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.

@ScrollingLeaves

“LobsterNapkin ScrollingLeaves Midlifemusings “That doesn't change the fact that no means no - but I don't think it is strange for either party to start to touch the other person's body after a mutual rendezvous in a pub toilet.”

Yes, the thing is though, in this case, it wasn’t ‘starting to touch’ and it was instantly unmutual. He shoved her against the wall hard, put his hand around her throat, kissed her in a violent way, pulled her tights down and put his fingers in then stopped suddenly and left when the other man came in.

This woman who by her own account had been flirting and wanting to be with him for kissing was left extremely distraught.

Something bad happened in there. Why would she have flipped from liking him to trauma for no reason?
Because it wasn't nice or enjoyable. That's the only reason there needs to be. She felt unsafe.

But that doesn't make it assault. If she'd told him to stop and he didn't that would be assault no question. But it only seems to have taken a very short amount of time and there was no chance for much more to play out.“

@LobsterNapkin it is an odd thing when one person’s experience is of something brutal happening to them that they never explicitly agreed to, while it is seen by others as just as not very nice sex.

She may not have screamed or said no. But remember his hand was round her throat and he was aggressively kissing her and she had just been whacked against the wall - so saying No or screaming wasn’t that much of an option. ( Apart from this isn’t it a rape myth that this is what ‘should’ happen as a response can be to freeze?

The very idea that rape is even really possible would be brought into question by this argument: that she had consented to penetrative sex just by agreeing to meet up with him in private for some sort of sexual encounter, and that whatever bad thing the man does next is may be ‘rough’ or ‘not nice’ but nevertheless normal sex.

I agree what you say about false expectations about freedom, hookups and ideas from porn but absolving men from all responsibility not to hurt someone isn’t the answer.

It is lucky it did stop suddenly luckily when the other man came in.

I presume that in practice a prostitute cannot be deemed to have been raped having given permission for sexual intercourse in exchange for money and rape sex would just be ‘rough’ or ‘not very nice’. Unless she were visibly half dead by the end.

I really don't see how you get your last statement from what preceded it. It doesn't follow logically, and it isn't what I said, or anyone else said either. No one things paying a prostitute means she can't be raped. It does suggest she agreed to have sex though and it may be damned difficult to show that something else happened instead.

You seem very focused on this idea that sending the pictures meant consent that couldn't be withdrawn. But that isn't what happened in this case.

They seem to have considered that the photos and agreement to go to the toilet indicated an intent to have a sexual encounter.

And while the initial encounter was rough, it also didn't seem to quite meet the bar for being an assault in that context. I would suspect that this would have been seen as kind of marginal by a lot of people, almost but not totally clear. Also depending on how clear they felt the recording was may have been a factor.

And there was no specific withdraw of consent, so that's not a factor. And it's an important one.

Had the encounter carried on, it may be that what happened next would have tipped their view of what happened right into "this is assault no matter what she initially agreed to" territory.

The courts are not a precision instrument and they give, at best, a rough justice. They can't deal with much ambiguity, and they tend either to punish fewer than are really guilty, or punish many people who aren't really guilty. They are there to try and create some semblance of social order, but we can't depend on them to tell us every time a person is really guilty, much less what their moral guilt is. Court systems that attempt that kind of moralism have their own very serious downsides.

“LobsterNapkin
No one things paying a prostitute means she can't be raped. It does suggest she agreed to have sex though and it may be damned difficult to show that something else happened instead.”

Yes, this is the point. In practice a prostitute could be raped with impunity because it is so very difficult to prove that something else happened instead of the sex she originally agreed to.

In this case, the woman could be whacked on the wall, grabbed around the throat, violently kissed and fingers shoved into her because because she seemed to have consented (to what exactly?) by sending the nude photo and meeting up with him. And when did she have the chance to say “Stop! I do not agree to this you are doing now.”?

In practice, her nude photo ‘agreement’ granted permission to the man to carry out whatever happened next. There was no chance to stop it or say, “I am sorry I do not agree to what you are doing.”

It is all very difficult and I don’t know what the answer is. It would be terrible if people were unjustly convicted when they were innocent.

The man may have thought this is what you do, this is what sex is. This rape-like behaviour is just passion.
Because of porn, this may be the case.

But at the opening of the debate it was mentioned that hundreds of thousands of women and girls are sexually assaulted or raped every year. Did say then say only 1% report it? And 7% of that 1% go to trial?

Hundreds and thousands of men who have indeed raped or assaulted are free to carry on.

throughout history we been made to believe that men have to have sex and once aroused they simply can’t help themselves

Porn certainly hasn’t helped

But when has women’s consent been a a topic unless we are discussing rape. It isn’t but we are constantly informed of the males need and desire for sex

The narrative is still a man couldn’t read the signals because well he was aroused how could he be expected to

It's the same reasoning behind marital rape. Just because someone was OK with something before or up to a point doesn't mean you can do whatever you want to them without asking

Why is the law about the man thinking consent (and we know from life and plenty court cases that what they see as, and sadly juries often accept as, reasonable to assume consent is frankly bonkers).

Rather than showing reasons they were sure she consented.

And why is the harm to the woman not involved?

Why is his view of whether consent more important than hers?

Why is the law about the man thinking consent (and we know from life and plenty court cases that what they see as, and sadly juries often accept as, reasonable to assume consent is frankly bonkers).

Rather than showing reasons they were sure she consented

Because in English Law the prosecution has to prove the defendant is guilty of a crime not the defense proving the defendant is innocent.

Innocent until proved guilty.

That doesn't make sense to me.

When people die you have murder, meant to kill. Or manslaughter, didn't mean to kill or was reckless with result death.

Not sure if any other examples think probably.

With that there is the harm done. Death. And then also whether the person who caused to meant to or not.

Why with this is it about whether the man thought ok fine, with no consideration of harm done?

“CheeseMmmm

That doesn't make sense to me.

When people die you have murder, meant to kill. Or manslaughter, didn't mean to kill or was reckless with result death.

Not sure if any other examples think probably.

With that there is the harm done. Death. And then also whether the person who caused to meant to or not.

Why with this is it about whether the man thought ok fine, with no consideration of harm done?”

That is an interesting point.
The harm goes on for years too.

The CPS wouldn’t have progressed the case, and the police have to reach a certain threshold of certainty before they can go to the CPS.

I also found the programme upsetting. The young woman in this case said she was flirtatious but she obviously didn’t expect the man to do what he did, and she didn’t consent to it. But by sending the photos and by going into the gents toilet it could have been argued that she was implying willingness.
I really think the only way a charge could have been brought would have been if she’d been shouting at him to get off and someone had witnessed that and was willing to stand as a witness. And who is going to think of that when they’re shocked at what some man has done to them?

There have been so many cases where the outcome is that the court accepts that it was reasonable for him to... Well it's assume isn't it... Consent.

Situations where saying yep totally can see that he would have thought that.

Situations where it's so obviously unlikely that she would have.

Also recent case where it was not in doubt that she was too incapacitated to consent but somehow she did. Judge comments or whatever called it said. Yep can't be sure she didn't consent even though by law she couldn't.

The sleepwalking cases as well. Yes he did it. But his defence is asleep. So situation is yes she was raped but also nothing to be done about that legally.

I mean it's not working for victims of sex offences. And now as baroness or similar who did report said. In practice rape is decriminalised.

Suzanne- yes.

The fact that things that happen outside of the actual incident are seen so widely in society as signalling consent. Just... Generally. Is embedded very deeply.

What if he had throttled her?
Slapped her?
Pushed her into cubicle and immediately forced way into anus?
Etc etc.

Loads say well she was signalling consent. Or consent to sex. But what specifically?

She's sent pic gone in bog etc. So before they've even kissed/ touched each other it's natural that he would assume consent to... Anything?

“Suzanne999
I really think the only way a charge could have been brought would have been if she’d been shouting at him to get off and someone had witnessed that and was willing to stand as a witness. And who is going to think of that when they’re shocked at what some man has done to them?“

His mouth was on her mouth, one hand on her throat, his other in her private parts, she was pinned against the wall she was in shock …..all in seconds of going in there. No chance to shout. (Then the other man arrived and the assailant stopped suddenly, and made a sharp exit out of the toilets and out the pub.)

Plus a common reaction is to freeze rather than scream and fight. Another girl in the debate said that’s what she had done when she was raped.

CheeseMmmm
It does seem that the “being too drunk to consent” becomes you were drunk so you just forgot you consented, or now you just regret you consented.

There was a case about four years ago where two postgraduate rowers got hold of a fresher girl. They filmed some of what they were doing and whatsapped their film to a friend. The defence said she’d just been drunk enough to lower her inhibitions then regretted it afterwards. The were acquitted.

At the very least, even if she had consented, which was very much in doubt, what sort of scum of the earth were those men to take advantage of a younger girl in a new environment in that way and use it as boast fodder?

My read of Suzanne post was it was critical of current social etc attitudes. Maybe I got wrong end of stick.

Yes the men were scum. And thinking I suppose. There's also a massive issue in society with well you know what men are like. The onus is on women and girls to do all sorts of things to try and avoid being a target of dodgy men. There's really zero interest in the fact that it's the men who are the issue with what they're doing. Usually common down to that's what they're like what can you do.

Things like plying with drinks to get her inhibitions down are seen as just normal. That's shit isn't it.

There's also stuff in the news from time to time about men coming up with all sorts of shit- having a competition who can get laid most. I remember something about shag a pig..? Blokes at that uni with a rape chat. Who they wanted to attack etc. I mean it's just grim.

Law aside. As long as society in general has knee jerk reaction to scrutinise the victim, what she did wrong. See various things a girl or woman does as sending 'signals' which count as consent. If she didn't realise she was signalling then well what did she expect. I mean obviously he assumed she was up for whatever.

On this thread loads of. Well her actions clearly spelt out consent to sex.

But did they spell out. What sort of sex? With/ without condom? And signal that he did not need to take into account anything about what she might or might not want. Like. Just dive straight in. Shove, neck, fingers. She's consented! To... Anything he might do? That's not good at all.

IMO before sexting you need to REALLY know the other person well and have 100% trust in.

If you don't know them perhaps pause to think would I send this photo to a rapist? Because you never know.....

Sexting doesn't mean consent to sex, but rapists really don't care about their victims' consent.

You can withdraw consent at any time and rape it's absolutely awful. Never ever acceptable.

I do think that people should think more about personal safety, the messages they give out and what they wear. It does muddy the water when you have led someone to believe sex is on the cards. I reiterate. You should always be able to tell someone when to stop.

Burglary isn't ok but it does happen so I lock my house and set an alarm.

BrieandCamembert
“Burglary isn't ok but it does happen so I lock my house and set an alarm.“

Yes, I know what you mean, but in these cases it is a bit like inviting someone into your house, but then they steal from you.

Out of interest, I wonder what the law would do if you had left your house open, it got burgled, and the burglar was caught with the stolen goods - so there was proof of the deed. Would they get a lesser sentence on the grounds that you tempted them?

About keeping ourselves safe ? We are not even safe when dead

What about the women raped by their husbands, daughters raped by their fathers, sisters raped by their brothers

It isn’t about women and girls keeping themselves safe it’s about men not raping women and girls

Many times I have been with men I thought I could trust before they decided that they could take things further how am I to blame in any of those situations (and this includes for some women and girls s professionals who we have no choice but to trust)

perhaps pause to think would I send this photo to a rapist? Because you never know.....

And yet most rapes are committed by men that the victim knew and trusted.

It really is abhorrent to expect women to police the men they encounter.

@Brieandcamembert

You can withdraw consent at any time and rape it's absolutely awful. Never ever acceptable.

I do think that people should think more about personal safety, the messages they give out and what they wear. It does muddy the water when you have led someone to believe sex is on the cards. I reiterate. You should always be able to tell someone when to stop.

Burglary isn't ok but it does happen so I lock my house and set an alarm.

And how exactly can women lock their body away?

Yes women stop and think how your actions can make a man rape you

A man will rape because he wants to not because of what we say, wear, drink, show photo, walk a certain way, be somewhere dark and alone

@CheeseMmmm

A lot of posts on here saying she went with him for sex and so what happened isn't a prob.

I don't get this.
Flirting pics etc. Is just flirting and pics, not consent to anything.
Going somewhere private isn't consent to sex. Nor does it mean she must have been intending sex. It's a bit 0-100 isn't it? Going somewhere private generally means a snog and a grope and see what happens from there. Not right we're definitely fucking. Surely? If it means consent to sex then that's a massive problem for all those who sneak off for privacy any time, anywhere.

And I don't know about anyone else but being violently pushed against a wall and shoving fingers in vagina sounds unexpected, scary and very possibly painful.

Is this really what women expect? At posh work do. Nip off with a bloke down quiet corridor. He does that straight off the bat. That's not ok. I'm surprised so many women are fine with being treated that way.

I don’t agree that in this case going somewhere private just meant going for a snog and a grope. They went to the toilets together. If it was a snog and a grope they could have done that in the club itself. In fact I suspect the vast majority of women, looking for a snog and a grope with a stranger, would choose to stay in a more public area than go somewhere very private.

The act of choosing to go to the toilets did not mean consent couldn’t then be withdrawn. But I can totally see why it lead, along with the photographs, to the decision that there was not a reasonable prospect of conviction which, we need to bear in mind, was the decision here. Not that she was not assaulted.

You have a jury of 12 people who will hear:

Happy to chat and flirt with a man who approached her table and sat down
Sent him sexual photos of herself without knowing him from adam
Went to the toilets with him within a short time of meeting him

Does it give him the right to shove her against the wall and penetrate her with his fingers no, of course not. Absolutely not. However the defence will latch onto the fact she initially lied about sending him those photos and there is no proof of what happened in the toilets. Both the latter facts does create reasonable doubt.

I haven’t seen the programme, but from what you’ve written it would be very hard to prove beyond reasonable doubt that he intended to do anything that she didn’t want.

He could have been doing what he thought women like with his fingers, but it turned out to be very painful for her, which changed her perception of the whole encounter from a sexy romp into a rape.

Not sure how violent he was, so I take it back if there was choking involved etc. But you can do a lot of damage with just a rough nail (ouch!!!)

Speakingmymind
“However the defence will latch onto the fact she initially lied about sending him those photos“

Yes, the defence would.

To be clearer though, she didn’t lie. She just didn’t offer the information in terms of saying she sent a nude photo. She said she’d sent flirty texts. When confronted later she admitted she had sent the nude one.

Missing out something shameful does not of itself mean someone is not telling the truth. It is something that woman who really were assaulted or raped do sometimes do during the interview. That’s why being briefed and coached in advance of an interview might help.

The CCTV did show ‘before and after’ in regard to her demeanour, and should him leaving very quickly. Not absolute proof of course, but corroborative in a general way.

Defendants get a lawyer during the interview to help them not incriminate themselves. Perhaps victims need equivalent help.

I tend to agree that sending sexy pictures then going into toilets indicates a willingness to have sex. But that doesn't then mean the man can violently penetrate her. Even if she said to him in so many words that she consents to sex, it doesn't mean she consents to violence.

Surely there should be an assumption that the woman did not consent to being violently penetrated. Whether she wanted to have normal sex or not is almost irrelevant really. If there's evidence of the violence that should be a strong suggestion that there was no consent for that particular act. I mean with a theft case you start from the assumption that the car owner didn't want someone to steal the car. The onus isn't on the victim to prove they didn't want it stealing. Even if they left it unlocked with the keys in, no one would expect proof that they didn't consent to having it taken - simply because that's the default position. The same should apply to violence in sex