Responsibility

[andrewducker]

This is inspired by the comment here, where ladysysiphus says "If you have consumed enough alcohol to impair your judgement, I believe you then have to take at least some responsibility for putting yourself in a position where something like this might happen."

[Poll #619684]

Comments

[yonmei.livejournal.com]

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?

[andrewducker]

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.

[yonmei.livejournal.com]

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.

[andrewducker]

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).

[andrewducker]

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

[0olong.livejournal.com]

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.

[yonmei.livejournal.com]

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.

[marrog.livejournal.com]

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.

[yonmei.livejournal.com]

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.

[yonmei.livejournal.com]

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.

[marrog.livejournal.com]

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.

[yonmei.livejournal.com]

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.)

[marrog.livejournal.com]

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'.

[drplokta]

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.

[missedith01.livejournal.com]

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.

[channelpenguin.livejournal.com]

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.

[missedith01.livejournal.com]

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?

[channelpenguin.livejournal.com]

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.

[yonmei.livejournal.com]

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.

[andrewducker]

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.

[yonmei.livejournal.com]

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.

[missedith01.livejournal.com]

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

[yonmei.livejournal.com]

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.

[chuma.livejournal.com]

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.

[channelpenguin.livejournal.com]

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.