Drink and rape laws in Ireland

mountainyman

hullaballoo wrote:

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

Well that is a false allegation and seems to take us off on a bit of a tangent.

Zombrex

mountainyman wrote:

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.

Irish law does, in so much as it puts the judgement in the hands of a jury.

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

A man must not only believe that the woman has given consent, but this belief must be based on reasonable grounds. Ultimately it comes down to how you define reasonable grounds. I would say that if a girl is very drunk that she seems to not understand where she is or what she is doing then a person does not have reasonable grounds to believe that she is consenting to sex with them.

mountainyman wrote:

By the way men claim they thought she was consenting all the time and are not believed and go to jail.

Define "all the time" ... the rape conviction rate in Ireland is 2% (or it was in 2003), which is the lowest in Europe by far. And that is all rape, not just drunken date rape. Keeping in mind that only 1 out of every three women who report a rape report it to the police, and the number of women who report a rape at all is estimated at only 1/2 to 1/5 of all rapes, you are into the half of one percent of rapests that actually are convicted of the crime of rape.

If men are all the time being convicted of rape, the actual number of rapes taking place in Ireland is horrifically high. Unless one assumes most women are lying, but I've seen no argument (convicing or otherwise) put forward to back that up.

mountainyman wrote:

Do you believe that the drunk man who does believe she was consenting should go to jail?

As I said it depends on if he has reasonable grounds to believe this.

Following on the tradition this forum seems to have for over the top examples, I am sure there are many rapests who believed that the victim was enjoying themselves as they were violently assaulted and raped behind a McDonalds. But I would not classify his dillusions as being "reasonable grounds" to believe this.

Do you think a drunk driver who does not realise he is over the legal driving limit should be held responsible if he crashes his car into an on coming car?

mountainyman wrote:

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

Clearly ... I'm a bit amazed that that is even something people need to think about ...

mountainyman

Wicknight wrote:

Irish law does, in so much as it puts the judgement in the hands of a jury.

No you're wrong.

Wicknight wrote:

Define "all the time" ...

well there about 1600 rape and sexual assault convictions to spetember 30 2006. But only about 350 of these are classed as 'rape'

Wicknight wrote:

half of one percent of rapests that actually are convicted of the crime of rape.

According to those figures there have been 70000 rapes in Ireland this year.
They are also so dishonest that they make me angry because they treat a conviction for sexual assault as a nothing.

Wicknight wrote:

Following on the tradition this forum seems to have for over the top examples, I am sure there are many rapests who believed that the victim was enjoying themselves as they were violently assaulted and raped behind a McDonalds. But I would not classify his dillusions as being "reasonable grounds" to believe this.

I am sure that there were not many at any rate not many who were acquitted.

Wicknight wrote:

Do you think a drunk driver who does not realise he is over the legal driving limit should be held responsible if he crashes his car into an on coming car?

When drink driving was initially made a crime of strict liability the juduciary refused to implememnt the law and found it unconstitutional.

MM

Zombrex

mountainyman wrote:

No you're wrong.

The law has been quoted a number of times, by myself and others. I'm not a solicitor or a law student so me being wrong is fully with in the realms of possibility (:D), but I'm not seeing how .... explain yourself good sir..

mountainyman

Not ignoring you wicknight have to look it up in abook (made of paper!)

MM

Zombrex

mountainyman wrote:

Not ignoring you wicknight have to look it up in abook (made of paper!)

MM

"a book" what is that strange paper object you speak of?

fly_agaric

Wicknight wrote:

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

Sorry - should have said more claims (which at the end of the day probably cannot be proven perhaps?) ending up in court than at present and maybe more chances for a miscarriage of justice.

Wicknight wrote:

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.

Well, you have to admit - being accused of rape + having to fight a court battle would be quite painful and damaging - no?
I think I'd rather be charged with and convicted of theft or something than be accused of rape and have to fight a court case over it.
Even if you aren't convicted, in these type of situations it would seem to me to be just as hard to prove that the accusation was untrue as to prove proper consent was not obtained and a rape occurred.
And sure there's no smoke without a fire. As you said yourself: just because it can't be proven in court doesn't mean that what happened wasn't actually rape...:)

Wicknight wrote:

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 comes from the idea that people are nasty and dishonest if it suits their purpose when they can get away with it. A "wave" is an exaggeration.
Such women exist though surely and changing the law in such a way as to make it easier to bring a case and get a conviction when drink was involved should also make it easier for them, just at it makes it harder and more dangerous for skeezers to take advantage of drunk women.

Zombrex

fly_agaric wrote:

Well, you have to admit - being accused of rape + having to fight a court battle would be quite painful and damaging - no?

It is but then so is being raped. We do have laws against making false claims against a person. Considering that only 2% of cases actually end in a conviction if it is a toss up between failing falsely accused men and failing rape victims I think it is pretty clear who the system is failing.

fly_agaric wrote:

I think I'd rather be charged with and convicted of theft or something than be accused of rape and have to fight a court case over it.

You would rather be found guilty of theft than found innocent of rape?

fly_agaric wrote:

Even if you aren't convicted, in these type of situations it would seem to me to be just as hard to prove that the accusation was untrue as to prove proper consent was not obtained and a rape occurred.

Isn't the whole point of innocent before guilty mean you don't have to prove the raped claim was untrue?

fly_agaric wrote:

And sure there's no smoke without a fire. As you said yourself: just because it can't be proven in court doesn't mean that what happened wasn't actually rape...:)

You are talking about too different issues here, the legal ability to prove someone raped someone, and the social stigma that comes with a rape allegation. What do you want to do fly_agaric? Say that women cannot claim they were raped if they were drunk?

You can't stop people making false claims except to punish them if they are determined to be false. You seem to be suggesting that we make it hard to make claims all together, false or otherwise, to prevent the possibility that false claims can possibly be made. If no one can make a claim for rape you eliminate the possibility that a false claim can be made for rape.

mountainyman

Wicknight wrote:

"a book" what is that strange paper object you speak of?

God loads of books, but I enjoyed it, I will type it up but have a look at this!

http://news.bbc.co.uk/2/hi/uk_news/wales/4465622.stm

MM

fly_agaric

Wicknight wrote:

You would rather be found guilty of theft than found innocent of rape?

When others who know about the details would definitely have grounds to doubt that you are innocent of rape - I dunno...depends on how serious the theft offence was I suppose. Disadvantages of criminal record vs everyone who doubts your take on events believing you are the sort of person who would take advantage of someone in that way when they are drunk...

Wicknight wrote:

What do you want to do fly_agaric? Say that women cannot claim they were raped if they were drunk?

No. Just not change the law as a way to make it easier to get convictions in slimeball takes advantage of drunk woman situations ala suggestions I had read in some UK newspaper articles.

Wicknight wrote:

You seem to be suggesting that we make it hard to make claims all together, false or otherwise, to prevent the possibility that false claims can possibly be made. If no one can make a claim for rape you eliminate the possibility that a false claim can be made for rape.

No, I'm not.
If, as you say, Ireland does have a problem with a low rate of rapes ending up in court and a low conviction rate for rape relative to comparable countries in Europe (the UK??) maybe that could be remedied ways other than changing the law to make it easier to bring cases and get convictions in situations such as the one in the link posted by mountainyman. I don't know how the system works from going to the police through getting a conviction so I cannot make suggestions.

kellylynch

Hi,

I understand this is quite an old post, but I was googling and looking for some information and came across this quite high up in the search results.

I'm a law student in DCU, and thought I might be able to add some knowledge to this debate.

Basically, in reference to your question as to the influence of alcohol and intoxication on rape cases, with regards to the issue of consent (i.e. does being intoxicated vitiate your consent), it is all very subjective. It all depends really on whether the woman was physically able to understand her position, and whether or not she was actually capable of giving her consent. Just to give you some back-up, in the case of R v Camplin (1845) 9 JP 424, the accused had made the complainant (the woman) drunk, she was intoxicated when he had sex with her, therefore there was no valid consent.

Further, in the case of R v Bree [2007] 2 All ER 676, both the accused and the complainant were intoxicated. During the case, the complainant claimed that she had retained the capacity to consent, however she did not do so. It was the argument of the accused that he reasonably believed that she was consenting.

There is quite a good quote here from the Court of Criminal Appeal with regards to the intoxication in this case...
"...the question is not whether the alcohol made either or both less inhibited...nor whether either or both might afterwards have regretted what happened…it is not a question whether either or both...have...poor recollection of precisely what happened...If, through drink (or for any other reason) the complainant has temporarily lost her capacity to choose…she is not consenting, and subject to questions about the defendant’s state of mind, if intercourse takes place this would be rape. However, where the complainant has voluntarily consumed…alcohol, but nonetheless remains capable of choosing whether or not to have intercourse, and in drink agrees to do so, this would not be rape.”

I understand that this is a while after your original posting, but I just thought that for any future observers of this post, it might be of some benefit to be displaying the actual correct information with regards to the law on intoxication and rape as it stands!!

NoQuarter

The law as it stands?

With an English case on one hand and a case from 1845 on the other. Glad I waited 6 years for this fantastic news!

Strawberry Fields

That's the funniest thing I ever read, not since the resurrection as anyone pulled that stunt. Answer instead of pointing out oblique cases spend a bit of time in the courts maybe doing jury or whatever, they're like penny to a dozen.

Procrastastudy

The temptation to go and necro post on the necrophilia question is mounting...

NoQuarter

GCDLawstudent wrote: »

The temptation to go and necro post on the necrophilia question is mounting...

Dont do it, OP "went necro" himself in 2007 by the looks of it!

Sir Igor Judge

Kelly digging out the 1875 case law. Nice. I love a bit of antique law.

R v Bree was about judge's directions and the points, while useful, are obiter. Also on the facts it's not a great case given the discussion here. The Plaintiff changed its case midway through the trial and the conviction was quashed as unsafe on the basis that the trial judge didn't properly direct the jury on voluntary intoxication or consent.

Sir Igor Judge wrote:

As we have indicated, at the start of the trial the prosecution alleged that the Appellant raped M when her level of intoxication was so great that she was effectively unconscious. She lacked the capacity to consent, and therefore did not consent. However, by the end of the evidence, the prosecution case against the Appellant had changed. The jury were no longer invited to conclude that M had been unable to consent to intercourse because she was unconscious, rather, the prosecution accepted that the gaps in her recollection were probably the result of intoxication, and lack of memory, rather than unconsciousness. The prosecution case, therefore, was not that the Complainant lacked the capacity to consent, but that she did not in fact consent to intercourse. Her ability to resist was hampered by the effects of alcohol, but her capacity to consent remained. She knew what was happening. She knew that she did not want to have sexual intercourse, and so far as she could, made that clear. The Appellant's case, as we have indicated, was unchanged from start to finish, that notwithstanding, and perhaps because of drink, M was consenting. He reasonably believed that she was.

berrypendel

Nevyn 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 ?

Does the man or woman have any duty of care to themselves not to get that drunk? Like if you close your eyes and cross the road and get knocked down by a joyrider who was deliberatley driving at you, are the closed eyes a factor?

seamus

berrypendel wrote: »

Does the man or woman have any duty of care to themselves not to get that drunk? Like if you close your eyes and cross the road and get knocked down by a joyrider who was deliberatley driving at you, are the closed eyes a factor?

Strictly speaking that's not the same thing. One should not have to expect that a consequence of being blind drunk is to get raped. It doesn't logically follow that if someone gets blind drunk that it's their fault (wholly or partially) that they get raped, beaten up or mugged. A person has the right to be free from assault regardless of their state of inebriation.

A more accurate analogy is that if you stand on the footpath with your eyes closed and a driver deliberately drives onto the path and runs you down, are your closed eyes a factor? Yes they are, because if your eyes were open you'd see the guy driving towards you. But does it mean that you should take some of the blame for the driver's act?

The main issue arises when the "rapist" is unaware of the "victim's" condition or both parties are similarly intoxicated. How then do you assign blame?