Genuine but mistaken belief in Consent - Subjective and Objective test

sapper

The Criminal Law (Rape) Act, 1981 states “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.”

So, if a jury decides that a man holds a genuine but mistaken belief that a woman has consented to sex (ie. the jury determines that she has not consented, but that he thinks she has), can the jury decide whether that belief is reasonable or not? Specifically, can the jury objectively assess the belief held (“what would belief would a reasonable man hold in the circumstances?”) as well as subjectively assess the belief held (“what would belief would the defendant hold in the circumstances?”)

To me, the above extract says that the jury can objectively assess any belief held by the defendant (ie. what would a reasonable man do?) in addition to the subjective test, but is it the case that in Irish law only the subjective test is permitted ie. if the jury determines it is reasonably possible that the defendant holds a genuine belief to consent, the jury must return a verdict of not guilty, regardless of how reasonable or reasonable that belief is in the jurys eyes?

And if only subjective test is allowed, isn’t that different to UK law where (according to the internet anyway) a subjective and objective test is required?

Slyderx1

you are getting tied up in semantics..the jury simply listens to the evidence and makes up its mind whether he the Accused subjectively etc. All juries are suppose to be objective in approach and this is not to be mistaken as part of an intrinsic ingredient of the offence.

sapper

Slyderx1 wrote: »

you are getting tied up in semantics..the jury simply listens to the evidence and makes up its mind whether he the Accused subjectively etc. All juries are suppose to be objective in approach and this is not to be mistaken as part of an intrinsic ingredient of the offence.

But what if the judge specifically directs the jury "if you determine that there is reasonable possibility that a genuine belief of consent existed in the mind of the defendant, you must acquit"?

Doesn't that preclude the jury from considering an objective assessment of that belief in delivering their verdict?

valleyoftheunos

sapper wrote: »

But what if the judge specifically directs the jury "if you determine that there is reasonable possibility that a genuine belief of consent existed in the mind of the defendant, you must acquit"?

Doesn't that preclude the jury from considering an objective assessment of that belief in delivering their verdict?

That's a confusing direction, is it an actual direction or a hypothetical? In cases where an honest but mistaken belief is pleaded as a defence the Jury must decide whether the test is subjective to the Defendant, ie did he actually and honestly believe the victim was consenting.

That belief need not be reasonably held, only honestly held. of Course the Jury may consider the reasonableness of the belief in deciding if it was honestly held. ie. if such a belief would be unreasonable, is it less likely that it was honestly held.

sapper

valleyoftheunos wrote: »

That belief need not be reasonably held, only honestly held. of Course the Jury may consider the reasonableness of the belief in deciding if it was honestly held. ie. if such a belief would be unreasonable, is it less likely that it was honestly held.

Ok - so a jury cannot convict a man if the prosecution fails to prove beyond a reasonable doubt that he had an intent to commit the crime of non-consensual sex

Hypothetical example: somewhat drunk man kisses a very drunk woman in empty room, he switches off the light and guides her to the bed, she falls on the bed and passes out unconscious, he has sex with her and doesnt notice she has passed out until after. She has not consented to sex.

It is irrelevant if the jury disapproves of how this circumstance came about or the lack of care taken in ascertaining if there was consent, the fact that he in his drunken state thought/assumed he had consent meant that he did not have a criminal intent and they should therefore find the defendant not guilty of rape?

Slyderx1

sapper wrote: »

Ok - so a jury cannot convict a man if the prosecution fails to prove beyond a reasonable doubt that he had an intent to commit the crime of non-consensual sex

Hypothetical example: somewhat drunk man kisses a very drunk woman in empty room, he switches off the light and guides her to the bed, she falls on the bed and passes out unconscious, he has sex with her and doesnt notice she has passed out until after. She has not consented to sex.

It is irrelevant if the jury disapproves of how this circumstance came about or the lack of care taken in ascertaining if there was consent, the fact that he in his drunken state thought/assumed he had consent meant that he did not have a criminal intent and they should therefore find the defendant not guilty of rape?

the jury would consider the facts.whether he was reckless as to whether she was consenting or not.

valleyoftheunos

sapper wrote: »

Ok - so a jury cannot convict a man if the prosecution fails to prove beyond a reasonable doubt that he had an intent to commit the crime of non-consensual sex

Hypothetical example: somewhat drunk man kisses a very drunk woman in empty room, he switches off the light and guides her to the bed, she falls on the bed and passes out unconscious, he has sex with her and doesnt notice she has passed out until after. She has not consented to sex.

It is irrelevant if the jury disapproves of how this circumstance came about or the lack of care taken in ascertaining if there was consent, the fact that he in his drunken state thought/assumed he had consent meant that he did not have a criminal intent and they should therefore find the defendant not guilty of rape?

In this example where the accused believed she was consenting and did not intend to rape the woman the jury should find him not guilty.

Slyderx1 wrote: »

the jury would consider the facts.whether he was reckless as to whether she was consenting or not.

Yes if the Jury believed he was reckless as to her consent he should be convicted.

Slyderx1

the hypothetical rapist was only 'somewhat drunk'. He never sought consent and recklessly proceeded. Slam dunk lock him up.

sapper

Slyderx1 wrote: »

He never sought consent and recklessly proceeded.

But if he assumed consent by the fact that he was in a dark room with a woman who allowed him to kiss her and lead her to the bed, he was caring as to whether she consented, not reckless....

The fact that this may be an unreasonable assumption in the opinion of the jury (given her state and the lack of active consent shown) is irrelevant no?

And how could the prosecution prove beyond a reasonable doubt that this assumption was genuinely absent from his mind (ie. that he really knew the acquiescence in allowing him to kiss her and lead her to the bed was probably only due to her drunkeness rather than to her desire for sex with him?)

valleyoftheunos

Slyderx1 wrote: »

the hypothetical rapist was only 'somewhat drunk'. He never sought consent and recklessly proceeded. Slam dunk lock him up.

Not at all, its not necessary to explicitly seek consent prior to intercourse, its not at all clear in the hypothetical that he was reckless.

sapper wrote: »

But if he assumed consent by the fact that he was in a dark room with a woman who allowed him to kiss her and lead her to the bed, he was caring as to whether she consented, not reckless....

The fact that this may be an unreasonable assumption in the opinion of the jury (given her state and the lack of active consent shown) is irrelevant no?

Its not irrelevant, the jury can use the reasonableness of the belief as a factor in deciding that it was not honestly held. If the jury decide that the belief in consent was both honestly held and unreasonable, the accused should be acquitted.

sapper wrote: »

And how could the prosecution prove beyond a reasonable doubt that this assumption was genuinely absent from his mind (ie. that he really knew the acquiescence in allowing him to kiss her and lead her to the bed was probably only due to her drunkeness rather than to her desire for sex with him?)

that of course is one of the hardest questions in prosecution. Often it's a matter of who the jury believe.

Slyderx1

you are playing with the facts which are the proper domain of the jury and I'm impressed at your theory of lovemaking .........

valleyoftheunos

Slyderx1 wrote: »

you are playing with the facts which are the proper domain of the jury and I'm impressed at your theory of lovemaking .........

who me? I don't think I'm playing with the facts at all.

I won't say anything about my love making but most couples don't stop to discuss consent when the conduct of both parties is fairly clear!:P

Slyderx1

I have to admit that 'date rape' and drink fuelled encounters do usually end up as a hung jury or as an acquittal. Juries have an inherent bias against tipsy ladies. I know of one case involving a gaa celeb where two members of the jury told their fellow members that they would not convict because he would get 7 years....and this was even before the case started.

sapper

Slyderx1 wrote: »

I have to admit that 'date rape' and drink fuelled encounters do usually end up as a hung jury or as an acquittal. Juries have an inherent bias against tipsy ladies.

I would add that a significant part of a judges charge to the jury is given over to admonishing them to ensure there is no reasonable doubt and corroborating evidence in any guilty verdict, which is almost impossible in a drink-fuelled, he-said/she-said scenario.

This is enough justification for anyone uncomfortable about the potential sentence for "going too far" or who is unwilling/unable to use the evidence to break the crime into its component parts of her consent, the act and his state of mind.

Much easier to throw your hands up and say "we cant know for sure"

I think when prosecuting the DPP should focus on building a narrative around the defendants state of mind in their cases - most people are willing to believe the testimony of a woman - who has gone so far as to take the stand - when she says "I did not consent"

who_me

Slyderx1 wrote: »

I have to admit that 'date rape' and drink fuelled encounters do usually end up as a hung jury or as an acquittal. Juries have an inherent bias against tipsy ladies. I know of one case involving a gaa celeb where two members of the jury told their fellow members that they would not convict because he would get 7 years....and this was even before the case started.

A friend claims (don't know if it's true) to have been on a jury for an assault case, and was horrified that when they discussed the case, the other jurors were deciding based on how dodgy the defendant appeared, they didn't like the look of him.

If true, I think this thread is placing far too much faith in juries and too much store in the judge's direction.

sapper

who_me wrote: »

the other jurors were deciding based on how dodgy the defendant appeared, they didn't like the look of him.

Hence the number of hung juries - too many people would go into the jury room after the evidence using mental shortcuts like "you cant know for sure" or "I didnt like the look of him, he must have done something" and cant be swayed either way by logical argument.

valleyoftheunos

Slyderx1 wrote: »

I have to admit that 'date rape' and drink fuelled encounters do usually end up as a hung jury or as an acquittal. Juries have an inherent bias against tipsy ladies. I know of one case involving a gaa celeb where two members of the jury told their fellow members that they would not convict because he would get 7 years....and this was even before the case started.

I don't think its fair to make that statement without any factual basis. It's very hard for a jury to convict in such circumstances where it's one person's word against another. That is absolutely a problem and it is not easily solved.

sapper wrote: »

I would add that a significant part of a judges charge to the jury is given over to admonishing them to ensure there is no reasonable doubt and corroborating evidence in any guilty verdict, which is almost impossible in a drink-fuelled, he-said/she-said scenario.

This is enough justification for anyone uncomfortable about the potential sentence for "going too far" or who is unwilling/unable to use the evidence to break the crime into its component parts of her consent, the act and his state of mind.

Much easier to throw your hands up and say "we cant know for sure"

I think when prosecuting the DPP should focus on building a narrative around the defendants state of mind in their cases - most people are willing to believe the testimony of a woman - who has gone so far as to take the stand - when she says "I did not consent"

If the jury doesn't know for sure they must acquit, it is not the responsibility of the Jury to seek to convict. That role lies with the Prosecution and if the Prosecution have failed to make their case it isn't the fault of the jury.

who_me wrote: »

A friend claims (don't know if it's true) to have been on a jury for an assault case, and was horrified that when they discussed the case, the other jurors were deciding based on how dodgy the defendant appeared, they didn't like the look of him.

If true, I think this thread is placing far too much faith in juries and too much store in the judge's direction.

I would think that placing our faith in anecdotal evidence like this is far more hazardous.

Slyderx1

Actually if you want a factual basis for date rape convictions Mr.Justice Carney has done a study which is worth reading ...and I am not exactly sure what point you are trying to make. The prosecution does not set out at all costs to secure a conviction ,it sets out the evidence and allows the defence to question it and the jury to weigh it with the Judge as referee.
I think if you talk to any experienced prosecutor he or she will confirm the difficulty that lies in presenting an injured party who has consumed drink, where there are usually no witnesses and an accused who does not and seldom does give evidence.
My personal world record goes to the jury that I helped to select in a sexual assault case and which took exactly 8 minutes to find the accused not guilty simply because they took a dislike to the injured party's manner.

valleyoftheunos

Slyderx1 wrote: »

Actually if you want a factual basis for date rape convictions Mr.Justice Carney has done a study which is worth reading ...and I am not exactly sure what point you are trying to make. The prosecution does not set out at all costs to secure a conviction ,it sets out the evidence and allows the defence to question it and the jury to weigh it with the Judge as referee.

I never went so far as to say that, the point I was making was that where a not guilty verdict is returned its not the "Fault" of the jury but rather that (for any number of possible reasons) the Prosecution failed to make out their case successfully.

Slyderx1 wrote: »

I think if you talk to any experienced prosecutor he or she will confirm the difficulty that lies in presenting an injured party who has consumed drink, where there are usually no witnesses and an accused who does not and seldom does give evidence.

I think that's exactly the point I made.

sapper

valleyoftheunos wrote: »

If the jury doesn't know for sure they must acquit, it is not the responsibility of the Jury to seek to convict. That role lies with the Prosecution and if the Prosecution have failed to make their case it isn't the fault of the jury.

Agreed. I wonder how many acquittals/hung juries in genuine rapes are due to poor performance by the prosecution rather than any failing on part of the victim. The headlines and "think pieces" always focus on societies views of women and drunkeness and rarely on how cases are prosecuted

valleyoftheunos

sapper wrote: »

Agreed. I wonder how many acquittals/hung juries in genuine rapes are due to poor performance by the prosecution rather than any failing on part of the victim. The headlines and "think pieces" always focus on societies views of women and drunkeness and rarely on how cases are prosecuted

Well as Slyderx1 points out its a very tough one for the prosecution. It might not be a poor performance issue and I would never suggest any "failing" by a victim. How do you prove something when there is no corroborating evidence?

Slyderx1

sapper wrote: »

Agreed. I wonder how many acquittals/hung juries in genuine rapes are due to poor performance by the prosecution rather than any failing on part of the victim. The headlines and "think pieces" always focus on societies views of women and drunkeness and rarely on how cases are prosecuted

It is a pity that rape trials are held in camera , then perhaps you could attend the entirety of the trial and see exactly what goes on.
Most rape trials fall or stand on the evidence of the key witness. Some trials fall on points of law..disclosure etc of course but juries in the main hear two conflicting accounts and after that its up to them.
I suspect that the Judges charge does confuse them...what is 'a reasonable doubt' etc. The fact that the jury cannot recall witnesses to hear them orally ( but they can have the transcript read to them) and their lack of knowledge of the prior convictions of the accused.