Changes in how rape will be investigated- about time!

House that's a shit thing to say & not true at all. I am happy that the guidelines are being implemented. I don't think asking questions about how they are likely to work in different scenarios makes me a rape apologist.

Or maybe Selby was confused by the headline that incorrectly states that "men must prove a woman said yes", which actually this change in guidelines don't mean at all.

Such good fun that man-hating tarts do it willy nilly in fact. Obv.

Well it's pretty easy to understand why that doesn't really happen, when you don't start from a position of thinking women are just moaning sluts who want to trick their husbands into believing they were raped.

Shelby - I don't think the new guidelines make that scenario into rape. If the woman was actively taking part in sex and consenting at the time, even if she was drunk, then it isn't rape - whether or not she regrets it later.

The new guidelines just mean that the judge could ask the man how he knew she was consenting. But if she was consenting at the time, then he'd have a perfectly good answer to that question (eg she unzipped my flies, kissed me, asked if I had a condom, etc - all things you could do perfectly well whilst drunk in the normal non-paralytic sense) presumably?

I can't see why any person who has had 'regrettable' consensual sex would choose to disrupt their whole life with a court case rather than just saying nothing more about it.

How would having to submit to a medical exam, face hours of questioning from the police, face a court case where all sorts of questions will be asked about her life and conduct will be asked get her out of anything? Why would a woman choose that over just keeping quiet?

presumably a woman can still give consent even if she is drunk
It depends how drunk. You can't sign legal documents when drunk, or consent to medical procedures, so why is the idea of 'too drunk to consent to sex' so difficult to understand?

she would never have done it if she was sober
This is not the same thing as too drunk to consent. In fact, it is irrelevant and unhelpful.

Example: I have sex with DP when sober. One time I was too drunk to consent, so we didn't have sex (ie he didn't rape me). The fact that I might have chosen to have sex with him if I were sober is totally irrelevant. In that particular instance, consent could not be given.

Shelby, in that case it would be up to the jury to examine the evidence as to how drunk she was and whether her consent was meaningful. I imagine that if she participated 'enthusiastically' the defendant would most likely be acquitted.

I can see why you're worried though-I mean wouldn't it be terrible if we gave all men the message that they should avoid getting so drunk that they inadvertently caused a rape.

After all, women would never be given a message like that.

Oh, wait....

Because her husband is less likely to leave her if she can 'prove' it wasn't her fault?

to get herself out of a tricky situation?

People who leap to 'so we need to have a contract and I need to specifically ask x y or z?!?!' need to take a long hard look at their sexual behaviour. It's pretty clear when sex is by mutual consent, and also pretty clear to evidence how you believed it was by mutual consent. The chances of being accused of rape after you got clear, enthusiastic consent from a partner are very very small. And presumably you would even then be able to list of all the ways she acted and all the things she said that lead you to believe it was a mutually consenting act.

If you don't think you would be able to come up with a list of the ways your partner acted or spoke that lead you to believe they were consenting, then... well, something is very wrong and you should stop.

Shelby why would a woman do that?

MoreBeta - what often happens now is that the defence refers to the fact that the woman was wearing certain clothes, had sex with the defendant in the past, had a drink with the defendant, etc as evidence of 'implied consent.' Hopefully this change will move towards recognising that what is important is that the woman agrees to and participates in the sexual act itself. So if a man says he doesn't know if a woman was ok with something then that should be strong evidence of rape.
Would it be so bad if we expected men to ask directly 'do you want this'?

morebeta it sounds like you are worried that suddenly lots of women who have enthusiastically, though not verbally, consented to sex are likely to report their sexual encounter as rape. do you think that is a concern?

MoreBeta your concerns are linked to the rape myth that says
'Women often regret consensual sex and claim it was rape.'

If a man gets a clear 'yes' from a fully aware woman, it is unlikely that he will find himself facing a rape charge.
If he did, you're right that he can't prove the 'yes'. But his evidence will be pretty compelling because he'll be able to describe in detail what led him to believe he had consent. (And hopefully 'and invited me in for coffee' won't be any part of that.)

And no, most couples don't have a legal defence conversation before sex, but they DO make it very clear through verbal and non-verbal cues whether or not they're up for it. The argument that we all need to sign some kind of contract to be safe from reprisals is ridiculous. We just need to make sure we're paying attention to our partners and not doing anything they don't want.

While I think the guidelines are a good thing, presumably a woman can still give consent even if she is drunk?

The scenario I'm thinking of is: married woman out on a works do ends up having drunken sex with a colleague, both participated enthusiastically, both equally drunk. Next day she regrets it, says she would never have done it if she was sober, therefore she didn't give valid consent. How would this be viewed under the new guidelines?

MoreBeta I know what you're saying and I'm sure this won't fix everything. But I do think if examples that indicate active consent are required it will help, rather than examples of non-consent. Someone gave an example earlier in the thread which I thought was really accurate.

Every time DH and I have sex we of course don't have a yes/no conversation, as you said. But I'm confident that either of us, if you took any recent sexual interaction, would be able to give a number of examples of the others consent and active participation in the sexual act - everything from words to actions.

People aren't dumb. It's actually quite easy to tell when someone does or doesn't want to do something. I think it belittles men to say that it's a grey area, really - it isn't at all.

This is a law that has been brought in mainly to address date rapes and where a woman in incapacitated with drink, etc. Clearly someone who is incapacitated cant say yes or no.

This is a good thing.

Where I worry is as follows.

First, it is impossible to prove someone said 'yes'. If a woman says 'yes' and then make a complaint it is still one person's word against another.

Second, does a man literally have to ask a woman formally 'do you want to have sex' in order to have a defence? In many cases, sex does not really happen like that but is a mutual act where a series of acts lead up to sex. That is why in the past a jury often threw out cases because a woman acted like 'she was agreeing', for example by agreeing to accompany him to his flat or 'inviting him in for a coffee' or 'flirting and dancing and drinking with him all night. In fact juries going back in history were looking for evidence of a tacit unspoken 'yes' evidenced by her actions. Look at what she did not what she said she said.

I can see defence barristers will still persuade juries that a 'yes' was unspoken but 'an implied yes' was given evidenced by certain behaviours a woman might exhibit and I can see juries being persuaded. Adults who have had sex know that women does not literally say 'yes lets have sex' every time she has sex. Its unrealistic and goes against human nature and behaviour. Do married couples literally have a stilted legal defence 'yes-no' conversation every time they have sex? Of course they don't.