Apparently, Rape is not Rape

[Phenia]

I think post facto consent is a very dangerous idea to introduce into the mix. It leaves entirely too much in the air, and in any event, the option of not pressing charges is one ingrained within the system.

I agree. If you consent afterwards, don't press charges -- the fact that charges were pressed indicates that no consent was given afterwards, so he should have been convicted. If you withdraw consent afterwards, it doesn't figure into the jury's final decision -- but this is somewhat harder to prove since any defendant can just claim "she said yes at the time" even if it's not necessarily true.

would go something like this.
Guy rapes girl why she is drunk.
Girl goes to police.
Guy's friends threaten to harm girls family unless she declares post facto consent.


Not a good thing. Stuff like abuse and rape need to be investigated/prosecuted fully regardless if the victim backs out or not.

I agree. Especially considering how even without some threatening family/post facto coercion, there is already so much stigma for sexual assault victims and already so many psychological and social obstacles to getting rape victims to come out about it. So many rapes go unreported for this reason as it is.

[Dinaverg]

[qute="Tahar Joblis"]
I think post facto consent is a very dangerous idea to introduce into the mix. It leaves entirely too much in the air, and in any event, the option of not pressing charges is one ingrained within the system.

I agree. If you consent afterwards, don't press charges -- the fact that charges were pressed indicates that no consent was given afterwards, so he should have been convicted. If you withdraw consent afterwards, it doesn't figure into the jury's final decision -- but this is somewhat harder to prove since any defendant can just claim "she said yes at the time" even if it's not necessarily true.

would go something like this.
Guy rapes girl why she is drunk.
Girl goes to police.
Guy's friends threaten to harm girls family unless she declares post facto consent.


Not a good thing. Stuff like abuse and rape need to be investigated/prosecuted fully regardless if the victim backs out or not.

I agree. Especially considering how even without some threatening family/post facto coercion, there is already so much stigma for sexual assault victims and already so many psychological and social obstacles to getting rape victims to come out about it. So many rapes go unreported for this reason as it is.[/quote]

well, as long as we have no faith in humanity, why bother with the trial.

[Dinaverg]

But the fact is, I could ask for forgiveness after having run a complete stranger over with her own car, beaten her senseless with a vacuum cleaner, and then sodomized her with a dirty mop - and she could decline to press charges after she made it out of the hospital, but that wouldn't change the fact that what I did was several varieties of assault.

but you wouldn't be sentenced, would you...?

[NERVUN]

I'm not exactly too sure on that though, because what we are dealing with is a particular time when someone is incapable of giving concent due to various reasons and being asked if they are ok with it after the fact. Going back to my book example, if Pol takes a book that I hadn't concented to before and then asks me afterwards if that was ok, I can granting her concent to have done so. Since I wasn't at home, she couldn't have gotten concent from me at that point in time. This is not the same as me saying, "Yes, you can have the book" and then afterwards say, "No! You can't! THIEF!"

I feel like you're mixing "consent" with "forgiveness."

In all the gray areas we're likely to go in, there's some measure of "implied consent," whether legally or socially. Pol has reasons to believe you would not mind if she borrowed a book.

If Pol broke into your house in the middle of the night while you were on vacation and made off with the book without any reason to believe you'd let her borrow it, we'd say she stole it, whether she kept it or you, when asked, said "Naw, really, it's OK, you can have it until XXXX."

When I visit my parents, I assume I can make use of any food in the kitchen to prepare something, because they're OK with it, unless they specifically tell me not to use some particular food. Same sort of thing.

With regard to rape, there is still a certain measure of implied consent floating around in case law with regard to spouses; it is assumed in many jurisdictions that unless a spouse actively withdraws consent, their husband/wife has implicit permission to initiate sexual activity with them; it is only quite recently (16 years) that North Carolina allowed spouses to withdraw consent, and the stronger form of implied marital consent remains on the lawbooks in other countries.

Now, don't get me wrong; there's nothing wrong with asking after the fact if something was OK for you to do, and if the answer is affirmative (and not under duress), you might be able use that in your defense in a criminal case. But the fact is, I could ask for forgiveness after having run a complete stranger over with her own car, beaten her senseless with a vacuum cleaner, and then sodomized her with a dirty mop - and she could decline to press charges after she made it out of the hospital, but that wouldn't change the fact that what I did was several varieties of assault.

Very true, but we are looking at this through the lens of THIS case, in which we had concent given BEFORE the woman passed out. The question then turns on what actions were done while she was out and how she felt about it after the fact.

In the case of a date rape drug being used for example, the victim never gave consent in the first place, and therefore the person is guilty of rape regardless of if the victim gives concent after the fact. I'm looking at this through a very narrow window of she said yes, then was incapable of saying yes, but now she is so is it still rape then given that she is confirming her original consent.

[NERVUN]

I think post facto consent is a very dangerous idea to introduce into the mix. It leaves entirely too much in the air, and in any event, the option of not pressing charges is one ingrained within the system.

I agree. If you consent afterwards, don't press charges -- the fact that charges were pressed indicates that no consent was given afterwards, so he should have been convicted. If you withdraw consent afterwards, it doesn't figure into the jury's final decision -- but this is somewhat harder to prove since any defendant can just claim "she said yes at the time" even if it's not necessarily true.

would go something like this.
Guy rapes girl why she is drunk.
Girl goes to police.
Guy's friends threaten to harm girls family unless she declares post facto consent.


Not a good thing. Stuff like abuse and rape need to be investigated/prosecuted fully regardless if the victim backs out or not.

The problem being that you're talking duress, which is very illegal.

[Tahar Joblis]

Very true, but we are looking at this through the lens of THIS case, in which we had concent given BEFORE the woman passed out. The question then turns on what actions were done while she was out and how she felt about it after the fact.

No, it does not. The main potential gray area in the case turns instead on the scope of the consent. Does the consent given at the time cover a specific act? More specifically, is the consent here required to be continuous, or implicitly present for said specific act until actively withdrawn?

It also turns on the question of whether she was - while stone blind drunk - capable of giving consent at the time? (This is a common question to debate in similar cases, even if it hasn't been brought up here.)

The question of whether or not she regretted it in the morning is completely irrelevant to the determination of rape. If the consent covered the entire act commited, no rape was committed; if the consent is narrower in scope than the act committed, then some form of rape was committed. It is quite logically simple on that level, and how close this case appears to be to that binary line (we have only the testimony of an inebriated man to sort out when exactly he stopped relative to when he realized she was no longer awake, and even that is not detailed in the article available to us.)

Her feelings in the morning upon trying to piece together the happenings of last night (I did what? With who?) may have bearing on her decision to press charges or not, but they cannot change what actually happened in the night.

she said yes, then was incapable of saying yes, but now she is so is it still rape then given that she is confirming her original consent.

Re-parse that line, please. You're managing to [unintentionally] contradict yourself on the face of it, and I would not want to respond to what you did not actually intend to say.

[Dinaverg]

Very true, but we are looking at this through the lens of THIS case, in which we had concent given BEFORE the woman passed out. The question then turns on what actions were done while she was out and how she felt about it after the fact.

No, it does not. The main potential gray area in the case turns instead on the scope of the consent. Does the consent given at the time cover a specific act? More specifically, is the consent here required to be continuous, or implicitly present for said specific act until actively withdrawn?

It also turns on the question of whether she was - while stone blind drunk - capable of giving consent at the time? (This is a common question to debate in similar cases, even if it hasn't been brought up here.)

The question of whether or not she regretted it in the morning is completely irrelevant to the determination of rape. If the consent covered the entire act commited, no rape was committed; if the consent is narrower in scope than the act committed, then some form of rape was committed. It is quite logically simple on that level, and how close this case appears to be to that binary line (we have only the testimony of an inebriated man to sort out when exactly he stopped relative to when he realized she was no longer awake, and even that is not detailed in the article available to us.)

Her feelings in the morning upon trying to piece together the happenings of last night (I did what? With who?) may have bearing on her decision to press charges or not, but they cannot change what actually happened in the night.

So, all things considered, would you sentence him?

[NERVUN]

Very true, but we are looking at this through the lens of THIS case, in which we had concent given BEFORE the woman passed out. The question then turns on what actions were done while she was out and how she felt about it after the fact.

No, it does not. The main potential gray area in the case turns instead on the scope of the consent. Does the consent given at the time cover a specific act? More specifically, is the consent here required to be continuous, or implicitly present for said specific act until actively withdrawn?

The legal question, yes (which I freely admit I have no idea on because I do not know Australia's consent laws and as I have previously stated, it is hard to follow what was going on in that article), I am talking about the notion of giving consent after the fact.

It also turns on the question of whether she was - while stone blind drunk - capable of giving consent at the time? (This is a common question to debate in similar cases, even if it hasn't been brought up here.)

This is also very true, and if this had taken place in Nevada, there would be no question about it as I KNOW Nevada's laws on the subject and you can't consent to sex while drunk as a skunk.

The question of whether or not she regretted it in the morning is completely irrelevant to the determination of rape. If the consent covered the entire act commited, no rape was committed; if the consent is narrower in scope than the act committed, then some form of rape was committed. It is quite logically simple on that level, and how close this case appears to be to that binary line (we have only the testimony of an inebriated man to sort out when exactly he stopped relative to when he realized she was no longer awake, and even that is not detailed in the article available to us.)

Her feelings in the morning upon trying to piece together the happenings of last night (I did what? With who?) may have bearing on her decision to press charges or not, but they cannot change what actually happened in the night.

On the contrary, how she felt about it, was it rape or not, is very important. Yes, we have the afore said sex act, apparently started before the woman passed out and consent was given in that regards, then she passed out, which COULD mean that consent was revoked due to her state (Which I don't know due to lack of knowledge about Australian law), but in legal terms it could be technical rape because she wasn't capable of still saying yes. The question that the judge is asking is, does it make it a de facto rape? Du jour, possibly, but in actuality (Again, see the idea of statutory rape)? At which case her feelings about what happened are what we have to go on. If, once she found out what happened and she is ok, I wonder then if you can still call it rape (Not legally) because it isn't a case of forgiveness, but of confirming the eariler granted consent covered the actions of the guy while passed out.

Re-parse that line, please. You're managing to [unintentionally] contradict yourself on the face of it, and I would not want to respond to what you did not actually intend to say.

Sorry, that should be she said yes, then was incapable of saying yes, but now she is capable of saying yes, so is it still rape then given that she is confirming her original consent?

[Tahar Joblis]

So, all things considered, would you sentence him?

All things considered, I'd want a lot more evidence on my plate than I can glean from the article. I might have enough if I'd actually been sitting on that bench, but as I said, I can sympathize with his desire to take a recess and think about it before dropping the sentence on him.

Apparently the accuser is amenable to the idea of a suspended sentence, and I suspect that might be what happens at the end of the day, but I don't know much about the case, so this is all speculation and philosophical mumbo-jumbo.

The legal question, yes (which I freely admit I have no idea on because I do not know Australia's consent laws and as I have previously stated, it is hard to follow what was going on in that article), I am talking about the notion of giving consent after the fact.

And I am, too. I'm not an expert on Aussie law; I'm kinda familiar with US law by necessity and curiosity, living here, which is closely related for historical reasons.

I think the idea of post facto consent is not worth considering. The course of past events does not change, and one is asking forgiveness, rather than permission - which is what consent is. The saying "better to ask forgiveness than permission" outlines the distinction perfectly; IMO, by definition, consent must happen prior or concurrent to something being consented to.

Using a legal definition involving post facto consent will introduce nightmares very quickly, much as redefining "is" would wreak mayhem on legal statutes. In this particular area, it's dangerous, because the stakes are high.

This is also very true, and if this had taken place in Nevada, there would be no question about it as I KNOW Nevada's laws on the subject and you can't consent to sex while drunk as a skunk.

A law with good reasons behind it, not the least of which is freeing judges from headaches like this one. That particular point of law is present in a lot of US jurisdictions, but is not equally well enforced in all of them. I am assuming it's not present at all in Australia.

On the contrary, how she felt about it, was it rape or not, is very important.

How she felt about it at the time is Important to the determination of rape (i.e., in giving or removing consent), but how she felt afterwards has absolutely no bearing on the determination of the facts of the night. I'm sure that after the fact, she didn't want to have made out with him, but she certainly did that willingly, if drunkenly.

Yes, we have the afore said sex act, apparently started before the woman passed out and consent was given in that regards, then she passed out, which COULD mean that consent was revoked due to her state (Which I don't know due to lack of knowledge about Australian law), but in legal terms it could be technical rape because she wasn't capable of still saying yes. The question that the judge is asking is, does it make it a de facto rape? Du jour, possibly, but in actuality (Again, see the idea of statutory rape)? At which case her feelings about what happened are what we have to go on. If, once she found out what happened and she is ok, I wonder then if you can still call it rape (Not legally) because it isn't a case of forgiveness, but of confirming the eariler granted consent covered the actions of the guy while passed out.

What that is, is a question of consistency of testimony. (Judging from the article, it is quite possible that she both confirmed and denied giving consent to have sex with him - not exactly clarifying what kind of consent, explicit or implicit, she gave.)

The way that the judge describes it as a "technical rape" makes me think that the judge determined that, from the evidence laid before him, it seemed certain that had she not actually passed out at that moment, she would have continued having sex with him willingly through the completion of that act.

It might also be a slightly murky point in Aussie law, leaving the judge feeling like he may be setting precedent however he decides to handle the case; previous cases may have only addressed someone starting a new sex act with an unconscious partner, for example. That would also be a good reason for taking a recess and spending some extra time mulling over the case.

I'm sure people have passed out in the middle of having sex in Australia before, but the act of falling unconscious in the middle of a consensual sex act may not have ever been the central point of a rape case in Australia.

Sorry, that should be she said yes, then was incapable of saying yes, but now she is capable of saying yes, so is it still rape then given that she is confirming her original consent?

She is not capable of having said yes then, now, if you get my meaning.

[Dyakovo]

I think post facto consent is a very dangerous idea to introduce into the mix. It leaves entirely too much in the air, and in any event, the option of not pressing charges is one ingrained within the system.

I agree. If you consent afterwards, don't press charges -- the fact that charges were pressed indicates that no consent was given afterwards, so he should have been convicted. If you withdraw consent afterwards, it doesn't figure into the jury's final decision -- but this is somewhat harder to prove since any defendant can just claim "she said yes at the time" even if it's not necessarily true.

would go something like this.
Guy rapes girl why she is drunk.
Girl goes to police.
Guy's friends threaten to harm girls family unless she declares post facto consent.


Not a good thing. Stuff like abuse and rape need to be investigated/prosecuted fully regardless if the victim backs out or not.

QFT

[Saint Jade IV]

well, the judge refers to a singular act, and the article uses the verb 'continue'

True, but then again as I said, the article is poorly written so it's hard to say one way or another.

Hey, Australia doesn't exactly get the notion of quality journalism. You take what you can get.

[Risottia]

A judge refused to impose a jail sentence on a man who pled guilty to rape after continuing to perform a sex act AFTER the victim passed out. Apparently, it's unfair to mark him as a rapist.

I'm sorry, but if someone is PASSED OUT, how do you continue and not be a rapist?

Maybe we should make our point directly to the judge. By knocking him/her unconscious and screwing his/her ass with an anal intruder built for the US standard 110V AC but used on the EU industrial standard 380V AC.

[Tahar Joblis]

Maybe we should make our point directly to the judge. By knocking him/her unconscious and screwing his/her ass with an anal intruder built for the US standard 110V AC but used on the EU industrial standard 380V AC.

That strikes me as an irresponsible overreaction to a judge saying he needed more time to consider the details of a case that could be legitimately described as interesting.

[Nanatsu no Tsuki]

http://www.news.com.au/couriermail/story/0,23739,25823169-952,00.html

A judge refused to impose a jail sentence on a man who pled guilty to rape after continuing to perform a sex act AFTER the victim passed out. Apparently, it's unfair to mark him as a rapist.

I'm sorry, but if someone is PASSED OUT, how do you continue and not be a rapist?

It seems to me that's beyond the point if he actually plead guilty to rape. Not knowing much of the law, it still strikes me that the judge had an obligation to throw the book at him regardless.

That's...actually not true at all. If for some reason I am arrested for killing President Barack Obama, and I plead guilty to such, the judge can't just go "well, he plead guilty...so....life in prison for murder" when President Barack Obama is still quite obviously very much alive.

Pleading guilty doesn't mean a judge has to accept it, there still must be sufficient evidence to substantiate the confession.

Neo A, the article quotes the judge calling this a ''technical rape'''. Since you're the law expert here, I'm curious, does the term ''technical rape'' exists in laws pertaining to rape cases or was this just something coined by this particular judge for this case?

[Rambhutan]

This puts gaspers in a difficult legal position.

[Galloism]

Neo A, the article quotes the judge calling this a ''technical rape'''. Since you're the law expert here, I'm curious, does the term ''technical rape'' exists in laws pertaining to rape cases or was this just something coined by this particular judge for this case?

I'm pretty sure he pulled that term directly out of his ass. I've never heard of a "technical rape" in law ever, anywhere.

[Nanatsu no Tsuki]

Neo A, the article quotes the judge calling this a ''technical rape'''. Since you're the law expert here, I'm curious, does the term ''technical rape'' exists in laws pertaining to rape cases or was this just something coined by this particular judge for this case?

I'm pretty sure he pulled that term directly out of his ass. I've never heard of a "technical rape" in law ever, anywhere.

Me either. Rape is rape, as far as I'm concerned. How can something be a ''technical rape'' is beyond me.

[Buffett and Colbert]

Neo A, the article quotes the judge calling this a ''technical rape'''. Since you're the law expert here, I'm curious, does the term ''technical rape'' exists in laws pertaining to rape cases or was this just something coined by this particular judge for this case?

I'm pretty sure he pulled that term directly out of his ass. I've never heard of a "technical rape" in law ever, anywhere.

Me either. Rape is rape, as far as I'm concerned. How can something be a ''technical rape'' is beyond me.

Because technically, it was a rape.

[Nanatsu no Tsuki]

Because technically, it was a rape.

I'm reading on the case on this blog (horrible costum, I am sorry).
http://iainhall.wordpress.com/2009/07/2 ... ical-rape/

[United Dependencies]

I'm pretty sure he pulled that term directly out of his ass. I've never heard of a "technical rape" in law ever, anywhere.

Me either. Rape is rape, as far as I'm concerned. How can something be a ''technical rape'' is beyond me.

Because technically, it was a rape.

Then why is the guy walking free?

[Nanatsu no Tsuki]

Then why is the guy walking free?

Apparently becasue the victim gave consent to having sex but passed out during foreplay.

[Buffett and Colbert]

Then why is the guy walking free?

Damn, I wanted to write wasn't. Twas a joke.

[United Dependencies]

Then why is the guy walking free?

Damn, I wanted to write wasn't. Twas a joke.

ok?

[Tekania]

If she passed out, she was no longer in a position (no pun intended) to give consent, informed or otherwise.

It was ruled, several years ago, that if a woman withdrew consent in the middle of the act (as in "stop, you're hurting me"), then it became rape. I would think that passing out in the middle of the act would be tantamount to withdrawing consent.

The judge is an asshole.

Not legally no... it wouldn't....

[Hydesland]

I don't believe he denied it was rape, he claimed it was rape only through technicality, and that the person does not deserve the same punishment as a normal rapist.