to think that barristers shouldn't ask this in rape court cases

[brizzledrizzle]

" his barrister, Michelle Heeley QC, asked whether the woman had been "fairly drunk" after drinking wine, prosecco and spirits during a night out in April 2017."

She might as well have asked if it was the woman's fault

www.bbc.co.uk/news/uk-england-hereford-worcester-46799539

It means they're in an even more vulnerable state if they had been tipsy/drunk.

would you really think it OK if your defence lawyer was unable to cross-examine the witness about whether they could really remember what they saw in those circumstances?

Of course not. They can do this without implying witness responsibility for the crime though.

You're not going to win this one, OP. I'd give up now.

She isn't on trial, he is so whether she was drunk or not is irrelevant - women shouldn't have to think that they can't go out and have a drink in case they get raped.

No-one is suggesting this.

They can do this without implying witness responsibility for the crime though.

Well they can't really in a rape case can they? It's one word against the other. The witness states there was no consent, the defendant states there was consent. In order to defend their client, any lawyer in a rape case is going to have to imply the witness had part responsibility in the act that took place.

It is uncomfortable but it is a lawyers job to attempt to discredit the witness. Awful for victims but necessary, otherwise people would be blindly prosecuted for rapes due to lawyers not being able to effectively cross examine the witness.

I would have thought that, given that if she was drunk a woman couldn't consent, then defence barristers would be more wary of asking this question.

It would seem to me that it's a lose lose situation for women. Drunk and your inhibitions are down and you consented. Sober and you must've been able to consent

OP I hope you are not part of my jury if I every commit a crime.

I've been a victim in this sort of trial and some of the questions were just awful. Questioned about how I had no underwear on - I was in my pyjamas. They will go to any lengths to defame your character.
Sometimes I think the court process traumatized me more than the attacks.
Why is it after the perpetrator has given evidence can the victim then not take the stand to rebute things they said/lied about?
Another question, I found evidence after the trial which would put into dispute the defendants 'frame of mind' which he argued/lied about and the police foolishly forgot to look into prior. Is this of any revelance? The advice I got was no one would care...

It's relevant.

looselipssinksships that’s why I didn’t press charges when it happened to me. I was very drunk that night and the thought of them questioning me and pulling up the fact that I didn’t remember the whole night seemed too traumatic to deal with.

I’m amazed this case hasn’t been more prominent on MN feminist boards with its resemblance to the Ched Evans case. Too busy discussing trans issues endlessly I guess

@ashtrayheart - why don’t you start some threads on it then? There’s no point in bitching that other people should do something if you CBA yourself.

Actually if she was drunk then she couldn't consent so it is relevant

Wouldn't that rather depend on the level of intoxication? Or do sexual liaisons now have to be preceded by a breathalyser to determine the reliability of the consent that has been given?

But...

Being drunk might also increas the risk of a man raping, as his inhibitions are lower, yet barristers don't get to imply this to the alleged rapist in his trial // Yes they do. If that is relevant to the prosecution case, there is nothing whatsoever to stop the prosecution barrister putting it to the accused if he gives evidence, and/or making the point in submissions.

Sure, in theory. Don't really hear of this tactic being widely used though (ie: being drunk as the perpetrator is suggestive of guilt)

Sorry but I know a fair few girls who have hooked up with guys (when both equally intoxicated) and woken up to realise it was a huge mistake and they were ‘probably raped’

I’ve actually had this conversation with a girl:

Her- I think he raped me
Me- oh god, what happened, are you ok?
Her- we were really drunk and had sex but I didn’t really want to
Me- and he kept going? You should report it!
Her- well, I didn’t tell him to stop so idk
Me- ok- 🤔 why?
Her- well I was drunk so I wanted to hook up at the time so I said yes but I would never have done it if I wasn’t wasted and I was drunk so couldn’t really ‘give consent’ even if I did say I wanted it at the time!
Me- Wait, was he sober?
Her- 😂 nooo he was as bad as me- his willy almost wouldn’t work! 😔 I wish it hadn’t now!
Me- so you just expected him to more sensible drunk than you were and understand, despite being equally wasted, that when you said yes- you meant no? 🤔
Her- .....yes? 😣

Teaching young girls that everything that happens to them is someone else’s fault IS NOT a good idea! You should not be so intoxicated you can’t make decisions you won’t bitterly regret the next day!

(Obviously this is a small sample of situations - but whilst as uni especially I heard it sooooo many times)

They will go to any lengths to defame your character.

That is also true, sadly. Criminal law isn't about establishing facts, it's about what you can or can't prove or manipulate perception to be.
It was an open secret that stranger rape cases were easiest to defend against a jury of women, who would prefer to victim blame than live with the cognitive dissonance of personal vulnerability to random attack. I think this is declining now as it became so widely known - but law is all about tactics. Never confuse it with justice.

I was a witness in a road traffic case once (dangerous driving, no collision) and I was asked what the weather was like. This wasn't because the weather had any effect on the driving or on the outcome, it was to show the judge whether I had good recall of the facts of the day. Since the police have their little notepads to refer to, which are written almost contemporaneously and so generally considered reliable, they obviously wanted me not to remember the weather or to get it wrong so they could claim my recall of the other events was also poor (I was 'for the defence'). Luckily I could remember that the weather was totally unremarkable.

It's presumably a similar thing.

Barristers have to do incredibly difficult jobs in cases which are often traumatic. Had this barrister not asked this question she would not have been doing her job properly. She has to test the Complainant’s evidence. I wish that people could understand that barristers are real people too, trying their best to do a difficult job most people wouldn’t want to touch. They are not heartless twats who punch the air when they manage to make a rape victim cry.

That's why being drunk and giving consent is such a grey area MrDarcy I had several regrettable one night stands when I was single and much y younger , and whilst I probably wouldn't have had them sober ,I was ent ever raped if someone is clearly ,falling all over the place, incoherent they obviously can't give consent but how do you define being too drunk?

It is also relevant as to whether she was fit to consent.

I would have thought that, given that if she was drunk a woman couldn't consent, then defence barristers would be more wary of asking this question.

I’m sure a barrister will have thought of this and worded it careful, hence asking about being “fairly intoxicated” not drunk.

I would have thought that, given that if she was drunk a woman couldn't consent, then defence barristers would be more wary of asking this question.

It's not as simple as that because the state of being drunk is not black and white. A women can certainly be so drunk that she may be deemed unable to consent but that does not mean that any level of intoxication removes the capacity to consent.

I was a witness in a road traffic case once

The reliability of eye-witness testimony is absolutely terrible. There are a load of academic studies about it, and even a couple of YouTube clips (the basketball players and the room come to mind - it won't spoil them here).
Victim testimony is much more reliable; but there are problems with recollection of traumatic events that are compounded by intoxication. This is why drinking makes you more vulnerable to crime. Not necessarily to the likelihood of being a victim per se, but the ability to recall with sufficient clarity to effectively accuse the perpetrator.
If you are intoxicated, but not to the point of effective incapacitation, and are attacked - but have gaps in your memory of the time - you might: have consented (even if this is out of character); have explicitly not consented (but can't remember this either so it gets excluded from your testimony); have initially consented and then failed to communicate the retraction; the list of possibilities goes on.

Unfortunately, the law has little ability to untangle this. As it is rarely disputed that sex between the parties occurred, the issue is only of the consent - which only the accused and the accuser actually know (and even then there can be differences in perception, clarity and effectiveness of communication, etc)

OP I hear you. I know what you mean. This site tends to lean slightly conservative though (which is fine of course), so you are not likely to get the response you were looking for

It's nothing to do with leaning conservative. I don't in any way agree that a woman being intoxicated means she is responsible for her own rape but I understand why a lawyer, prosecution or defence would raise the topic of alcohol consumption.

It's about understanding something even if you don't necessarily agreeing with it.

Necessarily agree *

I don't think it's conservative to want relevant facts established eg if the victim is too drunk to consent then it could be rape so a barrister asking if she were drunk is doing her a huge favour surely? If the barrister could not ask that how could you establish if she were too drunk to consent other than if a third party saw her or there were CCTV?