To be worried about the Ched Evans threads on here

[corkysgran]

Sorry but this does seem like a witchunt to me. Many of the posters (who have signed the petition) obviously have little knowledge of the case. At one point a poster said Sports Direct would withdraw sponsorship if Evans was NOT signed and immediately others were vowing to boycott. Laughable and shows the level of thought before clicking. Online justice and the court of public opinion, not for me. As for expecting football, an industry corrupt from the very top (Sepp Blatter) and inherently sexist, to show any moral stance, get real.

If you know they are unconscious that's the end of it. They can't consent or not consent and you know it.

House I wasn't talking about penetration, but about maggie's example of oral sex. In a consensual sexual relationship, however brief, that sexual touching intended to pleasurably rouse someone from sleep, that there can be no reasonable belief in consent.

What about the following example. A man strokes his sleeping partner's breasts and stomach, in order to rouse her and initiate sexual activity.

House are you a lawyer? I'm asking out of interest (I have said I'm not) because if your different reading is informed by education and experience then of course I should defer to that. But I still think (as a layperson) your reading of Bree and s.75 is too strong.

Take for example this 2010 commentary on s.75:

As initially drafted, the [s.75] presumptions were intended to place a persuasive burden on the defendant. This would require the defence to convince the jury that, on the balance of probabilities, despite the circumstances the complainant did indeed consent and that his belief in consent was reasonable. However, the proposal to place a persuasive burden on the defendant was met with fierce opposition as it was considered to contravene the presumption of innocence and tip the balance too far in favour of complainants [J. Temkin and A. Ashworth, ‘The Sexual Offences Act 2003: (1) Rape, Sexual Assaults and the Problems of Consent’ [2004] Crim LR 328 at 343]. Hence, the end result is less radical than was initially proposed as it is now only necessary that the defence raise sufficient evidence to convince the judge that there is an issue with regard to consent [R v Zhang 2007]. In contrast, the s. 76 presumptions are conclusive and therefore only apply in a very narrow set of circumstances involving deception.

(Alcohol-related rape cases: barristers' perspectives on the Sexual Offences Act 2003 and its impact on practice Clare Gunby Anna Carline Caryl Beynon JCL 2010)

From the CA judgement in Bree:

24 Section 75(2)(d) of the 2003 Act repeats well established common law principles, and acknowledges plain good sense, that, if the complainant is unconscious as a result of her voluntary consumption of alcohol, the starting point is to presume that she is not consenting to intercourse.

Emphasis mine.

In Bree it was conceded by the Crown that the complainant was conscious throughout; I have reread the CA judgment and see that it's authority for the irrebuttable presumption of no reasonable belief in consent where a complainant is unconscious. To be clear, I am talking about sexual touching generally, and not penetration.

And surely that would be ultra vires, regardless, given the intent of s.75, set out above?

I'm not talking about consent. I'm talking about reasonable belief in consent

It is a fact though that consent cannot be reasonably inferred in cases where the complainant is unconscious

But noone has actually given authority for this. (I am still thinking of maggie's question.) Bree, which I've just reread, began as the Crown advancing that complainant was unconscious (based on her memory loss), but then conceding that she was not, in the face of the defendant's testimony and expert witness who testified that blood alcohol would be below the driving limit at the time of intercourse (about 3.30am).

The fact is, people start having sex with sleeping people all the time, and the law has to be and tries to be (if you look at the debate at the time of drafting the SOA 2003) in conversation with this fact.

The fact is, in the absence of s.76 facts, both consent and reasonable belief in consent are a finding of fact properly left to the jury (Dougal, Bree).

Any steps taken prior to the act (the previous day for example) will not be sufficient to evidence this belief

It is not legally possible to give ongoing, irrevocable consent extending into the future.

I don't think either of these things accurately reflect the law, or how sex actually unfolds (of course consent is always revocable, but most consent IS implied and ongoing, until it's withdrawn - I for one don't spend the sexual act saying yes, that's fine, that too, excellent, do carry on ), but I've stated and supported my case as best I can and until a criminal QC comes along to educate us all I'll leave it there

That is obvious. Unfortunately, it's not what I'm talking about

Consent is implied and ongoing during sex, provided you don't revoke it.

Consent is also implied and ongoing during life and there is often, if not always, a brief period - perhaps we can call it a grace period - during which sex is commonly initiated by sexual touching (including oral sex, as per maggie's example) before consent, explicit or implied is given. Consent cannot be given while a person is unconscious, agreed. But imo there CAN be reasonable belief in consent (knowing that your partner loves being woken with oral sex, for example). The presumption is evidential and rebuttable, and yours and Somebody's arguments mean that reasonable belief in consent merely collapses into the presence or absence of consent. i.e. that there can be no reasonable belief in consent where a person is unconscious. And I am saying that that is not what the statute says, that when drafting the statute parliament explicitly shied away from that choice, and noone has given me authority for it. (I wait to stand corrected!)

Of course there will be no reasonable belief in consent for a right thinking person in the cases you describe. But that is a finding of fact, not law. Let's hope so, anyway, for all the people who sexually touch their partners when they are sleeping in order to rouse them for a sexual encounter.

Whether it's obvious or not, it's the law.

But you haven't engaged with any of the material I've cited or given me authority for it?

Initiating sexual activity with an unconscious person who therefore is incapable of giving consent or not = illegal.

Please, please, please give me some authority other than your own good opinion. I am entirely open to it. But I feel you're not engaging with the cases or statute that I'm pointing to at all.

It will in many cases, as a finding of fact, be illegal. But I haven't seen anything to suggest that it is inevitably unlawful. Or unconsciousness would be in s.76 and not s.75.

Cross posts. My case is that in the law, as it's set out, reasonable belief in consent still operates separately where a person is unconscious. You haven't engaged with this, but just keep stating flatly that it's not the case.

Eh, I really feel we're at cross purposes. Will find a criminal lawyer to talk to about it!

I thought that it is illegal. But because there is a continuum of drunkenness, and a continuum of what are reasonable interpretations of what a person might be doing or saying when drunk but not (yet?) unconscious)l. So there is a defence of 'reasonable belief in consent'.

It does not make the act any less illegal, but demonstrates completely different intent sufficient to remove criminal culpability.

(Not a lawyer, and I really hope I've said what I mean).