Court of appeal scraps man's rape conviction

[differentnameforthis]

A COURT has scrapped the conviction of a man accused of raping a woman who had passed out drunk, because he might have thought she wanted sex. This is despite evidence that the woman had twice rejected his advances before falling unconscious.

The Court of Appeal set aside Tomas Getachew's rape conviction and ordered a fresh trial because jurors were not told to consider that he might have believed he had the woman's consent

Getachew, 28, was accused of raping the woman as they shared a mattress at a mutual friend's house in Melbourne in June 2007.

The County Court was told the woman, who was drunk on champagne and bourbon after a night out, had twice pushed him away before passing out. She later awakened to find him raping her, it was alleged.

Getachew allegedly told the victim he had pressed against her for warmth and later told a friend the woman had "pushed back" into him, causing penetration.

The judge jailed Getachew for at least 33 months. But the Court of Appeal ruled there was an oversight in the trial judge's instructions to the jury.

Rape is proved if the jury finds the accused knew the victim had not consented, or might not be consenting. Justices Peter Buchanan and Bernard Bongiorno said the judge failed to properly explain this rule to the jury. This meant jurors hadn't considered the possibility Getachew might have thought the woman was awake and, through her lack of resistance, consenting.

Here

So, once again it is up to the woman to prove she was raped....even though she was asleep, therefore unable to consent.

[snowmama]

It is seriously unbelievable. Why is this constant myth about consent being difficult to understand constantly peddled....seriously what sort of sex do these people have in their own lives ?

[differentnameforthis]

Frightening isn't it.

[Tortoiseonthehalfshell]

There was a recent decision in Canada where a court upheld the principle that an unconscious woman couldn't consent to sex, BUT with three dissenting judges. Here's what they said:
"The three dissenting justices argued that it would further women?s right to autonomy to create a new doctrine of ?advance consent,? so that unconscious women can have ?sexual adventures.?"

Sexual adventures. SEXUAL ADVENTURES. WHILE UNCONSCIOUS.

[Tortoiseonthehalfshell]

Opinion piece referring is Here. Hey, anyone want to guess whether the dissenting judges were male or female? Go on, I bet you can.

Sorry for tangent, Differentname.

[DontCallMePeanut]

What the flippity FUCK?

I'm actually lost for fucking words...

[MrsKarbonara]

"Getachew allegedly told the victim he had pressed against her for warmth and later told a friend the woman had "pushed back" into him, causing penetration"

Bollocks. Really just bollocks. If you push back into someone it doesn't damn well 'cause penetration' all by itself. You have to actively move legs, position bodies etc etc for penetration to happen. It's like Oh I accidentally penetrated you with my penis I am so sorry how did that happen?

Oh I am not very eloquent this morning am so angry. And "Sexual adventures"??????????

[sunshineandbooks]

This is an absolute travesty. Poor woman.

Does anyone know anything about the sex discrimination act? I just wonder if it would be possible to campaign for female only judges to sit on male-on-female rape trials. I know some female judges in powerful positions like this can benefit as much from the patriarchy as men, but at least they would realise that lines such as "'he "pushed back" into him, causing penetration' are complete and utter BS.

[CrapolaDeVille]

Wow this guy must have a very very thin penis that pushing back means penetration.

It's very sad to think that people can believe that a man requires no enjoyment or participation from a woman to enjoy sex.....hence he can be mistaken about consent.

[PurpleStrawberry]

I have no faith in the legal system, here or abroad, in obtaining justice for rape victims. This just adds to that further.

Earlier this year, my BIL (DH's husband) was cleared of raping his long-term partner, after claiming the physical evidence showed the result of 'consensual rough sex' and not rape as she claimed. Oh yes the old 'consensual rough sex' chestnut.

No prizes for guessing who I believed, well who I still believe.

The whole thing makes me sick.

[sakura]

SGM "Canada's sexual violence laws are: "The requirement that consent be conscious, continuing, contemporaneous with the sexual activity and revocable at any point, is a cornerstone of this legislation.""


THat's great... but does that mean porn is illegal in Canada then?!?! ANd prostitution too... because how can the above criteria be used in those cases. All porn and prostitution in rape (and I actually believe it is)

[HerBeX]

They're all rapists aren't they?

The judges and the men who sit at the top making decisions about our lives?

We don't stand a fucking chance.

[sakura]

I have read so many comments from judges that make it obvious they're a paedophile or a rapist..comments such as "well she was a very old eight year old"

[DontCallMePeanut]

A very old eight year old? Again; what the Flippity Fuck? Oooh, she was THAT fucking mature that the age of consent didn't matter? Or even that CONSENT didn't fucking matter?

[meditrina]

"The judge jailed Getachew for at least 33 months. But the Court of Appeal ruled there was an oversight in the trial judge's instructions to the jury".

The issue isn't the evidence, it's the conduct of the trial. The judge made a mistake (oversight) in his summing up. If the judge had not made this mistake, there would have been no grounds to appeal. He should be pilloried for his incompetence, but unless he has form for making "mistakes" frequently in rape trials, and not in others, then I would be uncomfortable about drawing wider conclusions from what may be an isolated error; which - unless someone can signpost his individual record showing a pattern - could have happened regardless of the offence being tried.

All defendants should have a fair trial (which includes error free instructions to the Jury), and all victims should be able to rely on the standards of the Court. This judge's error would have voided any conviction - and that just isn't good enough.

[differentnameforthis]

Sorry for tangent, Differentname

Not at all tortoise!

[PurpleStrawberry]

In the country that my parents are both from (Uruguay), a man may be exempt from prosecution, if he rapes his wife after learning she has committed adultery. In this case, it's seen as a 'crime of passion', and therefore could be deemed excusable.

However, a woman who kills her violent husband and/or a husband who has raped her, she cannot raise his violence/sexual assault towards her as a defence.

When people say there is no need for feminism any more, I always tell them this.

[differentnameforthis]

he issue isn't the evidence, it's the conduct of the trial. The judge made a mistake

Agreed he made a mistake, but surely jurors don't need that explained in this case? She couldn't consent. Surely they would be able to come to the conclusion that he knew she hadn't consented due to her being asleep....(not explaining myself very well)

Seems like just a fancy way of finding him not guilty....

[meditrina]

There are rules about how a judge directs a Jury. These must be adhered to. It is just as wrong for the judge to omit part of the defence case as it would be if he had omitted part of the prosecution.

[karmakameleon]

meditrina,

The issue here is that the law says (which the judge misdirected about) says that it's not rape if the defendent believed that the woman consented. There is nothing about the reasonableness of that belief or not. So all anyone who wants to rape needs to do is claim that there was a miscommunication and they honestly thought the victim consented. No matter how ridiculous it was for them to think that consent existed.

[meditrina]

karma: if the Jury had been properly directed, then they would have been able to consider if there was or was not consent, and there would have been no possibility of an appeal. These matters should be put properly to the Jury.

As differentnameforthis posted, the Jury were able to make the determination that there was no consent, and he was found guilty and sentenced (the judge didn't seem to have any difficulty with the case or sentencing at that point). Even with correct direction, they may have found the same (as pointed out, they had heard the evidence). But without a correctly conducted trial, a verdict cannot stand. Judges must direct in line with what is presented in the court by both sides. They must never omit parts of either the defence or prosecution.

Defences in rape cases often base their arguments on the issue of consent. This needs to be properly examined in court every single time. The judge's mistake here meant that it couldn't be.