The English court system is considering a controversial new report by Dame Elish Angiolini that would establish a rule that women cannot be viewed as consenting to sex if they are found to be intoxicated. The report is pushing an amendment of the Sexual Offences Act to establish the rule.
The current law allows the jury to decide such questions in the specific context of the case. They use their common sense and their view of the credibility of the witnesses. However, Dame Elish, a former Lord Advocate in Scotland, wants woman’s incapacity to consent to be a codified exception “embedded in legislation.”
Once police determine that a woman is intoxicated, they would consider any sex as unconsented and thus rape. Conversely, the new rule could effectively gut the ability of the accused to argue consent. The new effort is heralded by Director of Public Prosecutions Alison Saunders who said that with the sweeping change rape victims would no longer be “blamed” by society if they are too drunk to consent or if they simply freeze in terror.
The problem is that it could foreclose the key defense in such cases and denies jurors the ability to make this determination in the context of the case. In 2007, a court ruled that a woman could consent to sex even if drunk which is the standard approach in such cases. Intoxication can lead to a determination of incapacity and often does. However, there are different levels of intoxication and cases have different facts of when and how consent was given. Moreover, the level of legal intoxication is falling in many countries with the crackdown on drunk driving. It is not clear what level of intoxication would be viewed as per se foreclosing consent defenses. There is also the question of whether the same standard should be applied to the men if both parties are intoxicated — negating intent to rape.
Dame Elish admits that the various changes would required a “radical change” in the way they treat victims, but it could be equally radical in terms of the due process accorded such cases. I think that she is clearly correct in getting police to document the level of intoxication after a report by the victim is an important step and should be a regular practice. She is also clearly correct that at some level of intoxication there cannot be consent. However, the rule presents a far more sweeping rule and could clearly limit the core defense in such cases.
I am very sympathetic to the overall report which identifies some clear problems in staffing, resources, and handling of cases. She is also right that there appears to be no clear rule established for handling cases involving alcohol consumption. The problem is drawing a codified line in such cases that would be both consistent and clear and fair. There may be a good reason why intoxication is recognized as a critical factual determination but not codified in this sense. It is the type of contextual element that touches on some many elements of credibility and facts both preceding and during the sexual encounter. That does not mean that some codification could not be done but it is fraught with dangers if it is meant to curtail the defense of consent in my view.
Source: Daily Mail
This could essentially shut down all bars, because it makes the entire point of going there for many people a felony.
It’s a LONG article, I will just try to post the Highlights~
http://time.com/99959/campus-sexual-assault-matthew-kaiser/
Matthew Kaiser is a white-collar criminal defense attorney who has represented a number of students accused of sexual assault at colleges and universities.
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But many schools take a different line – that a student under the influence of alcohol in any way can’t consent to sex. Setting aside the sophomoric double rape problem (are two drunk people having sex raping each other?), drunk sex just isn’t what we think about when we think about sexual assault.
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In most cases I see, both students have been drinking and then have sex. The next morning, the female student wakes up and doesn’t really remember the details of the night before. She knows she had sex. Often, she’s not sexually experienced. She knows what she did was out of character. And she goes to a counselor, trained on the school’s definition of assault, which leads to a complaint against the male student.
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In some of our cases, we’ve been able to show that the female student did things that showed that she consented, or that her partner had strong reason to believe that she consented. For example, in one case, the female student said that our client must have stripped her naked, because she would never have undressed herself. But then we uncovered text messages sent that night by our client’s roommates – who were in the room at the time – describing how she got out of bed in front of them and took off her own clothes. At the hearing, the female student was adamant that she wouldn’t have undressed herself – she’s simply not that kind of person. And, for that hearing committee, the female student’s morning-after report of what she would have done carried more weight than the evidence of what she actually did.
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The only real advantage of the “drunk sex = rape” rule is that it’s easy to enforce. Colleges risk sanction by the Department of Education if they don’t take action in favor of women who report sexual assault. So by having a rule that essentially lets them kick out any male student who is the subject of a complaint, schools are conveniently insulated from liability. But this is deeply and systematically unfair to male students.
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When my daughter goes to college, I want that school to do everything in its power to protect her from sexual assault. When my son goes to college, I want him not to risk his future whenever he has sex after a party. And, based on the cases I’ve seen, I’m more concerned for my son than my daughter.
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Now, as for this proposed law…. At least the Colleges are trying to be equal about it,
and NOT just making it about men taking advantage of drunk women.
Fact is, there are plenty of women, who will take advantage of a drunk man.
So by having a rule that essentially lets them easily CONVICT any male who is the subject of a “He Said, She Said” type Rape Accusation just because the Female was too drunk, the state is just trying to make it easier to prosecute the MEN, and MEN ONLY regardless of if it was an actual rape, and regardless of the possibility that it was the woman who pushed herself on the guy or she guilt’ed or coerced the drunk GUY into having sex with her.. This is deeply and systematically unfair to MEN.. PERIOD.
What if it is 2 women who are too drunk? (as Nick pointed out)
What if it is a 35 Year Old woman, and a 17 Year Old boy?
By the way, how are they supposed to know if she is intoxicated?
I am a tiny woman of 5’1″ and wear a size 4… I can drink NUMEROUS Tequila shots, and
still walk and talk as if I am sober.
There are times when ONE glass of champagne will get me totally tipsy..
and other times when I can drink like a truck driver, and appear totally sober.
So, again, I will ask, how is the guy supposed to know if the female is intoxicated?
and how is this fair?
lastly:
Making Laws that are Gender Specific like this, is just a recipe for major trouble.
Around the world we see cliques of people who think that their itShay does not stink and they wear various headwear to set themselves apart: Israel its beanies; Islamic countries its headscarf, turbans, tents; United States its moorish temple tubes, beanies, cap and gown; in England it is wigs. It is clear from the photo and from the article that Dame whatshername thinks her itShay does not stink.
Well, I totally messed that up.
This is NOT going to HELP with Convicting Rape…
This is going to muddy the water and turn guys who are out having a good time
with a woman into the Victims. This is just turning the men into the victims.
It’s not right, nor is it even slightly logical.
What they NEED to do, is find a way to actually be able to get better Rape Convictions.
NOT turn MORE people into Legally defined Rapists.
While Sweden is feminist heaven, we have a TERRIBLE time convicting rapists.
Here in Sweden.. There was a teenage GIRL, gang raped at her school, it was filmed and it was CLEAR
that she was not enjoying this.
BUT, because she was too petrified to actually say the word NO!!! STOP!!
These guys were acquitted … For GANG Rape… by the way, there was NO alcohol involved.
So, what do the radical feminists do?
They decide that MORE things should be considered rape…
Yeah, Cuz, convicting OBVIOUS clear rape in Sweden was not hard enough.
You know, I know plenty of women (myself included) who have gotten too drunk, and slept with guys they would not normally sleep with. WE however did not call this rape, or assault… NOR did we feel as if we were victims, we did NOT blame the GUYS…. we laughed it off
and chalked it up to BAD Impulse control, too many drinks… and regret… BUT, we did not blame those guys
for OUR getting too drunk… we put the blame squarely where it belonged, on ourselves for getting to drunk in the first place. We were NOT drugged… we were NOT forced. We went out to party, and that is what happens sometimes if a person drinks too much.
Now, Women who were NOT forced into drinking too much, or forced into going home with a guy, Don’t have to hold themselves responsible for their actions when they are drunk.
I am NOT talking about men who actually FORCE themselves on a woman,
I am talking about men and women who just go out for a good time.
I am sorry, but, if a woman drinks 10 shots of Tequila and goes home with some guy…
That is ON HER… she should KNOW her own limits, and if she is not capable of drinking
and not going home with strange men for sex, then maybe she should NOT drink, or at the very least
NOT go out drinking by herself.
WHY are they removing women’s personal responsibility entirely?
and how can anybody think this is OK?
This is NOT going to level the playing field… This is NOT a way to more equal rights.
This is about demonizing men… and making women into weak victims, even if those women
went out for the sole purpose of getting drunk and getting laid… which MANY women like doing.
This is treating men as if they are the ONLY horn dogs, and women as if they innocent little virgins.
This law is going to bite them on the ars.
Justagirlinseattle but really in Sweden?
The ruling does not convict men who have sex with drunk women. The ruling initiates the perception that a man, typically stronger than a woman, who has sex with a woman who is too intoxicated to resist, think clearly, or who wouldn’t ordinarily have sex with this guy, is coercive to a degree that could be termed rape.
(The English court system is considering a controversial new report by Dame Elish Angiolini that would establish a rule that women cannot be viewed as consenting to sex if they are found to be intoxicated.)
-Here is the essence of the post, as stated by Turley. Considering a report, not instituting a law. The perspective is what has been introduced.-
“Consent is about much more than if someone said ‘no’, so the circumstances surrounding the incident should be examined carefully from the perspective of the victim.”
-This is the essence of the ‘new report’, something that has been wanting in GB as well as other countries historically.
(Once police determine that a woman is intoxicated, they would consider any sex as unconsented and thus rape. Conversely, the new rule could effectively gut the ability of the accused to argue consent. The new effort is heralded by Director of Public Prosecutions Alison Saunders who said that with the sweeping change rape victims would no longer be “blamed” by society if they are too drunk to consent or if they simply freeze in terror.)-JT
-Here again the key word is ‘consent’ and the goal of the ‘new report’ is to promote the determination of consent. The ingredient missing in a lot of rape cases is the intersection between consent and intoxication.-
(Dame Elish admits that the various changes would require a “radical change” in the way they treat victims, but it could be equally radical in terms of the due process accorded such cases. I think that she is clearly correct in getting police to document the level of intoxication after a report by the victim is an important step and should be a regular practice. She is also clearly correct that at some level of intoxication there cannot be consent. However, the rule presents a far more sweeping rule and could clearly limit the core defense in such cases.)-JT
-The issue of limiting the ‘core defense’ is obviously a work in progress between the institution of this new report or perspective and the actual implementing of the law.-
(There may be a good reason why intoxication is recognized as a critical factual determination but not codified in this sense. It is the type of contextual element that touches on some many elements of credibility and facts both preceding and during the sexual encounter. That does not mean that some codification could not be done but it is fraught with dangers if it is meant to curtail the defense of consent in my view.)
-‘fraught with dangers’, Regardless of the ‘laws on the books’ or the instructions of the judge, any interaction between individuals or between individuals and the law is ‘fraught with dangers’. Perhaps the ‘dangers’ that women had to endure when finding themselves taken advantage or or raped while intoxicated will be offset to some degree. In the end, the court will decide if the woman was unable to resist due to being intoxicated and would otherwise have resisted. However, in some cases men do take advantage or rape women who are drunk, without holding them down with a knife to their throat. Perhaps this new aspect to how the law approaches this sort of behavior will be worth most as a deterrent. How many girls sixteen and younger are ‘had’ either with resistance or willingly by men and how many more would be ‘had’ if the law did not provide for some very serious consequences.-
Perhaps one should first read the entire post as well as the article and then consider the pros and cons, along the way understanding that this is an introduction of another perspective and does not necessarily ‘gut’ the defense of someone who is innocent.
JT has, as he does more often than not, voiced his concerns for situations that might get out of control. His hypothesis is based on a cursory understanding of a preliminary move by the British justice system to put in place the concept of a counter argument to, ‘aww, she wanted it, she was after me all night.’
issac – one of the problems with alcohol is that is not stable in the body. So, if at the bar you blow a .05 (not intoxicated) but by the time you get to the guy’s house you blow a .09 (now intoxicated) which one is the guy supposed to rely on? And if the girl has a drink at your apt either before and/or after the act she could blow a .12 for the cops. So. She was sober when you shagged her but drunk when they tested her. Are you still a rapist? I see nothing but problems for this law.
A follow up law would be to bar women members of Parliament from drinking while Parliament is in session and by that I mean 24 hours a day from day of opening to day of adjournment. They are not capable of voting correctly if induced by drinks. Alcohol is bad for England. They need prohibition. By the way, I frequent Amersterdam with my half blind guy, and Brit men are often seen over in Amsterdam paying for a good roll in the hay. They say that English hookers back home yak and complain to them too much. Pay for play is really a good way to go and we in America should embrace it.
JAG, In a perfect world there would be balance between the accused and victim, or close to it. Your last comment is one of your best. I’m bookmarking it for future reference when this topic comes up again.
See… I don’t see men being favored, or women being favored, I see a LOT of misplaced BS
in the way potential Rape Cases are handled from the Get Go.
for one, Of course many women don’t come forward after being raped.
it is VERY hard… Many women who have been raped, don’t even like to admit to it..
This doesn’t happen when a House is broken into… or a Purse is stolen.
It is a VERY different kind of crime.
The problem with it beyond the fact that the victim always feels they are to blame
Is that there are some people who will Falsely accuse another person, just to get to get back at a another person for
not doing what the the other person wanted.
and the fact that it is a He Said, She said type crime… just makes it VERY difficult.
Now we have Rad Feminists who want to ADD a bunch of stupid other things such as a Guy tries
to kiss a girl, the girl says NO, and then she feels victimized…
We are turning Girls and Women into these WEAK Victims.
I PARTLY, blame Parents…
Girls, should be taught from a YOUNG age, that guys will say anything to try to get with a girl.
BOYS, should be taught how to look for signs that a girl is interested, and that girls
don’t like pushy guys.
Girls should be taught HOW to say NO!!!
Not giggle and say…. “ohhh I don’t think this is a good idea.. heheheheh..”
I mean girls NEED to learn HOW to say…” I SAID NO!!! ”
But mothers are in the dark, they want to treat their daughters as if they will never be alone with a guy.
and Boys, they should be taught that if a girl says NO, that means NO… PERIOD…
But, Parents hardly talk about sex with their children, MUCH less how to avoid
some uncomfortable situations.
I taught my daughter that if she is going to drink, she should do it with people she KNOWS
and knows WELL….
That she should NEVER get so drunk that she is no longer in control of herself, that this would leave her vulnerable.
We in the First World countries, could put a dent in this, if we as parents
started TEACHING kids about sex, and how to avoid bad situations.
and OF COURSE, I don’t mean that if a girl gets raped at a party, it was her fault.
I just mean, that we do have to TRY to be somewhat responsible for our personal safety.
I can NOT expect to put on a corset and my 5 inch heels and a G-string
and walk down the street
YES, in a perfect world, I would be able to do this.
WE do not live in a perfect world.
I don’t leave my Chanel Handbag, down on the street unattended.
WHY should I get drunk at a huge party, and leave my Girly Parts unattended?
we are NO LONGER using logic… we are using crappy emotion.
NO women should NOT be blamed if they are raped, no matter what the situation,
That does NOT mean that women should not take SOME responsibility keeping themselves safe..
One thing is certain, men buying women drinks will be over. You wouldn’t want to be charged as an accessory should some other guy get brought up on charges.
Olly – would half-price for women make the bar an accessory?
JAG, As is often the case, Isaac is incorrect. He says, “The precedent for rape has been biased toward the man for a long time.” Firstly, I have to assume he means men get the better treatment. That was the case for decades prior to the mid 80’s. It was then the pendulum started swinging from horribly favoring men toward favoring women. There was a brief time when it was sorta fair. But, PC took hold in the 90’s and now women have way too much power in rape accusations. Isaac does often use a lotta words and not say much. In this case, what he says is factually flawed. He’s a Canuck. We bust each others balls a lot. He is my go to guy on hockey, Canadian and European history, his having lived in both places.
In the unlikely event that I ever hooked up in a bar again, I’d be prepared with a breatholyzer and a consent form.
On Isaac’s applauding the British on this, somehow I’m not surprised. Anything Canadian, French, or British is bound to be viewed as “superior”.
OK, so I go out with a guy, and he and I are equally drunk…
If I cry Rape, he is the one who ends up being responsible for the rape,
just because he is a man?
If he cries Rape, then I am not responsible, because I am a woman?
How is this fair?
issac, I want to try to understand where you are coming from on this argument.
However, I see a LOT of words, and no actual examples as to HOW this can be a good idea.
This proposed Law, would establish a rule that women cannot be viewed as consenting to sex if they are found to be intoxicated.
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I am a woman, and I find this offensive.
I find it MOST offensive, because it paints women out as weak little victims, who
have no control over their intake of alcohol, and what they do, once they have a few drinks in them.
and it is written SPECIFICALLY for WOMAN.
Fact is, plenty of women get men drunk to take advantage of them.
This is 2015… Women like sex, and quite frankly, they can be just as bad as men.
Had this been written in such a manner as to include BOTH sexes, it would be less
offensive. But, Nope, it is always the men who need to be held responsible, NEVER the women.
also,
If the woman is Drugged, then I would completely agree, that there is just NO WAY for her to consent, as she was drugged
without her consent.
If the woman was Passed Out, Then I agree, there is no way for her to consent, as she is passed out.
However, Intoxicated??? Plenty of women still feel shame for enjoying sex, so they
like to drink a bit and pick up men, so they can claim, “Oh, I was drunk… It’s not my fault I went home with that guy last night.”
They are the ones who are in control of how much they drink.
If this was written in the 1950’s, I would understand it far more.
again, this is 2015, and it is acceptable for women to drink, and to have sex.
We should not be making men into Drunk Babysitters for women who don’t
know their limit on how many shots they should drink, and then have sex.
Yes, I agree, the courts have failed many women, when it comes to Prosecuting Rape.
This is NOT the way to make that better. This only pushed the women are weak victims
meme much further.
Women have come a LONG way, this kind of law, is just going to pull us back.
Olly
What is to be applauded is that now there are two starting points. One is the historically taken ‘she couldn’t have if she didn’t want it’ and the other is that she was maneuvered by drugs, alcohol, and perhaps other stuff into complying. It places the woman’s point of view in play, perhaps equally off center from the ideal but there for a first time.
The law is based on precedent as much as ideological rights and freedoms. The precedent for rape has been biased in the man’s favor for some time. The judge and/or jury will ultimately have to decide. However, this may be one of the best deterrents to come along.
Is this lady a member of the Whig Party? Dark ages. Britain is creeping toward being a pirate territory. With a Queen and all the nobility and lord and lassie apcray they are not fit to be called a civilized nation state. Dork Party would be a good name.
Nick, what would make it even BETTER is if the Lesbian used it AGAINST her Radical 3rd Wave Feminist Lover…. 😀
What about 2 lesbians having sex, the one intoxicated? Do these proposed laws only apply to hetero sex? Slippery slopes.
When I was teaching high school current events we had a great discussion on a proposed law. Graduated drivers licenses were just coming into vogue. They are common sense. In Wi., there was a law that prohibited 16 year old drivers from having any passengers after dark. The odds of an accident increase exponentially for young drivers w/ distractions from passengers, particularly @ night. Well, there was a pandering state legislator who wanted a “date” exemption. That means a 16 year old could have one passenger after dark on a date. The legislator, and most people just assumed this would be hetero. One of my very smart and edgy male students quickly said, “If I get caught w/ a male friend in my car I’m simply going to say I’m gay and he’s my date.” What is there to prevent a woman who gets angry @ her female lover from using this intoxication clause after having sex?
Nick – you raise an interesting point. Using this criteria, Joan Crawford raped Marilyn Monroe.