act) mens rea is the intent, a purely mental action. They are seperate and unique. Shouting a threat is not mens rea, in fact it is only actus reus.

Thirdfox wrote:

Beat me to it! :eek:

I couldn't find a section 2 rape... just section 4... section 2 of the CRIMINAL LAW (RAPE) (AMENDMENT) ACT, 1990 deals with sexual assualt, which carries a maximum of 5 years imprisonment.

BTW I am a law student

How could you not find it? Type "section 2 rape" into google under Ireland only and you get the result from statute.ie.

You are correct, section 2 rape is under amendment act. Section 2 deals with sexual assault but within the definition of sexual assault is the word RAPE. Therefore rape is an offence under section 2 (amendment) Act 1990. Thus the common name section 2 rape and not section 4 rape which is an older offence.

As for the what rape includes: "extending the definition of rape to encompass any non-consensual sexual penetration of the vagina, anus or mouth of a person by the penis of another person or of the vagina or anus of a person by an inanimate object held or manipulated by another person." There is no mention of sexuality or gender.

From rape crisis center: "Rape is defined as unlawful sexual intercourse with a woman or man, who at the time of intercourse did not consent to it, where the rapist knows that the victim does not consent and is reckless as to whether the victim consents or not. Sexual assault occurs if a person is forced to participate in a sexual act without his/her consent. (It may include rape or other forms of sexual assault.)"

the_syco

Karlitosway1978 wrote:

FYI, date rape drugs are extremely rare in Ireland and there is yet to be a proven case of drink spiking here.

Rare, and near impossible to prove, as most drugs don't last very long in your system. If you came into the police station 6 hours after you consumed a date rape drug, and got a test done there and then, maybe the drug would show up, but any later, and I'm not sure if the drug would still be in the system.

I can't find any info to back up my claim, as it proberly won't be held in the public domain on which drugs dissappear from your system the quickest.