Sunday, November 27, 2005

Recognising Rape when we see or hear about it.

Reading the Britblog roundup guest hosted by Philobiblion this week, there are several articles on the worrying Amnesty Report on British attitudes to rape. Unsurprisingly, this has also been a topic of conversation amongst some of my friends, and, well, I've already chosen my nomination for next weeks round up.

It's from a friends personal journal, normally the source of frivolity and light hearted banter. Not today however. You see, she, like Rachel has also, in the past, been the victim of a rapist. And she wants to do something about it. Specifically, she's read the Amnesty report, and finds it's questions to be biased and leading, and the media reports have blown the numbers up out of proportion to the actual answers. Doesn't mean there isn't a worrying number of people who do still blame the woman when she's raped (or the man, for that matter, it does happen). However, that's not her main concern. Her real concern are the separate, but linked reports, of the court case involving the drunken girl and the security guard.

Now, when I first heard about this, I agreed with the verdict. She was drunk, and didn't even remember the event, it only came out it had happened because he admitted to it. He said it was consensual, she didn't know one way or the other, case closed. However, I've been persuaded that it shouldn't be. Yes, under current law, he's innocent. But why? She was so drunk her friends were worried about her. So drunk that she needed to be carried home. So drunk she didn't know what she was doing. We're not talking 'just failed the breathalyser, give me a break officer' drunk here, we're talking 'unable to look after herself properly' drunk. So drunk, in fact, that she's unable to give consent to anything. Is that right?

Is it right that a sober man can have sex with someone unable to think for themselves and not face any consequences? If it was Rohipnol, then no. But if it's alcohol? Debi thinks the law should be changed. She's persuaded me of her case. Now I want to get others to join in, or, if you do disagree, explain why, and give reasons we can try to answer. I find rape to be the most reprehensible of crimes, and I find the attitudes of certain sectors within society to be, well, wrong. No means no, but yes should not be the assumed state.

Any takers?

12 comments:

PaulJ said...

Intent. You spike someone's drink with Rohypnol, you're in the wrong, ply someone with alcohol with the intend of having sex with them, you're in the wrong. Drink along with someone who seems happy to be getting drunk but goes a bit too far, I'm not sure that you are in the wrong.

Thing is, and this, I assume, is why court cases over the matter are so hard, is that you cannot judge how free someone is to make a decision when alcohol is involved. Regardless of the situation at the outset of the night, after a few drinks, things may well have changed. You can't really expect people to discuss whether sex is an option or not before every date whilst completely sober, so you have the inevitable situation where people argue - maybe even quite rightly - that they were getting 'signals' which as far as the other party is concerned just weren't there.

It's just that really it's practically impossible after the fact to go back and discover who is correct. Only rational outcome in this situation is to clear the accused - reasonable doubt and so on.

Problem is of course, that people know this to be the case and as such it does protect criminals who can play the law and get away with it. Does that mean we should change the law? I'm not sure - you could argue that taking advantage of the situation is an immoral act and so be made illegal from a 'doing the best for society' point of view, but on the other hand that basically means that any situation involving sex and alcohol could open to interpretation as rape.

I need to think more about this to be honest. My gut reaction is to say the law shouldn't change because it makes it easier for innocent people to be wrongly accused of rape whether that be through simple misunderstanding of the situation or malicious accusations. If it is better for a thousand guilty men to go free than one innocent man to be jailed, I must stand by this viewpoint.

But then the present law and as Amnesty have shown the attitude to the law clearly isn't working. So maybe it should change because it fails the very people it is meant to protect.

I'll post again when I've had more time to muse.

MatGB said...

Not actually talking about drinking along; I've mentioned that in discussion with Debi already, it's when one is sober, or at least in control of their senses. As an anonymous commenter says on her comments:
if one of them is sober, then they're taking advantage of the reduced mentality capacity of their partner and are in fact committing a crime by doing so

Essentially, the difficulty in acheiving convictions is my main concern, rape law I think needs an overhaul.

Unity said...

Two major problems with this idea.

1. How drunk does someone have to be for their judgement to be impaired and how do you establish this in evidence?

2. If one accepts the idea of reduced mental capacity due to alcohol in rape cases you automatically open the door to the defence of 'I was drunk M'lud', not just in rape but in other type of case.

MatGB said...

Both were my initial concerns, she's already answered them, but I'll copy them here:
Maybe we're confuses on what 'that state of drunkenness' is? My definition is near paralytic, unable to stand, kind of state, as demonstrated by the woman in question not being able to make it to her own room, kind of thing. At that point she's pretty much passive, and anything that occure happned to her, if you get my meaning. Certainly unable to state consent.

Um, yeah.

Course, I liken it to being just under the age of consent. A fifteen year old is not considered capable of consenting to sex, yet is considered capable of being held respinsible for punching a pregnant barmaid.

But mostly, a person who's in control enough of their motor and mental fucntions to punch anyone, isn't exactly at the stage of drunkenness I'm talking about here. Maybe we're confuses on what 'that state of drunkenness' is? My definition is near paralytic, unable to stand, kind of state, as demonstrated by the woman in question not being able to make it to her own room, kind of thing. At that point she's pretty much passive, and anything that occure happned to her, if you get my meaning. Certainly unable to state consent.

Um, yeah.

Course, I liken it to being just under the age of consent. A fifteen year old is not considered capable of consenting to sex, yet is considered capable of being held respinsible for punching a pregnant barmaid.

But mostly, a person who's in control enough of their motor and mental fucntions to punch anyone, isn't exactly at the stage of drunkenness I'm talking about here.

Tim said...

Alcohol reduces inhibitions - which is why we use it in social situations. It is very true that people will have sex with someone whilst under the influence of alcohol; that they would not dream of when sober - and this does apply to men as well as women. Few people would consider this rape.

The court case as I understand it was dismissed for lack of evidence. If the woman can no remember anything about the incidence then how can she be sure she did not give her consent. The case point is “drunken consent is still consent”

Date rape drugs are different in that they remove the capacity for someone to give consent, and are given by another person with this intention.

My problem is that maybe I meet a person in a club, we are both drunk, we go have sex, then I am charged with rape the next day because when she wakes up in the morning she decides there is no way she would have shagged me consensually.

What happens when the feeling is mutual?

Are we both charged with rape?

MatGB said...

Again, we're not talking if both are drunk equally; see my comment on her post, only if one is inebriated the other is sober.

In my opinion, the guy in the drunken consnet case should have known it was wrong at the time, she was obviously incapable by everyone's testimony.

He was let off through lack of evidence, but should we accept that this is right? She hadn't consented in a functioning way, she was unable to stand. That's not right by any description.

PaulJ said...

I'm with unity on this one, it's too unclear and paves the way for legal minefield.

In the 'absolutely paralytic' argument then I think I'm willing to say it's time to take some responsibility for yourself. That's not to say it's your fault for being raped, because however drunk you are you shouldn't expect to be raped, but in the same way as you lock your car when you park it, leaving yourself drunk and presumably alone in a crowed bar is asking for trouble.

But then a court would still have to decide how drunk someone was after the fact. It's all very well to say 'past drunk, definately paralytic', but try establishing that 24 hours later.

And one final thought that's just popped into my head which may be completely unrelated, but, if your are out and are absolutely paralytic - fault can, and perhaps should lie with the barman, who presumably has been serving you alcohol whilst drunk - already a criminal offence. Tighter controls on drinking as a safeguard against date-rape? Probably not, but the point seems a reasonable one to make.

unkemptbutnice said...

Why does the analogy of locking your car when you leave it only apply in the case of a woman being raped by a man? If a man went to a bar, got blind drunk and was taken home by a sober security guard who then proceeded to subject him to a consentual buggering that the drunkard has no recollection of, would you (or the courts) still throw out the case and implicitly blame the victim for "allowing" the situation to occur?

PaulJ said...

I'd imagine that they'd throw the case out for the same reason as they throw the original case out - lack of evidence. The reason for the lack of evidence, being blind drunk, was undoubtedly the drinkers' own fault though - not the reason why they got raped (if indeed it was rape) but the reason why they couldn't do anything about it if it was.

By drinking huge amounts you give up your right to control over yourself. Illegal things should not happen to you whilst you are in this state, but, IMO, if you willnigly enter this state you are taking an unecessary risk which could lead to bad ends - not just rape but absolutely anything.

As has already been discussed, if you absolve people of responsibility because they're 'blind drunk', then you're allowing 'blind drunk' to become a legitmate defense. I don't like the idea of that at all.

i'm not sure I buy the 'nearly paralytic' argument either. It's too vague, and I think that making this a legal definition only shifts arguing over what level of consent there was to what level of drunkeness there was. End of the day, still no way to prove either way, must acquit the accused.

Devil's Kitchen said...

Mmm. In this case, how drunk was she? She was feeling ill, fine. We've all felt that we need to have a hurl, but would still be in a position to say "no" to sex.

Memory retention is also important. I get massive blank spaces, even when only slightly pissed (I do slightly blame a couple of years of heavy E usage as well, though!).

All of this shows that you should have, at all times, an awareness of risk. Getting totally paralytic is deliberately placing yourself at severe risk. Although, I happen to think that it's a bit shoddy that one of her (female) friends (assuming that she has any) couldn't be arsed to take her home.

A thing that also gets me: why is this possible rape, i.e. one that is possibly non-consensual but also non-violent, deemed worse than, for instance, a friend of mine being kicked shitless, and having his jaw broken in 5 places and his face bones smashed in 8 other places? Why is it that people are so exercised about this "rape"?

DK

Ally said...

Rachel North pointed me over here. It's a difficult question, because our justice system is based, quite rightly on 'innocent until proven guilty' and one gets, as your contributing commenters about have, in to the 'how drunk is too drunk' question.

I have an interest in this, as you can see here. I'll put up a post linking to both you and Innerbrat tomorrow.

Zorah said...

In high school we studied tort law. This is the law governing contracts. Under tort law, you CANNOT make a contract with someone who is drunk, as they do not have the mental capacity to understand the full implications of the contract they are signing. Same as with a minor. A drunk is considered to have the mental capacity of a minor.

Consent to me is very similar to a contract. Why is there debate? What we need to change is not the law, but the way we think about these situations.

Real men don't rape. Real men help a disabled (drunken) woman home and ensure her safety. They do not try to 'get some' because she's an easy target. If for some reason she DOES come on to him, he can make a date for another day. That way, when he shows up for the date and she wonders why he's there, he can rest assured he's just saved his a$$ from a rape charge.

Of course, there's not many real men out there. Real men stop their friends and other men from raping women. They let them know it's wrong. Here's an amazing link to that topic: http://www.workersliberty.org/node/5302

As to two people getting drunk together. Two words: communication skills.

Seriously, in the day and age of AIDS, herpes, heck, even syphilis is still around...if you feel things are going somewhere, talk about it BEFORE she has that third or fourth drink (if only to find out if you need to make a pit stop for condoms). Unless she's a really big woman, 3 or 4 should be the borderline to when a woman is getting too drunk to give consent.

Perhaps there's some hindsight guilt making this question come up? I say learn from your experiences and move on. Learn and grow is all we can do. That and lead by example.

And remember.

ONLY MEN CAN STOP RAPE