Man cleared of rape after having sex with a woman who thought he was someone else

[Felascloak]

metro.co.uk/2016/05/12/woman-realised-she-was-having-sex-with-wrong-man-so-accused-him-of-rape-5876504/

I feel really bad for this woman (although I think if I was on the jury I probably would have thought there was a chance he believed he had consent). The headline implies she was unreasonably upset when she found the person having sex with her wasn't who she thought and so "falsely accused" him. Poor woman probably feels totally violated.
Also, what kind of man shags a woman who's gone home with a different guy, when that guy has just left the room for a minute. Ugh. He says he didn't even want to

Hmmm well it's very old research. I remember hearing about them at uni in the 90s. I find the theory that rape could be an alternative mating strategy interesting, especially as conception rates from rape are higher than expected. However as a theory it adds precisely nothing to reducing/preventing rape. Even if correct, men would be attracted to fertile (ovulating) women, and indicators of ovulation aren't short skirts or ponytails.

However as a theory it adds precisely nothing to reducing/preventing rape.

If it has developed evolutionary as mating strategy, then we can prevent it long-term by legalising abortion. It would then cease to be an effective mating strategy, and the rapist gene, if there is one, would go extinct. Or if it is considered an individual decision by men ... they'd just give up rape as strategy because they'd know it won't be successful.

Just proves that a society designed to be beneficial to women would be beneficial to women in a number of ways not all of which we can predict.

I really don't get some of the arguments on this thread.

I was pleasantly tipsy when I got together with DP. I was up for going back with him. He refused (later saying primarily because he wanted to be sure I was sure). He's not the only male I know who's done that. It really isn't difficult for men to not have sex with someone that they cannot state with certainty has capacity to give fully informed and enthusiastic consent. The only men who cannot do that are rapists - and just because they are seemingly otherwise decent fully functioning members of society does not make them not rapists.

If you accidentally trespass (with no intention to steal) but then take something from someone's property, you are guilty of burglary. If you accidentally kill someone, you are guilty of manslaughter. When it comes to sex does it seems if you can argue you didn't believe it was rape, you aren't guilty of it. Durr - of course a rapist isn't going to believe that a typical rape is rape. Most rapists aren't cold-blooded misogynists who actively seek to hurt women, they are over-entitled men who have absorbed the cultural norm that women are in a constant state of consent unless they go to extreme lengths to prove otherwise. Most rapists are just people who have to justify their actions to themselves and would be horrified to identify themselves as a rapist. There have been countless studies on this.

The biggest problem we have is the idea that women are constantly consenting unless making it clear they are not. Now, call me old-fashioned but I'd hazard a guess that if the law was changed to put emphasis on the fact that women are not consenting unless categorically proven that they were, the cultural norm would change and rapists would be a lot more careful about where they put their penis.

In the above case, the first question asked of the man found not guilty would be, "so when you entered the dark room where your naked friend had previously been in bed with the naked alleged victim, what steps did you take to ensure she could give fully informed consent and that she indeed knew you were a different person to the one who had momentarily left her just seconds before?"

The second question would be "Why do you think a woman who was about to have sex with one male would be interested in having sex with you?"

The biggest problem we have is the idea that women are constantly consenting unless making it clear they are not

I really don't believe that is the legal position at all - where have you gotten that idea from ?

That's not the legal position. That's the cultural norm. And it is that norm which colours interpretation of the law in rape cases.

The law at present is thus:

(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.
(3)Sections 75 and 76 apply to an offence under this section.
(4)A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life.

Section 75:
(2)The circumstances are that—
(a)any person was, at the time of the relevant act or immediately before it began, using violence against the complainant or causing the complainant to fear that immediate violence would be used against him;
(b)any person was, at the time of the relevant act or immediately before it began, causing the complainant to fear that violence was being used, or that immediate violence would be used, against another person;
(c)the complainant was, and the defendant was not, unlawfully detained at the time of the relevant act;
(d)the complainant was asleep or otherwise unconscious at the time of the relevant act;
(e)because of the complainant’s physical disability, the complainant would not have been able at the time of the relevant act to communicate to the defendant whether the complainant consented;
(f)any person had administered to or caused to be taken by the complainant, without the complainant’s consent, a substance which, having regard to when it was administered or taken, was capable of causing or enabling the complainant to be stupefied or overpowered at the time of the relevant act.

Section 76:
(1)If in proceedings for an offence to which this section applies it is proved that the defendant did the relevant act and that any of the circumstances specified in subsection (2) existed, it is to be conclusively presumed—
(a)that the complainant did not consent to the relevant act, and
(b)that the defendant did not believe that the complainant consented to the relevant act.
(2)The circumstances are that—
(a)the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act;
(b)the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant.

My issue is how we're interpreting "reasonable". While there is case law on this, the case law in this area (like many others) is also reflective of the prevailing cultural norm.

IMO it would be better to change the law from:
(c)A does not reasonably believe that B consents.
to:
(c)A has not take such steps as necessary to establish that B consent.

This subtly changes the focus from what B has done to give A the impression that B consents, to what A has done to establish if B consents, thus placing far more responsibility on A - which as the person doing the penetration and with less to lose than B, seems to me to be more just.

Its up to the Judge to explain the actual legal position to the Jury ( drawn as they are from the ranks of the great unwashed).

Sorry my post above sent before I notice your post 11:06. I'll read that now.

OK, I understand your proposal. As no doubt you will know, the question of reasonableness is ultimately one for the jury to decide upon. As you also imply, this question of reasonableness pervades the criminal legal system.

Even with your proposed change, still the members of the jury have to decide on what 'steps were necessary' - isn't that still going to be decided on from the point of view of reasonableness. And if not, then what evidence do you envisage being required ? Plus - a problem with any trial, being it seems to me, that in any trial A, who is concocting a defence, will say exactly what A needs - and more - to be acquitted.

It's all about achieving cultural shift. It will take decades to really change a mindset. Initially, I wouldn't expect such a subtle change in the law to change anything, but eventually someone would really push it and someone might even win their case, achieving a precedent which will then be invoked in future cases. Eventually, it will seem normal in a case of rape to place the onus on the rapist to explain what justification he had for proceeding to have sex, whereas now we place the emphasis on the victim to show she didn't want that.

And when we've achieved that, the excuse given in the case we're discussing here would be seen as pretty lame because the way we view consent will have changed.

That's how all laws evolve ultimately.

What I can see happening were that the case is that rapists will start bringing cross-applications of sexual assault, and under these scenarios both people are convicted of rape/sexual assault. The only move is that both people drop the charges and we are back to square one...

Eventually, it will seem normal in a case of rape to place the onus on the rapist to explain what justification he had for proceeding to have sex, whereas now we place the emphasis on the victim to show she didn't want that.

But the former must be the case now - in a trial, prosecution putting its case first, B tells the Jury that she did not consent, A tells the jury that she did - or - tells them why it was reasonable in all the circumstances for him to have thought she had.

These were exactly the same sorts of arguments used when introducing the rape within marriage law and when tackling assaults in the context of a domestic relationship.

And you're both right of course - those things do happen and all too often we do end up with a victim being penalised further or cross-examined more.

However, we have also started to achieve an undeniable cultural shift.

Just because something is hard to change and needs to be done piecemeal does not make it pointless to do so. One thing is for sure, if we do nothing we can expect nothing to change.

These were exactly the same sorts of arguments used when introducing the rape within marriage law and when tackling assaults in the context of a domestic relationship.

what ? - Sorry, I have clearly failed to put my point across at all well.