Court of appeal scraps man's rape conviction

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A COURT has scrapped the conviction of a man accused of raping a woman who had passed out drunk, because he might have thought she wanted sex. This is despite evidence that the woman had twice rejected his advances before falling unconscious.

The Court of Appeal set aside Tomas Getachew's rape conviction and ordered a fresh trial because jurors were not told to consider that he might have believed he had the woman's consent

Getachew, 28, was accused of raping the woman as they shared a mattress at a mutual friend's house in Melbourne in June 2007.

The County Court was told the woman, who was drunk on champagne and bourbon after a night out, had twice pushed him away before passing out. She later awakened to find him raping her, it was alleged.

Getachew allegedly told the victim he had pressed against her for warmth and later told a friend the woman had "pushed back" into him, causing penetration.

The judge jailed Getachew for at least 33 months. But the Court of Appeal ruled there was an oversight in the trial judge's instructions to the jury.

Rape is proved if the jury finds the accused knew the victim had not consented, or might not be consenting. Justices Peter Buchanan and Bernard Bongiorno said the judge failed to properly explain this rule to the jury. This meant jurors hadn't considered the possibility Getachew might have thought the woman was awake and, through her lack of resistance, consenting.

Here

So, once again it is up to the woman to prove she was raped....even though she was asleep, therefore unable to consent.

The key phrase here is

"The Court of Appeal set aside Tomas Getachew's rape conviction and ordered a fresh trial because jurors were not told to consider that he might have believed he had the woman's consent."

I'm not a lawyer but my understanding is that the law in the UK used to be (and still seems to be in Australia from this) that if a defendent claimed that he believed the victim consented he couldn't be guilty, regardless of whether that belief was reasonable or not. So not matter how clear to an outsider it is that she didn't consent (eg in this case where she is unconsious) if he says that he thought he consented, it can't be rape.

This article explains it better than me.

karma: it describes a case from 1975 (in which honest belief of consent was ruled to be a defence). The article was written in 2002 with the launch of the white paper to abolish "honest belief".

The article is about how UK law used to be. The case in the OP took place in Australia which still seems to have honest belief as a defense.

Here's a link to the Sexual Offences Act 2003 in which the aims of the White paper were put into law.

The relevant verbiage is:

Rape

(1)A person (A) commits an offence if?

(a)he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,

(b)B does not consent to the penetration, and

(c)A does not reasonably believe that B consents.

(2)Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.

Yep, because thankfully UK law has been updated. This shouldn't happen here (I hope).

karma: x-post.

And I'm so sorry - this is twice in one week that I've got UK and Australia in a twist.

And I am horrified that "honest belief" still exists as an absolute defence. There should always be a test of reasonableness. (Sadly, though, where there is, trials must still be conducted in accordance with court standards. Misdirection cannot be excused as it is a dangerous precedent on wider grounds. It does raise the interesting possibility of whether a judge would ever omit mention of it deliberately in order to get a conviction and time in gaol, even knowing overturn and release were inevitable. I'm not suggesting this happened here - I'm just theorising hypothetically).

No worries! I thought I must have missed something

Of course the answer is not for judges to routinely misdirect juries but for new legislation.