Your Thoughts: The Criminal Law, Intoxication and One Night Stands (1 Viewer)

[SurferNerd]

*moved from Law Forum:

I read an article a while back which mentioned the difficulties the Criminal Law faces in regards to rape cases, particularly when the victim was intoxicated. If a girl has alcohol in her system, consents to sex (say her and a guy met at a club) and the guy participates, has he technically raped her? The law seems to sway towards this notion that alcohol prevents her having any capacity to consent?

This is certainly a challenging area of the law though- most sexual relations on any given Fri/Sat night occur when the parties have been drinking. This then means that your 'rapist' could be any conventional, 'law-abiding' guy far opposed to the typical defendant that the legislators had in mind when the law was made. I also further read- that even if the guy is drunk (by which how can he also consent (shouldn’t she be a rapist) his state of mind is disregarded. This simply seems blatantly sexist and dangerous, given that if consensual sex occurred, yet the girl was a bitch, she could simply go to the police the next morning. Her word against his....

Is my line of thinking correct? Scary stuff if so

 

[HalcyonSky]

you say that the law views a drunk girl as having no capacity to consent, but then it disregards the males state of mind? can anyone confirm that

ive never liked the idea of intoxication being used by the defense nor the prosecution in a court of law, if a guy gets drunk and assaults somebody he's fully liable. If a girl gets drunk and goes home with some guy, she should be fully liable as well.

 

[Optimus Prime]

Yeah, its a new law and its true, it's kinda fucked up.

 

[Kwayera]

It's very, very fucked up.

 

[darkwolfzx]

sshhh why are you telling all the girls out there?

 

[incentivation]

The pertinent question is how the court interpret S.61HA (6) (a) of the Crimes Act..

61HA Consent in relation to sexual assault offences

(1) Offences to which section applies This section applies for the purposes of the offences under sections 61I, 61J and 61JA.​

(2) Meaning of consent A person "consents" to sexual intercourse if the person freely and voluntarily agrees to the sexual intercourse.​

(3) Knowledge about consent A person who has sexual intercourse with another person without the consent of the other person knows that the other person does not consent to the sexual intercourse if:

(a) the person knows that the other person does not consent to the sexual intercourse, or​

(b) the person is reckless as to whether the other person consents to the sexual intercourse, or​

(c) the person has no reasonable grounds for believing that the other person consents to the sexual intercourse.​

For the purpose of making any such finding, the trier of fact must have regard to all the circumstances of the case:

(d) including any steps taken by the person to ascertain whether the other person consents to the sexual intercourse, but​

(e) not including any self-induced intoxication of the person.​

(4) Negation of consent A person does not consent to sexual intercourse:

(a) if the person does not have the capacity to consent to the sexual intercourse, including because of age or cognitive incapacity, or​

(b) if the person does not have the opportunity to consent to the sexual intercourse because the person is unconscious or asleep, or​

(c) if the person consents to the sexual intercourse because of threats of force or terror (whether the threats are against, or the terror is instilled in, that person or any other person), or​

(d) if the person consents to the sexual intercourse because the person is unlawfully detained.​

(5) A person who consents to sexual intercourse with another person:

(a) under a mistaken belief as to the identity of the other person, or​

(b) under a mistaken belief that the other person is married to the person, or​

(c) under a mistaken belief that the sexual intercourse is for medical or hygienic purposes (or under any other mistaken belief about the nature of the act induced by fraudulent means),​

does not consent to the sexual intercourse. For the purposes of subsection (3), the other person knows that the person does not consent to sexual intercourse if the other person knows the person consents to sexual intercourse under such a mistaken belief.​

(6) The grounds on which it may be established that a person does not consent to sexual intercourse include:

(a) if the person has sexual intercourse while substantially intoxicated by alcohol or any drug, or​

(b) if the person has sexual intercourse because of intimidatory or coercive conduct, or other threat, that does not involve a threat of force, or​

(c) if the person has sexual intercourse because of the abuse of a position of authority or trust.​

(7) A person who does not offer actual physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting to the sexual intercourse.​

(8) This section does not limit the grounds on which it may be established that a person does not consent to sexual intercourse.​

I'm of the belief that the prosecution would have to prove that the victim was so substantially intoxicated as to lose normal cognitive abilities. It would be extremely difficult to prove.​

 

[Serius]

If thats a valid defence, then tomorrow night i am gonna get magget and hit some fuck and claim i was so substantially intoxicated that i lost normal cognitive abilities and hence cant be held accountable for my actions

 

[Tully B.]

I've heard of a couple of cases of girls "regretting" certain incidents, and to avoid blame from, say, boyfriends, they claim they were raped on the grounds of their being intoxicated. Scary stuff, eh?

 

[SurferNerd]

Absolutely. I mean, given the circumstances, if 'consensual sex' occured- the physical evidence will be there from an internal (although the question of whether girls who were faking rape would go through with this), then it purely comes down to the guy v the girl. Who will the court believe?

Puts young males in a very scary position indeed. What can you do? You can't draw up a contract (no capacity to enter into legally bound obligations)

I mean, you could film the session, but then it would break the telecommunications act

 

[Guesss]

if a guy gets drunk and assaults somebody he's fully liable. If a girl gets drunk and goes home with some guy, she should be fully liable as well.

^^agreed!

 

[incentivation]

Just record any session with a mobile phone.. worked for this bloke in the UK.

Man cleared of rape after court shown phone footage of woman 'actively' taking part in sex | Mail Online

The problem arises here though in that it might breach the Surveillance Devices Act 2007 (although at first glance it is more concerned with installation of optical devices and non-consensual recording of conversations) or S.91J-91M of the Crimes Act relating to voyeurism.

However, I daresay the victim would be disinclined to proceed with that matter after her credibility is shattered..

 

[Uncle]

tdhey ban piss peeeple make moar dtheyr own piss.
they get more pissed on their homemade piss then if they bought piss because they cannot fully conyrtol the alcohol content and porbably made methanol imsytead and blinded them .
so bannidgn piss doesn not work.

 

[Guesss]

Just record any session with a mobile phone.. worked for this bloke in the UK.

Man cleared of rape after court shown phone footage of woman 'actively' taking part in sex | Mail Online

The problem arises here though in that it might breach the Surveillance Devices Act 2007 (although at first glance it is more concerned with installation of optical devices and non-consensual recording of conversations) or S.91J-91M of the Crimes Act relating to voyeurism.

However, I daresay the victim would be disinclined to proceed with that matter after her credibility is shattered..

^^lol at this case!

but how on earth would he have known to record their session?? Lucky he did anyway!

 

[KFunk]

Note in the text of the legislation: 'substantially intoxicated' (whatever that means)

It's a definitely a difficult area of law though. It's hard to set it up, perhaps impossible given that so much is based on hearsay, so that you increase the success rate when prosecuting offenders while sparing innocent individuals.

 

[katie tully]

Just record any session with a mobile phone.. worked for this bloke in the UK.

Man cleared of rape after court shown phone footage of woman 'actively' taking part in sex | Mail Online

The problem arises here though in that it might breach the Surveillance Devices Act 2007 (although at first glance it is more concerned with installation of optical devices and non-consensual recording of conversations) or S.91J-91M of the Crimes Act relating to voyeurism.

However, I daresay the victim would be disinclined to proceed with that matter after her credibility is shattered..

Given the choice of being convicted of rape or breaching the Surveillance Devices Act ... I think I know which I'd prefer.

 

[katie tully]

^^lol at this case!

but how on earth would he have known to record their session?? Lucky he did anyway!

Derrr. He would have been recording it to show his mates the next day.

 

[Guesss]

lmao! True^

 

[bell531]

Just record any session with a mobile phone.. worked for this bloke in the UK.

Man cleared of rape after court shown phone footage of woman 'actively' taking part in sex | Mail Online

The problem arises here though in that it might breach the Surveillance Devices Act 2007 (although at first glance it is more concerned with installation of optical devices and non-consensual recording of conversations) or S.91J-91M of the Crimes Act relating to voyeurism.

However, I daresay the victim would be disinclined to proceed with that matter after her credibility is shattered..

Does this require "consent to film" in order to be admissable?

 

[incentivation]

Does this require "consent to film" in order to be admissable?

It would be a discretionary decision for the court.