Rape apologism (not a real word, sorry) on a MN thread!

[SDTGisAnEvilWolefGenius]

Sorry - a thread about a thread, but I feel that input is needed from as many people as possible, to counter some of the ridiculous things one particular poster is saying. The woman the thread is about was so drunk she was blacking out, can't remember what happened, but is sore, so is pretty sure she had sex - and someone is saying this doesn't mean she was raped!

Here.

strange and really fucking scary just about covers it

Brenslo - do you think people happily enjoy being raped?? Do you really not understand that rape and consensual sex are worlds apart - and the only people who believe that rape and consensual sex are not that different from each other, are rape apologists.

Brenslo are you deliberately missing the point of that stabbing analogy? It's nothing to do with consent, it's about whether you are responsible for a crime if you are drunk. In other words, it's about the perpetrator's behaviour, not that of the victim. Being penetrated without your consent, is not a crime. Penetrating someone without their consent, is a crime. Being stabbed is not a crime. Stabbing someone is. Are you following?

I think I get the analogy. But if you are drunk and stab someone you are guilty. You might not remember doing it in the morning or you may not remember why you did it. You will probably regret it. Ultimately if you don't remember you won't know.
I think everyone agrees you don't have sex with someone that is not consenting. I think that is down to reading that person. Whether you believe what they are saying or agreeing to.
There are grey areas within each scenario. The problems is that rapists will prey on people and exploit these grey areas.

Is it always illegal to have sex with a drunk person?

Drunk people are unable to give consent, so they should be treated as under 16s, in this case.

I guess it should also be illegal to have sex with anyone else deemed incapable of giving consent, for whatever reason (dementia, etc).

By the way, I don't agree with this, but am pointing out tht this is the logical conclusion.

You don't agree with not having 'sex' with someone who can't consent? You sound delightful.

"Is it always illegal to have sex with a drunk person? "

No it's not.
There's a distinction between being drunk and being intoxicated to the point where you can't give valid consent or are essentially autonomous.

I think that the specifics of the op almost certainly point to tape having occurred and this being the case.

I also think that a chance to have the general principals aside from the op on drunkeness and an ability to give valid consent has at this point passed due to some utterly bizarre analogies and scenarios being presented and now argued

Wait just re-read that last line.
Wtf?

Mitchy1nge

The spanner case was exceptional. Has a rule, people don't generally consent to wounding/gbh.

So why are you picking on Brenslo ?

No there are no grey areas. It is up to the to gain consented not through coercion or threats. Why are people finding it so hard to grasp that? It really isn't that hard unless you feel entitled to having sex with women. If you are unsure don't. If the woman is drunk, don't. Why is that so hard? You aren't entitled to stick your penis into a woman because you want to and they may or may not be consenting.

Rape doesn't occur because of 'grey area's. Rape occurs because rapists don't care about consent or the welfare of women.

It is up to the man that is supposed to say.

why, am I picking on her?

Yes - It seems to me.

she has said (although it is difficult because most of her posts have vanished) that on the one hand it would be a nightmare to prosecute a case like this and on the other expressed anxiety about the poor innocent chaps just happily porking away at semi-conscious flesh and then getting into trouble for it (I paraphrase), and that it is 'obvious' what people can and can't consent to when it's not only not obvious but subject to constant refinement in case law or even further legislative change in future - who knows

but the main thing is that she has been posting bizarrely and it's difficult not to respond, the subject of the discussion is someone who was probably seriously sexually assaulted - what sort of person starts thinking about the welfare of the unknown mystery assailant and the likelihood of a successful prosecution? isn't your first thought her health and well being, and maybe the pros of reporting it to the police so that evidence can be gathered and questions can be asked.

MistAllChuckingFrighty Thu 05-Dec-13 22:20:08
Bren, do you realise that your last post gives the impression that you equate rape with sex ?

That's a bizarre interpretation. What I am saying is that to compare stabbing with rape is bonkers. Because rape is penetration without consent, and it's the consent that's the key issue. Because penetration with consent is an everyday activity that people enjoy. Stabbing never has consent. So the question of consent is never an issue. I've never known a stabber go to court and say "they asked to be stabbed, and I'd stabbed them several times in the past and they were quite happy with it."

So it's a stupid analogy.

Mitchy1nge

Rape cases are often difficult cases to successfully prosecute. She was stating the obvious. In the CPS guidance that you linked to, it refers to the appeal case of R v Bree, there Lord Judge at para.36 states

“For these reasons, notwithstanding criticisms of the statutory provisions, in our view the 2003 Act provides a clear definition of "consent" for the purposes of the law of rape, and by defining it with reference to "capacity to make that choice", sufficiently addresses the issue of consent in the context of voluntary consumption of alcohol by the complainant. The problems do not arise from the legal principles. They lie with infinite circumstances of human behaviour, usually taking place in private without independent evidence, and the consequent difficulties of proving this very serious offence.”

Pretty much what Brenslo seems to have meant.

I read her responses – including those now deleted. I didn’t make special note of them as it didn’t occur to me that they would be removed (or that I might have wished to refer to them) but it seemed to me she was concerned that miscarriages of justice weren’t committed. Wasn’t she saying that the complainant might have consented but then as a result of intoxication forgotten about it? Is it a possibility? Again, facts for a properly directed jury to determine?

Also, the Brown case – I’d bet you could pop your head into any Crown Court in the Country and not find any GBH case where the mitigation would be that the injured person had consented.

"No there are no grey areas. It is up to the man to gain consent not through coercion or threats. Why are people finding it so hard to grasp that? "

People are finding it hard to grasp that because nobody knows if the man did or did not gain consent, because nobody else was there. Even the woman who WAS there doesn't know whether she gave consent, so it is not surprising that some people are finding it difficult to grasp the issue of consent - it IS a grey area because consent may or may not have been given.

However, because the woman has subsequently forgotten, it is automatically deemed that she did NOT give consent. It is presuming guilt on the man's part with no way of ever being able to prove his innocence, rather than presuming innocence until proven guilty, which is the way any other crime would be judged.

That a man has to decide if a woman who has obviously been drinking, is a bit drunk, quite drunk, exceedingly drunk or too drunk to meaningfully give consent to something, even if she appears willing and happy to do it, puts a huge burden of responsibility onto the man and absolutely none onto the woman. As a mother of sons (& a daughter) I find that abhorrent.

I don't recall ever actually saying the words "I consent to you penetrating me" before sex - it is an assumption which is made by both parties based on the actions and reactions of the other.

Okay, being a thread about a thread about a thread, I hadn't gone back over the previous information. From what was being discussed on here, I stand by what I have stated.

However, in the particular incident that prompted the previous thread, then yes, that is definitely dodgy, given that the woman hadn't even met this man whose flat she was taken to, then I would suggest it is highly likely she was taken there specifically to be raped.

is Bree the case where the consent was given but vitiated by intoxication? maybe not

it is interesting, but a long way down the road for someone who wakes up in the state we imagine from the opening post on this thread and for someone's thoughts to fly immediately to the defence of the person who likes fucking drunk people rather than 'shit, hope she is ok, has she reported it to the police' is fucked up

it is irresponsible to post material that might dissuade victims of serious sexual assault from reporting the incident or at least seeking medical or other help and I don't understand why anyone would do that, why attempt to frame a discussion about an awful experience someone has had into yet another chat about men being unfairly accused - as if men don't get raped too

so what are you saying, men mustn't drink alcohol at all in case they end up not knowing the difference between someone is awake and well up for some shagging or not?

it seems a bit extreme and unfair on men who are able to drink and still conduct themselves like a decent human being

Claraschu - are you saying that you think it is OK for someone to have sex with a person who is suffering from demetia, and this would not be rape? I really, really hope I have read this wrong.

Picture this scenario - your aged grandmother is sadly suffering from dementia - she thinks she is 20 again, and the male carer who has come into her room is her newly-wed husband - so she consents to have sex with him. Would you (or any decent, rational person) think this was OK?

I would not think it was OK, because the 'consent' given was not informed consent - she didn't know that she is not a newly-wed twenty-something, making love with her husband - and she is not giving consent for a HCA she barely knows, and doesn't recognise to have sex with her. Therefore that would be rape - and a huge betrayal of trust. He would have taken massive advantage of her frailty and mental confusion to get her to do something she wouldn't otherwise do.

Mitchy - I have advised my sons that drunken sex is a very bad idea - but I am using drunken to mean very drunk, not someone who has had a glass or two of wine. I suppose, if you are not fit to drive a car, you should think twice before having sex - maybe that is a reasonable rule of thumb.

DoingIT - looking at the specific actions of the man in the account from the other forum before the sex took place - because I believe they are very telling. He approached a total stranger on the street, and took her back to his house, away from her friends - they didn't meet at the pub or a party or even the bus stop and have a chat, then go back to his house - he basically abducted her because she was very inebriated and didn't have the ability to stop him taking her wherever he wanted. That is my interpretation of what happened, based on the facts she gave.

Does that sound like he had any respect for her at all? Or any consideration?

To me, it sounds as if he saw a girl who was incredibly vulnerable, because of how drunk he was, and he took full advantage of that to get her to go to his house with him. Does that sound like the sort of chap who would care if her consent was slurred out in a brief moment of consciousness? Or someone who would care at all about whether she wanted sex with a total stranger?

Mitch1nge

I read the report of Bree from BAILII yesterday. it was (I hope) an atypical case, where the CPS started prosecuting it on the basis that the complainant was unconscious at the relevant time and therefore consent could not have been given at that time, but then the CPS changed its direction, and said that she had been conscious and had indicated that she did not consent. The defence was that she was consenting and had reacted fairly enthusiastic. The jury convicted but the conviction was quashed because of poor direction from the trial Judge. Not sure if the case was retried. Here 'M' is the complainant.

From Bree..At para 20...

at the start of the trial the prosecution alleged that the appellant raped M when her level of intoxication was so great that she was effectively unconscious. She lacked the capacity to consent, and therefore did not consent. However, by the end of the evidence, the prosecution case against the appellant had changed. The jury were no longer invited to conclude that M had been unable to consent to intercourse because she was unconscious, rather, the prosecution accepted that the gaps in her recollection were probably the result of intoxication, and lack of memory, rather than unconsciousness. The prosecution case, therefore, was not that the complainant lacked the capacity to consent, but that she did not in fact consent to intercourse. Her ability to resist was hampered by the effects of alcohol, but her capacity to consent remained. She knew what was happening. She knew that she did not want to have sexual intercourse, and so far as she could, made that clear. The appellant's case, as we have indicated, was unchanged from start to finish, that notwithstanding, and perhaps because of drink, M was consenting. He reasonably believed that she was.

I haven’t really looked much at the OP – was it on a different thread ?, I'm just dealing in generalities. Maybe Brenslo was too – I think she is. From what I did take from the OP and on the facts she relates – I think a jury would convict.

I would always support victims of crime reporting matters to the Police. There may be lines of investigation not immediately obvious to the complainant. e.g. In the Bree case, the complainant had a blood sample taken to evidence her alcohol readings at the time of the alleged rape. Unfortunately, one would have to get down to the Police and to have that taken pretty quickly.

The offence is a very ‘special’ offence – and therefore emotive – it is THE offence that only men can commit, and when they do so, it is very often against women. It’s also one that is often difficult to prove at trial. People are on the whole very sympathetic towards victims but in the same way are also sympathetic towards those wrongly accused. Sorting out which is which is the issue.