Man cleared of rape after having sex with a woman who thought he was someone else

That's interesting bear. Are you saying that a man who slept with you in that condition could have been genuinely mistaken about whether you were consenting?

I think it could have been possible, yes. I only had other people's word for my coherency - it was in the days before mobile phones and everything being recorded.

Because I think that's the rub here. I suspect you wouldn't have known yourself if you were genuinely consenting until afterwards. And rather than acknowledge that poor choices on your part was a contributing factor, you would be likely to decide you must have been raped. Not fair.

Ah, but I also know what I was like stone cold sober, and decisions I made then, too. So, while it could technically have been rape, in that I wasn't in a fit state to be able to consent, I think I would have probably said yes anyway, had I been sober, and also that anyone with me would probably have been able to have reasonable belief I was consenting, so it wouldn't have been rape. I never regretted any of them. But I completely recognise then and now that I was lucky - I was always with men I knew and fancied, and most times, they said no anyway. But I also realised that one day, I might not be so lucky, and also, I didn't like having a total blank in my memory, and I didn't want alcohol poisoning. So I stopped drinking so much. I actually made some far worse decisions about going to bed with certain men when totally sober. I don't consider that any of those occasions were rape. Remembering back mostly makes me smile, and in some cases, we're still in touch a quarter century or so later.

But - that is me. Not everyone reacts the same way to alcohol that I do. Other situations with other people could have very different outcomes.

In any case, it's not relevant, because drunk or sober, there is no reasonable way to believe that the woman in this case consented to sex with the mate of the bloke she had actually gone to bed with - she had consented to sex with the one she went to bed with only.

What is relevant is that I've met a lot of men who would make sure you get home safely and won't go to bed with a woman who is clearly drunk. Not all men are like this, which is why being anywhere with a man can be a risk - but if some men can behave this way, then all men are capable of it, and those who don't are choosing not to behave that way. Men are capable of better, regardless of how others around them behave.

Another thing I don't understand is this "but many people think it's acceptable..." That's not what the law is about. The law is about what we as an entire population, consider to be acceptable, not what certain subcultures think is okay. Why should the law be reduced to what the lowest common denominator think is acceptable behaviour?

There are subcultures where settling disputes with a fight is considered normal behaviour. This doesn't mean we should get rid of laws against GBH. It doesn't mean that if I am walking down the highstreet at 10.00pm and a couple of drunks having a fight manage to punch me by accident they shouldn't be prosecuted because in their subculture it's considered okay.

(Incidentally I think Felas' hypothesis as to why the jury acquitted is probably on the right lines - the standard for a criminal conviction, that of being beyond reasonable doubt, is an extremely high one).

Preventing rape isn't just one sided

Yes it is. Men can choose not to have sex with people whenever they like.

Women can try not to be around rapists, they can refrain from drinking, or going out (what a fun life that would be) but they cannot prevent rape unless they are never in the company of men.

It's attitudes like this that mean men don't get prosecuted for rape, because in he said/she said, they decide that raping a woman isn't so bad when the alternative is not having sex for a few hours.

I live in the real world, I don't think there's any harm in being angry that people think this guy's behaviour is excusable.

She was lying, sleeping or half asleep, in a bed she'd been invited into by a man who she was sexually interested in.

Which part of her behaviour caused him to come into the room after he saw his naked mate exit and lie down next to her, miss?

lack of understanding about what is considered acceptable by many young people, men and women

Clearly it wasn't acceptable to her, and it's not acceptable to many of us here.

Indeed Gone. Far too much focus on how men should act but not enough on how women should act. Preventing rape isn't just one sided

But he wasn't simply trying to get into bed, he got into bed and had sex with her!

I say this as someone who has shared a bed with many men hoping for (and ending up having) sex, and also shared a bed with quite a few men on the understanding that it was platonic, and we were just going to share a bed for convenience. It really isn't hard to tell the difference - you just ask.

I know lots of stories of people sharing beds in various states of undress and ending up having sexual relations with people they previously had no connection with. I'm not saying this is the way things should be, but the culture is that knowing there is a girl in your bed didn't mean you don't get into it. Getting into bed with someone of the opposite sex doesn't at all mean anything will happen, but having had something going on with someone else earlier is no guarantee that it won't.

Reading the way that some people here expect men to act is quite funny. I agree that it would be wonderful if they did, and I will instill this in my own children, but there is a lack of understanding about what is considered acceptable by many young people, men and women. Consequently actions are being interpreted as definitely indicative of a rapist, when in fact there is a different code of conduct in place that still outlaws rape but means that the accused may indeed have simply been trying to go to bed.

Well yes Dervel, but that's because you're not a rapist. If you were a rapist, then you would act like this bloke did.

Sorry something else has been bothering me which I've just put into focus. I've been trying to work out how I could find myself in the defendant's position, and keep coming up short. Let me explain if my mate came out of my bedroom naked after having been in there with a woman, my assumption would be she is likely naked too. I'd knock on the door and announce who I was, and perhaps open it a crack and talk through it. Even going into the room would be creepy in my view...

Where I am confused is that there are two contradicting statements. The woman refers to realising the identity of the man when she ran her fingers through his hair, however he says he became aware when she called him by the wrong name, and then he stopped and then fled the room. These two positions seem to contradict.

The alcohol is not a red herring as it had been used by the defense to establish her testimony was unreliable. The whole defense turns on is his belief that she knew who he was reasonable, beyond all reasonable doubt?

In short I have no idea, the only thing I am sure of is the poor woman's experience was of being raped. I hope she's ok.

But Felas they (the jury) are saying it was reasonable to think she had switched over from wanting sex with one man to wanting it with his pal, within moments. So it is about her - they think it perfectly reasonable to assume that this woman/women would commonly do that. Which I think is bollocks.
I see what you are saying Quimby. I think I mean more that he, even if he really believed she had suddenly switched her desire over to him and wanted instant sex should still have thought, "she's drunk so I'd better not, can't be sure she really wants this".

Well here id be going with her evidence
"‘I was saying Zack’s name because I thought it was him I was having sex with. "

Her own testimony is that she thought it was zack and she was engaging in sex based on the belief that it was him. There's no suggestion that she was intoxicated to the point that she could not form consent.

As to whether someone who is properly drunk can consent id disagree. However it's often on this point I find that these discussions become circular because people tend to use similar terms in quantifying drunkeness but with wholly different definitions of the term blackout drunk/hammered/ intoxicated etc and it can lead to arguing at cross purposes.

From my point of view it is still completely possible for valid consent to be given when drunk. However when that drunkeness reaches the point of intoxication whereby a person either is unconscious or passed out or is so intoxicated that they can not comprehend what is happening or the actions that they're consenting to then that is obviously not valid consent.

I'm not saying that the issue of drunkeness and its potential to vitiate consent is not a very real issue, I'm simply saying that it doesn't appear to be an issue in this case.

In this case it seems to be the legal development of consent and knowledge as to facts material to the act.
The case law is fairly well established on both those points.
Had the jury accepted her testimony and that the accused had obtained consent through deception by trying to impersonate the original man then that's rape. For whatever reason they did not.

Where is the line drawn? I don't think anyone who is properly drunk can consent to sex, at the very least it is unwise of a man to have sex with drunk woman as he cannot know that she knew what she was doing.
Remember those films where the heroine gets ratarsed and wakes up in the morning to find the hero has put her to bed and left her to sleep, and not seized the opportunity to stick his dick in her? Even a man who did not believe in equality would know that was the gentlemanly thing to do!

"I would have thought him admitting that he knew she was drunk would have made it clear he hadn't obtained proper consent. Obviously not."

But her capacity to consent due to intoxication wasn't in question, was it?
I thought her evidence was that she was in a position to consent to man A.
I'm not saying that this makes man B innocent as the issue of stepping in to mans shoes where the woman is unaware still brings the consent in to question.
But the issue of being drunk and her capacity to consent doesn't seem to arise. She was drunk, but she was also in a fit state to consent to sex.
The question is whether she did in fact consent to sex with person B, which her evidence states that she did not.

But with regards to the issue of alcohol and consent that appears to be a bit of a red herring

In both cases the majority of the jury thought One way but we couldnt act on it

gone

Have you served on a jury

I have only done it twice so i am no way an expert

But it did surprise me how little leeway there was in our decision making

So one judge issued us with a sort of flow chart which couldnt really be deviated from and the other case centered on a particular time so we had to decide based on that time...not earlier or later

OK, so something only happens if a jury agrees? What about all the cases that never go to court? The guy wasn't found guilty of the official crime of rape, but he stuck his penis in someone who didn't want it - so what shall we call that?

Again, I'm moving the window - yes, drunken sex happens, but both parties having sex need to realise that that opens them for risk of being a rapist/sexually assaulting someone.

Just like if I have unprotected sex I risk getting pregnant, and if I get behind the wheel drunk I risk having an accident.

I won't always have an accident, I won't always get pregnant, it won't always be rape. The difference with rape is that we actually have some extra information. I can't predict if I will crash on any given drunken journey, but I can ask my partner if they want to have sex. I can't predict if I'm going to get pregnant from unprotected sex, but I can wait and have sex when I'm not ovulating.

In order to mitigate the risk of becoming a rapist (drunk driver/pregnant) I can wait until we're all sober (sober/not ovulating)

See? Sex isn't inevitable - it's a choice, you can choose to have less-risky sex.

The jury clearly didn't think rape happened here. You're talking like everyone agrees with you, but they don't.

Re: the phrase a bit off, you're being facetious. But if you can't be bothered to engage with the ambiguity and the sky high expectations that everyone will differentiate 'normal' from 'a bit off', it's no odds to me. But do have a look at one of the many threads talking about one night stands. Alcohol often features! One person's a bit off could well be seen in a different light by someone else! After the event, it's not just the woman who gets to decide exactly how 'off' or normal she was. The man should also have a voice to say 'hang on, you may regret it now and wish your judgement had been different but there was no reasonable way I could have known you would feel that way in the cold light of day.'

Well, yes, Selkie, where is this Utopia where women are believed anyway (it's clearly not gone's world)

Rape can ruin lives and is of course abhorrent, but a false accusation of rape is also a devastating thing.

Except that didn't happen here did it - no matter what the bloke and the jury believed, the woman had a penis inside her that she didn't want.

Or is she wrong? There she is thinking she didn't give consent but she's got her self all confused and really she did consent to some other bloke penetrating her? Are you suggesting that she made a false accusation?

If someone puts their penis in me, before I can report it to the police do I have to ask them if they thought I'd consented otherwise I'm falsely accusing them of rape? Sounds a bit open to abuse to me - after all, who's really more likely to lie? Any woman, or rapists?

Oh, I don't know, I think I'd quite like to live in gone's version of the world where women can go to the police with whatever flimsy fabricated claim about being raped that they fancy, offer no evidence at all, be believed, and have their rapists prosecuted and sent to jail. I mean, it must be an simple pain-free process, right, if women just get up one day and decide to ruin men's lives for no reason whatsoever? We all know how easy women who accuse men of rape have it, but dear me, those poor poor men.

Must happen all the time.

/sarcasm.

Well, rape isn't subjective if someone sticks their penis in me, and I didn't want it, I have been raped.

From the other side, if I have any cause to doubt that someone might not be in a fit state of mind to consent, then I shouldn't have sex with them. If I go ahead and have sex with someone when they are drunk, then I am placing myself at risk that they didn't actually want to have sex with me, and in that case, I would be a rapist.

It really is very, very easy.

Just like, as a driver, if I'm slightly concerned I've drunk more than I should, I don't drive (actually, I probably wouldn't drive after drinking any, because I would be driving my kids who are so valuable to me I couldn't risk it) - perhaps that's a better rule. If you have been drinking, and you're worried that your decision making may be impaired, then don't put your penis in anyone.

And from the other side, if I have concerns over how much a potential lift home has drunk, I don't get in the car with them, even if I'm quite drunk myself.

See, easy. If you are worried you are unable to make sensible decisions, don't get in the drivers seat of a car, and don't put your penis in anyone. If you are worried that the person you are with is impaired, don't get in a car with them driving, and don't put your penis in them.