andrewducker | Responsibility

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.

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yonmei.livejournal.com - 2005-11-26 00:19 (UTC) - Expand

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andrewducker - 2005-11-26 08:23 (UTC) - Expand

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0olong.livejournal.com - 2005-11-27 01:07 (UTC) - Expand

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?

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yonmei.livejournal.com - 2005-11-26 18:20 (UTC) - Expand

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.

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andrewducker - 2005-11-26 08:23 (UTC) - Expand

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yonmei.livejournal.com - 2005-11-26 18:23 (UTC) - Expand

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.