major_clanger: Clangers (Royal Mail stamp) (Legal Clanger)
[personal profile] major_clanger
I was asked to repost this, part of a longer post that was f-locked because it included discussion of a specific case. It's a review of the way in which English criminal law addresses the question of whether someone can consent to sex if very drunk but not actually insensible.

This issue is addressed, albeit incompletely, by Sections 74 and 75 of the Sexual Offences Act 2003. These introduced reforms aimed at dealing with some of the situations where it is hard to prove the absence of consent but it is on the face of it unlikely. It identifies several situations which, if shown to apply, lead to a presumption that there was not consent. In other words, if the prosecution can prove that these circumstances applied, then rather than the prosecution having to prove absence of consent and reasonable belief in consent, the burden shifts to the defence to prove that there was such. The circumstances are:

- Use of, or fear of use of, violence against the complainant or another person.
- The complainant being unlawfully detained.
- The complainant being asleep or otherwise unconscious at the time of the relevant act.
- Inability of the complainant to communicate consent because of physical disability.
- If any person had administered to or caused to be taken by the complainant, without the complainant's consent, a substance which, having regard to when it was administered or taken, was capable of causing or enabling the complainant to be stupefied or overpowered at the time of the relevant act.

The italicised provisions are direct quotes, and are the relevant ones here.

If the complainant is so drunk as to be asleep, unconscious or insensible when sex takes place, then there is a presumption against consent. However, this requires the prosecution to show that this was the case, which in effect shifts the question from being "do we believe that the complainant didn't consent" to "do we believe that the complainant was in that condition".

If the complainant's drinks are spiked then the other provision applies. However, it requires that the substance (which could be alcohol) be administered 'without the complainant's consent'. What this means if the complainant becomes drunk just by drinking to excess, then unless she becomes insensible (and the first provision applies) she is deemed still to have capacity to consent.

This is a controversial area of law and it was quickly realised that s.75 is not unambiguous. It is clear that someone may be so drunk that she does not know what she is doing whilst not actually being insensible. If she appears to consent to sex, is she actually giving consent, and even if not is it reasonable for the alleged assailant to believe that she is consenting? This issue was examined by the Court of Appeal in R v Bree [2008] Q.B. 131. The issue of intoxication and consent is discussed at paras 21 to 36. In particular, to quote para 34:

In our judgment, the proper construction of section 74 of the 2003 Act, as applied to the problem now under discussion, leads to clear conclusions. If, through drink (or for any other reason) the complainant has temporarily lost her capacity to choose whether to have intercourse on the relevant occasion, she is not consenting, and subject to questions about the defendant's state of mind, if intercourse takes place, this would be rape. However, where the complainant has voluntarily consumed even substantial quantities of alcohol, but nevertheless remains capable of choosing whether or not to have intercourse, and in drink agrees to do so, this would not be rape. We should perhaps underline that, as a matter of practical reality, capacity to consent may evaporate well before a complainant becomes unconscious. Whether this is so or not, however, is fact specific, or more accurately, depends on the actual state of mind of the individuals involved on the particular occasion.

The judges (two out of three of who were female) went on to say:

The practical reality is that there are some areas of human behaviour which are inapt for detailed legislative structures. In this context, provisions intended to protect women from sexual assaults might very well be conflated into a system which would provide patronising interference with the right of autonomous adults to make personal decisions for themselves. [...] The problems do not arise from the legal principles. They lie with infinite circumstances of human behaviour, usually taking place in private without independent evidence, and the consequent difficulties of proving this very serious offence.

Date: 2011-02-17 11:54 am (UTC)
From: [identity profile] teaparty.net (from livejournal.com)
Nice work. As you know, I was able to do a tolerable job of finding the relevant statute with a well-formed google query, and the government (and others) make the text of statutes available online in both at-enactment and as-amended forms. But the Appeals Court judgement I never saw hide nor hair of, and it's clearly extremely relevant to the application of the Act in question.

What system(s) do you use when you need to know how a statute has worked out in practice ("when the silk hit the road"?), and are any of them available to Mere Mortals like me? I can see the judgement online, lovely job, thank you, but how do you get from the Act to the judgement?

Date: 2011-02-17 03:04 pm (UTC)
From: [identity profile] alexmc.livejournal.com
I've worked for publishers who had the job of producing printed and electronic versions of "the law".

It is a nightmare even if you ignore case law, and not really open to us "Mere Mortals". The biggest problem is one of "If you make it free to access how does the publication get paid for".

Date: 2011-02-17 10:55 pm (UTC)
From: [identity profile] surliminal.livejournal.com
Not really true any more - statute db updated available free and BAILII for case law. The obscurity of the primnary sources of law is actually way overstated. But it does take expertise to understand how it all fits together. You wouldnt expect to understand how to be a surgeon just by looking up nanatomy textbooks online..

Date: 2011-02-20 07:02 am (UTC)
From: [identity profile] a-cubed.livejournal.com
However, one does not attempt to perform surgery in one's living room. Well, not unless one is a serial killer or a surgeon faced with a guest needing an emergency tracheotomy. But law is different. There are times when it needs to be applied in one's living room or, as in this case, in one's bedroom. There need to be better explanations for stuff like this, which really does effect peopl's lives, than pointing them to the stuff it's taken you, me and Simon years to figure out how to interpret. If a law does apply to decisions made in ordinary life, and the basis of those decisions can't be understood and explained to the layman, then it's pretty bad law. IMHO, of course.

Date: 2011-02-23 10:00 am (UTC)
From: [identity profile] biascut.livejournal.com
The law is a very blunt object for making these kind of decisions, and You're really much better off not worrying about whether you are precisely within the law of "reasonable belief that your partner consents" and just not having sex if your partner isn't enthusiastically consenting and you don't know or trust them well enough to be sure that they are capable of consenting and communicating their consent.

Of course, there's also the distinction between what you are legally allowed to do, and what you reckon you can get away with. If a woman's ability to testify in court is in anyway impaired - if she has known mental health problems, if she is drunk or high, if she is a sex-worker, if she has been abused or assaulted in the past and made allegations which she later withdrew or which failed to result in a prosecution, then you can probably play the odds and get away with it.

But I'll give you the benefit of the doubt and assume that your objective is not to be a rapist. In which case, it's not about knowing the exact text of the law and how it's applied, it's about having respect for your sexual partners, and being willing to say, "Actually, I'd rather not" if you're not 100% sure that they are consenting freely and enthusiastically.

(And if drink impairs your ability to ask yourself that question, drink less.)

Date: 2011-02-23 11:16 am (UTC)
From: [identity profile] a-cubed.livejournal.com
"And if drink impairs your ability to ask yourself that question, drink less."
And again, we're back to the lack of reciprocality here. Now, if you were to say that there is a moral onus on both parties not to get too drunk to make good decisions, then I'd agree with you. But, saying that people shouldn't get so drunk they don't understand consent from the other party while not saying that they shouldn't get so drunk they don't understand their own consent is, to me, incorrect.
BTW, just to make it completely clear. _I_ don't drink. even when I used to drink, I've never had sex while drunk, or with someone who was drunk (someone who'd had a coupe of drinks, yes, someone I would class as "drunk" let alone even approaching "too drunk to be able to consent", no). This isn't about me, it's about the law's obligations to be even-handed and based on a clear and fair set of moral imperatives.

Date: 2011-02-23 11:34 am (UTC)
From: [identity profile] biascut.livejournal.com
And again, we're back to the lack of reciprocality here. Now, if you were to say that there is a moral onus on both parties not to get too drunk to make good decisions, then I'd agree with you. But, saying that people shouldn't get so drunk they don't understand consent from the other party while not saying that they shouldn't get so drunk they don't understand their own consent is, to me, incorrect.

Everyone has a moral responsibility not to commit the crime of assault. If you are in danger of committing a crime when you drink, you have a responsibility not to get that drunk.

As I said below, you are drawing an equivalence between "get[ting] so drunk you can't consent" and "get[ting] so drunk they don't understand consent from the other party". The former is bad judgment which harms no-one but yourself: the latter is a violent crime and destroys lives.

By drawing an equivalence between them, you're dangerously close to suggesting that getting so drunk that someone else can't understand your consent and can assault you is legally culpable in the same way assaulting someone is. It is simply not.

Date: 2011-02-23 02:16 pm (UTC)
From: [identity profile] a-cubed.livejournal.com
(Edited because I was so irritated I made a number of typos first time around.)
I am getting rather fed up of being accused here of being an apoligist for assault. No, I am bloody well not. The case I am raising is where APPARENT consent is being given. Please keep that firmly in mind when reading ALL of my statements here and kindly stop being insulting.
Now, in that case (let me be clear again - WHERE THERE IS AN APPEARANCE OF CONSENT and in no other case am I talking about) I find it inconsistent that the state of inebriation of the apparently consenting person is taken into account but where the state of inebriation of the person interpreting the consent has no bearing.
All the other cases that keep being brought up here are ones where the action being performed by the drunk person is clearly wrong either because it's always wrong (e.g. criminal damage) or because it's wrong in that state (e.g. driving). The difference is that it's not always wrong to ave sex with someone when you believe they consent, even where they are somewhat inebriated. The law as currently constituted is that that consent may not be valid due to inebriation on behalf of the giver. However, IN THAT CASE it does not appear that inebriation on behalf of the interpreter is not taken into account in any way.
So, if you want to contine debating, I'm happy to do so, but please stick to the point I made and stop saying I'm trying to excuse clear cases of assault simply due to being drunk. There is a boundary case here and that is the one I'm focussing on. Constant referral to issues outside the boundary are just confusing the issue and, to be frank, annoying me no end.

Date: 2011-02-23 02:58 pm (UTC)
From: [identity profile] major-clanger.livejournal.com
Andrew: I'm going to discreetly cough here, because this discussion is getting a little fractious, and because I'm not entirely sure that some of the things being said in various comments about the impact of intoxication on the capacity to form mens rea are entirely correct under English law. I may do another post on this in more detail.

The short version is that s.1 SOA 2003 rape is a crime of basic, not specific, intent. As such DPP v Majewski applies and voluntary intoxication is no defence of itself, because it is enough to be reckless as to the complainant's consent.

(By contrast, it is possible to argue intoxication as a defence to murder, because murder is an offence of specific intent. However, this is not a get-out because (a) intoxication has to be so severe that the capacity for foresight of consequences is lost rather than just impaired, and (b) the defendant just gets prosecuted for manslaughter instead. With, I'd note, intoxication as an aggravating factor in sentencing.)

I'm not sure where the legal disparity you see is. If the defendant is very drunk (but not insensible) he is deemed capable of forming sufficient intent, albeit potentially reckless, to commit rape. If the complainant is very drunk (but not insensible) she is deemed capable of deciding whether to consent and of communicating that consent. In other words, a defendant can't claim he was too drunk to realise that the complainant wasn't consenting, but a complainant equally can't allege that she only consented, or appeared to give consent, because she was drunk. The rule is arguably harsh, but it is equally harsh on both.
Edited Date: 2011-02-23 02:59 pm (UTC)

Date: 2011-02-23 05:36 pm (UTC)
From: [identity profile] biascut.livejournal.com
Yes, I think the situation that [livejournal.com profile] a_cubed is describing where "there is an appearance of consent" is legally non-existent, isn't it? Either A "reasonably believes" that B is consenting and capable of consent, or A doesn't. B's appearance is only of relevance in relationship to A's reasonable belief.

And you'll obviously know more about this than I do, but it appears from a layperson's perspective that juries are fairly unwilling to convict if there is even the slightest chance that A "appeared to consent", where "appearing to consent" means "turned up, flirted, was dressed like most other women in the room" or whatever.

Thanks for adding me to the other stuff - I will have a look when I get a chance!

Date: 2011-02-24 03:27 am (UTC)
From: [identity profile] a-cubed.livejournal.com
That wasn't my reading of the law as it stands. My reading of the law, and I am possibly incorrect on this, was that there is a point at which one part is not insensible (by which I mean effectively incomprehensible if not outright unconscious) but at which point the "reasonable person" test kicks in and which the law states that the other party must assume lack of ability to consent even if the drunk person is apparently actively seeking sex. This is the tricky point at question. When considering communication and agency, when does significant drunkenness in one half allow them to disavow their legal agency? The difference with all the other offences offered as parallels are different because an offence only occurs when the other party does not consent, so the whol situation is fraught with problems as soon as there is any level at which one party is allowed to disavow their agency while still physically capable of representing that agency.

On a related but different note, here's an interesting hypothetical that occurs to me:
A, B and C are at a party. C spikes A's drinks with extra alcohol or some other drug. B is unaware of this and has seen the amount of intoxicant that A has apparently consumed. Based on that A and B have sex which A then claims was non-consenting due to the effects of the involuntary intoxication.
C has clearly committed an assault on A and may have committed further negligence in not taking action to avoid the situation where A and B end up together in a situation where sex could occur without consent.
However, has B committed an offence against A given that they had no knowledge of the involuntary drugs and if there is unsufficient external evidence so as to make it clear to B that A is not capable of giving consent?

Date: 2011-02-25 12:24 am (UTC)
From: [identity profile] major-clanger.livejournal.com
In respect of C's conduct, he may well have committed an offence under s.24 Offences Against the Person Act 1861 (see R v Gantz), although it is not clear that there would be an offence if alcohol rather than some form of sedative or noxious drug was used.

For B though you have to consider s.75 Sexual Offences Act 2003 in its entirety. S.75(1) says

1) If in proceedings for an offence to which this section applies it is proved—
(a) that the defendant did the relevant act,
(b) that any of the circumstances specified in subsection (2) existed, and
(c) that the defendant knew that those circumstances existed,
the complainant is to be taken not to have consented to the relevant act unless sufficient evidence is adduced to raise an issue as to whether he consented, and the defendant is to be taken not to have reasonably believed that the complainant consented unless sufficient evidence is adduced to raise an issue as to whether he reasonably believed it.


Now it is true that s.75(2)(f) says

any person had administered to or caused to be taken by the complainant, without the complainant's consent, a substance which, having regard to when it was administered or taken, was capable of causing or enabling the complainant to be stupefied or overpowered at the time of the relevant act.

which would seem to cover the situation you describe. C is 'any person' and it was without A's knowledge. But look again at s.75(1), specifically s.75(1)(c). The presumption of non-consent only applies if the defendant knows of the circumstances, and in your scenario it is clear that B doesn't.

Now, one can imagine a scenario where B might be held to have had constructive knowledge of the circumstances, e.g. if B knows A to be teetotal and, after drinking a soft drink, A starts acting in such an odd way that B perhaps should realise that A may well have had her drink spiked. But even that is reaching a bit, and in the scenario as you put it forward that wouldn't be the case.

Date: 2011-02-23 03:08 pm (UTC)
From: [identity profile] major-clanger.livejournal.com
(By the way, I thought you were on my f-list but it seems you weren't. I've rectified that, and added you to the filter that should allow you to see the posts with background on this.)

Date: 2011-02-24 03:28 am (UTC)
From: [identity profile] a-cubed.livejournal.com
Ta. I'll go back and have a look when I ge a chance.

Date: 2011-02-23 04:54 pm (UTC)
From: [identity profile] biascut.livejournal.com
OK, I think what you're trying to say is that the law should include whether or not the presumed perpetrator was drunk in deciding whether or not their belief that their partner was consented was "reasonable" or not - ie. that what might not have been "reasonable" belief in consent when you're sober might be "reasonable belief in consent when you're drunk? Is that a fair summary of your position?

Please recognise, though, that this isn't about a comparison between the state of drunkenness of an assumed perpetrator and the assumed victim - because the assumed perpetrator may have committed a crime and the assumed victim hasn't. Under any circumstances. Even if you think the state of inebriation of an assumed perpetrator should be taken into account, that's completely separate from the state of inebriation of a victim, because there is no such crime as "making someone think you consent to sex when you don't".

It's not about reciprocity, at all, because the two positions are not in any way equivalent.
Edited Date: 2011-02-23 04:55 pm (UTC)

Date: 2011-02-24 03:13 am (UTC)
From: [identity profile] a-cubed.livejournal.com
You have correctly identified the situation I'm talking about. The problem is that you see the two halves of this as separate. But there is only one interaction going on and my problem with the law as currently stated is that it regards (voluntary) drunkenness on one half of the interaction to invalidate their agency but doesn't allow any leeway for drunkenness in the other half. This isn't about whether what one does is a crime and the other does is not a crime, it's about the attitude of the law towards agency, when that agency _is_ precisely the question at hand. On one side we have a drunk agent able to disavow their agency and on the other we have a drunk agent not allowed to disavow their agency. Why this is different from other cases, to me, is that it's an interaction between agencies that's at question and not some other kind of action. It's not the sex itself that is the illegal act, but the sex in combination with a lack of consent and that consent depends on the agency of the particpants.

Date: 2011-02-24 08:28 am (UTC)
From: [identity profile] penguineggs.livejournal.com
However you seek to dress it up with the term "invalidation of agency" it still appears to me that you are arguing that if a man forms a wholly unreasonable, mistaken and untrue belief that a woman is consenting when in fact she is not* by reason of his own self-induced intoxication then this should afford him a defence to rape.

That was, I believe, the position prior to the 2003 Sexual Offences Act as a result of the rule established in R. v. Morgan(1976) (man invites his friends back to his house to have sex with his wife; wife in fact not consenting, man tells friends the screaming, shrieking, threat to call the police, struggling etc are all part of the game; friends allege genuine belief in consent).

Similarly with the codification of the presumptions with regard to alcohol and drugs, imprisonment, use of coercion etc.

The Sexual Offences Act 2003 was a (I would argue partial but half a loaf, whatever) long-overdue reform of some truly toxic and one-sided common law rules relating to sexual offences. The sort of arguments you are putting up, where they do not result from an apparently mistaken view on what the law actually says**, are exactly those which were put up in opposition to the Act when it was a Bill, and (successfully) in opposition to various earlier reform proposals.

So if a degree of exasperation is creeping into some of our tones, it might be because some of us have been having exactly the same argument since 1976.

*Because a reasonable even if mistaken belief in such circumstances would offer him a defence, as various people in this thread have already explained to you.
** Such as your repeated statements about "consenting but acting out of character"

Date: 2011-02-24 09:43 am (UTC)
From: [identity profile] biascut.livejournal.com
it regards (voluntary) drunkenness on one half of the interaction to invalidate their agency

I don't think it does - I think you're making a mistake here. The judges stated that "capacity to consent may evaporate well before a complainant becomes unconscious" (emphasis mine). But AFAIK, there hasn't been a case where successful prosecution has depended on a court deciding that there is a point at which someone who is drunk but conscious was unable to consent - this is exactly what they mean by "provisions intended to protect women from sexual assaults might very well be conflated into a system which would provide patronising interference with the right of autonomous adults to make personal decisions for themselves".

It's a place where legal scholars disagree, as far as I understand it, but in terms of actual case law and prosecutions, the existence of that point has never been determined. So no, there is no point at which a complainant is able to act and then disavow their agency. There is a probably a point somewhere before unconsciousness where and entirely passive person is deemed to have lost their agency, but if they acted at that point, they are deemed to have legal agency.

You have referred to a situation where someone appears to consent but is legally judged to be incapable of consent through alcohol. Practically speaking, this instance doesn't exist. If a complainant "appeared to consent" - and the jury agreed that the appearance of consent was reasonable - the alleged assaulter would have a reasonable belief that the complainant consented. No crime would have been committed within the terms of the law. The disparity that you're seeing really doesn't exist, as far as I can see.

I am very pleased to be contradicted by anyone with formal training in law, however.

(FWIW, I am another woman who thinks that the law shouldn't identify a point at which someone is conscious but unable to consent, because I don't think the law has the right to remove my ability to consent to sex. This is why I think the law is too blunt an instrument for these kind of cases, and what we need is more education and to stigmatise the possibility of raping someone so that people err on the side of not raping people.)
Edited Date: 2011-02-24 09:44 am (UTC)

Date: 2011-02-28 09:33 am (UTC)
From: [identity profile] biascut.livejournal.com
So, forget everything I said: it looks like a man can be acquitted if he was drunk enough to entirely mistake "reasonable consent". link to Daily Mail article So your concerns that there is no reciprocity can be laid to rest!

I am more and more convinced that the law can offer no deterrent to rapists.

Date: 2011-02-28 11:44 am (UTC)
From: [identity profile] major-clanger.livejournal.com
I confess to being very surprised at that report because if true it seems that the case goes against the Court of Appeal's decision in R v Fotheringham (1989) 88 Cr. App. R. 206, a case where the defence to rape was also 'I was too drunk to realise that I was not having sex with who I thought I was':

Ingenious and well argued though Mr. Glen's whole argument was, it in our view clearly runs counter to authority, which is that in rape self-induced intoxication is no defence, whether the issue be intention, consent or, as here, mistake as to the identity of the victim. We do not doubt that the public would be outraged if the law were to be declared to be otherwise and particularly in accordance with Mr. Glen's submissions.

In our judgment the judge was correct to rule as he did, namely, I repeat, “But I must stress that in doing so you must ignore the effects of the drink that he had taken, the seven or eight pints of lager which he has spoken about. The reasonable grounds are grounds which would be reasonable to a sober man.” In other words a mistake arising from self-induced intoxication is no defence in rape.


About all I can say is that experience has taught be to be very wary indeed in relying on press reports of cases, because very often they are incomplete or flat-out mistaken. In other words, it may be that the jury acquitted on some other basis but the reporter has fixed on this point.

Date: 2011-02-28 03:25 pm (UTC)
From: [identity profile] biascut.livejournal.com
Yes, both parts of that had occurred to me too! It doesn't seem to be being reported anywhere other than the Mail, either, which you'd think it would be if that was an accurate representation of the case.

Date: 2011-02-17 11:55 am (UTC)
From: [identity profile] zornhau.livejournal.com
"In this context, provisions intended to protect women from sexual assaults might very well be conflated into a system which would provide patronising interference with the right of autonomous adults to make personal decisions for themselves."

Not simple is it?

Date: 2011-02-17 12:38 pm (UTC)
From: [identity profile] major-clanger.livejournal.com
I'm afraid lawyers do get into the habit of such language, and this probably gets magnified in judges. (Although I'd say that most of those words are relevant in the context of what they're saying).

If you want a refreshing alternative though, look at almost any judgment from Lord Denning. But the opening from Miller v Jackson is probably his most famous:

(Imagine being read in a broad Yorkshire Hampshire (ed - sorry!) accent, which Tom Denning never lost or tried to suppress.)

In summertime village cricket is the delight of everyone. Nearly every village has its own cricket field where the young men play and the old men watch. In the village of Lintz in County Durham they have their own ground, where they have played these last seventy years. They tend it well. The wicket area is well rolled and mown. The outfield is kept short. It has a good club-house for the players and seats for the onlookers. The village team play there on Saturdays and Sundays. They belong to a league, competing with the neighbouring villages. On other evenings after work they practice while the light lasts. Yet now after these 70 years a Judge of the High Court has ordered that they must not play there anymore, lie has issued an injunction to stop them. He has done it at the instance of a newcomer who is no lover of cricket. This newcomer has built, or has had built for him, a house on the edge of the cricket ground which four years ago was a field where cattle grazed. The animals did not mind the cricket. But now this adjoining field has been turned into a housing estate. The newcomer bought one of the houses on the edge of the cricket ground. No doubt the open space was a selling point. Now he complains that, when a batsman hits a six, the ball has been known to land in his garden or on or near his house. His wife has got so upset about it that they always go out at weekends. They do not go into the garden when cricket is being played. They say that this is intolerable. So they asked the Judge to stop the cricket being played. And the Judge, I am sorry to say, feels that the cricket must be stopped: with the consequences, I suppose, that the Lintz cricket-club will disappear. The cricket ground will be turned to some other use. I expect for more houses or a factory. The young men will turn to other things instead of cricket. The whole village will be much the poorer. And all this because of a newcomer who has just bought a house there next to the cricket ground.

Edited Date: 2011-02-17 12:42 pm (UTC)

Date: 2011-02-17 12:57 pm (UTC)
From: [identity profile] zornhau.livejournal.com
I actually meant the central dilemma: you can legislate for old fashioned second-guessing chivalry, or femaleagency, but not both. No idea what the answer is.

Date: 2011-02-17 02:11 pm (UTC)
From: [identity profile] penguineggs.livejournal.com
Though if you read the comment in context it becomes apparent that Sir Igor was limiting his strictures to the feasibility of devising a "sort of grid system" (or perhaps breathalyser test?) above which a woman could be deemed incapable of consenting as a matter of law, not to the overall question of whether it was possible to legislate on the issue of consent and alcohol at all. In fact, he reached the conclusion (in an excellently reasoned judgement) that the law was perfectly clear and that the judge at first instance had failed to direct the jury adequately on it, making the conviction unsafe.

Incidentally, for an example of "old fashioned second guessing chivalry" it is worth noting that (in a finding of fact that does not appear to be disputed) Mr Bree did wash the vomit out of Ms M's hair before having sex with her (whether consensual or otherwise).

Date: 2011-02-17 02:52 pm (UTC)
From: [identity profile] zornhau.livejournal.com
Mr B is a #####.

I certainly don't think that morally all drunk women are "fair game". I just meant that it seems impossible to legislate away all the nuances.

Date: 2011-02-17 03:12 pm (UTC)
From: [identity profile] penguineggs.livejournal.com
I don't think there are that many nuances to "If you stick it in her while she's unconscious that's rape* irrespective of her reason for being unconscious in the first place."


* Absent some extremely fancy footwork going to rebut that particular presumption.

Date: 2011-02-17 03:15 pm (UTC)
From: [identity profile] zornhau.livejournal.com
Absolutely. I'm meaning... suppose they're both drunk. Or she's drunk and vocally willing but acting out of character, or she's willing but passive then passes out, and he's drunk and judgement impaired. There are certainly moral nuances in there.

Date: 2011-02-17 03:51 pm (UTC)
From: [identity profile] penguineggs.livejournal.com
All of the above issues were canvassed in the relevant Court of Appeal decision and the Court of Appeal drew a clear distinction between the legal implications of the various scenarios (which are relatively straightforward in law) and, obviously, the messy evidential issues which come up with proving it.

Date: 2011-02-17 03:57 pm (UTC)
From: [identity profile] zornhau.livejournal.com
Yes.

It really was just me applauding this bit:

"The practical reality is that there are some areas of human behaviour which are inapt for detailed legislative structures. "

Which is what I meant by nuances.

Date: 2011-02-17 05:19 pm (UTC)
liadnan: (Default)
From: [personal profile] liadnan
Denning did suppress his accent when he was at the bar, then not only brought it back but hammed it up once he was on the bench.

Date: 2011-02-17 07:30 pm (UTC)
From: [identity profile] dorispossum.livejournal.com
On 'second guessing chivalry' - it's hardly likely that a person (of either sex) with any degree of human decency would have sex with somebody clearly off their head on drink/drugs, even if not unconscious. Predators, however, would have no problem. But as the decent guys are hardly likely to be in this position in the first place, we are left with the difficult task of how far one can fine tune the law to limit the activities of the predators. And what you describe is about as far as one can reasonably ask of a legal system.

Some juries, of course, may not apply the law. Some people (including women, I'm sad to say) empathise with the predators, and feel that a drunken woman is 'fair game' even if completely sparko - the more degrading her drunken condition, the more she 'deserves' anything that happens to her. Rape, from their point of view, is an appropriate punishment for such women.

Date: 2011-02-17 10:58 pm (UTC)
From: [identity profile] surliminal.livejournal.com
Re first para: yes, law cannot be equal to ethics - we don;t send people to jail for bieng arseholes, we just cut them off our friends list. This is the central problem with the Assange charges - (I wasn;t reading LJ last week - was that partly what kicked this off, Simon?)

Date: 2011-02-17 11:04 pm (UTC)
From: [identity profile] major-clanger.livejournal.com
You should be on the filter where I discuss such things, but I spent most of last week sitting in on a rape case where intoxicated consent was one of the central issues.

Date: 2011-02-17 11:06 pm (UTC)
From: [identity profile] surliminal.livejournal.com
I think I am but sorry, been quite ridiculously busy last week or so.. it just struck me this was all interestingly relevant to the various Assange charges..

Date: 2011-02-18 11:15 am (UTC)
From: [identity profile] ms-cataclysm.livejournal.com
Yeah, this. And just because something is legal does not mean that it's right.

Date: 2011-02-18 05:58 pm (UTC)
From: [identity profile] dorispossum.livejournal.com
Exactly. Attitudes - eg the kind that mean a man who does such things DOESN'T automatically face social ostracism - are far more problematic than the wording of the law.

Date: 2011-02-20 07:09 am (UTC)
From: [identity profile] a-cubed.livejournal.com
THe thing I find interesting here, though, is the lack of repicprocality in the attitude of the law to impairment of decision making due to alcohol. If a man and a woman have both had significant amounts to drink and the law is applied as discussed, the fact that the woman was too drunk to consent, and that the man was too brunk to realise she was too drunk to consent, or to take these fine nuances into account (such as judging that she was acting out off character) leads to a finding of rape unmitigated by the alcohol he's consumed impairing his judgement.
So, yes there are predators out there, and especially the bit about giving someone anything from a shandy spiked with extra vodka to rohypnol in order to ensure they're too drunk to object is quite right. However, requiring men never to get equally drunk to a women and applying different standards to being capable of giving consent and capable of understanding when that consent is valid seems incorrect to me.

Date: 2011-02-20 01:59 pm (UTC)
From: [identity profile] penguineggs.livejournal.com
I've always thought it was frightfully unfair that when one runs over some idiot pedestrian the court doesn't take into account as mitigation that one simply can't exercise the same fine degree of judgment and nuance about taking corners having consumed half a bottle of vodka than when one has not.

Date: 2011-02-20 02:08 pm (UTC)
From: [identity profile] a-cubed.livejournal.com
Facetiousness aside, they will take into account if a drunk pedestrian jumps into the road in front of your car. Not if you've been drinking, admittedly, but then driving while drunk is an offence because it's dangerous. So far, having sex while drunk, per se, has not been made illegal.

Date: 2011-02-20 02:32 pm (UTC)
From: [identity profile] penguineggs.livejournal.com
I'm not being facetious: I'm pointing out that you're arguing for a rule to apply to the mens rea in rape which does not apply to any other crime. The capacity to form the intent to commit murder, assault, burglary, criminal damage is not negated by even a high level of self-induced intoxication; why should rape be any different?

Date: 2011-02-20 02:38 pm (UTC)
From: [identity profile] a-cubed.livejournal.com
Because the question at issue is one of two mens rea, not one. If I perform an act that is an offence it is indeed no defence to say I was under the influence of alcohol (or other illegal drugs). However, in this case the act is ONLY an offence if the other person has not consented. So, my point on the lack of equivalent standing for the two parties involved makes it very different from these other actions you quote.

Date: 2011-02-20 03:00 pm (UTC)
From: [identity profile] penguineggs.livejournal.com
The act is only an offence if a) the victim has not consented; and b) the perpetrator is aware she has not consented or does not reasonably believe she has done so. The second half, b, is what goes to mens rea; the first is part of the factual matrix (see, for example, the case of R. v. Collins for the legal consequence where a man forms an unequivocal intent to rape and is scuppered by an unexpected (if mistaken) consent). Trying to produce a false equivalence between a) and b) is not only bad in law (as the Court of Appeal explained exhaustively in R. v. Bree) but seems likely to amount to a rapists' charter, in the same way that arguing that someone who had drunk so much that it was unclear whether they were capable of forming an intent to kill or cause grievous bodily harm would create a murderer's charter.

Date: 2011-02-23 09:49 am (UTC)
From: [identity profile] biascut.livejournal.com
(Hello, [livejournal.com profile] major_clanger, here through link from [livejournal.com profile] secretrebel as she knew I was discussing this with someone the other week - thanks for a useful discussion of the law and hope you don't mind me contributing to the discussion!)

It doesn't have to be that way around, though. The law doesn't make a distinction between a male role and a female role, just between aggressor and victim - [livejournal.com profile] major_clanger has presumed male and female roles, but they aren't there in the text of the law. Both men and women have to have a "reasonable belief" that their partner is consenting before they can have sex with them, and a man is just as capable of making a report of being assaulted when drunk by a woman (or, of course, another man) as a woman is.

If, in practice, that rarely happens, that's not because of a lack of reciprocity in the law, but has more to do with how men understand consent and assault and whether they feel entitled and able to report it.

Your comment also seems to presume (and I have seen this presumption in other discussions) that "making a poor decision about whether to have sex oneself" is morally and legally equivalent to "making a poor decision to have sex with someone who has not consented". It's really not. One is a poor decision. The other is legally and morally rape. It's the same difference between spending your last twenty quid and stealing someone else's twenty quid.

People are held legally responsible for poor decisions made whilst drunk in other areas, if they result in criminal acts: "I'm sorry, I was too drunk to know what I was doing" is not an adequate defence for being drunk in charge of a vehicle.

What I would like to see is education campaigns shifting from "don't get so drunk you're a target for a rapist" to "don't get so drunk you become a rapist because you're not capable of working out whether your partner is genuinely capable of consent". Which applies to both men and women.
Edited Date: 2011-02-23 09:51 am (UTC)

Date: 2011-02-23 03:01 pm (UTC)
From: [identity profile] major-clanger.livejournal.com
No, you're very welcome to discuss. I've also added you to a filter which means you should be able to see the posts behind this particular issue.

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Simon Bradshaw

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