Drink and rape laws in Ireland

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.

Gobán Saor

hullaballoo wrote:

The law accepts that even if you have sex with your adoring wife when she is asleep, then that is rape.

Well, not necessarily. A sleeping partner might well like waking up to find sexual activity being initiated.;) Works both ways, too:D

hullaballoo

Well I did qualify it by saying that someone would have to report it.

Zombrex

hullaballoo wrote:

How are men supposed to know though? Especially if they're also drunk?

I understand that you wish to keep the issue to the legal side of the discussion hullaballoo, and I apprecate that, so I will try and keep my answers within legal frame work.

Both as far as I know, from both a legal and moral frame work "how are men supposed to know" is an irrelivent argument. The law does not protect ignorance, though it can effect sentencing, or deciding what type of crime has been commited. Claiming that you did not know you were over the drink driving limit will not get you off. Claiming that you did not understand that the bank accidently paid you €100,000 interest instead of €100 interest does not mean you get off spending the money in Spain.

Legally in a rape trial the jury has to decide not only if the man believed the woman was consenting to the sexual intercourse, and also if there was reasonable grounds for said belief. That is the important bit. A man simply believing he has consent to "push on" as it were it not enough on its own to say that a rape did not happen.

One of the biggest problems with determining if a rape happened is that society does not have a unifed view towards sex and sexual intercourse, and as such it is very hard to not bring peoples hang ups into the argument. It is sad, though not really surprising, that the argument that a woman is asking for it still pops up in this day and age (again hullaballoo this comment, and the previous comment, are not directed at you).

hullaballoo wrote:

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?

You have to judge the situation, just like everything in life.

But of course there is always the "when in doubt don't do it" argument. But that doesn't get very far with most people as a valid argument because people want to have drunken sex.

There was a time when it was considered very inapproprate to have sex with a drunk woman, even if she appeared to want it. This idea has large gone out of fashion, mainly because it was seen as rather patrionising to the woman (little girl can't decide if she wants sex or not, that kinda thing). But there is still an argument that if you don't know for sure don't do it in the first place.

Bringing it back to the legal side I apprecate that it is very hard, almost impossible, for a jury or judge to determine what actually happened between two people, and the mental state of each of them at the time. But there is a difference between it being hard to tell if a crime took place for sure, and saying a crime didn't take place. Everyone is innocent until proven guilty, but that doesn't mean they actually are innocent. If a girl cannot remember what happened to her the night before that means it might be impossible to show she was raped, but it doesn't mean she wasn't raped. Some here (again not you) seem to believe that for a rape to take place the man has to know he is raping the girl. That isn't true, if it was half the sex offenders would be out of prision as a large percentage of sex offenders, espeically paedophiles do not believe they are doing anything wrong and that the victim wants them to do what they are doing.

hullaballoo wrote:

However, your response indicates that you don't understand the point I'm trying to make.

I don't understand the point you are making, I just don't think it is particularly valid. As I said there is no right to have sex that needs protecting here.

You do of course need to make sure that a defendent has the ability to defend himself against false claims of rape.

There are two issues here, that are actually rather seperate. One is if the woman was raped but the man did not understand that he was doing it. The other is if the woman was not raped but she, for what ever reason, makes a false accusation of rape against the man.

My concern is that some are getting the two confused. It is not a valid argument, legally or morally, to say that if a man has sex with a woman who does not consent but he does not understand he is raping her then a rape has not taken place. A rape has still taken place. You can judge the criminal liability of the man as a seperate issue, but it doesn't change the fact that a rape has taken place.

The arguments being put forward here seem to want to be protecting the man in this instance, rather than the second instance. The law should say that the woman got drunk the man was also drunk, therefore this is not a rape, as the law needs to protect that man from himself and doing something criminal, never mind the woman who put herself in the drunken state she ended up in.

Really, in my view, the law should be trying to protect only the second instance, where the woman does consent, the man consents, they both understand what is happening and have sex and later the woman turns around and says actually I didn't consent.

These are actually two different issues. One is protecting someone from a false claim, the other is protecting someone from criminal prosecution for something he did not understand was wrong.

As with everything things get quite muddy when you come to discuss them. There seems to be a large growing resentment in society (mostly male, but also females as well for some reason) and the tabloid press that recongising the first instance in law will allow women in the second instance to take much greater advantage. And because there is a stigma that goes with a rape allagation people seem to feel that it should not be allowed to even get that that stage.

As I said before a lot of this seems to be to do with the hang ups people (everyone, myself included) have over sex. Everyone has some hangup over sex, it is something everyone does, and as such we are very concerned over the "that could be me" factor.

Its quite easy for people to say if you rob a bank you should go to prision for a long time, or if you fire a gun off and hit someone you should go to prision. Most of us don't, or would never, do that. When it comes to issues like rape, or also things like car accidents, it gets peoples backs up more, because we do do that. We have probably all sleep with a girl (or man) who was quite drunk. We have probably all talked on our mobile phone in the car, or over tooken when we shouldn't have. We don't like the idea of saying that "it was rape" when we hear of a guy sleeping with a girl he met in a night club because that could be us. We don't like the idea of putting a man away for 6 years because he ran into a school bus while talking on his mobile phone because that could be us.

I think most men when they hear about a drunk "rape" story the first thing they think is there is absolutely nothing stopping that girl I slept with last Friday night turning around and also saying I raped her And we panick and we go ah crap and we want something stopping that girl we slept with last night being able to turn around and say that she was raped. We want to protect ourselves from someone who might make a claim against us.

The problem was i see it is that the issue of if the claim is actually valid or not kinda gets shoved to the side lines. Maybe we actually did have sex without consent with that girl last friday? We don't like to think of it that way, because we don't like to think we did something wrong. And by the natural process of tansference, we sub-consciously come out in support of the guy who had the original claim made about him. He didn't rape that girl because we didn't rape that girl last friday.

I am saying "we" through all this because I've done this just as much as anyone.

Again getting back to the legal side of the matter, the law states that

It is hereby declared that if at a trial for a rape offence the jury has to consider whether a man believed that a woman was consenting to sexual intercourse, the presence or absence of reasonable grounds for such a belief is a matter to which the jury is to have regard, in conjunction with any other relevant matters, in considering whether he so believed.

The issue you yourself brought up is how do you prove or disprove that someone had reasonable grounds to believe someone was consenting? This is not defined in law, so it is really left up to society to decide.

If someone jumps on top of you and starts ripping your clothes off they are probably consenting to sex. What if they are drunk. I would still say yes, they are consenting.

What if they are lying on the bed and you jump on top of them. You kiss them, they kiss you back. Is that consent? You start having sex, they keep kissing you? Is that consent?

The law states that consent will not be assumed just because someone does not fight back or tell the person to stop

any failure or omission by that person to offer resistance to the act does not of itself constitute consent to the act.

You would be surprised by how many people actually don't agree with that law, who say that unless a woman actually says "no" or tries to fight the person off, consent has been given to continue for anything.

I would be happy if every man made a conscious effort to actually figure out if sex is approprate before continuing. The only reason I see that someone wouldn't do that, beyond them just not thinking about it which is probably the case in the majority, is that the person is worried that the other person will say no, or that they will actually be too drunk.

Given the option between airing on the side of caution, and have sex, its not hard to see where most people will fall.

hullaballoo wrote:

My point here is that you could be blamed for something that happens without your intention to commit a crime.

But hullaballoo that happens all the time. No one who drinks and drives means to slam their car into a school bus and kill 5 children. Saying "I had no idea I was over the limit" is not an excuse and it certainly won't get you off. You are expected to know if you are or not over the limit. It is your responsibility to know.

In the case of drink driving people are required, by law, to know how much they are drinking, and to make sure they do not go over the legal limit.

The only objection I can see to saying that a man (or woman, rape in irish law is defined as a male offense, but a woman can sexual assault a man) must know with in reasonable grounds if a woman is able to properly consent to sex or not have sex, is that it ruins a lot of peoples fun.

hullaballoo wrote:

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.

What is with people here and the over the top examples :rolleyes:

I don't recall anyone ever suggesting that, least of all me. I don't even recall ever suggesting that you just take the word of the girl over the man.

hullaballoo wrote:

Maybe it will take a false accusation against your person, Wicknight, before the injustice of such a system will get through to you.

Considering the estimates put the number of rape convictions at 1%-2% of reported rapes (and it is estimated that only 1 in 3 of rapes are reported to the police) I don't think it is quite approprate to be playing the "injustice" card here Hullaballoo.

haz

I think this acquittal from November 2005 was the case most immediately influencing the drive to educate UK men to obtain meaningful consent before sex. The names, details and statistics are a useful intro and will help in any further Googling.

http://www.guardian.co.uk/crime/article/0,2763,1650457,00.html

fly_agaric

Wicknight wrote:

As with everything things get quite muddy when you come to discuss them. There seems to be a large growing resentment in society (mostly male, but also females as well for some reason) and the tabloid press that recongising the first instance in law will allow women in the second instance to take much greater advantage. And because there is a stigma that goes with a rape allagation people seem to feel that it should not be allowed to even get that that stage.

So please, can you reassure doubters like me that such laws would not lead to false claims, mens lives wrecked in court, and just possibly some people going to jail for crimes they didn't commit?

You can't - can you?

So you obviously think the added potential for miscarriages of justice is worth it to change nasty male attitudes to sex and send more rapists to jail!

haz

And here is the UK Home Office press release on the Tough Campaign to Tackle Rape:
http://press.homeoffice.gov.uk/press-releases/tough-campaign-rape?version=1

mountainyman

hullaballoo wrote:

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.

Well the legal position as regards consent under conditions of incorrect identity is complex; isn't that it is rape only if there was some particular reason she would have slept with one man and not another.
The only case I can think of is a Greek girl in Australia who was convinced by a conman that he was her fiancee.

MM

hullaballoo

But in my example, she's not accusing the conman of rape, she's accusing someone else completely.

Zombrex

fly_agaric wrote:

So please, can you reassure doubters like me that such laws would not lead to false claims

There is no law for any criminal offense that will not lead to false claims.

The problem people seem to have with rape is that they believe that once a claim is made (never mind an conviction or even arrest) that that is it, game over, life ruined.

I'm sorry but we either live in an innocent until proven guilty society or we don't. The whole purpose of innocent until proven guilty is to protect someone against false accusations and claims. If you can't prove they did it then legally they are not guilty of doing it.

People do seem to have it in their head though that there is a wave of women out there just waiting to file false rape claims against unsuspecting men. I'm not quite sure where this idea comes from. It is actually a pretty horrible experience having to report a rape, which is why only 1 out of every 3 rapes recorded rapes is even reported to the police (they are reported to support groups and charities), let alone a conviction.

fly_agaric wrote:

mens lives wrecked in court, and just possibly some people going to jail for crimes they didn't commit?

How is this any different than any other false claim for a crime?

fly_agaric wrote:

You can't - can you?

No, I can't. I did not realise that it was required that a law, any law, elimate all possibility that a false claim may be reported.

fly_agaric wrote:

So you obviously think the added potential for miscarriages of justice is worth it to change nasty male attitudes to sex and send more rapists to jail!

Groan ... :rolleyes:

If we are going to play that game should I not be saying you obviously think that its ok for 98% of rapists should go unpunished just so men can have drunken sex without having to bother about the little issue of consent....?

mountainyman

Wicknight wrote:

If we are going to play that game should I not be saying you obviously think that its ok for 98% of rapists should go unpunished just so men can have drunken sex without having to bother about the little issue of consent....?

Wicknight I agree with you that drunken consent is not consent and that drunkenness is not an excuse for rape but the law does not. It is difficult to create crimes of strict liability and don't see how you get round the issue of Mens Rea.
By the way men claim they thought she was consenting all the time and are not believed and go to jail.
Do you believe that the drunk man who does believe she was consenting should go to jail?

Sex with a passed out woman is already regarded as nonconsensual.

MM