Drink and rape laws in Ireland

IrritatedMuchly

Hi, doing research at the mo. Does anyone know what rights exist for a person under the influence of alcohol in the court of law when accusing someone of rape?

The Irish Statute is clear as mud and I need an answer quite rapidly. How does the law work in favour of victims here?

Does anyone know of anyone who's been raped when drunk (or a well publicised case) or have their own estimate? Personally I think it's in the thousands if I know my Dublin guys and gals like I think I do but I'm looking for other people's opinions on this.

Yes this is a very macabre post but if Ireland had any useful websites on this non-discussed subject, I wouldn't have to use Boards.

Many thanks in advance

gandalf

Moved from Politics

IrritatedMuchly

*Sigh*

Yep, this place won't be much help either.

It was put in politics because of the amount of posts that board generates.

Nevyn

That is not the reason to post in a forum, read the charters or else you will end up banned.

I suggest that you constult the rape crisis centre ask there or a barister for a legal opinion.

Each case is judged on it's merits and circumstances.

There was a mention in a recent ruling about deminished responsibilty and persons having to take responsibilty if they drink to much.

But that is not a law or in the legal statutes about rape or sexual assult.

Why the quiery ?

Many rape cases are never officaly reported and then out of those that are many of them are never
took to court by the dept of public prosecutions due to a wide range of circumstances.
The abiltiy of the victum who is only a witness in the dpp case to give good testomeny and to stand up to cross examination esp when there is little phyiscal evidence to a tramatic physical assulat along with the rape is tantamount.

If the defense can muck sling and use the ammount of alchol consumed by the victum to lessen the dpp case they will do along with what the victum was wearing, thier behaviour and previous sexual histroy.



A person should be entitled to get plaster wearing as little as a bikini and only suffer a hangover and exposure from passing out some where;
then again we should be able to leave our frount door open and never be rob or have a stranger walk into our homes.
This does not mean either is a wise thing to do.

http://www.rcni.ie/
http://www.drcc.ie/

http://www.rcni.ie/NATSTATS.htm

is the recent stats published by the rape crisis network.

dermot_sheehan

Rape is sex without consent. If someone is too drunk to give consent, then consent is not given and it is rape.

The state has to prove that the defendent was reckless to the existence of consent. The mental element for rape is intentionally having sex and knowing or being reckless as to the lack of consent.

If the victim was intoxicated it could have a bearing on the recollection of events.

IrritatedMuchly

Thanks for the links but they were already checked and I found it doesn't give info on those who were drunk when attacked.

It's rather baffling considering the amount of binge drinking in this country. I just wanted some idea of the drink-rape connection.

England are considering changing their rape laws for those who are drunk while supposedly giving consent to sex, so the accused can still be convicted.

I was looking for cases where a drunk person failed in their case because they were inebriated.

But I guess if people aren't reporting such crimes, we won't know exactly.

So how many people are actually going around with this on their conscience??

Nevyn

Again if such stats are recorded the rape crisis network is your best bet.
They usually co operative with those doing legimate research.

TempestSabre

IrritatedMuchly wrote:

... I just wanted some idea of the drink-rape connection....

Why?

IrritatedMuchly

"Why?"

For an article.

As a woman, I'm also interested in highlighting the issue and maybe getting a campaign started for sexual awareness, particularly for girls.

I find it very frightening.

Nevyn

The lack of stay safe programs for people is pretty bad tbh.
Rape and sexual assult effects both men and women.
There should be as part of a sexual health program in secondary schools
a module on consent and how not to put yourself in a comprimised situation for both young males and females.

IrritatedMuchly

It's utterly amazing that in a country with the most binge drinking women in the world according to a new study (wouldn't dispute it at all) that we aren't aware of the rape-drink correlation too well.

I can't believe that we don't have better sex-ed, awareness programmes and organisations to tackle such problems - head on full force and effectively!

Just how many depressed people do we have in this country? Drink related or otherwise. The numbers must be shocking.

The suicide issue isn't being dealt with either.

Shambles.

kelle

gabhain7 wrote:

Rape is sex without consent. If someone is too drunk to give consent, then consent is not given and it is rape.

The state has to prove that the defendent was reckless to the existence of consent. The mental element for rape is intentionally having sex and knowing or being reckless as to the lack of consent.

If the victim was intoxicated it could have a bearing on the recollection of events.

Sorry if it sounds like I'm coming off the subject, but if drunken consent was regarded as no consent in a rape case, does that also mean that somebody who gets blind drunk, gets into a car and drives recklessly causing a fatal accident is not responsible for their actions, because they could be regarded as "reckless to the existence of knowing what they were doing"?

TempestSabre

IrritatedMuchly wrote:

"Why?"

For an article.

As a woman, I'm also interested in highlighting the issue and maybe getting a campaign started for sexual awareness, particularly for girls.

I find it very frightening.

I didn't think people were so unaware. But its a good idea if they are.

Nevyn

IrritatedMuchly wrote:

I can't believe that we don't have better sex-ed, awareness programmes and organisations to tackle such problems - head on full force and effectively!

Not liekly to happen the majority of school are on church land where church law applies and you can't teach anything on church land that goes against the churches stance on such things.

ANXIOUS

cant remember what case it was fairly recent, a rape case came before a judge and he through it out stating that "just because you were drunk doesnt mean it was rape" if that helps at all

IrritatedMuchly

I can't think of many girls (and guys) I know who take care of themselves adequately while drinking.

While most people do grow up eventually and learn their lessons, some mistakes cannot be reversed and I would love to do something constructive to prevent this somehow.

I think sex education in schools should go further than the "egg passes through the...blah blah blah" and concentrate on the full mental effects and advantages of preserving oneself adequately.

While some people may have proper parents to guide them and fall back on, alot of people don't. And I think that's where school should make up for that.

Yeah it sounds very idealistic but surely the government could be investing in doing something better than it already is?

IrritatedMuchly

Oh yes, the church. I actually forgot about that.
Hmm, the blood's boiling now. This is the same church that doesn't like Africans to use condoms??

Thanks Anxious for that. I'll sift through some papers for it.

horsesnout

IrritatedMuchly wrote:

England are considering changing their rape laws for those who are drunk while supposedly giving consent to sex, so the accused can still be convicted.

Insanity. Sorry but if it was consented it was consented, just because one party changes their mind in the morning and regrets what they did (and consented to) that does NOT make it rape.

Nevyn

In england is is a case of when some one is beyond drunk and has no idea what they are saying or is passed out.

So if you were a guy who is hetrosexual who went out and got that drunk and were taken advantage of by another guy would that be the same ?

seamus

Rape is one of those tough ones to legislate for. When it happens, it can be devastating for the life of the victim. When a false accusation is made (either intentionally or mistakenly), it's devastating for the life of the accused, regardless of the outcome of the case.

Clearly there cannot be a happy medium - people will always make mistakes. For rape, the entire scenario has to be looked at. If someone ends up too drunk, they have made that choice and to a certain extent must take responsibility for their actions. This doesn't mean that if you get robbed because you have passed out on the side of the street, that the thief isn't a criminal. However, if you meet some random guy who asks you for €200, and you oblige, you can't turn around when sober and accuse him of theft.

Inability to remember something occuring, doesn't mean it didn't happen - anyone who's ever been a little too drunk will attest to that. Convicting a person on the premise that the other party was passed out drunk has to rely on the testimony of others - witnesses who'll say how drunk someone was or wasn't.

Legislating so that people can use "I was drunk" as an excuse only opens up a whole world of inequality.

fly_agaric

Thaedydal wrote:

In england is is a case of when some one is beyond drunk and has no idea what they are saying or is passed out.

Just drunk (i.e. impaired judgement + not able to give proper consent) - not passed out with drink.
I don't think the law there has been changed yet, has it?
I'd expect it to have a large effect on casual sex + promiscuity in the UK. Laws like this should be much more effective than the church or other uptight people giving out about it:D

seamus wrote:

to a certain extent must take responsibility for their actions.

How idealistic of you!:)

Zombrex

kelle wrote:

but if drunken consent was regarded as no consent in a rape case, does that also mean that somebody who gets blind drunk, gets into a car and drives recklessly causing a fatal accident is not responsible for their actions

You don't consent to crash your car so the issue of consent is rather irrelivent to that point.

Being drunk does not remove responsibility for commiting a crime. Which is why if you rape someone who cannot give consent because they are very drunk you claiming that you were equally drunk isn't a valid excuse.

There is a difference between what you do and what you consent to have done to you.

If you are very drunk, or otherwise unable to properly consent to something being done to you the law protects you against that happening to you. If I am really drunk you can't take my wallet and go off and spend all my money just because you go "Hey, can I spend all your money?" and I mutter something along the lines of "sure" while I'm passing out on the bathroom floor. I am not in a fit possible to consent to you do that with my money, and therefore the law protects me from you doing that.

The law does not protect you against responsiblilty for things you yourself do to others when drunk.

hullaballoo

Thaedydal wrote:

In england is is a case of when some one is beyond drunk and has no idea what they are saying or is passed out.

So if you were a guy who is hetrosexual who went out and got that drunk and were taken advantage of by another guy would that be the same ?

No, if someone is passed out drunk, they can't give consent. Just like someone who is asleep cannot give consent. The law accepts that even if you have sex with your adoring wife when she is asleep, then that is rape. Obviously someone would have to make a complaint though.

However, if a girl gets drunk and has sex, then that isn't rape. And arguing that someone took advantage of your state isn't valid either.

It's like someone saying, "Ooh, I've a sore head, hulla" to which I'll reply, "that's because you keep banging it against the wall". If they continue to bang their head against the wall, they can't complain about the headache.

fly_agaric

hullaballoo wrote:

However, if a girl gets drunk and has sex, then that isn't rape. And arguing that someone took advantage of your state isn't valid either.

But it may become a valid argument under new laws in the UK...

see here for some article about it

I suppose the OP would like to see something similar introduced here.

Zombrex

horsesnout wrote:

Insanity. Sorry but if it was consented it was consented, just because one party changes their mind in the morning and regrets what they did (and consented to) that does NOT make it rape.

Obviously ... the issue is if he/she consented or not. Appearing to consent is not the same as actually consenting.

Think of it this way. If a girl is drugged by a spiked drink and then appears to be wanting to have sex with the person who drugged her, is she consenting to sex with him?

If you cannot understand what is happening to your or understand what you are agreeing to, you cannot give proper consent to something being done to you. It doesn't matter if you are in that state because you drank 15 bottles of Ritz, if you snorted a bag of coke, if you were slipped rohipnol (sp?) or if you were in a car accident.

seamus

Wicknight wrote:

Think of it this way. If a girl is drugged by a spiked drink and then appears to be wanting to have sex with the person who drugged her, is she consenting to sex with him?

And what if she made the choice of taking the same cocktail, or consented to it being administered? Her condition would be the same.

I would think that consent is inheritable - that is, if you make a choice which may affect your decision-making later on, then the "righteousness" of any later decisions inherit their value from the initial decision (provided that you are sufficiently conscious to make a decision).

That is, if the girl chooses to get wasted on whatever, and then later consents to sex, then her condition is irrelevant. By consenting/choosing to get so drunk, she chose to accept any stupid decisions she might make later on.

If the girl did not choose to get wasted (or was not given the choice), any decisions later on while inebriated are treated as "I do not consent", even if at the time she does consent.

My 2c.

dK1NG

IrritatedMuchly wrote:

Thanks for the links but they were already checked and I found it doesn't give info on those who were drunk when attacked.

It's rather baffling considering the amount of binge drinking in this country. I just wanted some idea of the drink-rape connection.

check out NUI Galway - doing research on this!

only other place with the stats ur looking for is the dpp

mountainyman

Wicknight wrote:

Obviously ... the issue is if he/she consented or not. Appearing to consent is not the same as actually consenting.

Wrong. The appearance of consent means that the mental element of the crime is absent and therefore there is no crime.

I agree that sober guys shouldn't be allowed to shag girls who are so drunk that they don't know what is going on, but even in Canada the law really means that you can't shag girls who are asleep.

One could argue that in certain cases the apparent consent was so clearly invalidated that the man should have know that she wasn't able to consent, this presupposes that the man is much more sober than the woman.

Wicknight wrote:

If you cannot understand what is happening to your or understand what you are agreeing to, you cannot give proper consent to something being done to you. It doesn't matter if you are in that state because you drank 15 bottles of Ritz, if you snorted a bag of coke,

What about the fact that people take drugs and drink precisely because these are disinhibitors? In other words women get drunk knowing that they will more easily consent to sex.

MM

Zombrex

seamus wrote:

And what if she made the choice of taking the same cocktail, or consented to it being administered? Her condition would be the same.

Thats my point

Just because someone consents, or gets themselves, into an "altered state", doesn't mean they automatically consent to anything happening after that.

A lot of people (dare I say men, and yes I am one myself), would like to think it does with relation to sex, because a lot of men like and want to have sex (of course I'm sure women do this to, not being one I can't really comment)

But if the shoe was on the other foot they wouldn't.

If your mate took your wallet and spent all your money and ran up your credit card to max, smashed out all your windows and drove your car into the river, I doubt many people would be happy leaving it at "but you said I could last night"

Did you actually want your mate maxing out your credit card, smashing out all your windows and driving your car into the river? Or did you just say something stupid while drunk because you were too drunk to understand what was happening.

Would it be perfectly fine for me to go around to drunk people in Temple Bar on a Friday night and try and ask them to sign over the deed to their houses to me? If they do that does that mean they have actually consented to give me their house?

I was in hospital a few months ago and went under for an examination. If the nurse asked for the €50 in my wallet on the desk while I was slipping under (voluintarily btw) and I said "sure" as I was about to pass out, would that have been ok?

seamus wrote:

I would think that consent is inheritable - that is, if you make a choice which may affect your decision-making later on, then the "righteousness" of any later decisions inherit their value from the initial decision (provided that you are sufficiently conscious to make a decision).

For everything, or just for sex (see above)?

Zombrex

mountainyman wrote:

Wrong. The appearance of consent means that the mental element of the crime is absent and therefore there is no crime.

That isn't true. The mental state of the perp does not alter if a crime has been committed or not, only the type of crime commited (eg murder or manslaughter)

It is still a crime for a person who is legally insane to shoot up a play ground of school children, even if he does not understand what he is doing is wrong or illegal and it isn't considered murder.

mountainyman wrote:

What about the fact that people take drugs and drink precisely because these are disinhibitors?

What about it...?

mountainyman

Wicknight wrote:

That isn't true. The mental state of the perp does not alter if a crime has been committed or not, only the type of crime commited (eg murder or manslaughter)

Rape is a crime which depends on mental state for its existence. Therefore without the mental state there is no crime of rape.
http://www.irishstatutebook.ie/ZZA10Y1981S2.html

MM

Zombrex

mountainyman wrote:

Rape is a crime which depends on mental state for its existence. Therefore without the mental state there is no crime of rape.
http://www.irishstatutebook.ie/ZZA10Y1981S2.html
MM

the ...
"or he is reckless as to whether she does or does not consent to it,"
... covers that.

Accepting the actions of a very drunk person as being consent is being reckless as to whether the person has or has not actually consented to it. It just like consent under threat, its still rape if a person consents to sex because you have said you will kill her children if she doesn't.

Simply saying "I thought she consented" isn't good enough. You have to make the judgement in a non-reckless manner considering if she (or he) actually has consented.

mountainyman

How drunk is very drunk?

MM

Zombrex

mountainyman wrote:

How drunk is very drunk?

MM

Drunk enough not to be able to give proper consent to actions done to you.

seamus

Wicknight wrote:

If your mate took your wallet and spent all your money and ran up your credit card to max, smashed out all your windows and drove your car into the river, I doubt many people would be happy leaving it at "but you said I could last night"

Did you actually want your mate maxing out your credit card, smashing out all your windows and driving your car into the river? Or did you just say something stupid while drunk because you were too drunk to understand what was happening.

He wouldn't be much of a mate, but if I specifically said, "Please max out my credit card and wreck my car", then I would feel like a bit of a fool and take my medicine. If on the other hand I said, "You may use my credit card and my car", it's a different ball game.

Would it be perfectly fine for me to go around to drunk people in Temple Bar on a Friday night and try and ask them to sign over the deed to their houses to me? If they do that does that mean they have actually consented to give me their house?

IMO, yep. Charities are well known for wandering around Temple Bar late at night, and guilting drunk people in queues into giving them money. Does this mean that these charities are effectively thieves?

I was in hospital a few months ago and went under for an examination. If the nurse asked for the €50 in my wallet on the desk while I was slipping under (voluintarily btw) and I said "sure" as I was about to pass out, would that have been ok?

That's being facetious. For the purposes of this discussion, I would consider going under medical anaesthetic as having "no choice".

For everything, or just for sex (see above)?

For everything, as you gather.

To take advantage of a stupid decision someone makes while drunk is one thing - it certainly says a lot about a person's character. If I offered my car to a mate to keep permanently, while I was hammered, then God it would be a really ****ty thing for him to do, if he kept it. It wouldn't however make what he had done illegal. I would have made the choice to get so drunk, and thus have to deal with the consequences of that choice, one of which is making a dumb decision.

mountainyman

Wicknight wrote:

Drunk enough not to be able to give proper consent to actions done to you.

Surely not that isn't what the law says.

MM

Nevyn

seamus wrote:

He wouldn't be much of a mate, but if I specifically said, "Please max out my credit card and wreck my car", then I would feel like a bit of a fool and take my medicine. If on the other hand I said, "You may use my credit card and my car", it's a different ball game.

Well what if you told him he coudl spin to the local shops in the car and he traveled to newry ?

seamus wrote:

IMO, yep. Charities are well known for wandering around Temple Bar late at night, and guilting drunk people in queues into giving them money. Does this mean that these charities are effectively thieves?

It is taking advantage of some one that is in a vonerible state and it is wrong to do so imho.

In the early days of mobile phones in this country they were given out in nite clubs and people were offered then if they signed a contract for them.
The rate and terms and conditions were absurd and I know several people who contested the contract due to the fact there were not sober at the time and won.

seamus wrote:

I would have made the choice to get so drunk, and thus have to deal with the consequences of that choice, one of which is making a dumb decision.

Yes, there has to be personal resposiblity on the behalf of the person who drinks themselves into a state ( one of the reasons i only get roaring drunk at home in a home of a friend that is a safe space); but if a person becomes incapsitated and intoxicated and not resposnible for thier behaviour then other's should not take advantage.

People need to be educated about personal responsibilty before the have a very bad experience and they also need to be informed about consent.

Unfortunatly too many people learn this the hard way due to a bad experience, which can take a very long time to get over.

We are as a socitey still ostariches about a lot things and this is one of them.

There are still people who both wake up with some one who's name they can't remember and in some cases they both don't know who the other person is and don't deal with the fall out even from a sexual health point of view.

hullaballoo

Wicknight, some of your analogies and positioning on this appear to be flawed to me. Firstly, the mental state of the "perp" always comes into crimes - it's known as te mens rea. It's particularly important in certain cases (especially rape and other serious crimes) and less important in other cases.

Someone who is legally insane has a defence against criminal liability. If they can prove insanity, then they are committed to a mental hospital. No criminal record.

Also, you're comparing a civil standard with a criminal standard by using the analogy of approaching drunk people to get them to sign over their title deeds. You can't compare civil liability to criminal liability. It's like comparing trees and lolipops.

You can't enter a contract when you're drunk, but sex isn't a contract. How can you legislate against these sorts of cases? You can't say that no one is to have sex when they're drunk. You can't prove whether or not someone was "too drunk" either, because only they know that. The whole criminal liability here revolves around whether the man honestly believes (or was reckless as to whether) there was consent.

That's a sufficient standard. If a girl is inebriated or incapacitated, and I forge ahead because I'm facing no resistance, then that is rape. However, if I'm being encouraged by the girl (who may only be saying yes because she's drunk), then how can anyone accuse me of rape?

With regard to administering rohypnol etc, that's a wholly separate issue. If someone spikes a girl's drink and then rapes her, there are two crimes - firstly, there's the administering of the drugs, and secondly there is the rape (and it is rape). The difficulty there is that rohypnol blanks memory, so in many cases, the victim won't know who did it, and may not even remember the rape itself.

Edit: I just had a glance at that article. I thought it was going to be a lawyer's article, but it's just a newspaper story. Newspaper stories don't carry any legal weight in my mind. This one is reporting on "plans" that some English government minister has.

I think the plans would be unconstitutional both here and in England (here under art 38.1). You can't allow a jury discretion to decide whether or not someone was drunk enough to know what they were doing. As an evidence issue, who's going to corroborate it? How would you weigh the evidence of the victim? If they were that drunk, then surely they aren't a reliable witness in terms of identifying the assailant.

Zombrex

hullaballoo wrote:

Wicknight, some of your analogies and positioning on this appear to be flawed to me. Firstly, the mental state of the "perp" always comes into crimes - it's known as te mens rea. It's particularly important in certain cases (especially rape and other serious crimes) and less important in other cases.

Mens rea means you cannot be found guilty of a crime unless you actual meant to commit the crime you are charged with. For example if you did not mean to kill someone you cannot be found guilty of murder.

That is not the same as saying a crime has not happened. A crime not being murder does not mean it was not a crime.

hullaballoo wrote:

Someone who is legally insane has a defence against criminal liability.

That is not the same as saying that a legally insane person cannot commit a crime. A crime is still commited, but the criminal liability of the person is effected by their mental state at the time.

hullaballoo wrote:

Also, you're comparing a civil standard with a criminal standard by using the analogy of approaching drunk people to get them to sign over their title deeds.

That analogy was in response to seamus's idea that if a person gets drunk they should accept the responsibility for anything they "consent" to happening to them while drunk. The difference between criminal and civil standards don't really come into it, but if they did I would imagine there should be even stricter protection of someone against criminal actions towards them, such as violence and rape. You should not be able to consent to having your leg cut off while drunk.

hullaballoo wrote:

You can't enter a contract when you're drunk, but sex isn't a contract.

You are not seeing the forest for the trees ... why can't you enter a contract when you are drunk? Because the expectation that you will be in sound mind to fully understand consequences of your consent is not there.

hullaballoo wrote:

However, if I'm being encouraged by the girl (who may only be saying yes because she's drunk), then how can anyone accuse me of rape?

It depends on the circumstances, for example how drunk she was and how she "gave consent" and what you mean by "encouraged"

It is far from a black and white issue, but the most things in life aren't.

I am rather bewildered though why people are falling over themselves to say that if a girl gets drunk she takes her chances. Surely the opposite applies better, that if you don't know the girl is sober, you take your chances and you cannot claim it wasn't rape since you don't know she actually gave consent or understood what was happening to her? But people don't like that because it means they don't have sex as often. Which seems to be the important bit here ...

hullaballoo wrote:

With regard to administering rohypnol etc, that's a wholly separate issue. If someone spikes a girl's drink and then rapes her, there are two crimes - firstly, there's the administering of the drugs, and secondly there is the rape (and it is rape).

The first crime is not relivent to this discussion, the second crime it. The second does not depend on the first. You don't have to be drugged to be raped

Zombrex

seamus wrote:

He wouldn't be much of a mate, but if I specifically said, "Please max out my credit card and wreck my car", then I would feel like a bit of a fool and take my medicine. If on the other hand I said, "You may use my credit card and my car", it's a different ball game.

Neither of those were what I said.

Your mate says "I'm going to max out your card and wreak your car" and you in your drunk state not understand what he was talking about said "sure what ever, leave me alone"

Have you consented, baring in mind you have no idea what he is talking about?

seamus wrote:

IMO, yep. Charities are well known for wandering around Temple Bar late at night, and guilting drunk people in queues into giving them money. Does this mean that these charities are effectively thieves?

Do they take €100 notes off drunk people at ATMs who don't understand what is happening to them? Then yes, they are "effectively thieves" ... actually drop the "effectively" bit

seamus wrote:

That's being facetious. For the purposes of this discussion, I would consider going under medical anaesthetic as having "no choice".

I'm pretty sure I had a choice to not go under anaesthetic. In fact I had to sign a lot of different papers before they continued. There are few things in life where I would have more choice...

seamus wrote:

For everything, as you gather.

Its fun though that you have either said that doesn't count (as in above) or changed around my original examples (first few points).

seamus wrote:

To take advantage of a stupid decision someone makes while drunk is one thing - it certainly says a lot about a person's character. If I offered my car to a mate to keep permanently, while I was hammered, then God it would be a really ****ty thing for him to do, if he kept it. It wouldn't however make what he had done illegal.

Actually it would. Your mate would not have legal right to your car because you agreed to give it to him while intoxicated. As hullaballoo points out you can't enter a contract while drunk. You can't sell or give your car to your mate while drunk.

The law is there to protect people while drunk simply because while drunk people make stupid decisions that they would not make when not drunk.

seamus wrote:

I would have made the choice to get so drunk, and thus have to deal with the consequences of that choice, one of which is making a dumb decision.

No offense, but I don't think you actually believe that. But I suppose without putting it to the test we will never know

mountainyman

Thaedydal wrote:

It is taking advantage of some one that is in a vonerible state and it is wrong to do so imho.

People need to be educated about personal responsibilty before the have a very bad experience and they also need to be informed about consent.

I strongly agree but the law does not. The 'rapist' will claim that he was unaware of the 'victim's' inability to consent.
How does one know that he is lying?
In these stuations the 'rapist' is usually also drunk and is also innocent until proven guilty.

MM

Zombrex

mountainyman wrote:

I strongly agree but the law does not. The 'rapist' will claim that he was unaware of the 'victim's' inability to consent.
How does one know that he is lying?

How does any one know any criminal is or is not lying?

mountainyman

Wicknight wrote:

Mens rea means you cannot be found guilty of a crime unless you actual meant to commit the crime you are charged with. For example if you did not mean to kill someone you cannot be found guilty of murder.

That is not the same as saying a crime has not happened. A crime not being murder does not mean it was not a crime.

The crime of rape is dependent on Mens Rea, you are seeking the introduction of a crime of strict liability in this regard and that is not possible.
I agree with you broadly from a moral point of view, imagine a sleazebag who wanders around until 4 AM and leeches on to drunk girls. That is wrong, but saying that is rape is inaccurate and further trivialises the crime of rape.

MM


MM

hullaballoo

I just want to clarify that I don't think taking advantage of someone is right or proper or anything less than scumbag-like stuff, but as I've said before, this is the legal discussion forum. Arguments in here are generally based on legal standards and principles, and they sometimes seem heartless.

I'm not saying the system's perfect, it's just the best we have.

Wicknight, you are coming at this from the angle of a girl who has been taken advantage of, which is fair enough. It's certainly an undesireable position to be in to discover yourself in that situation.

However, you could do well by putting yourself in the shoes of someone accused of rape. This is the pragmatic approach that the criminal justice system takes (the idea that it's better to have 10,000 guilty men walk free, than to have one innocent man thrown in gaol).

What if you're out one night, and you're wearing a distinct blue shirt with a RL logo on it. You're talking to a girl you sort of know for a while, maybe hoping that she likes you, maybe not, I don't know/care. Anyway, you decide she's had enough to drink and that you'd be better off talking to someone else.

A conniver spots that the girl is drunk, and also that he is wearing the same shirt as you are. He convinces the girl that he's you and takes her "home" and rapes her.

Now, she points the finger at you. What sort of a position are you in?

That's an extreme example, but take it back a bit so that you stay talking to her, because she doesn't seem too drunk. In fact, she appears to like you. She ends up asking you to take her home (she thinks "because I'm a bit too drunk", you think "because I'm too sexy for my shirt").

When you get back to her house, you start kissing her (still not aware that she might be too drunk) and she reciprocates (perhaps because she's not fully aware it's you, or otherwise). One thing leads to another and the next day she's screaming blue murder.

You honestly believed you were just hot stuff, but she hadn't a notion of the sort. What's your position then?

seamus

Wicknight wrote:

Neither of those were what I said.

Your mate says "I'm going to max out your card and wreak your car" and you in your drunk state not understand what he was talking about said "sure what ever, leave me alone".

Have you consented, baring in mind you have no idea what he is talking about?

You weren't specific, so what I took was an interpretation of what you said. If someone does something that you don't specifically consent to, then clearly they're in the wrong. "Sure what ever, leave me alone" isn't "Yeah, OK, what ever". Pedantic? Oh yeah.

I'm pretty sure I had a choice to not go under anaesthetic. In fact I had to sign a lot of different papers before they continued. There are few things in life where I would have more choice...

Of course you had the choice. But it's comparing apples with oranges. The only thing they have in common in the incapacitation. Except one is necessary, willing incapacitation, and the other is unnecessary, willing incapacitation. Besides that, the nurse is in a position of power and trust. I'm not going to elaborate any further.

Actually it would. Your mate would not have legal right to your car because you agreed to give it to him while intoxicated. As hullaballoo points out you can't enter a contract while drunk. You can't sell or give your car to your mate while drunk.

Sorry, everything said is in my opinion. I'm not stating any actual legal facts or situations here. I should have clarified.

Because refuting stuff line-by-line rarely gets your point across, I'm going to state my opinion here:

If you choose to get inebriated for recreational purposes, then you choose to accept all the consequences of that inebriation, so long as you are conscious to choose those consequences. Consciousness being defined as "being awake and responsive".

Stabshauptmann

What extent of drunkenness are we talking about and how clear does consent have to be?

If a girl gets really drunk, so drunk she doesnt remember everything that happened the night before.
One thing that happened is that she had sex. She undresses herself and initiates forplay but never actually said the words "lets have sex now".
Now, in the morning this is all a terrible mistake etc etc, but has she been raped?

Does it make any difference if the man is so drunk that he passes out/gets sick.

Its just that,
A)Consent between sober people quite often is simply understood without a question being directly put
B)One way of looking at that scenario above is that the woman initiated things, with a partner in an equally drunk state if not more so, I dont think it fair to always say if sex took place, her raped her.

But I know nothing of the law...

fly_agaric

hullaballoo wrote:

Edit: I just had a glance at that article. I thought it was going to be a lawyer's article, but it's just a newspaper story. Newspaper stories don't carry any legal weight in my mind. This one is reporting on "plans" that some English government minister has.

LOL. I didn't assume they did. It doesn't seem to be past being a gleam in politicians' eyes yet (based on reading such newspaper stories).
Anyways, I suppose this is what you get for posting in the "Legal Discussion" Forum when you are idly browsing these boards and a thread topic in the listing catches your attention.

hullaballoo wrote:

I think the plans would be unconstitutional both here and in England (here under art 38.1). You can't allow a jury discretion to decide whether or not someone was drunk enough to know what they were doing. As an evidence issue, who's going to corroborate it? How would you weigh the evidence of the victim? If they were that drunk, then surely they aren't a reliable witness in terms of identifying the assailant.

That's very interesting, but as you've probably gathered, completely beyond my ken. I hope it is true though.

Zombrex

seamus wrote:

Consciousness being defined as "being awake and responsive".

That assumes that one is able to understand and appreciate what they are consenting to when drunk. If everyone was (and I'm not saying no one is, or everyone is) then there would not be this issue in the first place.

All the talk about how you get into the state you are in is rather irrelivent. If you can't understand something you can't understand something, why you cannot understand it doesn't really matter.

Slightly off topic but the talk about how you get into the state you are in always reminds me of the argument that rape victims should be allowed abort their children, as if the fact that the foetus was created as part of a rape has an bearing on the question of if the foetus is or is not a legal person.

Likewise how one gets into the state they are in has no bearing on if the person can or cannot consent to something.

Zombrex

hullaballoo wrote:

Now, she points the finger at you. What sort of a position are you in?

The same position you would be in if the person had shot the girl in the leg, though I doubt the response would be "well you were drunk, what did you expect?"

hullaballoo wrote:

What's your position then?

Your position would be "did I rape her"

Was she able to understand what was happening to her and give proper consent? Or was she too drunk to actually understand what was happening to her?

Ignoring the legal side for a minute, I'm rather shocked people here (not saying you hullaballo) seem to expect the law to protect a mans (or womans) right to have drunken sex without having to worry about if the other person consents or not? I was not aware such a right existed.

If a girl is drunk, drunk enough that she seems to be out of it, and I press ahead anyway I should take the responsibility if I make a mistake and do something to her that she actually did not understand or appreciate. If I don't want to do that I should not press a head. I don't have any god given right to have sex

hullaballoo

At what point did anyone say any of this had anything to do with morals? This is the legal discussion forum, if you want a discussion on morals, leaving aside the legal issues, then go to humanities.

I'm not trying to be harsh or anything, nor am I trying to dissuade you from posting here. Your comments are just as valid as anyone else's. I'm just providing the counter-argument and pointing out that posts in this forum will generally reflect a clinical analysis of the law as it stands rather than how it should be.

The heated debates that happen in here aren't to do with right or wrong in a moral sense, they're more to do with whether or not an action is barred by statute.

You are right in that if a girl isn't consenting, or there's any doubt about it, you shouldn't go ahead. How are men supposed to know though? Especially if they're also drunk? How do you weigh up whether someone is encouraging you to have sex with them because they're drunk, but they don't really want to against them being really attracted to you, albeit slightly without inhibition due to drink?

Wicknight wrote:

The same position you would be in if the person had shot the girl in the leg, though I doubt the response would be "well you were drunk, what did you expect?"

I'm between two minds as to whether I should include this last part because this issue seems to be going around in circles, and I don't want to entertain that sort of stifling activity. However, your response indicates that you don't understand the point I'm trying to make. Understand that I'm not attacking you, or anyone else, and read my post again.

I'm just giving as clear an analysis as I can. I rarely inject any sort of emotion into my posts at all, so it may seem as if my curtness is a bit abrasive, but it isn't supposed to be.

My point here is that you could be blamed for something that happens without your intention to commit a crime. Now, if it's something like stealing an apple, you'll pay the fine and not worry about mens rea. But if it's rape (i.e. a conviction that will destroy your entire life), you'll think twice before just giving up and saying, "oh, she wasn't consenting? I must have raped her then, yes".

I mean, thankfully, we don't live in a system as draconian as that which would throw every man who was accused of a crime in gaol summarily, without trial, without deliberation, without evidence and without appeal. Maybe it will take a false accusation against your person, Wicknight, before the injustice of such a system will get through to you.

Gobán Saor

Kaptain Redeye wrote:

What extent of drunkenness are we talking about and how clear does consent have to be?

This is a matter of fact for the jury to consider in the light of all the specific circumstances of the case. Obviously there is a continuum of states of drunkenness from slightly merry to unconscious. Slightly merry - not a problem. Unconscious drunk - big problem. But where precisely between these two states does consent become impossible. Seems to me the line is drawn when the person "consenting" to sex is so impaired they don't realise they are about to have sexual intercourse. Then it becomes rape. On the other hand, even if someone is so drunk they don't know where they are or the name of the person they're with but still engages in kissing, undressing, foreplay and ultimately intercourse, that seems like consent to me. Unwise, perhaps, for all sorts of reasons, but not rape.

Kaptain Redeye wrote:

If a girl gets really drunk, so drunk she doesnt remember everything that happened the night before.
One thing that happened is that she had sex. She undresses herself and initiates forplay but never actually said the words "lets have sex now".
Now, in the morning this is all a terrible mistake etc etc, but has she been raped?

No. There's no need to have uttered any particular formula of words of consent. Undressing and initiating foreplay is almost certainly consent.

Kaptain Redeye wrote:

Does it make any difference if the man is so drunk that he passes out/gets sick.

If it would otherwise be rape because there was a lack of consent, then the jury would have to consider whether the man knew or was reckless as to consent. His drunken state might be relevant here in terms of capacity to know.