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AIBU?

Share your dilemmas and get honest opinions from other Mumsnetters.

to think "being drunk" is no defence for raping someone

259 replies

SmashingNarcissistsMirrors · 08/03/2011 12:15

i'm absolutely shocked by this case where a man has been acquited of raping a woman because he was so drunk he thought she was his girlfriend and didn't realise he was in the wrong bedroom.

this is so so wrong. how many men will now use "being drunk" as a defence?

not only this but according to the article the girlfriend had earlier said she was too ill for sex. plus the victims phone was found dismantled in the mans sock when he was arrested.

how can this happen?

www.dailymail.co.uk/news/article-1363964/Haydor-Khan-cleared-rape-said-thought-I-BRUNETTE-girlfriend.html

OP posts:
Sn0wflake · 10/03/2011 19:26

This is so depressing...

Rohanda · 10/03/2011 19:38

Pan a man-hater? missed that.

We are having to hire a barrister to 'prepare' a witness/victim for all the shit she is going to receive from the defence solicitor in a harrassment trail. The victim's conduct is going to be analysed much more than the defendant's.

HerBeX · 10/03/2011 19:40

Can't the barrister ask the defendent loads of searchng questions about his behaviour then?

I just love it when men are called man-haters on these threads. Grin

Rohanda · 10/03/2011 19:48

of course HerBeX. But the prosection just need to do two things 1.prove an offence has bee ncommited 2 who did it.
Defence will have the majority of the floor to pull her conduct apart and give an impression it was her fault and she invited it, as a basis to their defence. It's a harrassment case. We are a small voluntary org. and we can't really afford the cost but we are going to have to because of how the court room works.

sethstarkaddersmackerel · 10/03/2011 20:26

good luck Rohanda.

LeninGrad · 10/03/2011 20:34

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Message withdrawn at poster's request.

LeninGrad · 10/03/2011 20:40

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Message withdrawn at poster's request.

Rohanda · 10/03/2011 21:08

mens rea and ignorance of the law?

I hit someone? Ignorance - I didn't know it was illegal to hit someone. Mens rea - I know it is illegal to hit someone, but it wasn't my intent that he/she be hit. Obv with much more subtleties involved usually....if I am wrong then happy to be corrected.

Rohanda · 10/03/2011 21:09

thanks seth. the trail isn't until summer.

BalloonSlayer · 10/03/2011 21:23

"Even assuming it was a complete accident on his part, why wasn't he convicted of something?"

  • because he was charged with "Rape of Ms X" and that was what he was being tried for.

If he had attempted sex with his girlfriend, she had rebuffed him and he thought he was trying again with her then I agree he is a rapist

BUT

he wasn't trying it on again with his girlfriend, so he wasn't trying to rape her, and there was no charge to bring of "attempted rape of Ms Y." This is because what he allegedly thought had happened - he had sex with her despite her having previously refused - did not actually happen.

It's basically a loophole in the law which is stating - this is not a case of rape of Ms X, there was mistaken identity so it is a case of attempted rape of Ms Y. But a charge of attempted rape of Ms Y would not even make it to court as he didn't lay a finger on her after her refusal.

"Very clever" of his defence team. They, and he, disgust me.

LeninGrad · 10/03/2011 21:24

This reply has been deleted

Message withdrawn at poster's request.

Rohanda · 10/03/2011 21:36

no, for many offences you must prove an intent.

eg theft - to be convicted of this the prosecition must prove an 'intention' to steal and to keep the item away from the victim permanemtly.
eg in our case at court the proseution must prove that the intent was to upset her. without that there is no offence.

TandB · 10/03/2011 21:38

"of course HerBeX. But the prosection just need to do two things 1.prove an offence has bee ncommited 2 who did it.
Defence will have the majority of the floor to pull her conduct apart and give an impression it was her fault and she invited it, as a basis to their defence. It's a harrassment case. We are a small voluntary org. and we can't really afford the cost but we are going to have to because of how the court room works."

It's not really that one-sided. The crown take their witness through her evidence in chief and yes, that is geared primarily towards establishing the basic elements of the offence, but a good prosecutor will obviously make sure that the details are brought out. The defence will then cross-examine her on the basis of the defendant's case, ie the account that the defendant will give in his evidence will have to be openly put to the witness so that she has an opportunity to comment on each aspect of it. If the defendant says something in his evidence that has not been put to the witness then she will have to be recalled and given the opportunity to agree or disagree with it. At this point, if it is the defendant's case that the relationship was consensual etc, the defence lawyer will cross-examine her on her conduct relating to that. The defence will not have a free reign - for example they will almost certainly not be allowed to question her about her sexual history or things of that nature.

Once that has happened then the same thing happens in reverse. The defendant gives his evidence and the prosecution cross-examine him about his conduct.

The two sides of the case are pretty much mirror-images of one another. It is not a case of the defendant sitting protected from any examination of his conduct while the witness is torn apart. The only way that the defendant can avoid the same treatment is if he refuses to give evidence - this is his right but he cannot then refute anything she says and the jury will generally be invited to draw an adverse inference from his silence.

Obviously the whole thing is going to be very upsetting for an honest witness, and less so for a guilty defendant, but not every defendant is guilty and innocent defendants go through just as much hell as truthful complainants.

There is a lot of controversy about the stats for false allegations - it is a difficult thing to work out for obvious reasons, but I can say with certainty that it is not as uncommon as you might think. I am constantly surprised when it happens. I have worked on a number of rape/sexual assault cases - probably around a dozen rape cases and maybe about twenty sexual assault cases. Out of those, three complainants were categorically shown to be untruthful and a fourth admitted fabricating the allegation. There was a also another case which didn't get to court because the complainant was caught sending text messages to a friend about the made-up allegation.

The false allegations are incredibly distressing for all concerned - the defendant has been dragged through the mud, the police have invested time, money and emotion in pursuing a lie, the jury have become emotionally involved in the case and, worst of all, the truthful victims of rape and assault take yet another knock to their credibility.

The system isn't perfect by any means but I am not sure what the answer is. A lot of the old protections for defendants have been removed and there is a real risk of the trial process becoming unfair if much more gives. Juries are unpredictable and rape cases are evidentially difficult because it is so often one person's word against another's without other evidence. In those circumstances, it is very difficult for a jury to be "completely sure" of guilt, which is what is required. Add to that the fact that the complainant is inevitably going to find giving ger evidence difficult and distressing and the acquittal rate is not surprising. One thing that might make a difference is continued improvement to the care that rape victims receive at the time of making their report and in the run-up to trial. Better support generally means better evidence. Better evidence makes things much easier for a jury.

Also bear in mind, in cases like this, the reporting can be massively inaccurate. I did two high-profile cases last year where the press came in their droves. On several occasions some of the things in the newspaper reports were quite simply made up to make a better story - people were quoted as saying things they never actually said at all, and statistics and figures were manipulated and deliberately taken out of context.

TandB · 10/03/2011 21:40

Re: mens rea

It's not always just about intent. There is also recklessness. A number of offences hinge on what the defendant knew or SHOULD have known.

eg some of the public order act offences relate to behaviour that is likely to cause any person of reasonable firmness to fear x yz.

TandB · 10/03/2011 21:49

Balloon Slayer - the defence team don't create the "loophole". You defend on the basis of instructions and you defend against the actual charge that is laid, not some other hypothetical charge.

The prosecution charge on the basis of what they believe they can prove according to the evidence they have. In this case they presumably thought they could prove rape of X. They could never have proved attempted rape of Y because, assuming that he said in his interview that he thought X was his girlfriend, Y, and he was intending to have consensual sex with Y, the prosecution would have to make a series of leaps with no evidential base - he admits intending to have sex with Y, we don't believe that he intended for that sex to be consensual, and we believe that he actually did believe X to be Y therefore we will charge him with attempting to rape Y.

Furthermore, in order to charge him with attempting to rape Y, they would have to accept his account that he believed X was Y. By going for attempted rape of Y they would therefore bar themselves from prosecuting the actual alleged rape. No prosecutor in their right minds would do it.

The two charges fall on opposite sides of the defence account - the prosecution would have to come down on one side or the other.

I don't see how the defence team "disgust" you for defending against the charge their client actually faced. What do you expect them to do? Jump up and down saying "well, actually, even if you believe he is telling the truth about the incident with X, you really need to come up with some charge to cover the mens rea in relation to his thoughts about Y"?

frgr · 10/03/2011 21:56

I'm surprised that more victims don't seek ways for revenge in cases like this.

Only the two of them know 100% what happened. But if the facts are genuinely as the article says they are, how could you live with yourself, knowing that he's gotten away with such a terrible crime against you? It would eat me up, and frankly I'm surprised I don't hear of more women seeking their own "justice" where the police, courts, the whole justice system has failed them so utterly terribly.

Rohanda · 10/03/2011 22:00

comprehensive kungfu and thank you for it.
just on our particular case it's going to be more one-sided as he admits to the acts - just that defence will be focused on what 'permission' she gave him to behave in this way. I am really uneasy about going into more detail on the interweb for obv. reasons - but I read your post with an interest, as a 'model' of how the process should be followed, but for this case it will be her conduct at question rather htan the defendants who will be blaming her for encouraging him. IYSWIM, but accept it if I am being too necessrily vague.

TandB · 10/03/2011 22:16

Rohanda - that is difficult. Purely mens rea cases are a pain in the neck - one person's word against another's in the purest form. And very rarely black and white in terms - where there has been a previous relationship at least.

Frgr - I suspect most honest complainants are just completely drained by the whole process.

Rohanda · 10/03/2011 22:21

yes, that is why weare hiring a barrister to forewarn her about the possible experience in the witness box,(or local CPS are rubbish at this sort of thing) and a cousellor to ensure she understands from a psychy point of view that it isn't her fault.
I know the defending sols personally and he is a 'nice bloke' but extremely goodat his job and he will be ruthless with her.
re above I too have very mixed emotions about a defendant getting the best defence poss., but this is compromised when you know the defendant is as guilty as can be.

BalloonSlayer · 11/03/2011 08:28

kungfupanda To address your first and last paragraphs - Yes I know that the defence team don't create the loophole, it is there, but they used it cleverly. And they disgust me for taking the case, frankly. But of course I know someone would have done.

The rest of your post is what I was trying to say, but without the benefit of your intelligence and clearness, I'm afraid. I do agree with you - the law works as it does, and in this case the offender gets away with it and the victim has no justice. Sad Angry

TandB · 11/03/2011 08:53

I find it odd that you can be disgusted with people for doing their job. We live in a society where, quite rightly, everyone has a fundamental right to representation when on trial, with their liberty at stake. Everyone. Not just the people who have been pre-judged by society as deserving of a fair trial. The jury is the judge of the facts, not the people who read the newspaper reports.

By your logic, no-one accused of any crime that society finds particularly heinous should be represented. What about Sally Clark? Charged with killing two babies - about as heinous a crime as we ever read about. Should her defence team have refused to take the case? Should they have thought her crime too 'disgusting' to deserve representation? Or should they have done exactly what they did and represent her to the best of her abilities and ultimately see her vindicated? Completely different, you will no doubt say, but why?

Not everyone accused of a crime is guilty. There is no filter system that puts certain cases into a different category of "almost certainly did it, really disgusting offence, does not get a lawyer'.

This story could have been entirely mis-reported. Or the journalists could have missed out large chunks of relevant evidence because it made their story less punchy.

Finally - it is not a loophole. There are very few true loopholes left in the criminal trial process. Most have been closed by statute. This isn't a loophole - it is a simple logical fact - the prosecution can't take a scatter-gun approach and charge someone with all sorts of speculative offences when the effect of doing so would be to undermine their actual, evidence-based case. It would be no different to say an armed robbery where the suspect was said to be in X location, but gave an alibi saying he was in Y location on his way to buy a can of drink at a shop, and the prosecution charging him with armed robbery of X shop and attempted robbery of Y shop.

The defence team weren't remotely clever in the approach they took, if the reports are even accurate. It is a pretty basic requirement that a lawyer be able to look at the charge and deal with it, rather than wildly speculating on all sorts of other possible offences that didn't actually take place. Defence lawyers don't go poking and prodding at their clients' instructions and saying 'aha! I don't believe you - and if you are lying about that then you might be guilty of something else. Quick! Off the the prosecution to tell them about it!"

Sorry - I know that people like to think of defence lawyers as terribly clever and capable of all sorts of fancy footwork, but it really isn't like that. The criminal procedure rules and various other procedure-related statutes over the last few years have tightened things up and removed a lot of the loopholes and advantages that defence lawyers could once use. Things are a lot cleaner and more straightforward these days.

LeninGrad · 11/03/2011 08:56

This reply has been deleted

Message withdrawn at poster's request.

BalloonSlayer · 11/03/2011 09:18

I am not a legal person kungfupanda - you might have noticed - so my views are always going to be emotive and not very rational, sorry.

I am right in saying that in this case the man claimed that his girlfriend had refused sex and he had got up to go to the toilet, returned to what he thought was his and his girlfriend's bed and had sex with her, but it turned out to be someone else's bed.

To my unprofessional mind - an aspect of a legal system that means a man can use as his successful defence against a rape charge what basically boils down to: "I did not rape Miss X because I was thought I was raping Miss Y" is a loophole. It means that he has got off a rape charge by basically admitting to raping someone else.

In the example you gave, Sally Clark always denied harming her babies. I always understood that decent defence lawyers did not take on cases where they believed the defendant to be as guilty as hell. Of course defendants in heinous crime cases need representation, but I think this is different.

In this case, the man admitted that he was - as far as he knew - having unconsensual sex with a woman. Which is rape. So his defence team will have known that he was a man who thought nothing of having sex with a woman against her will - ie a rapist - as he had admitted as such, but defended him anyway. Yuck.

I understand all your arguments, and I know you are right. I am just seeing this in a - fume fume Angry how can this happen sort of way.

BalloonSlayer · 11/03/2011 09:20

Second para should have started "Am I right" not "I am right."

mayorquimby · 11/03/2011 09:49

"To my unprofessional mind - an aspect of a legal system that means a man can use as his successful defence against a rape charge what basically boils down to: "I did not rape Miss X because I was thought I was raping Miss Y" is a loophole. It means that he has got off a rape charge by basically admitting to raping someone else."

no his argument is "I did not rape miss x because I thought I was having consensual sex with miss y"