Rape and Law
Nov. 25th, 2005 01:19 am![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
andrewduckerI believe that women should be allowed to flirt with people without having to have sex with them.
I believe that women should be allowed to walk down dark alleys without having to have sex with people lurking in them.
I believe that women should be allowed to wear skimpy tops without having to have sex with people that see them in them.
I believe that women should be allowed to get drunk without having to have sex with the person they're drinking with.
I believe that women should be allowed to spend hours dancing with someone without having to have sex with them.
I believe that women should be able to kiss someone all over and rub oil into their skin without having to have sex with them.
I believe that women should be able to give someone a blow job without having to have sex with them.
I believe that women should be able to start having sex with someone, change their mind, and stop halfway through.
I believe that women should be able to have sex with someone, and not have to have sex with them ever again.
I believe, when you get right down to it, that women should be allowed to decide whether they want to have sex, and nobody else should be allowed to make that decision for them.
You really fucking ought to be able to file this under "things you don't have to say, because they're so bloody obvious" - I mean, how simple is "You can't have sex with someone unless they want to." ?
And yet, 34% of people don't think this is true, according to this ICM survey that's been linked to recently. Various people were shocked by it, and I commented on a couple of their journals, agreeing that it was horrifying that (for instance) 5% of people think that a woman walking in a deserted area is _totally_ responsible for being raped.
So, yes, I'm not in favour of rape. Those people who are surprised by this have obviously not been paying attention.
However....
I believe that presumption of innocence is a vital part of the justice system. We must assume that people are innocent unless evidence of their guilt is provided, beyond reasonable doubt.
Put two people in a sealed room and have them disagree, when they came out, as to what was said and done while they were in there. You can work out certain things using forensics, but you can't work out what the intent was, nor what was said between them. If the disagreement comes to a court of law, you're left with two witnesses to the possible crime, and the knowledge that one of them is lying. Unless there's strong circumstantial evidence, this leaves room for lots of doubt, which means that you can't convict. Beyond Reasonable Doubt" doesn't mean "On the balance, it seems more likely that he did it." it means "A reasonable person cannot find any reason to doubt their guilt."
This morning, a few papers reported that a man has had rape charges against him dropped after a woman couldn't remember if she'd consented or not.
Now, the law is clear - an unconscious woman can't give consent - and the default position is _non-consent_. So if she'd been unconscious, it would definitely have been rape. And at some point during the proceedings she was at the very-least semi-conscious. However, the man claims that she did give consent. And she doesn't remember if she did, or not. So it's not even his word against hers - it's his word against "maybe". He says "She said yes" and she says "I don't know what I said."
Now, you could claim that if she doesn't remember, then she was so drunk she couldn't give consent. But you can't necessarily tell, at the time, whether someone is going to remember something the next day. I've had long involved conversations with drunk people that they couldn't remember the next day. Heck, I've had drunken sex with two of my girlfriends that they couldn't remember the next day. In both cases, I'd have sworn blind that they'd had a few drinks but they were still lucid. And besides which, the law doesn't say "drunk", it says "unconscious". I can't think of a way of phrasing a law that would make it a crime to have sex with drunk women - competence is a very tricky thing to judge, and unless you had a psychologist there at the time, to probe the person and find out how incompetent they are, it's not going to be an easy call.
This is a _horrible_ problem - you cannot make it impossible for people to claim that there was consent, and you cannot tell which person is lying (well, we don't have reliable tech just yet). Short of saying "in the case of rape, the presumption is of guilt", I really can't think of a solution. And once you start presuming people are guilty you end up with something even worse than terrorists being held for 90 days "Just in case".
There's a fantastic scene in A Man for All Seasons, where Sir Thomas More is debating the law with another character, Roper:
In the case in question, I can't think of any way of _proving_ beyond doubt, that he definitely raped her. I think it's _likely_ that he did, and I agree that it's terrible that he goes free. But I've wracked my brains, and I can't think of any way of sending him to jail for it, short of starting chopping away at those trees.
I believe that women should be allowed to walk down dark alleys without having to have sex with people lurking in them.
I believe that women should be allowed to wear skimpy tops without having to have sex with people that see them in them.
I believe that women should be allowed to get drunk without having to have sex with the person they're drinking with.
I believe that women should be allowed to spend hours dancing with someone without having to have sex with them.
I believe that women should be able to kiss someone all over and rub oil into their skin without having to have sex with them.
I believe that women should be able to give someone a blow job without having to have sex with them.
I believe that women should be able to start having sex with someone, change their mind, and stop halfway through.
I believe that women should be able to have sex with someone, and not have to have sex with them ever again.
I believe, when you get right down to it, that women should be allowed to decide whether they want to have sex, and nobody else should be allowed to make that decision for them.
You really fucking ought to be able to file this under "things you don't have to say, because they're so bloody obvious" - I mean, how simple is "You can't have sex with someone unless they want to." ?
And yet, 34% of people don't think this is true, according to this ICM survey that's been linked to recently. Various people were shocked by it, and I commented on a couple of their journals, agreeing that it was horrifying that (for instance) 5% of people think that a woman walking in a deserted area is _totally_ responsible for being raped.
So, yes, I'm not in favour of rape. Those people who are surprised by this have obviously not been paying attention.
However....
I believe that presumption of innocence is a vital part of the justice system. We must assume that people are innocent unless evidence of their guilt is provided, beyond reasonable doubt.
Put two people in a sealed room and have them disagree, when they came out, as to what was said and done while they were in there. You can work out certain things using forensics, but you can't work out what the intent was, nor what was said between them. If the disagreement comes to a court of law, you're left with two witnesses to the possible crime, and the knowledge that one of them is lying. Unless there's strong circumstantial evidence, this leaves room for lots of doubt, which means that you can't convict. Beyond Reasonable Doubt" doesn't mean "On the balance, it seems more likely that he did it." it means "A reasonable person cannot find any reason to doubt their guilt."
This morning, a few papers reported that a man has had rape charges against him dropped after a woman couldn't remember if she'd consented or not.
Now, the law is clear - an unconscious woman can't give consent - and the default position is _non-consent_. So if she'd been unconscious, it would definitely have been rape. And at some point during the proceedings she was at the very-least semi-conscious. However, the man claims that she did give consent. And she doesn't remember if she did, or not. So it's not even his word against hers - it's his word against "maybe". He says "She said yes" and she says "I don't know what I said."
Now, you could claim that if she doesn't remember, then she was so drunk she couldn't give consent. But you can't necessarily tell, at the time, whether someone is going to remember something the next day. I've had long involved conversations with drunk people that they couldn't remember the next day. Heck, I've had drunken sex with two of my girlfriends that they couldn't remember the next day. In both cases, I'd have sworn blind that they'd had a few drinks but they were still lucid. And besides which, the law doesn't say "drunk", it says "unconscious". I can't think of a way of phrasing a law that would make it a crime to have sex with drunk women - competence is a very tricky thing to judge, and unless you had a psychologist there at the time, to probe the person and find out how incompetent they are, it's not going to be an easy call.
This is a _horrible_ problem - you cannot make it impossible for people to claim that there was consent, and you cannot tell which person is lying (well, we don't have reliable tech just yet). Short of saying "in the case of rape, the presumption is of guilt", I really can't think of a solution. And once you start presuming people are guilty you end up with something even worse than terrorists being held for 90 days "Just in case".
There's a fantastic scene in A Man for All Seasons, where Sir Thomas More is debating the law with another character, Roper:
Roper: So now you'd give the devil the benefit of law?
More: Yes. What would you do? Cut a great road through the law to get after the devil?
Roper: Yes, I'd cut down every tree in England to do that.
More: Oh, and when the last law was down and the devil turned 'round on you where would you hide, Roper, the laws all being flat? This country is planted thick with laws from coast to coast, man's laws not God's, and if you cut them down - and you're just the man to do it - do you really think that you could stand upright in the winds that would blow then? Yes, I'd give the devil the benefit of the law, for my own safety's sake.
In the case in question, I can't think of any way of _proving_ beyond doubt, that he definitely raped her. I think it's _likely_ that he did, and I agree that it's terrible that he goes free. But I've wracked my brains, and I can't think of any way of sending him to jail for it, short of starting chopping away at those trees.
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no subject
Date: 2005-11-25 02:21 am (UTC)I hardly think that being exceedingly drunk makes you totally responsible if you are raped. However, 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 and you might be too impaired to voice non-consent. But I'm barely a drinker at all, because I hate losing even a bit of control on my perception, much less shooting it to hell, so perhaps I'm not one to talk.
My problem with the argument that says a woman can't start something with a man just to stop it in the middle is this -- what kind of a horrible person keeps having sex once his partner has made it clear that s/he doesn't want it anymore?
no subject
Date: 2005-11-25 04:52 am (UTC)It shouldn't matter one whit if you are too impaired to voice non-consent.
No-one should be having sex with you unless you've given consent.
Silence is not consent.
No matter how much alcohol you consumer, rape is never the responsibility of the victim. The rapist chooses to rape. Their responsibility.
what kind of a horrible person keeps having sex once his partner has made it clear that s/he doesn't want it anymore?
I believe the technical term is "a rapist".
no subject
Date: 2005-11-25 06:21 am (UTC)Anyway, sorry.
no subject
Date: 2005-11-25 12:04 pm (UTC)And no apologies for snark! It was kinda witty.
no subject
Date: 2005-11-25 01:29 pm (UTC)In this case (had it got this far) I can only hope that the circumstances would have been taken into account. After all, I'm a security guard - I'm stone cold sober and I'm asked to escort someone home who is too drunk to make it alone. I would have to be pretty darned sure of her consent before I'd risk having sex in the corridor while she was semi-conscious. In fact, in his position I think I might ask for consent in writing. And witnessed. :-)
But we don't know for sure what his testimony would have been. Maybe he asked her six times before she slipped out of consciousness and then he simply didn't notice.
no subject
Date: 2005-11-25 09:35 am (UTC)Okay, so in your view women should only drink at home, alone, because drinking in company means "putting yourself in a position where something like this might happen"?
My problem with the argument that says a woman can't start something with a man just to stop it in the middle is this -- what kind of a horrible person keeps having sex once his partner has made it clear that s/he doesn't want it anymore?
4.5% of men. That is, if you're just walking down the street, or standing in a crowded bus, roughly one out of every 20-25 men you see is that kind of a horrible person. (According to a 1987 study by Mary Koss, discussed here (http://www.amptoons.com/blog/archives/2004/05/05/how-many-men-are-rapists/).)
no subject
Date: 2005-11-25 12:16 pm (UTC)And I'm not a drinker. Not at all. I have never been drunk, in public or otherwise, and do not wish to achieve that status, because I hate having my awareness dulled. I don't understand why anyone, male or female, would ever get drunk, much less in public, much less falling-down, blacking-out drunk around people you don't trust. So understand that I'm coming at this from an odd personal bias.
But I'm not talking about just drinking up there -- I have friends who can drink whiskey like it's water and never flinch, and others who'll drink two glasses of wine to get a buzz and then stop -- I am talking about drinking beyond your limits, to the point of that falling-down, b lacking/browining-out, loss-of-control drunk that you have to be in order to give a consent to sex that you don't remember in the morning. Yes, I believe women would be safest getting shitfaced drunk in a place where they are safe and there are other trusted persons around them to keep watch just in case something goes wrong. You wouldn't let an impaired friend go home behind the wheel of a car; you shouldn't let her go home with someone she really, really shouldn't be with, either.
no subject
Date: 2005-11-25 08:29 pm (UTC)The only person who claims that there was consent in this case is Ruari Dougal who had sex with this woman in a corridor. She says she was so drunk she doesn't remember much about the night - which, as the default state of women is apparently set to "consent" means that she's assumed to have consented. Dougal was, it is not disputed, asked to walk her safely home because she was drunk and incapable, and then, he himself says, had sex with her in the corridor outside her room. That she gave consent to this is solely dependent on his say-so, which is, according to
Yes, I believe women would be safest getting shitfaced drunk in a place where they are safe and there are other trusted persons around them to keep watch just in case something goes wrong. You wouldn't let an impaired friend go home behind the wheel of a car; you shouldn't let her go home with someone she really, really shouldn't be with, either.
Her friends thought they had made sure she was safe to go home with a trusted person: a university security guard. He's the man who had sex with her.
1 in 20 men will commit rape. Given the reactions to this incident, and given the number of people who are willing to make excuses for the man who did it, if you only get drunk with people you know you can trust, you can really only guarantee you're safe if you're home alone with the door locked. Well, I'm not about to do that - but the number of people who were formerly presumed to be safe to get drunk with - and I'm not talking totally plastered, just happily buzzed and reflexes a little shot - has shrunk considerably over the past couple of days.
no subject
Date: 2005-11-25 12:58 pm (UTC)No. Consent is meaningless if you are not capable of withdrawing it, therefore anyone so impaired must be taken as having withdrawn any consent they have previously given. As pointed out elsewhere, that's enshrined in law.
The problem with this case is that the reporting has focussed upon the prosecution's unwise remark 'drunken consent is still consent', and the judge's unwise repeating of it. This has obscured what actually, in my views, caused the trial to collapse, that it could not be proven beyond reasonable doubt that the victim was indeed unconscious, when Dougal presumably would have maintained that she was fully conscious throughout. Had that point been proved, then any consent given previously, drunkenly or not, would have been irrelevant.
no subject
Date: 2005-11-25 02:35 am (UTC)no subject
Date: 2005-11-25 07:01 am (UTC)no subject
Date: 2005-11-25 08:03 am (UTC)no subject
Date: 2005-11-25 09:36 am (UTC)True, statistics say that this isn't how men behave with regard to consent - but perhaps the law shouldn't just reflect how men behave and think about female consent?
no subject
Date: 2005-11-25 09:47 am (UTC)was something I came across on the journal of
no subject
Date: 2005-11-25 11:41 am (UTC)"She told the court she could remember little else apart from lying on the corridor floor and briefly emerging from unconsciousness to be aware "that something was happening"."
(http://news.bbc.co.uk/1/hi/wales/mid/4464402.stm)
Just to throw that into the mix...
no subject
Date: 2005-11-25 12:43 pm (UTC)no subject
Date: 2005-11-25 12:56 pm (UTC)I have questions over whether the case should have proceeded so that the jury could weigh the evidence. If the jury have reasonable doubt at the end of that process, fair enough. But to do as this prosecution counsel did seemed to me to be jumping the gun a little.
no subject
Date: 2005-11-25 04:23 pm (UTC)no subject
Date: 2005-11-25 08:21 pm (UTC)I think we need to differeniate between "Not guilty" and "innocent". I certainly wouldn't expect a woman to prove she's been raped; but I'm glad the law requires that the prosecutor do so before he puts someone in jail for 20 years.
2. I agree, I guess. But if someone acting in good faith can commit a crime without realizing it, then I start to worry. It isn't as though sex ed classes are teaching kids the law here.
no subject
Date: 2005-11-25 08:52 am (UTC)Why do you have the word "woman" in your post? Does it matter? Should these rules be gender-based rules? If so, why?
no subject
Date: 2005-11-25 09:03 am (UTC)no subject
Date: 2005-11-25 09:46 am (UTC)no subject
Date: 2005-11-25 09:58 am (UTC)no subject
Date: 2005-11-25 10:55 am (UTC)"Rape is a gender-specific crime. In Scotland, it can only be committed by males upon females, which appears to mean by persons biologically male at birth upon persons born biologically female. It is, therefore, a crime of specific personal violence perpetrated on females."
There's going to be a review, but that's the way it is now.
no subject
Date: 2005-11-28 04:46 pm (UTC)I must admit, I continue to be confused by the English/Scottish law divide; never quite sure what's going to apply on both sides of the border and what isn't...
no subject
Date: 2005-11-25 09:46 am (UTC)no subject
Date: 2005-11-25 12:46 pm (UTC)From what I've read, the guy in question was charged with taking the girl home because she was completely incapable. Due to his job, he would have seemed trustworthy.
Having sex with her under these circumstances would lead me to think that:
- he's not a nice guy
- he abused the situation
but is it rape? It's very difficult to say, since she's admitted she can't recall consent.
You could argue that someone can be too drunk to give consent, but it'd be incredibly difficult to find the point where that line was drawn, so I don't think it's practical. In addition, what if both parties are drunk? You can't legislate against drunk people having sex they wouldn't contemplate sober.
no subject
Date: 2005-11-25 12:58 pm (UTC)no subject
Date: 2005-11-25 01:48 pm (UTC)I would never have even *tried* to report an incident like that as rape. I have been in enough situations like it, been too drunk to recall huge swathes of many evenings, and for about a year at least *never* had sex sober enough to really recall if I had or not (had to go by circumstancial evidence). Of course, none of this actually bothers *me* at all. *shrugs*, you get that drunk you do stupid things. SOme of them may include sex you can't recall and can't say whether you encouraged/said yes to. No big deal. (violence etc. obviously excluded....)
I can just about appreciate that it seems that other women differ.
It is *horribly* difficult to tell how drunk someone is and if (or how) they will recall things in the morning. Safest way is 'don't get drunk' and don't have sex with anyone who has been drinking' - but that's not really practical, is it?
[I cut some stuff about how I view sexual interactions, as it was not to the point really (except maybe to my personal psychology) and would maybe cloud the issue]
I'll summarise as saying thatwe shouldn't frame the law round the MOST sensitive any more than we should round the LEAST.
sigh. It's a stupidly tough one, this one, it really is...
no subject
Date: 2005-11-25 02:10 pm (UTC)If person A (very drunk) gives consent (and then changes their mind, or passes out) and person B hears the first bit where they say yes, but is then equally drunk and either oblivious to the no or the passing out or is just plain drunk...
Why should only one of them be seen as being blamed/blameless?
If someone is drunk enough that they're not sure what they're doing, there's a good chance the other person will be too. To be brutal, a person can consent or not consent to something... but if the other person is as drunk as they are, why would they even be capable of picking up on it?
If you assume one person has a responsibility to understand what the other one is saying yes or no to and to act appropriately, you HAVE to assume that it works the other way, and the person saying yes or not has to have responsibility to understand what they are being asked and to respond appropriately themselves.
no subject
Date: 2005-11-25 02:11 pm (UTC)no subject
Date: 2005-11-25 02:29 pm (UTC)The consent issue is only one aspect of the law on rape and the presumption against consent is one part of the issue of consent, and only applies in very limited circumstances eg when victim is unconscious. So a drunk yet conscious complainant can't rely on the fact that s/he was drunk either.
I suppose rape is an oddity because it is a one way offence. Only the penetrator can be liable. Whereas with sexual assault (where the same rules on consent apply) no-one has to get penetrated so a drunken fumble could lead to both (or more) people maing a complaint in the morning against the other(s).
To put this all in perspective, I was in a forum discussing the AI survey a few days ago and a solicitor said that he wasn't surprised by it: the way the issue of consent was treated by the justice system meant that the only rape case he'd even successfully prosecuted was one in which the victim was hit over the head with a brick before beign raped.
I think the pendulum is in no danger of swinging too far.
no subject
Date: 2005-11-25 02:17 pm (UTC)Apparently in a survey, more than half of the readers of Max Power magazine felt that they drove better while they were drunk.
This is the world we have made for ourselves.
no subject
Date: 2005-11-25 07:13 pm (UTC)Why do so many men suggest that when a woman says "actually, I don't have sex with men in corridors after they've been asked to see me home because I was drunk", there's any question to answer?
We don't, for example, ask the victims of muggings whether they chose to give away their mobile phone and ipod, because we understand that it's completely implausible that they might have.
And so it is here. The only, only reason these men get off is that they say "Actually, this woman agreed to sex in these completely implausible circumstances" -- and people believe them, despite the fact that nobody they ever know would ever do this.
That's what beyond reasonable doubt means.
no subject
Date: 2005-11-25 08:30 pm (UTC)Sadly, not just men. At least three women on my friends-list have suggested that this is enough for "reasonable doubt".
no subject
Date: 2005-11-28 05:37 pm (UTC)Because people do a lot of things while drunk that they not only wouldn't do while sober, but wouldn't believe, when sober, that they would do while drunk.
We don't, for example, ask the victims of muggings whether they chose to give away their mobile phone and ipod, because we understand that it's completely implausible that they might have.
I think there are two problems with this statement. First, it begins with the sexist notion of sex as a one way transaction: the woman gives; the man gets. It is precisely the fact that I get nothing out of giving my ipod away that argues against my doing it. A better analogy might be: I way up, hungover, and discover that there are a ton of empties around me, and my ipod is gone. A man later claims that I sold it to him to get money to buy more booze. The other problem, of course, is that people very rarely get drunk and voluntarily give away their ipods, while a significant number of people do get drunk (sometimes very, very drunk) and have concensual sex.
no subject
Date: 2005-11-28 10:39 pm (UTC)And don't get me started on the moral issue, which is that even if the woman was in the process of taking all her clothes off and going "fuck me now go on you gorgeous devil", the only acceptable behaviour on the part of a complete stranger who had been asked to get her home safely would be to say "You're drunk. I'm a total stranger. Let me get you home safely." Incidentally, this position would be the same regardless of the sexes of the people concerned. So even if this were consensual, he should lose his job and be shunned by society.
Would anybody? - Yes, me.
Date: 2005-11-30 02:13 pm (UTC)Closest to a corridor would be a public walkway on the deck of cruiseliner, don't suppose that'd do? Has the same basic characteristics? I've done it when and where the urge strikes (walls, trees, alleyways, the street, car parks, caves, in/on cars in the street). Plenty of times I've also been to drunk to remember anything/anything much.
- and I know it's not just me
(oh, I'm a woman by the way).
Re: Would anybody? - Yes, me.
Date: 2005-11-30 02:20 pm (UTC)Yes, *a* particular woman may say that they would never do that, and may be telling the truth - but another could do so and lie.
Point is how can any of us tell?
Of course a woman could really, truly believe that would never do that - but act totally differently when drunk... That is NOT uncommon AT ALL.