Rape if consent given beforehand?

[Curiousdude]

If two people have sex and one of them is drunk, it's considered rape, isn't it? What if the one who was drunk gave consent before they got drunk? Is it still rape then?

[val lavender]

Hi Dude [Dude, where's my car?]

thats an interesting question and not easily answered.

Assuming that there are a man and a woman involved there are several possible scenarios.

If the man consents when sober and then gets drunk there is no rape if it is the woman who gets drunk this is far from clear. On the basis that if a woman withdraws her consent half way through and the man does not stop, then as far as I know that becomes rape.

If a woman consents whilst sober and then gets drunk but does not say stop and is still a willing participant the problem will never arise as she is happy with the situation.

If, however, a woman consents whilst sober, then gets drunk and tells the man to stop and he does not, this would contitute rape.

If she does not change her mind and merely enjoys the act, the problem is never going to arise. Whether this could be construed as "statutory Rape" on the basis that as she is drunk she cannot maintain her consent is a situation that has yet to be explored.

This is the problem with the new 2003 defenition of rape which includes the statement "or is reckless as to her consent". If a woman is drunk, can she be regarded as in a fit state to consent?. There is also the question of the various degrees of drunkeness and the different ways in which alcherhol affects different people.

Given the number of sexual encounters that start with a drink in a ub or a club, or over a bottle of wine it has made the traditional courting rituals pretty hazardous. If taken too stringently I doubt that there is a woman in the UK who would not qualify as being raped at some point in their lives.

It is going to reach the point where courting couples will need to visit a solicitor, take a breath test for alcherhol, a blood test for other substances, sign mutual consent forms and complete the act within a specified time limit - it does rather reduce the sponteniety of the act of making love.


Regards


Val

[Saffron]

Val is right, this is a tricky one.

Technically, and applying the new leglislation in it's most stringent form, a drunk woman is deemed incapable of giving her consent. (personally i find this insulting - i am perfectly capable of deciding who I want to sleep with even after a few beers&#33

It takes a good couple of hours to get drunk, so if a woman gives her consent while sober, something may have changed her mind during the course of getting drunk. Therefore would the consent given 2-3 hours ago still be seen as applicable?

Of course if the woman is so drunk that she is unconscious then it most certainly is rape. In certain states in the US if a woman has sex whilst over the legal drink-drive limit it is deemed to be rape.

I agree that this could in extreme cases this could result in couples signing agreements before entering into sexual activities.

[maria]

my god it sounds like uk is getting like usa and beleive me out there its different laws in every single state what happened to proper love making ? i guess you guys need to rethink before you act, even if it is an innocent one night stand need i say more,
i drum it into my youngest head be very very careful he now thinks i'm well over the top i wonder why

[beckysummer]

unfortunatley whether this is legally defined as rape or not does not matter a whole lot. There is very very little chance that if a woman feels she did not consent when she was drunk but is unsure that it will be approved by the cjs and taken to trial and an even smaller to no chance that this would result in a conviction.

[val lavender]

I know of many cases that have gone to trial simply on the word of one woman, where there has been no other evidence than a complainant statement and nothing to really contest other than the sole isssue of consent.

I think that it is quite likely that a complaint of rape, under the circumstances given, has a high probability of reaching court. The current definition of rape includes the statement "or is reckless" in respect of consent. If a woman is drunk she is not able to give true consent in the eyes of many.

Additionally, in respect of prior consent, if a woman tells a man to stop at any stage, and he fails to do so, this constitutes rape. The problem with this kind of allegation is that there are rarely any witnesses and the jury has to decide who is belived and who is not.


Regards

Val

[Jo]

Infact only 7% of reported rapes make trail, and out of those that do an even smaller percentage are sucessful

This law needs to be put into perspective as far as level of drunkness, I have had sex whilst having a few drinks and not considered that rape, however on another occasion i was extremely ill from alcohol at a party and had sex, i would consider this rape as i had no idea what i was concenting too. a few mintues earlier I was throwing up and lost conscoiusness after gaining consciuosness said man said he would take me too the spare room to sleep it off and that is when he had sex with me.

I think this can only ever be considered rape, but i do blame myself for getting into such a state, i am not sure if my drink was spiked but this can never be considered right,

When considering this law to me the most important fact is the level of drunkness. A few drinks is a very different matter to alchol poisoning.

I should also state I didnt not press charges and even if i had not been drunk i would not attempt to in todays soceity because of the extremely low sucess rate.

[Rights Fighter]

I must be dealing with some of the very few "successful" convictions. So many guys are in prison where the woman has got drunk, had consensual sex and then gone home to hubby or partner with a love bite and had to explain it away. There was a much publicised case a couple of years ago where an airline pilot was accused of the rape of a stewardess in Norway. He was found guilty but appealed successfully.

The truth of the matter was that all staff had had a good drink that night. My "client" had lent his jumper to the stewardess and went to her bedroom to retrieve it. She made advances which he rejected and he left without his jumper. She came down the following morning, handed him his jumper back and joked through breakfast while the Captain was there. No complaint was made. She worked the trip home with no complaint. Her colleagues reported that she seemed her usual happy self. Half way through the week she told a girl friend that she had had sex with M. while in Norway. The "friend" went and told the stewardess's husband so she cried rape.

I don't believe these cases are rare. I know that there are genuine cases of rape and every allegation of a sexual nature should be investigated properly, including the background information. I've known police hide evidence in folders called "not to be disclosed to defence". This is material which would undermine the prosecution case. This often happens when it's older children or teenagers who claim to have been assaulted in bed while they are sharing with siblings or friends. Frequently they claim to have been assaulted but nobody else appears to have seen or heard anything, despite oral "evidence" of screams etc from the accuser. If/when police have questioned the others sharing the same room, if they don't add to the allegations then I've known the negative responses to have been hidden in the folder "not to be disclosed to defence". This happened at a trial I attended at Oxford Crown Court. The copper who did that swaggered into the court room but left with his tail between his legs.

With regard to past sexual history - if the accuser is claiming to be a virgin and it can be proven that she is in fact promisuous, then that evidence should be brought before the court. This is because it would prove she is lying and therefore does not make a credible witness.

RF

[Jo]

In response to the level of false accusations, it sounds sinical but I would imagine that more false accusations get reported than true ones, and this I imagine to be so because those women who truely were raped were too ashamed, hurt and emotionally distressed to make a claim, whereas those indictive women out there to get revenge dont have the emotional and physical scars deal with and so I imagine it is a lot easier for someone making up a story of rape to report it to the police than for true rape vitcims.

However the problem is the exact accusation rate vs actual rape rate can never actually be determined because such a low level of actual rapes get reported and due to the action of selfish individuals out there attempting to get revenge those who are brave enough are not believed.
However although I do agree that lying in court saying a person is a virgin when she is not is wrong and helps to support the defences case that she is a credable witness however just because someone has previous sexual history does not mean they were not raped or are more likely to make false accusations. Bringing a persons history into account on any level other than to discredit them seems completely unjust.

[val lavender]

Hi Jo

I think that you have raised a very interesting point here, one that has many facets that needs careful consideration.

I believe that a woman has the right to dress as she chooses, have as many partners as she wants and should be able to go anywhere without fear of molestation.

What I do not agree with is the practice of denying a certain lifestyle in court proceedings and women making out that they are something they are not.

In terms of defence barristers being able to question women about their sexual behavior, I feel that there needs to be equality in the laws governing this subject.
If one side is to be immune from such questioning, then so should the other.

My opinion is, that the law should be equal. If the accuser is entitled to annonimioty, then so should the accused until found guilty.

I accept that the rape conviction rate, currently around the 7% mark, is very low and needs to be addressed:howwever, if the CPS where to cease their practice of taking every rape allegation to trial, however flinmsy the evidence, we might see a rise in the conviction rate,

There is a very interesting document called" a questionof evidence? investigating and prosecuting rape in the 1990's" available from the home office. It reference number is HORS 196, it can be obtained, free of charge, by ringing 0207 273 2084.

Whilst I have every sympathy for genuine rape victims, and abhor the perpetrators of such crimes, I also feel that too many false allegations are being made, which can have horrific consequences for the accused. A reaseach document produced in the states, by Eugene Kanin, indicates that false allegation rates can be as high as 40%. Every proven false allegation does incredible damage to the crediability of genuine victims.

I wish there was an easy solution to this problem, but given the nature of the crime and the number of possible motives for false allegations, I suspect that the situation will continue to deteriorate until some solution for the problem is found.

There are various options, such as the polygraph, hypnotism and truth drugs that offer possible solutions, but as yet these methods are still in their infancy in the eyes of the law and are far from being adopted by our legal system.

If anyone has any ideas how this problem mat be addressed I would love to hear them


Regards

[scared1905]

its disgusting that by law a women isnt deemed fit to give consent to sex yet its fine for her to drink until she passes out...

what happened to us being responsible for our own actions?

such double standards - i actually for the first time in my life i feel sorry for the men in this world where women can scream rape and still sleep at night.

i have no sympathy for women who do things while drunk and then play victim the next day!

How can a drunken night = putting a man in jail for 5-6 years.

[Rights Fighter]

In many cases it's a lot longer than 5 - 6 years. It's the only offence (or alleged offence) that needs no evidence apart from the word of the complainant.

[scared1905]

cos men lie and women can't?

how is this a just justice system!

[RFLH]

it isn't ........

[friday]

oh if only men did go down for 5-6 years for rape. i think those of you who believe a woman saying she was raped while drunk will result in a man being found guilty ought to step into a court room.

i was raped 2 years ago. yes i had been drinking and smoking weed (we had shared a bottle of red wine and 2 joints). i was 16, he was 23. he took me to a place which was closed off for building works where he knew i would need his help to climb back over the fence. of course because i was drunk i wasnt as cautious as i would normally be (i was only 6.5 stone so got drunk easily). i consented to kissing and didnt stop him from touching me (although i did say no to performing oral sex on him) but after i refused he then raped me, resulting in bruises and grazes to my back and my glasses were scratched. i had photographic evidence of my injuries taken by child protection, a report from a nurse who saw the injuries and who i told about the rape, a statement from a man who met me after it happened and looked after me (because i was wailing in the street).

his defence? I THOUGHT SHE WAS CRYING BECAUSE SHE WAS HAVING AN ORGASM. and she only said to get off because she didnt want to get pregnant and she said it when i'd already finished.

and guess what? he didnt get convicted, it was a hung jury. the only other evidence i could have had would have been a cctv camera.