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Alcohol, Consciousness, Rape and Consent

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  • #152
    The Corinthian
    Closed Accounts Posts: 19,777 ✭✭✭✭The Corinthian


    drkpower wrote: »
    Consent obtained by deception is not valid consent; therefore it is sex without consent; therefore it is rape.

    Consent obtained by deception in a contractual context results in the repudiation of that contract; there never was a valid contract.

    Consent obtained by deception in the medical context results in an assault and/or trespass; there never was any valid consent.

    Consent that has no validity is not consent.
    But what level of deception invalidates consent?

    Lied about your identity?

    Lied about being in love?

    Lied about your salary?

    Lied about wanting to marry and start a family?

    Lied about already being married with a family?

    Lied about your age?

    If the last one counts, I've been raped a few times.


  • #153
    Nevyn
    Closed Accounts Posts: 43,044 ✭✭✭✭Nevyn


    The Corinthian wrote: »
    But what level of deception invalidates consent?

    Lied about your identity?

    Lied about being in love?

    Lied about your salary?

    Lied about wanting to marry and start a family?

    Lied about already being married with a family?

    Lied about your age?

    If the last one counts, I've been raped a few times.

    I would say that depends on if age or any other fact would have ruled out having sex with that person, ie someone lying about martial/relationship status as that would be a no go for a lot of people.


  • #154
    The Corinthian
    Closed Accounts Posts: 19,777 ✭✭✭✭The Corinthian


    Thaedydal wrote: »
    I would say that depends on if age or any other fact would have ruled out having sex with that person, ie someone lying about martial/relationship status as that would be a no go for a lot of people.
    What if the person being lied to is not open as to the criteria he/she is expecting?

    "I'll only sleep with someone who's earning at least 100k a year"


  • #155
    metrovelvet
    Closed Accounts Posts: 9,375 ✭✭✭metrovelvet


    drkpower wrote: »
    Consent obtained by deception is not valid consent; therefore it is sex without consent; therefore it is rape.

    Consent obtained by deception in a contractual context results in the repudiation of that contract; there never was a valid contract.

    Consent obtained by deception in the medical context results in an assault and/or trespass; there never was any valid consent.

    Consent that has no validity is not consent.
    Wow. Is that true?


  • #156
    Herbal Deity
    Closed Accounts Posts: 1,397 ✭✭✭Herbal Deity


    Can this apply to women who wear makeup or have dyed hair?

    "I'll only sleep with women with naturally blonde hair"


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  • #157
    Nevyn
    Closed Accounts Posts: 43,044 ✭✭✭✭Nevyn


    The Corinthian wrote: »
    What if the person being lied to is not open as to the criteria he/she is expecting?

    "I'll only sleep with someone who's earning at least 100k a year"

    Honestly if someone said then the other person should consider it a lucky escape rather then lying and sleeping with someone with such skewed notions.


  • #158
    Nevyn
    Closed Accounts Posts: 43,044 ✭✭✭✭Nevyn


    Herbal Deity wrote: »
    But the example in the OP's post. You're both having drunk sex. You fall asleep. They continue on until they come. You have not discussed anything like this before.

    Uproar?

    I'd be pissed off and consider it a liberty taken, that is when ever I got over my hangover and being angry with myself for being in such a state that I was rendered unconscious due to too much drink.

    Consent is not spoken about at all, be it by parents or in schools or usually in 3rd level institutions, as a result all manner of assumptions are made. I will say one thing that the general populous could do with workshops on Safe, Sane and Consensual in terms of sexual activities.


  • #159
    The Corinthian
    Closed Accounts Posts: 19,777 ✭✭✭✭The Corinthian


    Thaedydal wrote: »
    Honestly if someone said then the other person should consider it a lucky escape rather then lying and sleeping with someone with such skewed notions.
    True, but what if they didn't say it, and were given the impression (or lied outright to) by the other person about their salary.

    John seeks to impress Jill and tells her he's a merchant banker on 250k a year. Jill, who's looking to settle down with a wealthy guy, pursues a relationship, including sex. If she knew he was a waiter, she'd never touch him.

    It does not matter that she never explicitly told him that this was a criteria, only that it was a criteria and he lied about it.

    Strictly following the logic being proposed, Jill has been deceived and thus her consent does not count - i.e. rape.


  • #160
    drkpower
    Registered Users, Registered Users 2 Posts: 5,475 ✭✭✭drkpower


    The Corinthian wrote: »
    But what level of deception invalidates consent?

    Very good point.
    I should have stated that (according to our law, at least) the deceit is not a mere lie (I love you....Im loaded....); the law usually refers to consent by fraud, and the general rule is that the only types of fraud which could vitiate consent in a case of rape are frauds as to the nature of the act itself or as to the identity of the person doing the act; it must be a fundamental deception.

    The prime example is a deception as to the identity of one of the parties (which is the context within which this issue arose). There are many other examples in case law, one of the more famous ones being a case where man who had intercourse with a girl after falsely pretending that his acts were a method of training her voice was properly convicted of rape.

    For instance, in another famous case, a prostitute claimed she was raped by virtue of the fact that she consented to have sex with a man for payment but was subsequently not paid; she claimed she would never have consented had she realised he would not pay her and that this vitiated her consent. While the man was convicted on other grounds, the court held that this deception/fraud (ie- nonpayment) was not sufficient to vitiate consent.

    There was an interesting case recently in Israel where a Palestinean guy was convicted of rape (on the basis of consent by fraud) where he pretended to be a Jew; here, that kind of 'deception' would not be sufficient to vitiate consent and result in a conviction for rape.

    Fascinating stuff Im sure you will agree.:D

    But we are now so far off-topic, this is ridiculous.


  • #161
    drkpower
    Registered Users, Registered Users 2 Posts: 5,475 ✭✭✭drkpower


    The Corinthian wrote: »
    Strictly following the logic being proposed, Jill has been deceived and thus her consent does not count - i.e. rape.

    No; see my clarification above.


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  • #162
    The Corinthian
    Closed Accounts Posts: 19,777 ✭✭✭✭The Corinthian


    drkpower wrote: »
    The prime example is a deception as to the identity of one of the parties (which is the context within which this issue arose). There are many other examples in case law, one of the more famous ones being a case where man who had intercourse with a girl after falsely pretending that his acts were a method of training her voice was properly convicted of rape.
    So a woman having sex with a man because she thinks he loves her or is loaded does not qualify (more a case of caveat emptor), but if she did so because of a promise of marriage, would?
    But we are now so far off-topic, this is ridiculous.
    Not really OT, as we are exploring the boundaries of consent in sex - unless people think that the discussion could become too wide.


  • #163
    drkpower
    Registered Users, Registered Users 2 Posts: 5,475 ✭✭✭drkpower


    The Corinthian wrote: »
    So a woman having sex with a man because she thinks he loves her or is loaded does not qualify (more a case of caveat emptor), but if she did so because of a promise of marriage, would?.

    Neither example given by you would constitute consent by fraud.
    The Corinthian wrote: »
    Not really OT, as we are exploring the boundaries of consent in sex - unless people think that the discussion could become too wide.

    By covering all of the possible angles of consent, both in and out of the sexual sphere, i wonder if the debate becomes far too broad and therefore loses focus. But Im happy to go with the flow.


  • #164
    The Corinthian
    Closed Accounts Posts: 19,777 ✭✭✭✭The Corinthian


    drkpower wrote: »
    Neither example given by you would constitute consent by fraud.
    Could you give another example or two, highlighting the defining ingredient?
    By covering all of the possible angles of consent, both in and out of the sexual sphere, i wonder if the debate becomes far too broad and therefore loses focus. But Im happy to go with the flow.
    Fair point.


  • #165
    drkpower
    Registered Users, Registered Users 2 Posts: 5,475 ✭✭✭drkpower


    The Corinthian wrote: »
    Could you give another example or two, highlighting the defining ingredient?

    The defining ingredient is as highlighted in my previous post:

    'frauds as to the nature of the act itself or as to the identity of the person doing the act'

    The nature of the act: 'this is a treatment for an STD'; 'this makes your voice sound better' (as in the example I already cited)

    Identity of the person doing the act: 'I am your boyfriend'


  • #166
    The Corinthian
    Closed Accounts Posts: 19,777 ✭✭✭✭The Corinthian


    drkpower wrote: »
    Identity of the person doing the act: 'I am your boyfriend'
    Would a promise of marriage not qualify then, as the person would be identifying himself as her fiance or future husband?


  • #167
    drkpower
    Registered Users, Registered Users 2 Posts: 5,475 ✭✭✭drkpower


    The Corinthian wrote: »
    Would a promise of marriage not qualify then, as the person would be identifying himself as her fiance or future husband?

    Doubt it; no more than a promise of love and happiness would. It is the very fact of one's identity that is at issue (ie. are you an entirely different person) rather than an aspect of your identity (are you a pilot) or future identity (i will be your fiance).


  • #168
    Valmont
    Registered Users, Registered Users 2 Posts: 5,857 ✭✭✭Valmont


    donegalfella wrote: »
    This post has been deleted.
    I will give you ten thanks if you use this as your signature for one week.

    It seems clear enough that this debate is involving a conflict between subjective and objective definitions of rape and consent. What may seem like good objective rules apparently do not apply to some couples and who can really tell them their business in the bedroom? It's given me plenty to think about anyway.


  • #169
    Valmont
    Registered Users, Registered Users 2 Posts: 5,857 ✭✭✭Valmont


    Although I would add that I don't mean there aren't any objective rules, there quite clearly is, but that when you get down to a serious relationship between two people, the games changes somewhat.


  • #170
    metrovelvet
    Closed Accounts Posts: 9,375 ✭✭✭metrovelvet


    drkpower wrote: »
    Doubt it; no more than a promise of love and happiness would. It is the very fact of one's identity that is at issue (ie. are you an entirely different person) rather than an aspect of your identity (are you a pilot) or future identity (i will be your fiance).

    By entirely different person, do you mean false name, address, gender, ethnicity, health status, marital status?

    I initially thought that israeli case was cuckoo but on reflection i can see what they were doing.


  • #171
    drkpower
    Registered Users, Registered Users 2 Posts: 5,475 ✭✭✭drkpower


    metrovelvet wrote: »
    By entirely different person, do you mean false name, address, gender, ethnicity, health status, marital status?.

    An entirely different person; they typically involve situations where person A pretends to be person B (ie. house party, girlfiend asleep, dark room, chancer goes upstairs and pretends to be boyfriend -that kind of thing)
    metrovelvet wrote: »
    I initially thought that israeli case was cuckoo but on reflection i can see what they were doing.

    It is still cuckoo in my view; if a lie as to one's religon/culture is grounds for vitiation of consent, and thus rape, it surely follows that other 'minor' deceptions could have a similar result (ie. your occupation, or as Corinthian suggested, a lie as to a promise of marriage). Such actions may be dishonest and may leave the 'victim' very upset but it doesnt warrant a criminal offence or anything close to it.

    It is a widely accepted general rule that in the sphere of personal and sexual relations, the law should only intervene in extreme situations. Otherwise, we would all be suing for misleading advertising when we realise that chick with the great rack was wearing a padded bra.


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  • #172
    metrovelvet
    Closed Accounts Posts: 9,375 ✭✭✭metrovelvet


    drkpower wrote: »
    An entirely different person; they typically involve situations where person A pretends to be person B (ie. house party, girlfiend asleep, dark room, chancer goes upstairs and pretends to be boyfriend -that kind of thing)



    It is still cuckoo in my view; if a lie as to one's religon/culture is grounds for vitiation of consent, and thus rape, it surely follows that other 'minor' deceptions could have a similar result (ie. your occupation, or as Corinthian suggested, a lie as to a promise of marriage). Such actions may be dishonest and may leave the 'victim' very upset but it doesnt warrant a criminal offence or anything close to it.

    It is a widely accepted general rule that in the sphere of personal and sexual relations, the law should only intervene in extreme situations. Otherwise, we would all be suing for misleading advertising when we realise that chick with the great rack was wearing a padded bra.

    I know what you're saying, which is why I originally considered it along the lines of fraudulant seduction, not rape, but in the isreali palestine context, i can see how bad that would be if no way in hell an isreali would have sex with a palestinian. I can see how her consent would be retrospectively invalidated. Is there a gap between rape and invalid consent and fraudulant seduction? Should there be different legal considerations for these acts?

    This is nearly becoming about the nature of law and what is appropriate amounts of legislation.


  • #173
    drkpower
    Registered Users, Registered Users 2 Posts: 5,475 ✭✭✭drkpower


    metrovelvet wrote: »
    I know what you're saying, which is why I originally considered it along the lines of fraudulant seduction, not rape, but in the isreali palestine context, i can see how bad that would be if no way in hell an isreali would have sex with a palestinian. I can see how her consent would be retrospectively invalidated. Is there a gap between rape and invalid consent and fraudulant seduction? Should there be different legal considerations for these acts?

    This is nearly becoming about the nature of law and what is appropriate amounts of legislation.

    I can see the immediate gut-instinct attraction of having an intermediate offence between (1) rape and (2) nothing for deceptions which, while significant, do not reach the current legal standard (deception as to identity/the nature of the act). Someone wronged as a result could certainly claim to have suffered greatly, and could definitely convincingly claim that they would not have consented otherwise. In the contractual and medical worlds, that may very well result in the repudiation of the contract or the doctor being negligent (at least).

    But you really need to take a deeper look at this. It is right and proper that the State chooses to intervene (by way of the law) in the practice of medicine. In some circumstances, and to a lesser degree, it is also right that they intervene in some contractual relationships. But should the State intervene in personal and sexual relationships, which are of a vastly different nature to contractual ones? Sure, people can be hurt, people can feel betrayed where they are led to believe something by a sexual/romantic partner which turns out to be false. But does that warrant State intervention and criminalisation of one party? I would certainly say no, except in extreme circumstances and I would suggest that the law as it currently stands strikes the right balance.


  • #174
    metrovelvet
    Closed Accounts Posts: 9,375 ✭✭✭metrovelvet


    I think ultimately I would also say no.

    However, the state does intervene, at our request when we marry.

    And the Irish state has further intervened one step further in personal and sexual relations with this new cohabitation bill.

    But I suppose this is legislation around partnership, which has always been a bit different than for the singletons. The rape laws are a good example as up until recently rape within marriage was not recognised. I'm guessing consent was assumed as part of the contract.


This discussion has been closed.
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