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

[SmashingNarcissistsMirrors]

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

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.

Balloon, if a defendant in any case offered this "defence", the judge would direct that the jury find him guilty.
In this case, the defendant maintained that sex was entirely concensual.

And the jury was obviously convinced that Miss X gave consent. Whilst she was asleep.

We'll never know how closely his reasonable belief in consent was tested. What we do know is that juries believe all sorts of nonsense from defendants on that score. Heck, MN threads show that rape myths are still believed in the main so it is not surprise that jurors do as well.

"And the jury was obviously convinced that Miss X gave consent. Whilst she was asleep. "

not necessarily. surely it's more likely that the jury were convinced that the defendant believed that miss y was awake and consented to sex.

can anyone explain to me why we even give a damn about what he thoguht - why does intent (or so called lack of it) mean the very real consequences of his actions get unpunished?

so what if he thought he was having consensual sex with Ms Y when he was actually raping Ms X?

Isn't the harm done to Ms X the thing that should be at the crux of the case?

I.e. so blatently way out from focusing on the harm to Ms X that he actually goes unpunished?

What kind of fucking legal system do we have here?

why does intent (or so called lack of it) mean the very real consequences of his actions get unpunished?

I think in the general case it really needs to be this way.

Surgeons.
People walking in front of cars and dying.
etc.

because what he thought is vital to the crime. If you had a legal system which punished people simply based on results/actions then you'd end up jailing a raft of people who had no intention of committing illegal acts.
This is an extreme case but that doesn't mean that the rules of law should be abandoned.

in theory, i understand.

regardless if this intellectual comprehension as to why it needs to be like that, when my daughters are older i will be teaching them that they cannot rely on the justice system to protect them, or punish criminals if they are ever a victim of this sort of thing.

isn't it sad when a white, middle aged, university educated female would advocate vigilante justice to her own daughters, because some of us have so little faith in the system itself? if i'm this disillusioned with the whole thing, what do others in our society who have even less of a voice than me think? The elderly or otherwise marginalised segments of Britain?

just a thought.

Yes, mq, sorry. I meant that they didn't believe she was asleep. I have a bee in my bonnet about this consent issue and how a) it is tested in court and b) how readily the defendant's reasons for believing in consent are often accepted by juries.

In the case of Jack Tweed and his friend, the friend was found not guilty of rape because the victim gave him a look. Just a look. Whilst she was being raped by Jack Tweed. Yeah, I know, he got found not guilty as well. But I cannot believe that on the one hand many men complain that they don't do hints and on the other can interpret a look to mean "put your cock in my mouth".

There is a harrowing story on the other thread about this case and more earlier on this thread and others that are the reason why I angry. These outcomes shouldn't be happening in a civilised society. Actually, crimes like this shouldn't be happening in a civilised society. But that's another argument.

I'd agree to a point, but I think juries will also take into account that for most people the signals and actions leading to sex are non-verbal.Most of the times I've ended up with women it has been because I've read a look/touch that they've given me or they have read something non-verbal I've done.However I think they give too much weight to these issues and they seem to get entrenched in the notion of "well what is expected of the man?is he meant to say do you consent to intercourse with me when he is chatting her up etc.", which of course is also unrealistic, but it could well be what leads to them finding in favour of the man when he says that she had been giving him signals all night etc.

The character of the man is shown up in the fact he pleads not guilty, surely.

He raped someone, he should be pleading guilty.

If I made a serious mistake that resulted in serious harm to someone else I would hold my hands up to it, as would any other decent person.

But what about the jury ?

They listened to many hours of evidence and at least 10 of the 12 concluded he was not guilty.

Surely they are culpable of something ?

To reiterate the answers above, no, of course he couldn't have used attempting to rape one person as a defence to raping another! He used belief in consensual sex with one person as a defence to raping another. Completely and totally different.

You may think, based on what you have read, that this is rubbish, that the jury should have seen through it, that they should have dismissed his account and preferred hers. That is a separate matter - the account he apparently gave is CAPABLE of amounting to a defence in law. That doesn't mean that it is a sure get-off mechanism, just that he is saying something that would not immediately make the judge say "hang on a second, this man is admitting to an offence".

We don't know what happened in the courtroom - we only know what the journalists in the courtroom wanted us to know/think/believe. That may or may not be accurate. He may have come across very plausibly and she may have given poor evidence. She may have been cross-examined about demonstrable lies. She may have given contradictory evidence. She may have given an account that was inconsistent with the forensic evidence. She may have a history of making false allegations - that might be something that was aduced in evidence but that the press were not permitted to report on. Alternatively she might have given credible, harrowing, compelling evidence, but 3 members of the jury might just not quite have been able to get past that element of doubt.

The low rate of rape cases that come to court is a real concern and things need to change in the way we,as a society, view rape victims. What doesn't need to change is the law. It worries me that there is always an outcry in the aftermath of these cases that the law should be changed, that juries should be scrapped in rape cases, that defence lawyers shouldn't represent defendants etc etc. That is a very scary road to even think about going down - there are countries where these rights do not exist and I doubt any of us would want to live there.

I represented a young man once, in his early twenties, good character, respected in his local area, hard-working etc. He was accused of a truly horrendous series of sexual assaults, rape and buggery on a young woman. His casetook over a year to come to trial and in the interim he was beaten up, lost his job, had members of his family turn against him, had messages scrawled on his partner's home, things pushed through his letter-box, the works. During the trial it came out (beyond any doubt whatsoever) that the allegations were fabricated after he rejected her. The officer shook his hand and apologised to him. The jury cried. He sat in the corridor afterwards crying like a baby and saying that this had ruined his life and he would never be allowed to move past it, that mud sticks. I made soothing noises and said no, no, people will see that you are innocent.

Clearly I was talking out of my arse.

Intent is everything in criminal law. Otherwise we would prosecute every accident that caused harm to others, every mistake that anyone makes.

The woman who accidentally walks out of a shop without paying for one of the many items in her basket - prosecute her.

The man who skids on an icy road and hits another car, causing whiplash to the driver - prosecute him.

The child who breaks a window with a ball - prosecute him.

Sorry - forgot to answer question about how I would have prosecuted this. Exactly as this prosecutor apparently did. Prosecute the actual act, not some potential thing that didn't happen. Hold up his story as incredible.

I always find kungfupanda's posts about how many women lie worrying.

The police and governemtn estimates put it at a low number, similar to other crimes.

If you assume that most of those a filtered out before it comes to trial.

Then kungfu's figures say that of those that get to trial 4 out of 30 (13%) were definitely lies and there is room of course for the ones who weren't definitely lying to be lying as well.

You have to assume that most of the spurious claims are filtered out before this stage. Which means the kungfu is really saying that a vast number of complaints are lies - 50% - maybe more? I don't know what percentage of rapes reported actually go to trial.

How does everyone feel about a legal professional repeatedly asserting something with backs up the most pernicious rape myth (women are all liars) when it is so utterly at odds with the official statistics.

It is something that I have seen before from that poster - kungfu if you care about rape victims and rape myths why do you validate the myth that women frequently lie, on so many threads about rape? It seems a little inappropriate somehow.

kungfu from your posts it seems very obvious to me that your natural sympathies in these cases lie in a different direction to mine.

You keep talking about women lying and saying how common it is - but it's not that common.

You have even suggested now that the women in this case was lying and had a history of making false allegations. Tucked in amongst some other stuff - but there as a likelihood from a legal professional to put it into people's minds.

You talk passionately about a young man who was falsely accused, you don't seem to talk with the same passion about rape victims, instead repeatedly saying that many of them lie.

And then moving on to reject calls for rape to be tried differently to other crimes - that defendents shouldn't be allowed lawyers etc but NO-ONE has suggested this.

I think you have an agenda on these threads TBH.

I would like to ask Kungfu whether the majority of her work in these cases has been for the defence or the prosecution.

It's not a myth that some rape claims are fabricated. The vast majority are almost certainly genuine and, unfortunately, the reported cases are almost certainly just the tip of the iceberg with a huge, huge number of rapes going unreported - that is inevitably going to skew the figures - a huge number of genuine rapes are not reported, but, by definition, all fabricated rapes are reported.

If every rape that took place was reported, I suspect the proportion of false allegations would be miniscule, but they are thrown into relief by the fact that so many women cannot bring themselves to go to the police and go through everything that then follows. People who make false allegations tend to see it through.

And no, I am not backing up an assertion that all women lie. Clearly. What I am trying to do is engage in a more balanced discussion. There tend to be two extremes on this issue - people baying for blood, talking about scrapping juries, removing the legal rights of defendants, lawyers being disgusting for taking the cases, people being guilty even after acquittal etc etc. On the other side you have people suggesting that this woman could not possibly have been asleep, implying that the majority of rape cases are fabricated etc etc.

Neither extreme is true or helpful. It is quite simply a fact of life that some allegations are untrue for a variety of reasons. It would be very nice if this wasn't the case because then we would all know, without the need for a trial, whether someone is guilty or not. Unfortunately we don't live in that kind of perfect society so all we can do is try our hardest to get to a point where the trial process is fairest on both parties, with as little trauma and distress for the complainant as possible. I firmly believe that the support through the complaint and in the lead-up to the trial is the thing that is lacking, rather than anything in the trial process itself. The defendant has an opportunity to meet with his barrister, talk through the process, discuss strong and weak points in his case. He is also advised at every stage on the strength of the evidence and, if it is overwhelming, he is advised about pleading guilty, even if he maintains his innocence. The complainant does not meet with the prosecutor. She does not have an opportunity to go through the process. She is not given advice about how likely it is that she will be believed and she is not told about her option to withdraw at any point.

I am sorry you don't like what I have to say on this subject but I don't see that it is inappropriate to challenge some points of view that are based on complete errors and misunderstandings, and to put forward my own first-hand experience of this type of trial. I am aware that it is not popular to raise the fact that not every defendant is guilty, but this is a fact.

kungfu your list of accidental situations are hardly comparable to rape

People are frequently successfully prosecuted for accidentally killing other people - a better comparison to rape than someone breaking a window I would have thought.

"He used belief in consensual sex with one person as a defence to raping another."

• ah I obviously haven't read the thread carefully enough, sorry. I was referring to earlier posts where it said the girlfriend had said no to sex.

but 3 members of the jury might just not quite have been able to get past that element of doubt.

Don't mean to be picky, Kungfu but this wasn't a hung jury case, 10 or more found him not guilty.

You are being rather evasive.

"It's not a myth that some rape claims are fabricated."

I never said it was.

"I am not backing up an assertion that all women lie. "

I never said that you were.

What I was asking was, why you always always feel the need on these threads to mention that in your personal professional experience a very large proportion of women are lying? How does that "balance the discussion" as you put it? It seems to me that you like to "put it out there" to put a doubt in people's minds about the accuracy of the official stats. I guess putting doubt in people's minds is a big part of your job?

People are frequently successfully prosecuted for accidentally killing other people

Could you give an example, as I'm not sure there are any ?

"kungfu your list of accidental situations are hardly comparable to rape hmm"

no but the principle is exactly the same. If people are saying that he should be found guilty of something based on the fact that he caused harm to another then surely this should apply to all crimes.

Of course I have an agenda. I have been quite clear about my agenda. It is to engage in a balanced discussion. What other sinister motive do you imagine I have?

Of course I can talk with more emotion about the young man I represented. I spent a year of my professional life watching him disintegrate. I have never had to do that with a rape victim because I am a defence lawyer. I have prosecuted, but very little and on very specific matters.

Please do me the courtesy of not mis-representing my posts. I did not suggest that the woman in this case was lying. I pointed out that there were many, many things that we don't know about this case because we weren't there - there are many reasons a jury are unable to convict. I provided a list of examples, including the posisbility that she gave brilliant evidence and the jury still reached a surprising decision.

And yes, people have suggested that defence lawyers are disgusting for taking cases like this, and that juries should not be allowed to try rape cases. This is what I am taking issue with - the fact that, based on very little knowledge, people are very ready to sell the criminal justice system down the river and replace it with what?

I have a vast amount of sympathy for the victims of this horrible, degrading crime. I have had to deal with some nasty, nasty allegations, the kind of allegations where you want to wash yourself from the inside out to get rid of some of the images. I have dealt with defendants that I have had the greatest difficulty in not punching in the face. I have sat in court and listened to womens' lives fall apart around them.

None of this budges my belief that every allegation should be dealt with in accordance with the long-standing, basic tennets of justice in this country. It's not perfect. It never will be, but it is a million times better than people in many parts of the world endure.