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

"Having sex with someone very drunk is not legally considered rape either, "

Yes, it is, if the person is too drunk to have capacity to consent.

And the "going into the room his mate had come out of" wasn't a point I was making about his promiscuity; it was a point about the reasonable expectations of the drunk, sleeping woman still in that room that the man who came back in and lay beside her would be the same man as the one that walked out of there naked shortly before.

If you were pissed and half asleep next to your spouse and had a mate staying, they got up and went to the loo and a person came and lay next to you, your expectations would be "primed" for that to be your spouse, not your mate, wouldn't they?

No, green is not being irrational, she's shifting the overton window. If we put the burden on the man - if we allowed the line of questioning in court "what made you believe that this woman wanted to have sex with you, and you in particular, at this particular time and in these particular circumstances", so that men had to defend their behaviour, it might make a few would-be rapists think twice about their actions.

From a moral perspective, rape absolutely is "about having someone stick their penis in you when you don't want it (no matter how much they might want to think you want it)."

The issue of giving consent is tricky. How many people stop and say:

1. Are you sober enough to give consent? (Because most one night stands involve drinking, let's face it, so having sex with someone who is drunk when they consented does not mean you've raped them).
2. Am I who you think I am? (How do you even phrase that to the person involved?!)
3. Are you agreeable for me to penetrate you now? (WTF? Who does this?)

Are we actually saying that unless the man has gone through these steps (and why does it have to be the man?) the woman can decide afterwards that she was raped? Or are we saying that it is rape if any of these steps have been skipped?

Saying 'it's rape if she decides it is' is making it all about what's going on in her mind. And while that's very important, it's not the whole picture by a long stretch. Equally important is her behaviour up to that point, what's going on in his mind, his behaviour and any understanding between them.

a hell of a Yes, but that's a heck of an if.

a hell of a And my staying somewhere with my partner simply isn't a comparable analogy because it implies a context of clear committed relationships where there would be very little room for ambiguity or misunderstanding. The dynamic in this case sounds more like pick and mix than relationships.

A hell of an if??? WTAF? Do you regularly find yourself in social situations where you might get into bed with one man, have him go for a piss and another man come back and take his place with no prior discussion or agreement as to whether you might have wanted this to happen, and you think this is normal behaviour?

I am reliably informed that on the swinging scene (which is the only situation where I can think of where people might be up for that sort of partner swap) consent is everything, and people very much do not expect all and any partners to be interchangable - a woman may have sex with more than one man of her choosing but that does not mean she's up for it with any man who happens to be on the premises. And in any case there is no hint that this was in any way a swinging/polyamorous situation (I'm sure had there been the tabloids would have dwelt on it at great length).

I just find the jury's decision totally incomprehensible, TBH.

Sorry - "a heck of an if" in response to gonetosee.

If B penetrates A without A's consent, which A must have freedom and capacity to give, then B has raped A.

B can use as a legal defence to the charge of rape that he had belief in A's consent and if the jury accepts that belief was reasonable (or cannot accept beyond reasonable doubt that it wasn't) then B will be found not guilty. That doesn't mean that the penetration of A without her consent didn't happen. B's intent is not relevant to that point.

So in the hotel room case, the woman was certainly raped ie penetrated without her consent despite the jury finding the man who went into the wrong room not guilty.

In another case, a woman saying no to her rape saw the man walk free as he claimed to have insufficient English to understand the word no. Again, she was clearly penetrated without her consent and he was utterly reckless as to her consent, whether or not you believe the language point (I don't, YMMV)

The whole thing sounds grim and I feel so sorry for the woman.

He was sober, she was drunk, I don't know why but that makes it seem even more sinister to me, like she was vulnerable, he knew it and he pounced? Like he somehow equated her consent to his friend to consent for him also. Someone who thinks that way is dangerous in my opinion.

I hope the woman is ok and manages to move on.

"The dynamic in this case sounds more like pick and mix than relationships."

How dare you say this?

She went to bed with one man, Z. Another man, S, came in and she used the name of Z. She was clearly sexually interested in Z.

FFS.

gone - are you a man or a woman, out of interest?

Yy liesel.

Gone, yes, I believe both men and women should go through whatever steps are necessary to make sure that they are in bed with someone who consents.

And it's a reasonable expectation whether in a long term relationship or a one night stand that if you go to bed with one person, then no one else will get into that bed when he pops out, don't you think?

If rape is about intent, then it seems clear that the defendant intended to have sex on her whether she consented or not. He wasn't bothered about her consent.

Therefore, morally, if not in strict legal terms, he is a rapist.

Trying to defend his behaviour makes you look a little like you think she deserved it. So far, so patriarchy.

And yes, I would expect anyone who wanted to insert his penis into someone else to be very sure that the insertee not only consented to it, but that they were capable of giving that consent freely. Not to do so would suggest that consent isn't top of their list of sexual priorities and therefore that they are a rapey twat.

Ok, so gone is saying if someone gets into bed with you, don't assume its the person who's just got out if you want sex. You must check. Otherwise than random person who's just come in has every right to sex with you.

Pretty much Fela, yes. Along with some fun stuff about women who have ONS kind of deserve it if someone does this because they're merely a choice in a pick'n'mix rather than a human being or something.

In this case what I would have thought was reasonable would be for Sam to say something like "you do know I'm not Zack?" The very minute she "grabbed" him.
It's totally wrong headed to think the onus should be on her to check that he is who he says rather than on him. She was in bed with a man she wanted to be in bed with a couple of seconds before. He had no indication before getting into bed with her that she wanted sex with him.

Lurcio gone is a woman, I thought the name was familiar so I looked her up.

If a man got out of bed and a different man got in, I'd know. He'd smell different. Feel different. Taste different. Hard to believe she didn't know and not something I think a man would be likely to assume. Therefore expecting him to ask 'are you aware that I'm X and not Y' seems bizarre. I think it is at least equally likely that he was chancing his arm, rather than trying to deceive her. And I do know people, men and women, who would have sex with one person followed by another on the same night.

I think rape is rape when someone is forced to go along with a sex act, or if they go along with it and it subsequently turns out that they have been deliberately misled in relation to some key aspect of the situation. In this situation, I think the jury were correct in thinking she hadn't been raped - or, if she had, that it wasn't something that the evidence indisputably added up to.

These people weren't swingers as such - so the protocol there is irrelevant. It's all very well to talk about freedom and capacity to consent but that is extremely difficult to evaluate - and shouldn't be left entirely to the woman's view in retrospect.

What aspect of what I'm saying is irrational?

Lets try an example from my own life:

I've got about a bit, not as much as some, not as little as others, and I am a woman.

I have had a boyfriend, who liked a finger (or two) up his bum. So, sometimes, I would oblige. At all stages of this process, I would only continue if he wanted it. I knew that he was giving full consent to this process, both when we were having sex sober, or drunk.

Other boyfriends have not enjoyed this, so I didn't stick a finger up their bum. At no point did I get confused or mis-understand and accidentally stick a finger up their respective bums.

I did not find this tricky to navigate as a concept, when sober or fall down drunk. It seems reasonable to me, that I would only stick things in someone else's orifices when they definitely wanted me to.

Now. I would say that that is reasonable behaviour. Don't stick bits of you in bits of other people unless you are sure they want you to. If you do, and they didn't want it, then that is rape (or sexual assault) - and they get to decide that, since it's their orifice - not you, not the person who is doing the sticking.

Sounds rational and reasonable to me.

She consented to sex with Zack. She clearly did not consent to sex with him. He stopped having sex with her when she realised he was not Zack. I cannot see any reasonable grounds for his thinking she consented to having sex with him.

He stopped having sex with her when she realised he was not Zack

Thank goodness for that.

Green You're being irrational because the sex act did not exist in the woman's mind. It happened in reality. It was not a construct of her own mind, therefore she is not in a position to have the last word on what it meant. It was an encounter between two people and what they both thought and how they both acted is relevant. Now, if she had resisted having sex this would be more straight-forward. But whether it was 'rape' is about whether he tricked her. And whether he tricked her is about what he thought and what she thought. If he was 100% under the impression that she was freely consented to have sex with him, then he didn't rape her, however unfortunate it is that it happened.

What ? What is that comment supposed to mean ? He clearly did deceive her about his identity.

"It was an encounter between two people and what they both thought and how they both acted is relevant. " If only he had had the same consideration.