Discussion with female friend re Ched

[HenriettaTurkey]

So I posted an article on fb, with a link to an article on Ched Evans and the myth of male sexuality.

With it I wrote 'it's very simple. If she's drunk and you have sex with her, it's rape. That's the law'.

Several friends responded positively, saying such things as 'if in doubt assume the answer's no', 'it would be easier to move on if he at least acknowledged his act' etc

Then a female friend came on and, through various posts said I was being ridiculous as this meant that no-one could ever have a drink and have sex again.

After banging my head against the wall I realised you lovely folk would be able to help me construct a coherent response that doesn't rely on my usual, possibly unhelpful, sarcasm.

Help!

Interesting.

I know what you meant OP - and for me personally coming from a fairly hard-drinking social scene - the word "drunk" is only applied when someone is properly off their face, unlikely to be able to stand without a a certain amount of difficulty, and well past the point of knowing what the fuck is going on.

Not particularly glamorous, but there you go.

I understand that "drunk" might mean different things to different people, but I don't understand why it would ever be construed as meaning a couple of glasses of wine or whatever (unless of course those 2 glasses of wine had for some reason resulted in the imbiber being totally off their tits and going way off message all over the shop).

Also, NDT definition is a point.

Drunk does not mean tipsy, or merry, or a bit sloshed, it means drunk.

So I think all OP needs to do is clarify "drunk to the point that she is incapable of giving informed consent" and job's a good 'un.

I am pleased OP that some of the other people posting on your FB have taken what you think sounds rape-apologist to task (and you're the one who knows the person / sees the posts so you are in the bext place to judge her intent).

But in that instance you wouldn't consider it rape so you wouldn't report it and it wouldn't be investigated.

No, you are correct, I wouldn't report it and therefore it wouldn't be investigated but would a woman who went on a date with a man who is not her husband / long term partner report it as rape in those circumstances? Could it be considered rape due to the lack of memory and would capacity be an issue? Where is the line drawn between being drunk enough to lack the capacity to consent and being drunk enough to still have control of ones own actions but be lacking memory the next day?
I think we can all agree that any woman who is too drunk to function properly (unable to stand without falling, unable to speak properly, unable to control bladder function etc) is too drunk to consent and having sex in those circumstances is rape but I think (perhaps wrongly) that there is a phase between being that drunk and just tipsy where memory is affected and people behave in ways that they wouldn't when totally sober and I am not sure how a jury can be certain. I wouldn't want to be on a jury in a case where consent is the issue and alcohol is involved because I would be too confused by my own interpretation of levels of drunkeness to be able to make a fully impartial judgement. If called for jury service would I be able to request not to be on a jury in a case like this due to not being able to make a fully non judgemental decision?

As for the ched evans case specifically: why did the first man who had sex with her that night not also get convicted? Did the woman consent prior to consuming additional alcohol and becoming more drunk?

No, she consumed no further alcohol. Here's some info on the case.
www.crimeline.info/case/r-v-ched-evans-chedwyn-evans

No, you couldn't recuse yourself from jury service for that reason.

The line is drawn on a case by case basis, by the jury, with the direction of the judge.

The chances are that cases where the line is very difficult to see (ie where the victim hasn't woken up alone, in a strange room, soaked ok urine with no memory) would never make it to court anyway.

Having read that link I can't understand why only one of the men was found guilty. It seems to me that it should have been both (on the basis that she was not capable of consenting) or neither ( on the basis that she capable of consenting). I am struggling to distinguish the reasons why one can be guilty and not the other.

My personal opinion is that their is a perception in society that, if you go into a hotel room with a man who subsequently has sex with you/rapes you, you have tacitly given consent for that sex to happen. It's the thing with the legal term of what can reasonably be considered to be consent. What the jury basically said was that, because she went into that hotel room willingly, despite the fact that she was so drunk she had fallen over and left her bag in a kebab shop, a reasonable person would think she had consented to sex.

Ched Evans, the rapist, was text by the first man, turned the cab around, and went and raped her, because she didn't enter the hotel room with him, a reasonable person wouldn't consider that consensual.

I find the first man being acquitted problematic. If she couldn't consent due to incapacity to CE, how can she have been deemed to have capacity with the first one?

Zombie: you have said exactly what I was thinking and trying to say but you said it in a way that makes more sense than what I wrote.

Puffins, i agree that may have been the reasoning.

Another possibility for the reasoning is that the jury did believe she was sober enough to consent but that CE did not give her the freedom to consent (or refuse) by his actions of coming into the room uninvited where she was already naked and vulnerable, being more drunk and less physically strong than the two sportsmen who both wanted Ched to penetrate her.

More likely to be the first though.

When a woman (or man) is so drunk they cannot consent then they are in exactly the same position as a child.

A child cannot consent to sex, an adult who cannot consent due to intoxication, being asleep, drugged etc is treated almost the same in law. The same for the ability to consent but a child rapist would probably get a longer jail term.

Missunreasonable

A defence in law is that if a man 'reasonably believes' he has consent then that is a defence. It doesn't mean he didn't rape, it means that he believed he wasn't.

She went back to a hotel room with one.

The other then conned a key out of the night porter, let himself in to the room and had his fun.

Can you really not see the difference?

If you and your partner/dh/bf have drunken sex then do you think it would be OK for one of his mates to come in to the room and leave you to it? Oh and bring another couple of mates to watch.

No sashh of course I don't think it would be okay for my husband to do what you suggest above. Of course he wouldn't because he is a decent man who has a lot of respect for me.

I don't think your suggestion that a man who believes he has consent is a reasonable defence. There should be no belief; he either has consent or he doesn't. We can all believe things but that doesn't mean that those things are accurate. The issue of capacity overrides the 'belief of consent' but as it would seem in the Ched case the jury don't always agree with the legal aspects and can make up their own minds about what constitutes guilt.
No defence team could argue reasonably that a man believed he had consent to have sex with a 10 year old because a 10 year old isn't able to consent. The same should apply to a woman who is blind drunk as people who are blind drunk lack capacity. It is on that basis I believe both men were either guilty or both men were innocent, which is why I asked whether the man found not guilty had received consent prior to the woman becoming more drunk.

Miss, Sashh wasn't making a suggestion: a reasonable belief in consent is a defence in law to a charge of rape.

And it is for the jury to determine if that belief is reasonable, if that is the defence of the accused.

As yonic said, a reasonable belief in consent is a defence in law.

And a 10 year old lacks capacity to consent, and is protected absolutely in law, as are all children under the age of 13 - there is no requirement to prove consent in the case of child under the age of 13.

So your argument re a drunk woman being like a 10 year old doesn't really hold water.

Smash box, Miss said "blind drunk" - we are all using language a bit differently but I think it's true that a man or woman described as "blind drunk" would not have the capacity to consent.

Law:
The Sexual Offences Act 2003 (the Act) came into force on the 1st May 2004. The purpose of the Act was to strengthen and modernise the law on sexual offences, whilst improving preventative measures and the protection of individuals from sexual offenders. The Act extends the definition of rape to include the penetration by a penis of the vagina, anus or mouth of another person. The 2003 Act also updates the law about consent and belief in consent.

The word 'consent' in the context of the offence of rape is now defined in the Sexual Offences Act 2003. A person consents if she or he agrees by choice, and has the freedom and capacity to make that choice. The essence of this definition is the agreement by choice. The law does not require the victim to have physically resisted in order to prove a lack of consent. The question of whether the victim consented is a matter for the jury to decide, although the Crown Prosecution Service (CPS) considers this issue very carefully throughout the life of a case.

Fair enough. I am happy to learn. I think it is a crock of shite though that in such a patriarchal society the issue of consent and capacity isn't more robust in order to protect women more from the defence of 'belief of consent'.
Like I said yesterday, I would be rubbish on a jury where consent and alcohol are the main issues in a rape trial as I would have too many pre conceived ideas.

Yonic - as I have already said, I don't drink alcohol, and am not around those who do, so I have no practical experience of what "blind drunk"means.

What I was saying was that there is no need for a jury to decide if a 10 year old consented in any circumstances as the law is clear that a 10 year old cannot consent in any circumstances.

Miss, the point of a jury is judgement by peers - everyone shows up with preconceptions!

FYI men have got off on rape charges of having sex with children under 13 on the basis that they "looked older" so that part of the law is not watertight by any means, the court hears the arguments and decides what they decide.

Smashbox if you have no experience of being drunk then it feels odd for you to be stating what it is like or not like. Maybe it would help you to think of it in terms of being on extremely strong pain relief in hospital so you are high as a kite and in and out of consciousness if that has happened to you. A person who is "blind drunk", in the way that most in our culture would understand it to mean, is not capable of consenting to anything, they have lost control of their motor skills to a large extent, and are unlikely to make any sense when you try to talk to them, or even be able to form words, stand, or successfully pick something up without a lot of difficulty.

Smash box - in my opinion a blind drunk person is one who has drunk to the point where they no longer have the capacity to stand properly, control their bladder, speak properly, know where they are, know what is happening around them. I had a colleague who got what I consider to be blind drunk once: she urinated on herself in the toilets of a pub and was slumped on the floor unable to get up. She couldn't give her address or remember who she lived with, she kept telling me she was going to die. When I was making (probably a very unreasonable) comparison to a child being unable to consent I was thinking of my colleague and women who are that drunk because they have no capacity to consent to anything. If a man had taken my colleague off for sex and then said he believed he had consent I would have been very shocked, disgusted and angry etc.
My college was fine that night though as I managed to get her phone (which fortunately wasn't password protected) and I contacted her husband who collected her, but the thought of what could have happened if I had been as drunk as her is quite frightening.

Well it's not really the same between the child and the drunk person in terms of situation but certainly in the law a person who in unconscious (to give the obvious example) and a child under 13 are both considered unable to consent to sex.

Seven - can you link to those cases because I'm not finding them on Westlaw or Lexis? Or advise me what search terms to use?

Yes, Seven, but in law, you have to PROVE that the unconscious person was unconscious and didn't consent to sex. Or was so drunk that they could not consent to sex. Whereas sex with a child under 13 is an absolute offence.

I just tried googling but couldn't find it. There were some threads on here at the time. I will have a search once I am on a proper machine rather than this device.