AIBU to say that in practice sexting a person legally means consent to sex?

[ScrollingLeaves]

To see why I am saying this watch Channel 4:Rape - Who’s on Trial which is on now

A woman flirted with a man in a pub.
Willingly went to toilets with him. Text messages has passed between them.
He shoved her against the wall and violently shoved fingers in her while kissing her.
He left because he heard someone coming in.
Watching CCTV it looked as though she was telling the truth ( police woman thought so).
Alleged victim very upset.

Then they found she’d sent a bra photo and a topless photo to him.
Police man said something like “you have to ask what sort of message was that giving”

Case dropped.

@CheeseMmmm

'In this case, I would not say that going to the toilet after sending naked pictures was anything other than signaling intent to have sex. You don't go into a public toilet in that scenario to have a little talk and a cuddle, not least because it's going to have to be a quick encounter.'

So he can assume consent to sex. Vaginal sex? Anal sex? Oral sex? By who on who? With or without condom?
He can assume ok to push her hard against wall and shove fingers in?

No one should be assuming consent to anything. I thought that was a basic.

If it's aok for men to assume consent to... Whatever sort of sex he fancies.

The idea that obviously based on some behaviour she was consenting to penetrative sex, with zero build up. In a bog. I mean that's really extremely unusual for a woman. That it's seen as definitely the most likely scenario by plenty of posters then that's eye opening.

But there is no consumed consent here that we can see. You'll notice that they didn't in fact have sex.

There was an agreement, albeit non-verbal, to go into the toilets for a sexual encounter. Which is not really a socially acceptable thing whatever some may think. And I have no idea who thinks that sending a naked picture of yourself and heading off to the toilets is just for a chat. I am not saying that means anyone is not allowed to decide not to have sex. But most people would understand that was the expectation of both parties.

So they get there, and there is kissing and groping against the wall. Which, had it been less aggressive, would have been a very normal next step in an encounter like that. Had they gone on from there to have sex that both parties were happy with, no one would have blinked an eye. It's not usual, in any sexual encounters, to require a new verbal consent every time you are going to carry on with things.

She wasn't happy with it because he was very rough, which is fair enough. Would he have forced her to have sex anyway, if she'd said so? We don't know because they were interrupted and he left. She never seems to have got to where she told him she was no longer interested.

The whole thing seems to hang on her perception that he was overly rough in the initial part of the encounter, but that is not much to hang a rape case on.

“Felix125

ArblemarchTFruitbat
I believe her - why would she lie and put herself through the degrading and humiliating process of reporting a rape?

Unless there's some huge backstory we should assume she is telling the truth.
Police should always believe the victim at the point or reporting. However, during the investigation the evidence presented must be examined.

And you'll be surprised how many people report rapes and go through the full process for something that hasn't happened.”

@Felix125
Do you know how many rapes a year that have happened are estimated to have happened?
Do you know how many of those are reported?
Do you know how many of those reported go on to prosecution?
Of those that go on to prosecution how many are convicted?

Are you not surprised at how many rapes do happen?

What percentage of the very few reported rapes are false?

How does that percentage compare to the false reports of other crimes?

It should - and if his wife is happy to provide a statement to that - even better.

But the trail is not about trying to prove the suspect guilty

It about trying to find the truth and to see if there is sufficient evidence to prove beyond reasonable doubt. So it needs to be open.

And if the prosecution can cast doubt on the suspects account - then its only fair that the defence can do the same to the victim's account.

I don't think that case is about whether she was entitled to withdraw consent, it is about whether it can be proven that she did. Obviously a woman should be able to change their mind at any point but proving that happened and was communicated in a relatively private scenario is always going to be a problem. Unless it can be proven beyond all reasonable doubt then the culprit won't be found guilty and I don't see how anyone could not have some doubt when there was text / CCTV evidence suggesting there was a sexual relationship.

Not saying that's how it should be but I don't see how it could be any different under that burden of proof.

@TurnUpTurnip

That’s the thing I think most men would be expecting sex if a woman sent nude pics, flirted and offered to meet him in the toilet, I don’t think most men would be expecting a kiss and a cuddle.

Sorry to say but that’s what I think a man would think too. I know theoretically that doing x doesn’t mean consent to y, but if you’re sending nude photos, flirting, sexting and then agreeing and actually going somewhere more private that would add up for a man to a neon sign message of wanting to at least mess around...kissing, groping, dry hump,... of course full on sex I would agree an average man would know he’d have to get further consent for that.

What happened is he said/she said. It could be sexual assault or it could be that he was just very bad at it. And what she thought would be a fun and arousing foreplay was actually not her cup of tea and a huge disappointment.

I’ve been in both situations. Where I’ve agreed to retire to a private space for snogging and a bit of foreplay, but the reality of it was shit compared to the fantasy. And in situations where you genuinely thought he was going to show you his CD collection and you get suddenly jumped on and wonder why you were stupid enough to agree to go anywhere alone with the man.

It’s just sad that interacting with men is literally playing with fire. It shouldn’t be that way, but that’s the reality of it.

ScrollingLeaves

Very low - I'm not trying to say otherwise and I apologise if it came across that way in my other post.

But it does happen - I'm just answering a point raised by another poster that why would a victim put themselves through the process when it hasn't happened.

And there wont be any figures so to speak - as these crimes will be closed as 'evidential difficulties' rather than trying to 'no crime' them as there is evidence to suggest it hasn't happened.

@Kendodd

It's as if a woman who sends sexy texts to a man, then meets him somewhere private, he then has an absolute right to have sex with her. WTF!

Absolutely no way is my son going to be getting the "well, what did she think was going to happen" message from me. Unfortunately he is going to be getting it from wider society.

No one has said that though. The OP's title is really misleading in that sense because that isn't what the court is saying, either. All they are saying about the video is that it suggests the initial agreement was for sex, the guy wasn't just pushing himself on someone he had had no communication with.

Everyone has said that if she wanted to, should could decide to halt the encounter at any time.

She seems to have agreed to initiating a sexual encounter in the toilet, and it's not unreasonable for someone in that situation to think, ok now here we are, ready to have sex, lets go to it.

She can back out any time, whether he was aggressive or not, but that didn't happen because they were interrupted.

The claim of assault hangs on him being too rough initially - that it was something that you would go beyond a normal sexual encounter. That's to some extent a judgement call. If they had gone in and he's slapped her, that would pretty clearly cross a line to assault. If he'd more gently pushed her against the wall and put his hand up her skirt etc that would likely have been seen as fairly normal in a toilet sexual encounter.

So which was this? What does the video show? Could a jury see it and say for sure, that's assault? If not, he's not going to be considered sexual assault.

“Felix125
And if the prosecution can cast doubt on the suspects account - then its only fair that the defence can do the same to the victim's account“

Casting doubt is easy.

So somehow an different system needs to be found. Under the present one most rapists will neither be reported or brought to trial. Even after trial 40% will be acquitted.

I do not know what the answer is save women wearing hidden tiny body cams.

I can't believe how forgiving people seem to be of the police and CPS. The statistics here are awful, we know it's a crime men get away with far too often. We're one of the few countries where hundreds of women have been jailed for lying about rape even when CPS aren't actually sure if they'd lied, or when these (often very vulnerable) women been pressured to report and quickly recanted or never even named their attacker.

There was a case shown on that 999 show a year or two ago. A woman accused a man of rape. The cctv before they went to the hotel showed them close. The cctv afterwards showed she was clearly distressed. The hospital she attended afterwards believed she had been raped. CPS refused to do anything.

I’ve been in both situations. Where I’ve agreed to retire to a private space for snogging and a bit of foreplay, but the reality of it was shit compared to the fantasy. And in situations where you genuinely thought he was going to show you his CD collection and you get suddenly jumped on and wonder why you were stupid enough to agree to go anywhere alone with the man.

Yeah, this is where you learn the reality of the film scenario where there is hot, fast anonymous sex is often not all that great for many people, and especially for women. It might seem like a turn-on conceptually, but really, it's not and it can be kind of scary when you realize you have no trust built up with this person.

It’s just sad that interacting with men is literally playing with fire. It shouldn’t be that way, but that’s the reality of it.

Right, but of course lots of things are like this. Lots of things we do to protect ourselves, like be careful of identity theft, we shouldn't need to do. But there are always going to be bad people out there, and some of them are men who are sexual predators. Telling them to be nice isn't really going to change them. And even with people who aren't predators, there is a huge capacity with sex with a stranger for miscommunication. In this scenario, maybe he was picturing himself in a sort of Daniel Craig/James Bond type encounter, and she was picturing something totally different. Maybe they had really different levels of sexual experience. Some people are stupid, poor communicators, whatever. You don't know who you are with in a scenario like this.

ScrollingLeaves

I don't know the answers either - I don't think anyone does - this is why its such a difficult issue.

I think people need to to take the process apart and go through it stage by stage to see where improvements/changes can be done. Is it at a police level, a CPS level or a court level where the issues are?

Body cams might be an option - but then why should you have to do that. Its like victim blaming. But loads of people use them in their cars on their every journey.

Another thing we are finding is that males are now recording any 'sexual encounters' with another person on their phone. Not for any sexual benefit, but to voice record the encounter so that their back is covered if an allegation is made against them. So, typically they will set the phone to voice record and put it back in their pocket.

Also - the tea video is not great, it kind of sucks. It shows all the really clear scenarios (asleep, changes mind and says/indicates, one person is too drunk to stand), and says nothing about any of the more difficult questions (it's not clear who has said what, both people are impaired, non-verbal agreements or long term relationships where expectations have been set over a long period of time).

Nor does it say anything about how a judge or jury can tell what's going on in a case when there is little evidence of what actually happened.

By that logic when you get married that means your husband has access to your body when ever he wants.

Sending a topless picture might mean I want to have sex with you at some point - but when I chose to

@Felix125

ScrollingLeaves

I don't know the answers either - I don't think anyone does - this is why its such a difficult issue.

I think people need to to take the process apart and go through it stage by stage to see where improvements/changes can be done. Is it at a police level, a CPS level or a court level where the issues are?

Body cams might be an option - but then why should you have to do that. Its like victim blaming. But loads of people use them in their cars on their every journey.

Another thing we are finding is that males are now recording any 'sexual encounters' with another person on their phone. Not for any sexual benefit, but to voice record the encounter so that their back is covered if an allegation is made against them. So, typically they will set the phone to voice record and put it back in their pocket.

The difficulty is that fundamentally we have a high burden of proof for criminal cases because the consequences are significant. This means that a lot of what CPS and the police have tried to do falls down in court. There have been a number of high profile cases where poor investigations have failed to uncover evidence that undermines the prosecution case until too late and now CPS have gone back to being reluctant to prosecute marginal case.

My view is we need much better standards of investigation, particularly digital investigation for rape and sexual assault. We need the police to do thorough investigations and present all evidence to CPS rather than partial evidence that seems to just stop when the first piece of evidence that may cast doubt is uncovered.

Body cams might be an option - but then why should you have to do that. Its like victim blaming. But loads of people use them in their cars on their every journey.

Everyone will be wearing bodycams within the next ten years, for examples such as described here and many other reasons.

@Iamhaunted

By that logic when you get married that means your husband has access to your body when ever he wants.

Sending a topless picture might mean I want to have sex with you at some point - but when I chose to

The problem is that juries in criminal cases are clearly instructed that the burden of proof is "beyond all reasonable doubt". So the reality is that if he only hard evidence is sexually explicit messages on digital devices a defence can mount a cases that provides enough doubt to acquit. However, my view is that it may not be the only hard evidence if a thorough investigation is undertaken rather than just seeing this evidence as making a prosecution impossible just in isolation.

It is horrible to many women who have undergone sexual assaults and rape, but it is a fundamental part of the criminal justice system. Reducing the standards of proof is not a good idea in my opinion.

Exactly - and that's why there have been massive changes in disclosure to the courts from the police. But this is massive and takes time to amass the disclosure documents. This in turn pushes submission to CPS/Court further and further back so the cases never get to court for years.

Consent in rape/assault has to be a genuine belief, and reasonably held.

I think in this case it would reasonable to assume consent for some level of sexual activity. The tricky bit is whether it was reasonable to assume consent for rough penetration.

It could have been reasonable - for example if he’d been talking about wanting to that to her, then asked if she wanted to go to the toilets with him, then it could have been reasonable to believe that’s what she wanted. We don’t know what they talked about beforehand.

@Journeyofthedragons

Body cams might be an option - but then why should you have to do that. Its like victim blaming. But loads of people use them in their cars on their every journey.

Everyone will be wearing bodycams within the next ten years, for examples such as described here and many other reasons.

There is a lot to be said for it. There are a number of high profile cases of racism and police violence that have only come to light due to individuals recording the incidents. Same with traffic incidents and dash cams. Bit dystopian though isn't it?

The difficulty is that fundamentally we have a high burden of proof for criminal cases because the consequences are significant. This means that a lot of what CPS and the police have tried to do falls down in court. There have been a number of high profile cases where poor investigations have failed to uncover evidence that undermines the prosecution case until too late and now CPS have gone back to being reluctant to prosecute marginal case.

There can be other kinds of cases this is true for as well. How many break ins to homes or cars don't even get a visit from the police? They tell you straight up they won't find who did it. Same with muggings.

One of the things that seems a little different with rape/sexual assault is that new tech seems to make it harder, rather than easier, to raise doubts. Whereas that is less often the case with other kinds of crimes.

Ultimately though I don't think this is new. It's always been difficult with the kind of justice system that protects against false convictions to prove rape. Which is why a lot of societies have had other means of trying to protect women against it, mainly through preventing situations where it might happen. We might feel that's an unfair burden, but I'm not sure that changes the underlying reality that unless we want to weaken the rights of people accused in the courts, rape convictions will be hard to get. I've never seen any good solution suggested that's actually practically workable.

What about changing the perspective. It's 'he said, she said'.

At the moment the responsibility lies with her to prove she hadn't consented, in fact the burden of responsibility lies with women to avoid rape- don't go somewhere private with a man, don't wear appealing clothes, don't have a history of having had sex, don't sext etc. Only then does she have a cat's chance of proving she didn't consent.

What about changing the burden of responsibility? What about boys and men learning it's their responsibility to prove consent is freely given? To build a history of respectful behaviour around women, to have a history of waiting a few dates before sex etc.

How terrible would that be?

What about changing the burden of responsibility? What about boys and men learning it's their responsibility to prove consent is freely given? To build a history of respectful behaviour around women, to have a history of waiting a few dates before sex etc.

How terrible would that be?

Well it would mean changing one of the basic principles of English law - innocent until proven guilty.

@Journeyofthedragons

What about changing the burden of responsibility? What about boys and men learning it's their responsibility to prove consent is freely given? To build a history of respectful behaviour around women, to have a history of waiting a few dates before sex etc.

How terrible would that be?

Well it would mean changing one of the basic principles of English law - innocent until proven guilty.

There are legal systems that work like that, of course. But overall they tend to advantage those who already have power.

Right, but of course lots of things are like this. Lots of things we do to protect ourselves, like be careful of identity theft, we shouldn't need to do. But there are always going to be bad people out there, and some of them are men who are sexual predators. Telling them to be nice isn't really going to change them. And even with people who aren't predators, there is a huge capacity with sex with a stranger for miscommunication. In this scenario, maybe he was picturing himself in a sort of Daniel Craig/James Bond type encounter, and she was picturing something totally different. Maybe they had really different levels of sexual experience. Some people are stupid, poor communicators, whatever. You don't know who you are with in a scenario like this.

Exactly - we shouldn’t have to be wary of every man that is a stranger and worry he’s going to assault/rape us if we are alone with them, but the very sad fact is that we should always keep that possibility at the back of our minds.

I look back on when I was younger, in my early 20’s, and when I was going home with men I had met on nights out and I can’t believe the potential danger I put myself in.

Mymapuddlington my response to your post is about your opinion not my opinion on men

It’s placing the blame on the women for being raped, how she acts, what she is doing not on the mans actions

And a man can’t tell of a women isnt enjoying their interactions. What he is so carried away he can’t help himself this is from the nonsense idea that men have to have sex they don’t just some men and too many men think it’s their right to have sex

I’m not sure how you come to the conclusion that we on here hate men because we object to men sexually assaulting and raping women