Recent Rape Poll In The Uk?

Discussion in 'Women's Self Defence' started by Grizzlygrime, Nov 21, 2005.

  1. Timmy Boy

    Timmy Boy Man on a Mission

    Fair play, but he did claim to work in a job that involves some kind of legal knowledge. As such he should know how to cite cases.
     
    Last edited: Nov 23, 2005
  2. WingChun Lawyer

    WingChun Lawyer Modesty forbids more.

    I find this quite strange, from a legal point of view. I believe the whole consent/dissent/mistake issue boils down to:

    1) There was consent, no crime.

    2) There was no consent and the man knew or had good reason to knew that, there is a crime.

    3) There was no consent but the man had reason to believe there was (when the lady at first consents but suddenly changes her mind and fails to communicate it properly, usually). In that case, as it is the victim´s fault that she failed to properly communicate her change of mind, there should not be a crime.

    In Brazil, our courts demand that dissent must be expressed FIRMLY AND SERIOUSLY to characterize rape, either in gestures, words or other means. Now, of course this does not rule out threats and such as means to commiting rape, but in dubious situations it is deemed necessary that the victim expresses her dissent without leaving any reasonable doubts.

    Again, this is only an issue when there was consent on the beginning of the intercourse, so kindly refrain from flaming me or the brazilian courts. The goal is only to avoid convicting someone because his partner changed her mind without informing him of that, as that would not be fair or reasonable.

    So I do find it strange that a male who had reason to believe he had the woman´s consent should be convicted. Or am I reading this wrong, Timmy? What does "would consent to sexual intercourse" mean in that context?
     
  3. Timmy Boy

    Timmy Boy Man on a Mission

    This is only to do with sentencing. It has no bearing on whether or not there is a conviction or acquital.

    Again, it's a question for the jury whether or not consent was given. I imagine the prosecution would have a very hard time trying to prove that consent, once given, was effectively retracted if this wasn't communicated to the defendant.

    I would assume this means that, in the aforementioned situation where the victim gives the defendant the come-on and then decides once it's already going on that she doesn't want to do it, the fact that she had up until that point given him consent means that his sentence can be mitigated.
     
    Last edited: Nov 23, 2005
  4. jonmonk

    jonmonk New Member

    I was drawing a parallel between his and my own experience. I wasn't saying that the only way of looking up court cases was to look at the news.

    No I didn't. I said that I understood his reasons for not wanting to get into a public debate about a specific court case on a public, world-wide internet forum when he wasn't entirely sure whether the information he was giving was in the public domain or not. This does not contradict me saying that he should then provide links to court documents where the information is known to be fairly and legally represented.
     
  5. Timmy Boy

    Timmy Boy Man on a Mission

    Law reports ARE in the public domain. They have to be, otherwise they would be secret law. No-one said anything about debating the outcome of a case or giving his opinion on whether it was right for one of the victims to be convicted. All we asked for is an authority to support his argument that you can be convicted of rape - and receive a life sentence - if you accidentally ejaculate inside someone.
     
    Last edited: Nov 23, 2005
  6. jonmonk

    jonmonk New Member

    I know. That's why we're all asking for the links.

    If it was simply opinion it'd probably be fine.

    Which is all I asked for too.
     
  7. Timmy Boy

    Timmy Boy Man on a Mission

    Then why are you talking about the news reports and the public domain?
     
  8. WingChun Lawyer

    WingChun Lawyer Modesty forbids more.

    Timmy

    1) This is only to do with sentencing. It has no bearing on whether or not there is a conviction or acquital.

    I see. I still find it weird, it does seem a bit like the "shared blame" I referred to some posts ago.

    2) In the UK, positive dissent need not be proved - R v Olugboja. Whether or not consent was there is a question for the jury, but following that case, they must be directed that mere submission does not necessarily amount to consent.

    That all depends on the circunstances, of course, and submission certainly does not equal consent. But in many circunstances, at least in Brazil, firm dissent must be stated by the victim, even if it cannot be positively proved.

    This is directly related to the nature of the crime: rape is not usually commited in front of witnesses and such, so many times it boils down to a he said/she said discussion. In those situations, when there is no material evidence to bring to court, the victim must at least STATE that she communicated dissent firmly, if the situation was dubious, otherwise the defense may argue there was a justifiable mistake ("erro de tipo plenamente justificável", in portuguese); the male had good reason to believe he was not incurring in criminal behaviour, so he must be acquited.

    3) I would assume this means that, in the aforementioned situation where the victim gives the defendant the come-on and then decides once it's already going on that she doesn't want to do it, the fact that she had up until that point given him consent means that his sentence can be mitigated

    The same would apply here. What interests me is the possible mistake on the part of the "attacker", as I said above.
     
  9. Timmy Boy

    Timmy Boy Man on a Mission

    I had a closer look at the case, and this is the relevant quote from Lord Lane:

    "The fact that the victim may be considered to have exposed herself to danger by acting imprudently (as for instance by accepting a lift in a car from a Stranger) is not a mitigating factor; and the victim's previous sexual experience is equally irrelevant. But if the victim has behaved in a manner which was calculated to lead the defendant to believe that she would consent to sexual intercourse, then there should be some mitigation of the sentence. Previous good character is of only minor relevance."

    Since in the UK positive dissent need not be proved - merely the absence of consent - I believe Lord Lane was referring to where a woman is being deliberately manipulative, leading the defendant to believe he has consent to sexual intercourse even though she hasn't actually given him consent.

    I think this was cleared up in the edit in my previous post. We're along the same lines.
     
  10. WingChun Lawyer

    WingChun Lawyer Modesty forbids more.

    1) Hm, strange. Tell me, does that "calculated manner" referred to in that case lasted until the end of the sexual intercourse? This is the crucial point, as I see it. If it did, I see no reason to convict the fellow; if it didn´t, then it might be reasonable to reduce his sentence, but I still think that would be akin to shared blame.

    Incidentally, as I said, positive dissent need not be PROVED here either, as that is close to impossible when there is no material evidence, but it must usually be alleged by the victim in dubious circunstances.

    2) I suppose so.

    Incidentally, sorry if I seem to be splitting hairs on this issue, but I have been studying mistakes according to brazilian criminal law, and I am interested in comparing them to the similar institutes you probably have in the UK. See, in Brazil, when you commit a crime based on a false perception of reality, according to which you were not actually commiting a crime, our law acts like this:

    a) If that mistake was reasonable (or acceptable), you are acquitted.

    b) If the mistake was not reasonable (unacceptable), you are convicted if and only if said crime is punishable as an unintentional crime, and then you are only convicted of the unintentional crime. So if you kill someone believing you are acting in self defense, for instance, you would be charged with unintentional killing, not murder.

    Since there is no unintentional rape predicted in our criminal code, the guy who had reasonable reason to believe he had consent would be acquitted even if the mistake was not reasonable.

    Now, this is not as bad as it sounds, because it will be pretty hard to convince the judge that she only said "No" once when she says she said it at least three times with a firm voice - the burden of proof would fall on the defendant on this case, as I said.
     

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