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.