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

If rape is about intent, then it seems clear that the defendant intended to have sex on her whether she consented or not. He wasn't bothered about her consent.

Therefore, morally, if not in strict legal terms, he is a rapist.

Trying to defend his behaviour makes you look a little like you think she deserved it. So far, so patriarchy.

And yes, I would expect anyone who wanted to insert his penis into someone else to be very sure that the insertee not only consented to it, but that they were capable of giving that consent freely. Not to do so would suggest that consent isn't top of their list of sexual priorities and therefore that they are a rapey twat.

Yy liesel.

Gone, yes, I believe both men and women should go through whatever steps are necessary to make sure that they are in bed with someone who consents.

And it's a reasonable expectation whether in a long term relationship or a one night stand that if you go to bed with one person, then no one else will get into that bed when he pops out, don't you think?

gone - are you a man or a woman, out of interest?

"The dynamic in this case sounds more like pick and mix than relationships."

How dare you say this?

She went to bed with one man, Z. Another man, S, came in and she used the name of Z. She was clearly sexually interested in Z.

FFS.

The whole thing sounds grim and I feel so sorry for the woman.

He was sober, she was drunk, I don't know why but that makes it seem even more sinister to me, like she was vulnerable, he knew it and he pounced? Like he somehow equated her consent to his friend to consent for him also. Someone who thinks that way is dangerous in my opinion.

I hope the woman is ok and manages to move on.

If B penetrates A without A's consent, which A must have freedom and capacity to give, then B has raped A.

B can use as a legal defence to the charge of rape that he had belief in A's consent and if the jury accepts that belief was reasonable (or cannot accept beyond reasonable doubt that it wasn't) then B will be found not guilty. That doesn't mean that the penetration of A without her consent didn't happen. B's intent is not relevant to that point.

So in the hotel room case, the woman was certainly raped ie penetrated without her consent despite the jury finding the man who went into the wrong room not guilty.

In another case, a woman saying no to her rape saw the man walk free as he claimed to have insufficient English to understand the word no. Again, she was clearly penetrated without her consent and he was utterly reckless as to her consent, whether or not you believe the language point (I don't, YMMV)

Sorry - "a heck of an if" in response to gonetosee.

A hell of an if??? WTAF? Do you regularly find yourself in social situations where you might get into bed with one man, have him go for a piss and another man come back and take his place with no prior discussion or agreement as to whether you might have wanted this to happen, and you think this is normal behaviour?

I am reliably informed that on the swinging scene (which is the only situation where I can think of where people might be up for that sort of partner swap) consent is everything, and people very much do not expect all and any partners to be interchangable - a woman may have sex with more than one man of her choosing but that does not mean she's up for it with any man who happens to be on the premises. And in any case there is no hint that this was in any way a swinging/polyamorous situation (I'm sure had there been the tabloids would have dwelt on it at great length).

I just find the jury's decision totally incomprehensible, TBH.

a hell of a And my staying somewhere with my partner simply isn't a comparable analogy because it implies a context of clear committed relationships where there would be very little room for ambiguity or misunderstanding. The dynamic in this case sounds more like pick and mix than relationships.

a hell of a Yes, but that's a heck of an if.

The issue of giving consent is tricky. How many people stop and say:

1. Are you sober enough to give consent? (Because most one night stands involve drinking, let's face it, so having sex with someone who is drunk when they consented does not mean you've raped them).
2. Am I who you think I am? (How do you even phrase that to the person involved?!)
3. Are you agreeable for me to penetrate you now? (WTF? Who does this?)

Are we actually saying that unless the man has gone through these steps (and why does it have to be the man?) the woman can decide afterwards that she was raped? Or are we saying that it is rape if any of these steps have been skipped?

Saying 'it's rape if she decides it is' is making it all about what's going on in her mind. And while that's very important, it's not the whole picture by a long stretch. Equally important is her behaviour up to that point, what's going on in his mind, his behaviour and any understanding between them.

No, green is not being irrational, she's shifting the overton window. If we put the burden on the man - if we allowed the line of questioning in court "what made you believe that this woman wanted to have sex with you, and you in particular, at this particular time and in these particular circumstances", so that men had to defend their behaviour, it might make a few would-be rapists think twice about their actions.

From a moral perspective, rape absolutely is "about having someone stick their penis in you when you don't want it (no matter how much they might want to think you want it)."

And the "going into the room his mate had come out of" wasn't a point I was making about his promiscuity; it was a point about the reasonable expectations of the drunk, sleeping woman still in that room that the man who came back in and lay beside her would be the same man as the one that walked out of there naked shortly before.

If you were pissed and half asleep next to your spouse and had a mate staying, they got up and went to the loo and a person came and lay next to you, your expectations would be "primed" for that to be your spouse, not your mate, wouldn't they?

"Having sex with someone very drunk is not legally considered rape either, "

Yes, it is, if the person is too drunk to have capacity to consent.

green You are being completely irrational.

Actually if the law was less skewed in favour of the person accussed of rape it would clearly having impact on men's behaviour. In cases such as this, if the man had been found guilty it would send a clear message that consent has to be clearly and actively given.

In my mind the fact that she was very drunk and he was sober changes the balance of the reasonableness in this specific case.

I am uncomfortable with the whole story about the events and the fact that it was Zack who backed up the defendant's claim that he went in to the room to get her out of the flat. The whole going out of the room to get some Viagra seems rather implausible to me, this wasn't even Sam's flat, why would he believe there was Viagra in another room? It sounds like ''mates doing each other a favour". ' I've finished, do you want to have a turn now, she's very pissed and up for it" seems a much more likely explanation. They had plenty of time afterwards. when she left very distressed, to concoct a different story.

Because rape is about intent

And the woman who got raped has no say in the matter. Patriarchy alive and well I see.

Personally, and not caring what the law is, I believe rape is about having someone stick their penis in you when you don't want it (no matter how much they might want to think you want it).

Well the jury obviously saw it that way. The woman didnt. I wouldnt either. Would you?

Because rape is about intent, in a situation like this where the woman consented at the time. Unfortunately the nature of her problem with the accused is not so much that he had sex with her (she consented to that) but that he received her into thinking he was someone else. I.e. the context for her consent was a deception.

Promiscuity comes into it because posters were talking about him entering the room straight after his friend had left as if that was evidence of guilt. It's not although it doesn't make him appealing. Having sex with someone very drunk is not legally considered rape either, though again, it doesn't make him a nice person.

There isn't compelling evidence that he tried to make her think he was someone else. It simply isn't there. And the whole accusation of rape rests on that. Because if there was no intent to mislead, it was an unfortunate case of mistaken identity. Pretty much as if you meet someone in a club, think they're a close friend from way back, and realise afterwards that you've been mistaken.

I don't see why it didn't fail the test of what would a reasonable person believe in these circumstances, i.e. the "person on the Clapham omnibus" test. You are sober, the woman who is steaming drunk got into bed with your mate - surely a reasonable person would think at this point if she came onto him (even leaving aside his motivation for getting into the bed in the first place) "oh god, she's so drunk she thinks I'm my mate, not me".

I believe there is case law to this effect (I'm not a lawyer, so this is second hand from a conversation many years back). A man, in a sadistic attack on his wife, persuaded two of his friends to rape her, having told them that she was into rough sex and rape fantasies, and even though she would fight back she was only play-acting and they were to go ahead. The jury found them guilty on the grounds that no reasonable person would have bought such a cock-and-bull story. In other words, it's not just what the accused sincerly believes to have been the case, but whether a reasonable person in the same circumstances would have believed it to be the case.

what matters is what he percieved about the woman's state of mind, I.e. who he thought she thought he was

And there is the problem with it all

Who cares what the woman actually thinks, all that matters is what the bloke thinks she thinks. God forbid a man should actually take responsibility for his actions and wait to ask the woman what she actually thinks. He should just guess, and that's fine.

Not quite sure why you've opened with "promiscuity isn't rape" either - no one said it was.