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Inebriated consent, rape or not rape? (1 Viewer)

loquasagacious

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Well I'm not sure if thats what you were hinting at but under Australian law(s) inebriated consent does not count as consent much like a minor can not legally speaking consent.

And as a matter of pedantics in NSW there is no crime of rape only varying degrees of sexual assualt.
 

==GUMBY==

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loquasagacious said:
Well I'm not sure if thats what you were hinting at but under Australian law(s) inebriated consent does not count as consent much like a minor can not legally speaking consent.
ROFL, does that make me a sexual predator considering i've engaged in intercourse with my girlfriend while intoxicated?
Something is not rite....
 
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xeuyrawp

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Yes, it should be considered rape.

Put it this way; a boy can be only slightly older than a girl and still 'rape' her, yet nothing is done. Nothing is done because a numerical figure has to be assigned to age-of-consent for the law to work, otherwise a 40 year old man having sex with a 15 year-old girl is no 'worse' than a 18 year old man having sex with the same girl.

If the 15 year old girl and her family feel that she didn't think it through, they can press charges; but they usually wouldn't.

Same applies to being inebriated -- don't pretend that, if you have consentual sex with a drunk person, you are going to be thrown in gaol. You would only be thrown in gaol if that person said 'wait a minute, you knew I wouldn't have ordinarily had sex with you. I'm going to get the police.'

Edit: The legal expert says you need 'something positive'. Does this mean that you need to give consent, rather than say 'no'?
 
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Frigid

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iamsickofyear12

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Alcohol does not create new emotions it just brings out what is already there.

Most people, deep down, want to have sex with certain people but make a conscious effort to avoid it for whatever reason. If you drink too much and forget about that conscious effort then that is your problem and no one elses.

But then again, if someone is completely smashed and consenting you have to be pretty pathetic to actually take up their offer... unless they already consented before drinking too much, they are your girlfriend/boyfriend or you are as drunk or more drunk than they are.
 

mr EaZy

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Frigid said:
gumby, have a read of the following:

s61H - definition of sexual intercourse
s61I - sexual assault
s61R - consent
s428D - intoxication

R v Banditt [2004] NSWCCA

as someone said in the other thread i made on this news item, it does not have any implications for new south wales law. and also, the crime of sexual assault focuses on whether the alleged offender knew of the lack of consent, not the circumstances in which consent was given (except s61R, which are circumstances of vitiation).

Exactly!

Or where the offender was oblivious to the possibility of the other person not consenting

so like if the other person is drunk... oh yeah someone in that article (hope i read it right) said that drunken consent is still consent. is that correct?

but when ur totally wasted and wake up with a hang over the next day- you have no idea what you did last night. Anyone watch merrick and russo with them black boxes ?? :cool:
 

Frigid

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mr EaZy said:
so like if the other person is drunk... oh yeah someone in that article (hope i read it right) said that drunken consent is still consent. is that correct?

but when ur totally wasted and wake up with a hang over the next day- you have no idea what you did last night. Anyone watch merrick and russo with them black boxes ?? :cool:
reconsidering the issue, i would think this is how it would be decided in NSW:

under s428D, the self-induced intoxication cannot be taken into account for whether he had the requisite mental element. thus, his actions/omissions would be read as if he had been sober.

the mental element of sexual assault is two things: intent to have sexual intercourse (as defined in s61H) and knowledge of non-consent OR recklessness as to consent. to be sufficient, the recklessness has to be subjective advertence of non-consent (Morgan), or inadvertence of consent (ie not even turning one's mind to the question of consent) (Kitchener, Banditt).

i agree with the trial judge in Banditt, when he said this while directing the jury. i think it applies well to a case of an intoxicated consenter. in Banditt, the complainant was in a half-asleep state and the issue was whether the appellant was reckless.
"Right, now the question you asked was whether it could be construed as consent if a woman, in a sort of half awake condition, non-verbally reacted in such a way as to appear to accommodate sexual intercourse, or words to that I think, and I said ‘no, that’s not consent’. That’s not consent for two reasons: it’s not a conscious decision, willingly, to co-operate in an act of sexual intercourse and or, perhaps these are alternatives, it may be a co-operative state brought about by a belief, for example, that the sexual partner is somebody else. A mistake about the identity of the person with whom one is engaged in sex vitiates consent. There can be no consent to sex with the actual person if the apparent consent is brought about by this misunderstanding. So that’s why it’s not consent. The question that you framed."
in para 92 of James J's judgment, his Honour said this:
I would accept that, in order for an accused person to be liable on the basis of advertent recklessness, the possibility that the complainant is not consenting, of which the accused is aware, must be more than merely a bare possibility. In other areas of the criminal law where criminal liability depends on awareness or contemplation by an accused person of a possibility, it has been held that the possibility must have a certain degree of likelihood... However, if an accused person is aware of a real possibility that the complainant does not consent to sexual intercourse, he acts recklessly if, having that knowledge, he decides to proceed to have sexual intercourse, even if he considers it probable (although ex hypothesi not certain) that the complainant does consent to sexual intercourse.
why the fuck am i reading crim after the exams are over i don't know.
 
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mr EaZy

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i think the issue in the british case in question is whether the AR actually existed.

the AR involves having sex without the other person consenting. So does a drunken consent ammount to actual consent?

some people think 'yes' others say 'no'

this is what we ought to be discussing- my mind is not made up yet.... after my exams everything i knew about this stuff just dissapeared. and besides - i never read brown's book (the orange one).
 

Serius

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good luck getting a conviction, only about 4% of rape cases result in a conviction, thats like full on real, dark alley-grabbing sort of rape. now add to it that you were drunk and consented... your new chances of getting a conviction against him have now reached zero.

i feel that alot of people use alcohol as as excuse to do things like party harder, cheat, get with that person they have been wanting to but havent yet, table dance etc. and then the next day, if they face some sort of critisism for their actions " Oh! i was just drunk LOL!!!!" or they claim they dont remember it.
now some sort of verbal consent implies that the person also had the ability to verbally provide non-consent i.e if they can say yes, it should be just as easy to say no.

that said, iam sure there are alot of border situations where the girl is consious but barely. and the bad man decides to have a go... its not quite date rape cause she is still consious, but it isnt quite normal rape because she is so drunk doesnt know wtf is happening = fails to tell him to stop or other form of non-consent.

iam going to swing towards if you are drunk, its not an excuse and if u consented than it counts... if you are so drunk that the boarderline daterape scenario comes into play, than you are a fool for getting that drunk in the first place.
This all assumes the person was getting drunk of their own accord and dint have their drink spiked or what not...otherwise its assult[ i think]
 

malkin86

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mr EaZy said:
the AR involves having sex without the other person consenting. So does a drunken consent ammount to actual consent?

some people think 'yes' others say 'no'
It would be safer to say 'no', I believe.
 

Guzak

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Of course it is rape,
Under section 74 of the Act, a person must have the “freedom and capacity” to give consent.
If she cant remember giving consent then she obviously didnt have the capacity to do so.
The judge should be shot.
 

Serius

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no, it just meant that she cant remember if she had the capacity to give consent

the capacity implys having the abiltity to say yes, not many people are so drunk that they cant say a single word, and yet are concious[if they were unconcious it would be rape]

just because she regrets being under the influence and thinks she made a mistake, and a bad choice whilst under the influence, doesnt mean some guy should go to prison for rape, its her own damned fault if she gets so drunk that she cant make a rational decission and then hey guess what? she consents to sex that she wouldnt normally. getting smashed off your face, especially when you dont have friends waiting around to protect you is a trainwreck waiting to happen. unfortunate? yes. unforseeable? no.
 

Xayma

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Although if both parties are drunk, you would have to show who initiated the sexual act, since both parties would then not be of sound mind to issue consent.
 

Serius

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Generator said:
It's always the woman's fault, isn't it, serius?
no in a consenting [ even while drunk] situation, there is no 'fault" exactly. The woman may regret the situation afterwards but she cant be blamed for making a stupid decission whilst under the influence. morally the male is at fault because he has a respsonability to assess the situation and make sure that its something the woman wants - even if the male only does this to avoid being accussed of rape afterwards.

In rape sitations, how can the victim be at fault? even in the most likely situation, like a hot girl running around naked, goes through a dark alley, offers sex to a gang leader and then changes mind and says no... even then, it is the male who is at fault... the difference is that after rape, punishment will not erase the event... so it is much better to not put yourself in compromising situations [ any1 watch first episode of veronica mars? prime example] and never have to go through it, rather than hoping that they will do what is right and not sexually assult you.

Its like puting a gold necklace in the middle of the street... it is wrong to steal, but putting it in harms way is a trainwreck waiting to happen... it is cleary forseeable that someone will steal it... this does not mean the victim " had it comming to them" on the contrary, the offender should have done what is right[escort the girl home maybe] but that does not mean it is unforseeable that a compromising situation results in a negative outcome for you

how about another one... i dont go walking up to gangs and verbally abusing them. why? cause they will beat the shit out of me and probably kill me...sure its wrong to assult me and they will probably end up in prison for their crimes, but i would much rather just avoid the situation at all..... to clarify though, even if i did walk up to a gang and swear at them, it does not mean i had it comming or that they are justified in any way.
 

Generator

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So in other words, women (and men) are just to ignore the fact that as a society we still cannot respect women as is their right? I take it that rather than change social attitudes, women are meant to just account for the pathetic thoughts and actions of others?

As far as I'm concerned, you're just rationalising in favour of an inadequate status quo, serius, and your language still leaves much to desired.
 
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Serius

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yeah your right, the world is a fucked up place. i preach realism, not optimism, we shouldnt ignore that fact, but i dont think it is that strong of a fact..plently of men respect women and for those scumbagsthat dont, its not exactly their attitudes to women that is the problem but more their attitude to life. Society today seems to promote looking out for number 1 alot more than it used to. That translates to the aforementioned scumbags outlook on life, who think something along the lines of " Well she agreed, and i dont give a fuck about her afterwards, so iam just going to do what gives me the most pleasure and not look out for her wellbeing"

Its like that guy, forget his name, he goes around to schools and teaches girls how to defend themselves, useful verbal attacks to use to put down upfront men [ i remember somethign about the man is a dog imagery] and how to escape from holds, to ight back in rape situations etc... thats realism, there is a problem, he ackowledges it and teaches girls how to deal with it.
I think that any self respecting woman Should try to anticipate and prevent the "pathetic actions of others", not account for it. its one thing to avoid danger and another to excuse those who cause it, but the fact remains that there IS a danger and those worldly wise enough to recognise it should take steps to avoid it... which i give credit, alot do... e.g at clubs you dont see women drinking from unatended glasses again very often.
 

malkin86

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Generator, as long as we seem to be considering realism/optimism/chauvinism etc. would you say that the law tries to uphold and protect the ideal in this circumstance? (that would be, no-one should have to go through rape, and that no-one should be unjustly accused of being a rapist)

Serius, if a young girl today has the responsiblity to learn how to protect herself in these circumstances, does not a young boy today have the responsibility to respect women enough not to have sex with them when they're vulnerable / to doublecheck that she actually wants it, and hasn't changed her mind?
 

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