andrewducker | Responsibility

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.

(no subject)

yonmei.livejournal.com - 2005-11-26 20:07 (UTC) - Expand

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.