andrewducker | Responsibility

And my answers: In all cases, Not at all responsible.

However, in all cases, _totally_ responsible for making the decision to place themselves there.

I don't like the fact that I might get mugged for my various bits of tech - it's a horrible thing to happen to anyone, and it shouldn't be allowed. In addition, I'm not responsible for the choice of the muggers to mug me - they're responsible for their own actions.

Sadly, lacking complete ignorance of the fact that muggers _do_ exist in the backstreets of Glasgow, I'm totally responsible for any decision I make to walk down those alleys at 2am, waving an MP3 player about.

Those two responsibilities do not cancel each other out.

Everyone is responsible for the choices they make, and while the actions of others do affect what choices we can, and do make, we are still ultimately responsible for our own actions.

On the other hand, chiding me for walking down a back alley when I'm nursing a broken nose and a missing MP3 player is lacking in tact and understanding, if nothing else.

Ahem. _Anyway_, the reason for all of this, is that I realised that the confusion over "responsibility for the situation" was that there were two totally separate responsibilities going on, and when someone said that person A was responsible for being in the backstreets in the first place (which they clearly are), people who were sensitive about mugging felt that they were saying that person A was responsible for the actions of the muggers (which they clearly aren't).

This aint maths, people - the Total Responsibility isn't "99% the muggers responsibilities + 1% the responsibility of the person walking down the backstreet" - there _is no_ total responsibility - there's two separate responsibilities that can't be added, subtracted or otherwise merged into one.

I'm not sure how you're working a concept of responsibility which doesn't imply any responsibility for the consequences of someone's action. Where does the responsibility for one event end? If they're not responsibe for a brick falling on their head just because they walked into a building site, would they be if they pulled the chain which released the platform which held the bricks?

Rubbish.

In the first two cases: you/she may be in an area with a poor reputation, but any assault occurs because of the evil intent of the mugger/rapist. It's their responsibility. Just because an area has a dodgy reputation it does not follow that entering it implies one is courting assault, any more than it follows that you are immune from assault or robbery in areas with a reputation for safety. The law doesn't take account of "no-go zones" -- if it did, then the law could not be applied consistently.

In the third case, you not only go into a bar you consider to be dodgy but you deliberately say something you understand to be inflammatory. Any assault is still the fault of the attacker -- but they might argue that you deliberately provoked them. If they can plausibly claim that they wouldn't have attacked you without such provocation, then the blame is shared to some extent.

In the case of the tiger, that's of necessity your responsibility. The tiger is a wild beast and is simply being true to its nature. No human being is exercising control over it. It exists outside the rule of law. When going outside the law, in the absence of any other authority it's your responsibility to look to your own safety.

On the building site ... it's a mixture. On the one hand, walking across a clearly marked building site is reckless: you've been warned by the signs, you shouldn't have done it. On the other hand, the builders have a responsibility -- under health and safety regulations -- not to drop loose objects like bricks.

Approximately my view, but I was assuming innocence of Glasgow cultural mores in the third case.

re-commented, as the original lost the formatting somewhere...

but any assault occurs because of the evil intent of the mugger/rapist. It's their responsibility.

That's what I said.

If they can plausibly claim that they wouldn't have attacked you without such provocation, then the blame is shared to some extent.

"Well, I wouldn't have raped her if she hadn't been wearing that skimpy miniskirt. It was clearly designed to provoke sexual thoughts your honour."

And you seem to be focussing on the law a lot. By and large I consider the law to be useful, but I certainly don't defer to it as the final answer on matters philosophical, moral and suchlike.

"Well, I wouldn't have raped her if she hadn't been wearing that skimpy miniskirt. It was clearly designed to provoke sexual thoughts your honour."

Not a valid analogy, because it reflects only on the internal state of mind of the attacker, who is clearly deluded if they think it's an invitation.

For it to be a valid analogy (with the walk-into-a-pub-and-say-something-provocative situation) your hypothetical skimpily clad female would also have to actually invite the other party to get intimate with her. (Then it gets a bit closer.)

Aaah, but many women _do_ wear clothes in order to provoke sexual thoughts.

And it doesn't matter what someone says, hitting someone is still fully the responsibility of the person hitting them. No words short of "Please hit me." are justification for violence - and the Operation Spanner results showed that legally speaking, not even then.

"On the other hand, the builders have a responsibility -- under health and safety regulations"

umm, well yeah, but thats why they put up signs. Quite frankly thats the only one situation where I wouldn't have ANY sympathy for the victim at all.

I think the wording of the questions was wrong to end up with the answer "not at all responsible". I think the question should have said something like "how responsible was he for the tiger eating him" and not "for being eaten" to follow your logic.

All of the other ones were "for...", so I followed the pattern.

Well, that was just an example. For the mugger robbing you, or "for the brick not being well mortared" or whatever would show the distinction between the actions of the other, and the responsibility for willfully putting oneself in danger.

However, in all cases, _totally_ responsible for making the decision to place themselves there.

You're assuming that people have unrestricted freedom of motion -- and that's not always the case.

You're also conspicuously leaving out examples like "A woman goes over to her best friend's house for dinner. How responsible is she when he rapes her?" I don't know if you're leaving out those very common situations because you want to make a point about people going into situations they know are potentially dangerous as opposed to situations they have very little reason to think will prove harmful.

Oops, sorry for dropping in -- saw this linked and thought it was in a comm I'm in.

Oh, agreed.

But as I've said below, I wasn't equating responsibility with blame, and I really wasn't saying that people deserved any of the horrible things that happened to them.

For all the answers where I put "partially responsible", the perpetrator should still be held criminally liable.

Including the tiger. :)

Interesting...

I've answered on the grounds that I think responsibility for violence lies with the perpetrator where they are conscious and decision-making. Tigers and bricks aren't so. But it does make me think... I would say all of these cases are about risk assessment and bad luck rather but have trouble matching this with "to blame" or "responsible" in a consistent way.

I'd argue that while tigers aren't conscious at the same level that people are, they still have consciousness. We could argue "The Free Will Of The Tiger", but then we'd have to follow up with "The Free Will Of The Human."

Which is why I deliberately put it in, as a mid point between human attackers and bricks randomly falling on my head.

Consciousness, in the case of the tiger, is only partly the point - the rest is morality. Why should the tiger care about you as anything other than food?

Andy walks, MP3 player in one hand, mobile phone in the other, down backstreets in an area known to be unpleasant. How responsible is he for being mugged?

And if you're so drunk you can't remember, but the mugger claims you enthusiastically pressed your MP3 player and mobile phone on him, should the mugger be done for theft or allowed to go free on the grounds that your default position is consent?

Very tricky one. I'm stuck in exactly the same situation where one person claims I gave it to him, and I claim I didn't. It's down to a jury to examine circumstance and decide who is more believable.

Oh, you may be interested to know that the CPS is demanding a report into the case that was dropped.

Very tricky one. I'm stuck in exactly the same situation where one person claims I gave it to him, and I claim I didn't. It's down to a jury to examine circumstance and decide who is more believable.

Ah. Double standard, then. You're arguing that the rapist should be presumed innocent, but that the mugger shouldn't. Otherwise you would have to argue that the mugger should be let go free - just as you argued that the rapist should be let go free. In both cases, the victim is drunk and the "alleged criminal" is claiming the victim consented.

Oh, you may be interested to know that the CPS is demanding a report into the case that was dropped.

Someone else already said that, on the Thread That Is Eating My Journal.

Not a double standard. In the example I gave above, I'm claiming that I _didn't_ give consent. In the rape case, she said she didn't know if she gave consent or not.

If I have no memory of consent, and he says that I did consent, then I can't see any answer than to say that he's innocent of mugging me (lacking bruises, witnesses, etc).

And my apologies, you clearly said "so drunk you can't remember", and I missed it while reading. My stupid fault.

Who's letting people go free because the default position is consent? If the hypothetical alleged mugger goes free, it's because there's room for reasonable doubt, i.e. a distinct possibility that they did in fact consent (although they may not have consented sensibly, the receiver might not have been able to tell) - not a default position to fall back on.

There is of course less room for reasonable doubt here than there would have been if Andy (or that drunk, scantily clad girl) had sex with him, because it's well-known that people often decide that they really want to have sex with people they don't really know, especially while drunk... whereas I've never heard of anyone suddenly deciding to give away their tech toys. Still, if the person who lost their gadgets is really so drunk they can't remember a thing about the encounter, I'd say there's room for reasonable doubt - you could at least argue the toss in court.

Who's letting people go free because the default position is consent?

Andy was arguing that Ruari Dougal had to be let go free because (Dougal claims) the woman who was too drunk to go home safely came on to him, and (Dougal claims) the woman was conscious when they had sex. By parallel, if a mugger claimed that Andy pressed his tech toys on him, and Andy is too drunk to remember if he did or he didn't, Andy should be arguing that the mugger must be presumed innocent.

Only, he isn't.

I'm more or less choosing a random place in the argument to have my say, ie: the point where I think I've formulated my opinion.

You compare the mugging with the rape, but I think you're both overlooking certain circumstantial evidence, specifically the location. If I gave you an mp3 player in my flat (or indeed even my corridor), if you're someone I know at least casually, there's a much better chance that I did it voluntarily than if I gave it to you in a dark, unsafe alleyway. That's just food for thought, though; I don't propose basing any legislation on it.

Ultimately I have to come down on the 'innocent until proven guilty' line. If he had sex with her in the corridor when she was so drunk that she doesn't even remember it, then that makes him (a) a dickhead, and (b) Someone to Watch and Distrust. It does not make him a rapist until you prove somehow that she did not want to have sex - at least circumstantially. This is unfortunate since of course he may well have raped her, but if you change that law you wade into extremely dangerous ground. As Andy points out, many of us have had sex either we or the other party didn't remember the next day. Sad though it is, there are a lot of women in the world who would take advantage of the opportunity to cry rape after every mistaken shag, regardless of what we'd like to think about some things being sacred. And even if they wouldn't, they could, and that's bad enough.

If a precident was set by jailing this guy for a rape that the victim couldn't remember and couldn't be proven any other way, then the world would be a rather dangerous place for lots of perfectly ordinary (if obnoxious and horny) lads.

This is of course assuming no real weight of circumstantial evidence, eg: the lass having turned him down repeatedly that night, him having a record of this behaviour, etc etc.

Final piece of food for thought on the other side of the camp, though:

As far as I understand it, if a blind-drunk person runs out into the road in front of a car and is run down, the driver, regardless of his/her own speed, care and sobriety, is (legally) 100% responsible.

If a precident was set by jailing this guy for a rape that the victim couldn't remember and couldn't be proven any other way, then the world would be a rather dangerous place for lots of perfectly ordinary (if obnoxious and horny) lads.

And this would be a bad thing HOW?

This is unfortunate since of course he may well have raped her, but if you change that law you wade into extremely dangerous ground.

Yeah - men couldn't just rape women and say "But she said she consented!" thus introducing Reasonable Doubt. If we quit assuming that the default state of all women is consent to sex, then a man who wants to have sex with a woman can't just assume she consented and have sex with her, with impunity, as is the case right now.

What I mean is - if the default state for women stopped being assumed to be consent, then yes, the world would become a more dangerous place for the kind of "perfectly ordinary" rapists who, now, get to just assume that women are available for sex.

You seem to think that men not being allowed to assume all women are sexually available until they prove otherwise is a bad, dangerous thing. I'm really not sure why.

You seem to think that men not being allowed to assume all women are sexually available until they prove otherwise is a bad, dangerous thing.

Not at all. Let me clarify exactly what I think:

1. If a woman gets incredibly drunk and takes home a person (note: gender non-specific) who she otherwise wouldn't sleep with, and shags that person, and the next morning thinks: "What the fuck was I thinking?" then it's her own fault for getting so drunk that her judgement was impaired. I've been on both sides of this one, and I think neither party was guilty of any crime because stupidity and horniness are not crimes.

2. If a woman gets incredibly drunk, a person offers to walk her home, then makes a pass at her, then they shag, and she doesn't resist along any step of the way, and the next morning she thinks: "What the fuck was I thinking? I totally didn't want to do that!" then the companion is a twat, and she's had a bad thing happen to her, but it's not rape. It's a bad person doing a bad thing to someone, in the same way that she might have fallen asleep in the pub and had someone write stuff on her face. Yes it should be discouraged. But not through charging said opportunistic bastard with rape.

3. If a woman gets incredibly drunk, and someone walks her home, makes a pass at her, she resists, and is then forced into sex, then it's rape.

I don't think anyone should assume sexual availability on anyone else's part, ever. I would point out, also, that many people, of both sexes (and with reference to either sex) assume sexual availability on the other person's part; this belief and attitude is by no means exclusive to men re: women.

I don't think anyone should assume sexual availability on anyone else's part, ever

If you argue that "she didn't resist" is the same as "she consented", you are, in fact, arguing that it's okay to assume sexual availability. (Scenario two in your own argument.) And that makes me feel extremely uncomfortable.

I would point out, also, that many people, of both sexes (and with reference to either sex) assume sexual availability on the other person's part; this belief and attitude is by no means exclusive to men re: women.

No: I've just discovered that, in fact, I need to avoid getting drunk with you, too, if you take it as read that someone who doesn't resist has consented to sex. The number of people on my friends-list I am never getting drunk with is rising by a much higher rate than I'm happy with. (Not that I'm saying you would force sex on me when I was too drunk to resist: just that I evidently couldn't trust you to be backup or witness if I did get too drunk for my own safety, if your feeling is that a woman too drunk to resist has consented by default.)

PS:

I evidently couldn't trust you to be backup or witness if I did get too drunk for my own safety

I must say I actually take things further than that: that is to say, if you're someone who would, unchecked, allow themself to become so drunk that they wouldn't think straight, rather than look out for you once you were slaughtered I'd just make sure you didn't get that drunk. I'd far rather pull you away from the bar while you were still only half-cut than pull you away from (or give evidence later for) a would-be molestation.

To clarify, the reason I wouldn't class the second scenario as a crime is not because I don't think a person should be punished for behaving in that way, but because without being aware of the inner thoughts of the person at the time, there's no way in retereospect to distinguish between it and the first scenario with regard to the mind-set of the 'rapist'.

but because without being aware of the inner thoughts of the
person at the time, there's no way in retereospect to distinguish between
it and the first scenario with regard to the mind-set of the 'rapist'.

To clarify, why do you feel that a man should be allowed to assume that if he doesn't know what the woman's inner thoughts are (ie, if she hasn't told him yes or no) he should be allowed to assume that she consented? And why do you feel it would be dangerous if men were not allowed to assume, sans evidence, that a woman's inner thoughts are always consenting to sex?

If you argue that "she didn't resist" is the same as "she consented"

I think I just made it very clear that I don't think the two are the same. I just think that, from a legal perspective, when someone does not remember what happened, there's absolutely no way to distinguish - indeed, there isn't even any way to distunguish whether or not she resisted. Regretting something isn't the same as not wanting it at the time, and we have no way of knowing whether she did or not. I think that convicting someone of one of the most horrific crimes (in my opinion) on the books without hard evidence is just something you cannot do without overwhelming, or at least significant, circumstantial evidence. I haven't seen the specific case you're referring to, but it doesn't sound as though there was in this case any evidence at all.

I also agreed that I don't think it's all right to take advantage of someone in an inebriated state, whether or not they say no, nothing, or even yes - although as stated previously I think many people have been in the latter or the three situations. I don't think it's acceptable behaviour and I would never allow a friend of mine to go home with someone if I thought they weren't in full possession of their faculties. What I'm saying is that I think that is the type of problem this is: a social ill. Something your friends should watch out for. Something there should be posters up for in the loos. "Are you sober enough to think straight? Watch your friends, watch that guy who's chatting your mate up." It's like unprotected sex, drug abuse, and indeed drinking too much itself. It's a societal problem that needs to be solved, but not by demonising people, branding them for life as an evil person, with literally no evidence.

Furthermore, if you don't stop using gender-specific pronouns with regard to this I'm going to start to assume that you're just being sexist. Not all sexual predators (or opportunistic bastards) are male, and regardless of the way the law sees it, rape isn't only committed by men against women.

It's the same as with the rape case; if Andy wakes up without his MP3 player but he was too drunk to remember how he lost it, you can't prosecute anyone who turns up with it for theft. There could be all sorts of innocent reasons why they have it.

I don't think that's true. For theft, they have to prove things about the defendent's state of mind. There might be sufficient evidence of that notwithstanding Andy's memory loss.

For rape, there is an issue of consent - so we're touching on the complainant's state of mind and her actions.

The complainant's state of mind in a theft case is irrelevent to what the defendant did and thought, although it may result in a lack of evidence and lack of a complaint.

For example, if Andy, in his drunken state, offered the MP3 player to a passer-by, his appropriation of it can theoretically still constitute a theft.

if Andy, in his drunken state, offered the MP3 player to a passer-by, his appropriation of it can theoretically still constitute a theft.

Nope don't see that. It's not theft. It's really stupid of Andy, and the person taking it isn't particularly nice or kind but nor are they all that evil.

If you can't take people at their expressed word (as it is here) things are awfulyl tricky. I'll extend that to wordless action too - not all communication is verbal. Repeatedly forcing the player into the passerby's hands and refusing to take it back woudl work too, for example.

Don't do stuff you don't mean (mild tact allowed, I suppose, but it does make this more tricky to define). Accept that in altered states you may mean different things. If that bothers you, avoid such states.

Nope don't see that. It's not theft.

It could be theft, under the law as it stands. Theft is the dishonest appropriation of property belonging to another, with the intention to permanently deprive the other of it. A person appropriates when they assume any of the rights of the owner.

Appropriation with consent is definitely appropriation, without doubt.

A gift is an appropriation (or sometimes it's not, depending on which case law you prefer).

It's really stupid of Andy

Yup. :-)

and the person taking it isn't particularly nice or kind but nor are they all that evil.

Does one have to be evil to be an offender?

like Andy, I am not interested in legal defintions or rules, more in sense...

Does one have to be evil to be an offender?

sloppy turn of phrase. As a concept, I don't personally subscribe.

I am not interested in legal defintions or rules, more in sense...

Ah, well, can't help you there. Too short myself at the mo. ;-)

For rape, there is an issue of consent - so we're touching on the complainant's state of mind and her actions.

And a woman's default state of mind is deemed to be consent, in this scenario: if she can't remember what happened, and therefore can't remember if she might have (as the man claims) consented (he also claims she was conscious), then her default state is assumed to have been consent. That is the situation we're in: women are assumed to have consented to sex, and have to prove they haven't.

if she can't remember what happened, and therefore can't remember if she might have consented , then her default state is assumed to have been consent.

I don't agree. No mention is made of her default state. Her actual state is unknown, the only witness who remembers the event claims that it was "Yes", therefore there is reasonable doubt as to whether she gave consent, or not. I haven't seen anything which indicated that people think she was consenting by default.

I know it's dehumanising, but think of them both having been in a room, in which the light was either red, or green. If it was red, he's guilty, if it was green, he's innocent. He claims it was green, she says she doesn't remember if the light was red or green. Convicting him based on the light being red isn't possible, but that doesn't mean people assume the light is green by default.

Swisstone has commented elsewhere (and I'm agreeing with him, although I haven't commented to say so yet) that the prosecutor has been crap for not pushing on the "She was unconscious when sex started, and therefore couldn't possibly have given consent.", which at least sounds like a plausible angle of attack for the case to take.

Her actual state is unknown, the only witness who remembers the event claims that it was "Yes", therefore there is reasonable doubt as to whether she gave consent, or not.

How is it "reasonable doubt" if the only witness to claim she consented is the same person who'll be done for rape if she didn't?

I know it's dehumanising

Yes. It presumes that a woman can be assumed to have consented.

How is it "reasonable doubt" if the only witness to claim she consented is the same person who'll be done for rape if she didn't?

Ok, so we have a witness that remembers nothing, and one we discount. Now we have no evidence of anything at all! How does this help?

It presumes that a woman can be assumed to have consented.

No, no it doesn't.

Ok, so we have a witness that remembers nothing, and one we discount. Now we have no evidence of anything at all!

We have the evidence of the other people at the party that this Dougal was asked to take the woman safely home because she was drunk and incapable. We have Dougal's own testimony that he had sex with her - along with his claim that she asked him to and that she was conscious. She doesn't remember what happened - just that it was "something" - but says she wouldn't have consented. So the conflicting testimony isn't over that he had sex with her while she was drunk and incapable: it's whether or not we take Dougal's word, unquestioned, that she was conscious and willing, when there is conflicting testimony from the other witness that she was neither.

No, no it doesn't.

How does it not presume that? If the woman has to prove a negative - prove that she did not consent - and if she can't prove she didn't consent, it's assumed that she did - then of course it assumes that a woman's default state is consent.

It's not a specific presumption that Women Consent By Default. It's a belief that without evidence/witnesses you cannot find someone guilty of a crime.

The witnesses have said that she was conscious when last seen. They have no idea if she was conscious or not when he had sex with her. Was she drunk? Yes. Was she incapable of making a reasonable decision? I'd go for "Probably yes.", but I don't know. Did she say yes? It seems possible to me, if not likely. On the balance of things, does it seem likely he behaved badly? Yes. Do we have enough information to convict someone, beyond "Reasonable Doubt" of rape? Sadly, I don't think we do. You can't convict someone "on the likelyhood" or for sleeping with women who are drunk enough to make bad decisions, otherwise he'd be going down for sure. As I've said repeatedly, it seems _likely_ to me that he did rape her, but not certain. And the rule of law in this country is based on presumption of innocence, which seems, in general, like a good thing, even if it has horrific consequences sometimes.

Do we have enough information to convict someone, beyond "Reasonable Doubt" of rape? Sadly, I don't think we do.

We certainly don't if you are assuming that the default state is consent. If the default state is not consent, then there's no reasonable doubt that he raped her. If you think that there isn't, I'd certainly never get drunk around you.

If the default state is not consent, then there's no reasonable doubt that he raped her.

If she said yes, then she gave consent, if she either said no, or said nothing, then there was no consent, and it was rape. This, to me, isn't assuming consent, it's assuming _lack_ of consent, unless the person says "Yes". I assume we're in agreement here.

Can you prove to me that she didn't say "yes."?

If you can, then there's no doubt at all.

If you can't then there is.

This seems to be to be a basic, and logical statement of facts. I can't see any holes in it. If you can, then please tell me.

The only evidence that she did say "yes" is that of Rúairi Dougal himself. That's your only proof that she consented - that the man who is accused of rape says she consented.

Yet you want proof that she didn't consent.

This seems to be to be a basic, and logical statement of facts. I can't see any holes in it. If you can, then please tell me.

Same one that I've been pointing out to you all along - you're assuming that her default state was consent, and that in order for it to be rape, she has to prove she didn't consent.

You're also arguing that when a man is accused of rape, his own testimony that the woman he had sex with consented is sufficient, all by itself, to introduce "reasonable doubt" that she did consent.

Effectively, you're arguing that any man should be allowed to rape any woman, and that providing he says she consented, that by itself is enough to introduce "reasonable doubt" and let him be acquitted.

Yet you want proof that she didn't consent.

Well, yes: The law quite generally insists on proof of a crime, rather than assuming that a crime has occurred until proof to the contrary has been presented.

Well, yes: The law quite generally insists on proof of a crime, rather than assuming that a crime has occurred until proof to the contrary has been presented.

The evidence a crime was committed:

-Her friends say she was drunk and incapable and they asked Rúairi Dougal to walk her home.
-Rúairi Dougal says he had sex with her in the corridor outside her room.
-She says she doesn't remember anything about it, but is certain (reasonably enough) that she'd never have wanted sex in the corridor with her own bed a few steps away.
-That she doesn't remember anything is backed up, presumably, by the testimony of the counsellor she went to.

The evidence no crime was committed:

-Rúairi Dougal says she consented and was conscious.

I can't think of any other crime in which the defendent's testimony that he didn't do it is allowed, all by itself and without any other supporting evidence, to be the "reasonable doubt" that permits acquittal.

Yet you're arguing that this is the default standard? That "I didn't do it" is sufficient defense?

-Her friends say she was drunk and incapable and they asked Rúairi Dougal to walk her home.
-Rúairi Dougal says he had sex with her in the corridor outside her room.
-She says she doesn't remember anything about it, but is certain (reasonably enough) that she'd never have wanted sex in the corridor with her own bed a few steps away.
-That she doesn't remember anything is backed up, presumably, by the testimony of the counsellor she went to.

This all adds up, absolutely to "Having sex with someone in a corridoor, which you'd never do when sober, and then not remembering it in the morning."

Which isn't a crime.

It _may_ also have involved rape, but those statements there don't make it so.

"Having sex with someone in a corridoor,
which you'd never do when sober, and then not remembering it in the
morning."

So, again, you're arguing that the testimony of the man accused of rape - the only evidence that she was conscious and consenting - is sufficient by itself to clear him?

I think there's more evidence to the contrary than that. You're taking an entirely one-sided viewpoint.

I think there's more evidence to the contrary than that. You're taking an entirely one-sided viewpoint.

Are you claiming there's evidence, aside from Rúairi Dougal's unsupported testimony, that she was in fact conscious and consenting when he had sex with her? Any evidence?

I think it's rather impossible to ignore the dearth of evidence that he did, either physical or circumstantial. You're forgetting what a serious charge this is - one I equate to being almost on a par with murder. A murder case would never convict on this evidence.

It's not even though I'm looking for much; just something beyond the testimony of someone who doesn't remember what happened.

On another note, there are also a couple of details which I realised I would dearly like to know that must exist somewhere. Can you tell me this: was this sex protected or unprotected? Furthermore, I was thinking about this 'corridor' thing. Was this the corridor to her room in a flat, ie: comparatively private and actually in her flat, or was it the corridor outside her flat/in a stairwell ie: comparatively public? The implication is very different to my mind. If it was in the stairwell, why the fuck, given that this is uni acommodation, isn't there surveillance camera footage? (And if there isn't, on a side note, why the fuck isn't everyone up-in-arms that there isn't said footage?) I know you're about to accuse me of taking the responsibility away from the rapist here, but please bear in mind that I take a Beccarian approach to criminal justice: Prevention. Deterrance. These are what we should be aiming for. And that, in fact, is part of the basis, as you'll have seen, for my more at-length answer.

. A murder case would never convict on this evidence.

What: a man says "Yes, I killed her, but she wanted me to do it" and that would be sufficient to acquit him? You really think so?

It's not even though I'm looking for much; just something beyond the testimony of someone who doesn't remember what happened.

You've got Rúairi Dougal's own testimony. Why isn't that enough for you?

You've certainly made a compelling case that excessively drunken sex happened.

A convincing case that rape happened requires more than that, though. The fact that someone remembers nothing the next day certainly suggests they're drunk enough that it would be wrong to take advantage of them, but it doesn't rule out that they may have consented at the time. For that matter, they may have consented enthusiastically, in a corridor; people do regrettable things like that sometimes when they're drunk. Clearly, if she consented, it wasn't rape.

If you want to argue that someone that drunk cannot give consent (I'm not sure if this is your position or not?), in much the same way as under-16s are deemed to be incapable of giving consent in law, and therefore any and all sex with them constitutes rape, then that's not unreasonable - but it does take us into very sticky territory. It's not always easy to judge how drunk a person is; you'd need to draw the line somewhere, obviously, but where?; also, many people are very much in the habit of having drunken sex - indeed, I am led to understand that going out, getting drunk in and hoping to get a shag is a popular pastime in this country, among members of both sexes and all sexualities.

I'd certainly never get drunk around you.

One note here (I can't believe I actually turned the computer back on to type this):

If I was _there_, I'd _know_ whether you'd said yes, or not. I wouldn't be relying on hearsay, as to whether you were interested or not - I'd have the evidence of my senses. So there'd be no question of proof involved.

The legal problem that go with "innocent into proven guilty" only occur when there's no useful witnesses available. Which is why I'm actually in favour of CCTV cameras, and think that David Brin's "Transparent Society", where everyone carried constantly recording cameras with them is a great idea. If there was footage to go with the rape cases the conviction rate would be vastly higher, I'm sure, and a bloody good thing too.

If I was _there_, I'd _know_ whether you'd said yes, or not. I wouldn't be relying on hearsay, as to whether you were interested or not - I'd have the evidence of my senses. So there'd be no question of proof involved.

So? You have just asserted that when a man is accused of rape, his own word is sufficient to establish "reasonable doubt" that while he had sex with a comatose woman, she consented to it. Just on his say so. No other evidence required.

Why should I trust a man who argues that?

I've asserted, repeatedly, that for any crime, evidence is needed for a conviction.

I'd like you to come up with an alternate way of holding a court case.

"I hereby accuse Jane of XXXXX. There was nobody else in the room at the time, and she denies it, but I maintain that she did it, and she must pay!"

Now, in your ideal world, how should a court case proceed from this?

I've asserted, repeatedly, that for any crime, evidence is needed for a conviction

Actually, you've asserted that for this crime - rape - that if the man claims the woman consented, that's enough by itself to introduce "reasonable doubt" and acquit him. All the evidence says he raped her: but so long as he claims he didn't do it, you accept that as sufficient doubt and say he shouldn't be convicted of rape.

Now, in your ideal world, how should a court case proceed from this?

Interesting that you keep coming up with fictional scenarios in which there is no evidence beyond one person's word, and ignore the real case, in which there is evidence not dependent on one person's word. Interesting in a sickening sort of way, that is.

You have just asserted that when a man is accused of rape, his own word is sufficient to establish "reasonable doubt" that while he had sex with a comatose woman, she consented to it. Just on his say so. No other evidence required.

Nope, I'm not saying that - and if she was able to say "I was walking home with him, and then I collapsed unconscious, and then when I woke up, he was having sex with me." then that'd be it - there's no consent, he raped her. Sadly, she can't remember if that happened, or if she shouted "Take me, take me now.", and then has forgotten everything bar 3 seconds of the sex.

Why should I trust a man who argues that?

That sounds to _me_ like "you insist on a higher standard of proof than what is available, there I do not trust anything you say." Which doesn't make any sense to me.

I'd certainly never get drunk around you.

You could do so in perfect safety. While it's been discussed on my journal, I do not actually believe that the people who have been claiming that a drunk person deserves all they get deserve themselves to be raped while too drunk to resist and see if they like being told their consent can be assumed. I don't believe anyone deserves to be raped, nor that anyone's consent should just be assumed to exist, no matter how drunk they are - not even if that's exactly what they've been arguing for themselves.

Which is, as I've repeatedly said, exactly how I feel as well.

Which is, as I've repeatedly said, exactly how I feel as well.

Yet you've been repeatedly arguing that if a man is accused of rape with a woman who is drunk and incapable, his unsupported word that she was conscious and consenting when he had sex with her is sufficient to clear him. So, plainly, that's not how you feel, and trying to claim you do is rank hypocrisy.

The prosecution has to prove its case, and the benefit of any doubt should be given to the person who might lose his liberty.

If the default state of any woman is assumed to be consent, the prosecution has to prove a negative, and any man is free to rape any woman because all he has to do is claim "she consented" and that is, apparently, by itself enough to introduce the "reasonable doubt" that she might have.

I think you're right, other than in the cases where there are presumptions about consent.

Possessions can be returned in a court if the drunk sobered up and the 'mugger' claimed they were given as gifts. Sex cannot be undone.

Well, no. But it's not like you/I/anyone have/has a limited supply.

Maybe I am just missing a whole swathe of point. To me, sex *is* important (like any other activity that I enjoy), but.... I'm floundering here. People make such a huge deal sometimes and I can't even begin to understand the whys. There is clearly a massive difference between typical thinking on the subject and my own. Can anyone articulate it better for me cos I'm really struggling...

Violence is another matter, of course - but that applies to ANY violence. sexual violence is not (to me) any special case.

In an ideal world, we could all take whatever actions we wanted without fear of repercussions from people who take advantage of them. However, this ain't an ideal world. While we cannot change the clearly wrong actions of criminals who rape, steal, and murder, we do have complete responsibility for keeping ourselves safe. Therefore I picked "partially responsible" for each case, although I'm leaning more towards "fully responsible" for the brick and the tiger.

You know, I never thought I would say this - but I think I'm entirely too cynical about humanity to assume that when a mugger/rapist is commiting a crime, it's a choice they're making vs my choice - I'm afraid there will *always* be people in the world who will make that more evil choice, and it's a reality that we sadly have to adapt to, to some extent.
I think, to an extent, the tiger analogy probably works quite well in this context, in that for a large swathe of humanity (including most politicians in power) the capacity to make moral choices is seriously impaired.
I would not, however much I believe that people should make the right moral choice send out my little girl of eight (for example) on dark streets because I *know* there are people who would take advantage of that, and I would take full responsibility for putting her in that position, should anything happen.

There's a difference between being unwise (doing things with known risks) and being responsible for the consequences, in the sense of to blame for them.

If the bad consequences require another human being to do something bad (ie to attack you in a bad area of town) then you may be deeply stupid to have put yourself in that position, but you are not to blame for their evil actions.

Tigers, as have been mentioned already, do not have a moral responsibility not to eat people, so in that case any responsibility is yours.
(Though this does not apply to any natives of the area whose choices may be limited to either going to gather firewood in the tiger-infested woods or not being able to cook and heat their house...)

I don't equate responsibility with blame.

In this respect, I believe you are at odds with the way the law works and most of the rest of the population think.

Pretty much what I was going to say.

And I don't really care what most of the population think. As far as I can tell, most of the population doesn't.

Well yes, sadly a large proportion of the population have demonstrated their inability to think their way out of a brown paper bag...

I'm with Andy on this one.

I'm not talking about the way the law works, and mostly I consider the law to be very odd and to contain a large number of ideas which are clearly nonsense.

The Law is also not necessarily in line with what the rest of the population thinks, as much as both of those are not in line with Andy.

If you pop out from round a corner at someone with a weak heart, not knowing they were there, and they have a heart attack, I'd say you were *responsible* for the heart attack - an action from you caused it - but in no way *to blame* for it.

What are the differences between responsibility and blame? How would you distinguish the two?

Blame indicates a fault in the person. Responsibility indicates that it was the person's choice.

I can choose to wander down a back alley, or not - the choice is down to me and me alone - I am responsible for that choice. But I'm not to blame if because of that I get mugged.

Generally I don't like the idea of blame - it's usually associated with punishment and other kinds of negative feedback that I find counter-productive. I prefer to find the cause of a problem, and sort that out, without having to point at someone and saying "You are a bad person."

Of course, sometimes this can't be helped, but conflating responsibility with blame ends up with a situation where you blame a rape victime for their rape, because they made an unfortunate decision.

So ... if you are responsible for walking down a back alley, you are merely responisble for the fact that you walked in a certan direction and ended up in a certain position, and not for any of the things which may happen in that place?

Exactly. You were responsible for placing yourself in that place, not for the things that happened to you there. It may well have been a risky choice you made - and you are responsible for having taken that risk - but that doesn't mean that you are responsible for things other people choose to do to you - they're responsible for that.

Thank god! Neither do I, and I was beginning to think I was the only one. I equate responsibility more with causality - if you hadn't done x, y wouldn't have happened - but with no blame connotations. (This, incidentally, is why i didn't fillin the poll.)

I'm getting intensely frustrated with the reporting of the Amnesty poll conflating "is partially responsible" with "is partially to blame".

Part of the survey asked is a woman totally responsible, partially responsible or not at all responsible for being raped if it is known the woman has had many sexual partners.

Is it possible to understand responses to that question using the causality interpretation of responsibility?

The survey has a range of questions, so the question itself makes sense. And I can see how people *could* answer at least partially responsible, in certain cases - the less clear-cut cases, where the man believed he had consent, and the woman didn't actually fight him off. (Before you jump down my throat, I don't believe this, and I would answer not at all responsible.) But if she'd been flirting madly and it was well known that she brought home a different guy every friday and saturday night, and the respondents thought that that could cause a guy to believe she wanted to have sex with him - yeah, I can see 20% of the population believing that.

(waves hands pathetically at screen, much as Wallace would at Grommit)

No jumping down of throats, I'm just interested in the survey and how people interpret it and the questions that were asked.

I would say, for example, that the question on previous sexual behaviour is of a different quality to the others .... the others relate to what the woman is doing now (wearing certain clothing, walking in a certain place) or has done in the time immediately before the rape (flirted, got drunk) whereas the previous sexual behaviour question asks the person answering to consider behaviour which is not connected to the immediate circumstances of the rape at all.

I, myself, wasn't at all shocked at the range of responses to all the other questions (which is not to say I agreed or didn't with any particular answer but just that I wasn't surprised by them) but I was surprised by the answers for previous sexual behaviour. Also, the fact that that question was answered in the way it was would lead me to believe that many people answering the survey were using responsible more in a blame sense than a choice sense - in the sense that 8% of the respondents seem to think that sexually promiscuous women are totally responsible for being raped => worthy of punishment?

Othen than that I would replace 'require another human being to do something bad' with 'provide an opportunity for another human being ...' I'm pretty much in agreement. I'm seeing a confusion in my LJ FL between 'being responsible for' and 'increasing the risks of'. And I think that confusion is reflected in the Amnesty poll - that at least a proportion of the people who said that they believed women to be partially responsible for being raped if they behaved in certain ways actually meant that they were increasing their risk of being raped.

"In the old days of anarchy you were given freedom to; now you are being given freedom from."

Police states where this sort of issue doesn't arise for the win!

People are scum. People are lying, cheating, stealing, murdering scum. They have dark and terrible hearts and twisted minds turned to nothing but hate.

Not all of them, but again and again this is borne out. Watch the news.

If you are with friends, if you are with people you know in a safe place then maybe, just maybe, you can let your guard down and be safe and then, if something bad happens, you're not responsible. Because there was nothing you could have done.

But if you give people who you don't know an opportunity, if you get drunk and aren't in control, if you present yourself as a target, or if you even just give -other- people the option of making you a target, then you are at least in part responsible. Because you could take precautions to ensure bad things didn't happen to you? And why didn't you? Because you're stupid. Yes, there will always be things that you can't avoid. It's a terrible fact of life. That is bad, and sometimes you aren't responsible.

But if you happily get too drunk to stop things happening, or wander calmly through somewhere you -know- to be dangerous without a thought for your safety... then you're voluntarily giving up your safety.

When you drive your car, if you don't do up your seatbelt, you are making a choice to go flying through the window if you crash. You don't WANT to crash, but if you do.. you're choosing the painful option. When you KNOW there's a safer option.

You can blame society if you like, in that we have a weak and indulgent society that freely allows crime, but you can't blame everyone except yourself. The first lesson is not to be a target, is not to make yourself an object for someone else's hate or greed.

Vulnerability is a choice. There are things you can do to avoid it. If you do not do these things then you have made a choice. Ignoring the choice is sheer stupidity.

Pretty much on my thoughttrain that one.

If I'd have bothered to read this first, I could have saved myself a post and just said "I agree".

Yeah, I pretty much agree with this.

In all of the cases above "Partially Responsible". Why? Because everyone has to take responsibility for their own actions. What happens to you, if as a direct result of your own actions, is at least in part your own fault. You cannot complain if you put yourself in danger when you are a victim. In all of the cases above is it without argument that the people there have put themselves in a position to have someone or something negative have an impact upon them. If they had have done things differently, like got a taxi, or kept to the main roads, or not been so ignorant (ignorance kills like no other) etc then they would not have come to harm. Theres common sense lacking in all the situations above.

That said, are any of them guilty of any of the violence or acts? No. They are the innocent party, if clueless. But as George Carlin put it, "There's no such thing as an innocent. As a human being, when you're born until the day you die, you're just fucking guilty my friends. You're fucking GUILTY".

You seem to have trouble distinguishing between accidents and crimes.

Nope, I have no such problem. Would you care to explain why you think I do?

I think the result can almost entirely be attributed to people mistaking idiocy for responsibility. Never attribute to malice that which may be attributed to incompetence....

Those are certainly some thought-provoking questions. I'm not sure how I would answer, since I'm not quite sure as to what "responsibility" really means in these situations. However, when I think about these situations worded oppositely, for example, someone does something potentially dangerous, and nothing bad happens, then how responsible are they for something bad not having happened? In that kind of situation, I would say they aren't responsible... they didn't have any control over whether or not something bad happened... and so I was thinking, maybe even when something bad happens, they still didn't have control and therefore weren't at all responsible either.

But then I was thinking, if someone tries to kill you, and you don't die, they aren't responsible for you not dying, yet if you had died, they would be responsible. So that means my previous thought doesn't necessarily hold either. It's enough to give me a headache. But I'm going to stop thinking about it, so that it won't. If I did think about it more, and if I got a headache, would you be responsible? No, I guess you wouldn't. You'd be partially the cause of it, but not responsible, since it was my own choice to continue thinking about it... Would I be responsible? Hmm. Nope, I am going to stop thinking about this. Yep.

i think the whole problem is the phrasing of the question, responsibilites can only be understood in the context of rights: try rephrasing it like this:

"A woman walks, scantily clad, down backstreets in an area known to be unpleasant: has she forfeited her right not to be raped?

Anyone care to answer yes to that? Cause thats what your saying if you ascribe her "responsibility".

besides the idea of being responsible for rape is an oxymoron, if one was ABLE TO RESPOND it wouldnt be rape. Depressing to see that your poll produces the same proportion of stupidity as the original.

When it comes to rights I fall into the Benthamist camp - I just don't find them meaningful in any sense other than as idealist views of what a particular person's ideal society would look like. I do believe in responsibility though.

So I don't tend to have a problem discussing responsibility outside of the context of rights :->

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