Fucking hell, I agree with Harriet Harman. And she actually sounds rather likeable here. I must be going through an early mid-life crisis or something.

Also, props to Yaqoob for standing down over Galloway’s bullshit, but that should go without saying.

Harriet Harman gets it.

We don’t want the Lib Dems within a mile of Labour.
Salma Yaqoob is welcome to join the Labour Party if she so chooses.

And when you have somebody high profile in the public domain who promulgates the idea that people who report a rape are more likely than not to be making a complaint that is unfounded – that has a terrible effect on people’ preparedness to report.”

I am not sure that is a bad thing, why should we give a damn about people’s preparedness to report? Encouraging everyone to report everything is a sure way to get a lot of unfounded, or at least unprovable, claims.

What matters is the evidence. And I am not sure GG does not have some evidence on his side.

She said that Salma Yaqoob’s criticism of Galloway “was important”. …. She seemed to indicate that the party would find it difficult find a reason to reject Ms Yaqoob from joining Labour if she wished.

Sure it is important. To winning over the sectarian and ethnic vote for the Labour Party. Is it important for the rest of us? Not that I can see. Yaqoob has such a history of vile opinions and statements that I can’t see her continued involvement in British political life as a plus for anyone.

And of course people are assuming she resigned over the rape comments. Given her politics I doubt this. After all, she has had no problems with people who say it is only rape if you have four adult males to witness it in the past. Presumably this is just the best way to spin what has been a long estrangement over the fact Respect is going nowhere and she wants an official car and a nice government pension at the end of it.

why should we give a damn about people’s preparedness to report?

Because we want to catch rapists, dimwit.

Harriet Harman, eh? – http://davidaslindsay.blogspot.co.uk/2012/09/the-hypocrisy-of-harriet-harman.html

An olive branch if ever there was one. “We welcome Selma and all the people she brings with her.”

I’m happy enough with it as long as it doesn’t lead to the special treatment faiths received under Blair. It’s one of the areas in which I’d like to see New Labour policies being reversed.

I am not sure that is a bad thing, why should we give a damn about people’s preparedness to report?

Because rape isn’t something we should be neutral about.

““We always are actually looking for extending membership of the party and bringing people to us. People views do change over the years, but we don’t have a special policy for her.”

To be blunt, political parties as a whole shouldn;t be waiting for talented people to join them – they should pro-actively headhunt individuals that have demonstrated capability and value to other organisations. Whether this be as potential elected members to be fast tracked into miniterial positions, or merely decent web-designers who could do a better job, it amazes me that political parties are still so amatuerish in recruitment.

Good for her!

@ 3 SMFS

“What matters is the evidence. And I am not sure GG does not have some evidence on his side.”

Yaqoob stepped down because Galloway said that it’s not rape to have sex with a sleeping woman without her consent.

I’d love to know what “evidence” you think there is for that.

Politics…rape….power seeking on various stratums.

Not able to differentiate between the froth that speweth from lab, lib or con.

”…there are a whole loads of people who have been raped who are anguishing about whether to report it, with a fear and foreboding they won’t be taken seriously.”

That may because the definitions of rape have changed in recent years.

This rape debate is demeaning to women.
The current debate over the law on rape rehabilitates the Victorian view of women as helpless victims.

http://www.spiked-online.com/index.php/site/article/8319/

It might be good to start out at what HH is actually saying.

From that article:

More than four out of five rape allegations are made against friends or acquaintances. As alcohol and/or drugs were involved in over half those cases, Cavendish puts this down to ‘the culture of binge drinking’. But this avoids the more complex picture. Today, various rape-awareness activists and state feminists are themselves helping to blur the boundaries between sex and rape, encouraging women to regard themselves as violated, abused and traumatised for having gone to bed with a man without thinking it through in minute detail.

Is LC up to the task of such a discussion though?
As that’s from Spiked (which has NO credibility here at all) I don’t think it is.
It’s just too controversial a view to take on.

Maybe it’s just largely bullshit, damon, and we’ve been through it all before.

Yep. Spiked are basically attention seekers who wouldn’t understand the idea of ‘research’ if it was tattooed on their eyes. Their MO is to basically:

(1) take an opinion that has a consensus across the left, (2) make sure it isn’t an opinion equally strongly held by the authoritarian right,
(3) offer a contrary view and declare that the real reason nobody agrees with them is fear.

The only reason they have yet to write a piece advocating reducing the age of consent to 6 is that it would offend the authoritarian right as well as the left. The last time they did that – by claiming that attrocities in croatia were faked – they lost a lot of money and so have learned their lesson.

Brendon O Neil is just basically a white middle class Anjem Choudhary.

So Yacoob got into a metaphorical bed with gorgeous george and had a bad experience, eh?

In the meantime it’s a win-win situation for harriet – an opportunity to disparage Galloway while earning brownie points for anodyne observations about rape.

@damon #12;

That may because the definitions of rape have changed in recent years.

Nope; still the same defition in all relevant respects.

What a shame. Salma Yaqoob imprisoned in the party of war. Harman wants it to look like Labour are sorry for the war and the 100,000 dead Iraqis that could now be participating in the Arab Spring if Blair hadn’t killed them by taking in Yaqoob but in actual fact it is Salma who will be required to repent her opposition and denounce the man most recognised with opposition to it rather than the other way around.

No, New Labour will have to actually apologise and reinstate George Galloway before I’ll believe that the New Labour leaders are sorry about the war.

@David Ellis – its worth pointing out that Salma Yaqoob is still currently not associated with Labour. It’s just that Labour ‘would find it difficult to find a reason to reject her should she apply’, which somewhat implies that they’re perhaps not quite so keen on having people join whom might rock the boat a bit.

@18 – I suspect it’s more the case that they would quite like her to join as it would send a message that they recognise that Iraq is still an image problem for them, and Salma joining labour would solve that one at a stroke without the need for a formal apology.

No, New Labour will have to actually apologise and reinstate George Galloway before I’ll believe that the New Labour leaders are sorry about the war.

Yebbut then they’ll have to apologise for reinstating Galloway.

No, New Labour will have to actually apologise and reinstate George Galloway before I’ll believe that the New Labour leaders are sorry about the war.

No chance. And I hope they don’t either. It would lead many to leave Labour.

@16. Robin Levett.
There has been a major change: in the Sexual Offences Act 2003.
http://en.wikipedia.org/wiki/Sexual_Offences_Act_2003

Also ukliberty and Planeshift. It’s very easy just to ”spout that” and blithely ignore the detail of their arguments. It’s what LC always does. Maybe it’s just an ‘oil and water” kind of situation where different political ideologies can’t converse with each other. And LC is always going to be with the Harriet Harman mainstream on this, because to be otherwise is to be ‘outside the safe zone’ (so to speak).

The way I read it, this seems to have some merrit:

”The Sexual Offences Act 2003 declared that consent must be ‘active, not passive’; in rape cases, consent is now taken to mean agreement rather than the absence of a refusal. So if a woman goes along with sex, but doesn’t make it explicitly clear that she is actively consenting to it, it can be deemed to be rape. The government has even moved towards ensuring that no agreement can be taken as consent if it is given under the influence of alcohol. As Cavendish pointed out: ‘In our zeal to protect women, are we going to legislate so that a drunken man is accountable for his deeds, but a drunken woman is not? Why do we encourage women to see themselves as victims?’ Absolving women who engage in sexual liaisons – whether drunk or sober – of responsibility for their actions is not liberating; it’s demeaning.”

But maybe that’s just Spiked ”contrarian claptrap”.
Personally I think there is much to discuss in the way that some strands of feminism differ from others.
Like this woman found out when she went to university.

When Katie Roiphe arrived at Harvard in the fall of 1986, she found that the feminism she had been raised to believe in had been radically transformed. The women’s movement, which had once signaled such strength and courage, now seemed lodged in a foundation of weakness and fear. At Harvard, and later as a graduate student at Princeton, Roiphe saw a thoroughly new phenomenon taking shape on campus: the emergence of a culture captivated by victimization, and of a new bedroom politics in the university, cloaked in outdated assumptions about the way men and women experience sex.

http://www.amazon.com/Morning-After-Sex-Fear-Feminism/dp/0316754323

But as you say ukliberty, maybe you’ve done all this before.

@David Ellis #17:

No, New Labour will have to actually apologise and reinstate George Galloway before I’ll believe that the New Labour leaders are sorry about the war.

Why on earth would apologising to and reinstating Galloway say anything about NuLab’s attitude to the war, as opposed to Saddam Hussein?

@14. Planeshift: “Yep. Spiked are basically attention seekers who wouldn’t understand the idea of ‘research’ if it was tattooed on their eyes. Their MO is to basically:

(1) take an opinion that has a consensus across the left, (2) make sure it isn’t an opinion equally strongly held by the authoritarian right,
(3) offer a contrary view and declare that the real reason nobody agrees with them is fear.”

That is a good starting for criticism or analysis of Spiked. But their recipe works on occasions: Frank Furedi constantly has a go about how society is overly protective of children and denies them the ability to fall out of trees, or to make similar mistakes in life.

Spiked is correct *on occasions*. I like the idea of a magazine with contrary opinions. I’d run a mile away in three minutes from anyone who believed in Spiked.

@damon #22:

But maybe that’s just Spiked ”contrarian claptrap”.

Yuppers.

The 2003 Act made no difference to the basic definition of rape; sexual intercourse without the consent of the victim, with the defendant knowing or reckless as to that lack of consent. Same before as after.

The definition of consent hasn’t changed either. Evidential presumptions as to consent have; but what was not rape before 2003 remains not rape. Whether it could be proved as rape before 2003 – there’s the rub…

Don’t believe everything you read in Wikipedia; or, perhaps, accept that it can sometimes be, at best, sloppily worded (or at worst simply wrong).

But maybe that’s just Spiked ”contrarian claptrap”.
Personally I think there is much to discuss in the way that some strands of feminism differ from others.

I’m not sure there’s any strand of feminism which believes it is okay to have unprotected, non-consensual sex with someone while they are unconscious.

Eion CLarke, I was part of Harriet Hramns deputy leader cmapaign team, i don’t know where you get teh idea that ‘Salma Yaqoob is welcome to join the Labour Party if she so chooses’, as the labour party has to have baords to decide wheter people from other parties can join, and Even harriet didn’t say she could,I don’t spea for the boards that decide whether she can join, but if it’s true she said the 7.7 bombers where freedom fighters I’d do all I could not to have her in the party,

regarding Julian assange, at the end of the day they are still only allegations of sexual assualt ,not rape, and they are allegations he hasn’t been charged let alone found guilty, if on the evidence galloway has been shown, hefeels it’s nopt rape then he has as much a right to do this, as to Harman saying that people accused of rape shouldn’t have anonminity,

21 sunny for once i agree

david lindsay, Link, I agree , Harriet was basically saying that alothugh men (teachers) falsely accsued of rape ,may allegedly hae their lives ruined even when they’re cleared, it’s better that they’re publicly put in the spotlight, because fi they’re not then girls who are groomed won’t come forward, and they won’t be take seriously, I can’t think of a case where a male flasely accused of sexual assault and had his anme in the dirt wouldn’t have been put in that situation and that female would have been to scared to coem forward, had he been given anominity,

Salma is welcomed as long as she doesn’t stand as a councillor or MP! She did a damm poor job in Sparkbrook where she was a councillor. I seriously doubt the people of Sparkbrook would re-elect her as she let them down.

@ Charlieman

I found this handy guide to the Spiked method on a comments thread once:-

1. [Subject] reveals a contempt for the working classes.
2. [Subject] is thinly disguised misanthropy.
3. [Subject] is merely an exercise in liberal self-congratulation.
4. [Subject] encourages a culture of victimhood.
5. [Subject] shows we’re governed by alarmist scaremongers.
6. [Subject] is an attempt to censor dissent.

31. Rosie: “I found this handy guide to the Spiked method on a comments thread once:-
1. [Subject] reveals a contempt for the working classes.”

Being a commoner, a grammar school kid, I have commoner and grammar school kid standards. On this occasion, expectations collide.

4. ukliberty

Because we want to catch rapists, dimwit.

But justice is about more than just catching rapists. Even if we assume that encouraging more people to report what they think is rape will help catch more rapists. It is also about not imprisoning innocent men – like the US man imprisoned for a decade before his daughter confessed she made it all up – no charges because the police want to encourage others to report. It is also about not wasting the Courts’ time. Encouraging ever weaker cases is likely to do that. And so on. Nothing takes place in a vacuum.

7. Shatterface

Because rape isn’t something we should be neutral about.

And we aren’t. So what relevance does your comment have?

Especially as we know people are encouraged to report rape so that other people can turn around and say that an ever shrinking percentage of people are convicted, so that the laws need to be changed even further to further criminalise what had up to now been legal behaviour and thus weaken our civil liberties.

10. Chaise Guevara

Yaqoob stepped down because Galloway said that it’s not rape to have sex with a sleeping woman without her consent.

No, she said she stepped down because Galloway said that. Given her politics we know this is nonsensical. Yaqoob has openly supported people who deny marital rape even exists and require four adult male witnesses for years. She had no problem with it then. According to a large number of her colleagues in Respect it isn’t rape. No witnesses. This did not bother her up to now.

I’d love to know what “evidence” you think there is for that.

The FBI says that up to 40% of rape accusations may be wrong. The Innocence Project has some worrying things to say about rape convictions.

@ SMFS

“No, she said she stepped down because Galloway said that. Given her politics we know this is nonsensical. Yaqoob has openly supported people who deny marital rape even exists and require four adult male witnesses for years.”

I don’t know much about the woman, but I’d caution against assuming people share the politics of their bedfellows.

“The FBI says that up to 40% of rape accusations may be wrong. The Innocence Project has some worrying things to say about rape convictions.”

I’m concerned about this myself, but it’s a different issue. Having sex with someone who hasn’t given consent remains rape even if they’re asleep, legally and morally. It’s more complicated on a case-by-case basis, because there’s room for honest confusion over consent and so on, but Galloway’s blanket statement was incredibly stupid.

Re 27 “but if it’s true she said the 7.7 bombers where freedom fighters I’d do all I could not to have her in the party”

It’s completely untrue. She actually described the bombings as “murderous and immoral”:

http://www.salmayaqoob.com/2010/07/remember-77.html

Re 30 “She did a damn poor job in Sparkbrook where she was a councillor. I seriously doubt the people of Sparkbrook would re-elect her”.

They did re-elect her, and with more votes.

“New Labour will have to actually apologise and reinstate George Galloway ”

We’ll get right on that for you.

@john reid #27:

regarding Julian assange, at the end of the day they are still only allegations of sexual assualt ,not rape,

[groan] Not again…

No, they are allegations of rape; I believe that the courts of the UK have the last word on that issue, not some anonymous commentator on the Intertubez.

” blithely ignore the detail of their arguments. It’s what LC always does”

No, on occasion somebody can be bothered to cite endless realms of published research that demonstrates they are wrong. But as the usual response is to say something along the lines of:

“this just shows you are afraid of being outside the mainstream”

it kind of confirms that debating with deliberate contrarians is largely a waste of time. Just because you are a polite troll capable of using big words does not make you any less of one. At least SMFS actually believes what he writes…

The reason people here tend to hold different opinions to your own Damon is really not that we are afraid, it is that we don’t agree with you. And holding the view that it is only fear that prevents your own views being mainstream is kind of a little narcissistic isn’t it?

(and if one of Spiked’s views ever became widely held, they would simply change their mind anyway)

Oh, isn’t she brave? Typical patronising stuff that’s always directed at women as if they were delicate flowers forever at risk of wilting in the manly heat of politics.

That’s great Planeshift and Rosie. It’s like trying to argue with a pint of milk. ”You don’t like them” is all I can pick up. And that is always the way here.
LC just loves all this ”direct action” politics and 99% nonsense, but try to make a constructive argumenet against it and it’s like tumbleweed blowing across the prarie. And the riot in Spian was ”epic” – but no explaination or analysis as to why.

IMO there is a great deal to discuss about the kind of thing that Harman said, as it was so loaded with a certain kind outlook on sex crime. If you bothered to look at the various Spiked articles going back over a decade (and from their previous incarnation pre-Spiked days) you will see a fair bit on this subject.

Like this from March 2001, which was about a government report called ”Setting the Boundaries”.

Who sets the boundaries on sexual behaviour?
Rape has historically been seen as a crime of violence. Now, a UK government consultation proposes a focus on the issue of consent. But how can consent be defined?

http://www.spiked-online.com/site/article/11826/

But of course, rather than engage with actually what they say (even if it is terribly wrong), what happens is people just say ”blah blah blah – more rubbish from the contrarians.”

Which I must admit, has left (not so bright) me, a little confused over the years. As it’s just not LC where I have found this ‘brick wall’ approcah.

Setting the boundaries, proposes that sex crime should be seen as a breach of individual freedom of choice, rather than as a crime of violence. The recommendations make no mention of violence, and instead concentrate on the concept of consent. The reviewers ‘thought that rape and sexual assault are primarily crimes against the sexual autonomy of others.…[They] concluded consent was the essential issue in sexual offences, and that the offences of rape and sexual assault were essentially those of violating another person’s freedom to withhold sexual consent’

When I read people slag off Spiked without really saying why, and then read (the really excellent) Duleep Allirajah’s take on the John Terry racism case, I have to go with him. Because he spells it out and is so right.

”The FA’s anti-racist kangaroo court”
http://www.spiked-online.com/site/article/12916/

LC, (if they ever covered that story), would be going along with all the platitudes that the Spiked guy is showing up to be useless.

And Rosie, remember the ‘one a week’ EDL scare stories from Jai on Pickled Politics, which he banned me from commenting on.
That in itself shows some lacking in judgement at moderator level. The stories were mostly rubbish and silly and lacked any depth of perspective.

And how on earth would LC discuss this story?

Don’t criminalise teen relationships.
The sex life of a teenager can be weird, but the plan to treat it as a potential site of domestic violence is bonkers.

http://www.spiked-online.com/site/article/12905/

With horror no doubt. Because the basic premise is too scary and controversial. That teenagers shouldn’t be treated like adults. (Terrible isn’t it?)

Also ukliberty and Planeshift. It’s very easy just to ”spout that” and blithely ignore the detail of their arguments.

I didn’t ignore the article you linked to; I read it, considered it and concluded it’s largely bullshit.

But as you say ukliberty, maybe you’ve done all this before.

The article was published in 2010, so it’s not unlikely.

Damon, have you read the Stern Review?

No I haven’t ukliberty, only media articles about it like this Guardian one.
http://www.guardian.co.uk/society/2009/dec/14/stern-review-rape-laws-alcohol
So you’ve got me there.

It’s a bit hard to really have these internet exchanges though when one is largely unaware of the detail of people’s objections.
If any bad sexual encounter is going to be flagged up as needing investigating by the police, then maybe the Spiked people have got a point. Whether that is the kind of thing Harriet Harman is talking about I can only ask. There are all kinds of figures about the percentage of women who have been the victims of sexual abuse. Some of the figures are very high, as any kind of unconsented sexual touching can be deemed to be a criminal offence. Even if it was the lad you got off with and were snogging, fell asleep and then found out you were sexually touched in your sleep.
Which is indeed unpleasant perhaps, or nothing much … depending on how you look at these things.

At least the Spiked people have a go at delving into this area, while Ms Harman just goes with the most ”mainstream line”. Which we can see from the ”racism in football line” – is often BS.

As for the people who slag off Spiked without really saying why…. I’m going to go with this until otherwise shown the error of its argument:

On rape, George Galloway has a point
Ignore feminists’ shrill attempts to demonise critics – we need an honest debate about the meaning of rape.

http://www.spiked-online.com/site/article/12799/

Btw, I wish people on LC would be as forthright in giving their opinion on this kind of daftness which is promoted on LC all the time.
This film got the LC seal of approval from the mods … and it’s stupid.
http://www.youtube.com/watch?v=AzUVqGXPWwY

I’m guessing that there are just ideological lines that can’t be crossed. So people who think that is great activism, will think that anyone who says otherwise is just being ”contrarian” or a troll or something.

damon,

No I haven’t ukliberty, only media articles about it like this Guardian one.
http://www.guardian.co.uk/society/2009/dec/14/stern-review-rape-laws-alcohol
So you’ve got me there.

It’s a bit hard to really have these internet exchanges though when one is largely unaware of the detail of people’s objections.

So you’ve endorsed an article that criticises a report you haven’t read! Brilliant. And you wonder why I say the article is largely bullshit – maybe I’ve read the report Damon?

As for the people who slag off Spiked without really saying why…. I’m going to go with this until otherwise shown the error of its argument:

On rape, George Galloway has a point
Ignore feminists’ shrill attempts to demonise critics – we need an honest debate about the meaning of rape.

http://www.spiked-online.com/site/article/12799/

says: There has been an enormous increase in the number of rape complaints being made over the past 20 years, with no concurrent rise in convictions. This means that many complaints are being made which are without merit and, consequently, many more innocent people are being accused of a very serious crime without evidence.

What a ridiculous non sequitur. Can you not see that? Is there any point in dealing with the rest of it?

The allegations against Assange do amount to rape under English law. The more difficult question, one to which neither the Sexual Offences Act nor the Supreme Court can supply the answer, is whether they should.

Yes, penetrating someone with your penis without consent means you raped them.

Christ.

…or reasonable belief in consent.

I believe that the courts of the UK have the last word on that issue

robin levett, no it’s the jury in the court who have the last word on the issue, and they have to decide whether an allegation is of sexual assault

john reid: regarding Julian assange, at the end of the day they are still only allegations of sexual assualt ,not rape

robin levett: No, they are allegations of rape; I believe that the courts of the UK have the last word on that issue

john reid: robin levett, no it’s the jury in the court who have the last word on the issue, and they have to decide whether an allegation is of sexual assault

Sigh.

para 3: “[the EAW] set out four offences: … 4. Rape”

para 126: “It is clear that the allegation is that he had sexual intercourse with her when she was not in a position to consent and so he could not have had any reasonable belief that she did.” == rape.

http://www.bailii.org/ew/cases/EWHC/Admin/2011/2849.html

Assange is accused of four offences including one of rape.

@john preid #44:

robin levett, no it’s the jury in the court who have the last word on the issue, and they have to decide whether an allegation is of sexual assault

No; the judge directs on the law, the jury decides on the facts. The facts that are alleged are rape – that is for the judge to decide; what the jury has to decide is whether the the facts alleged are proven to the necessary standard.

@damon #42:

On rape, George Galloway has a point

No, he doesn’t; he doesn’t have a ghost of a point. This is why Spiked gets rough treatment on here.

From the article:

Galloway poses a question that many rape campaigners simply do not want to answer: what does ‘rape’ mean today and why is it such a serious crime?

I don’t know about rape campaigners, but I’m quite happy to answer the first part; rape is, as it has always been, penetration without consent, and knowing or being reckless as to that lack of consent. Rape now includes anal penetration – but that isn’t an expansion of the law, since it was previously covered as sodomy.

What is alleged against Assange is penetration without consent, knowing or being reckless as to that lack of consent. To describe that as merely poor sexual etiquette is ludicrous.

34. Chaise Guevara

I don’t know much about the woman, but I’d caution against assuming people share the politics of their bedfellows.

Well thanks for that. Now I have a picture of her And Gorgeous George doing the beast with two backs stuck in my head. But I take it you are not so far gone that you wouldn’t agree that people tend to share the politics of the people in the same damn political party? What is Respect but a tool for Islamists – and I note Yaqoob is not far removed from them herself – along with some idiot Trot enablers.

I’m concerned about this myself, but it’s a different issue. Having sex with someone who hasn’t given consent remains rape even if they’re asleep, legally and morally. It’s more complicated on a case-by-case basis, because there’s room for honest confusion over consent and so on, but Galloway’s blanket statement was incredibly stupid.

No it isn’t. At least it isn’t from where the thread was. Having sex with someone who hasn’t given consent isn’t necessarily rape, or at least was not until recently. The alleged rapist needs a lack of reasonable belief that consent had been given – whether or not it had. All Galloway’s statements are stupid.

What is alleged against Assange is penetration without consent, knowing or being reckless as to that lack of consent. To describe that as merely poor sexual etiquette is ludicrous.

Maybe so Robin Levett. And then we are in Ken Clark territory with the ”rape is rape” idea.
Whatever Assange is alleged to have done, isn’t as bad as stranger rape at knifpoint. And it’s that kind of attack which made ”rape” such a serious crime in the eyes of the law and the public.

If people insist the allegations against Assange are as bad and as forced rape, they should explain why. Thst’s the point I think the Spiked people are making. What’s so dreadfully (dreadfully) awful about a man’s willy? Surely the trauma of rape was the ”forced” part. And not knowing how it was going to turn out. What the attacker intended to do when he’d finnished. Insisting that it’s all the same thing, brings the name for the offence into disrepute I think.

Presumably something changed, or the Sexual Offences Act would not have brought in a new definition of rape in 2003 – rape is not conditional on force, or violence – absence of consent is the defining factor.

Those who engage in consensual sex, especially those who engage in consensual sex an hour or two after meeting somebody then assume post coital sex is on the menu again run the risk of being defined as a rapist unless explicit consent is obtained before acting on that presumption.

Leaving aside the rights and wrongs of such behaviour I suspect that such a definition means that perhaps 30% of young men are now rapists largely because so many are inept at any sort of sexual negotiation.

There is also a danger of misreading signs (from 0:30)
http://www.youtube.com/watch?v=LlAg_gInabw

The bit I don’t get is why women continue to put themselves at risk given the scope for this kind of perennial misunderstanding.

ukliberty @43

What a ridiculous non sequitur. Can you not see that? Is there any point in dealing with the rest of it?

Yes it does read as a bit of a non sequitur. I thought the same when I read it. But I think it is definitely worth continuing on with. It said that there had… ”been an enormous increase in the number of rape complaints being made over the past 20 years, with no concurrent rise in convictions”.
How can that be then? Something is surely not right. Much of the increase in these allegations of rape have come from the ”date-rape” phenomenon, which wasn’t so prevalent in past decades.
Women’s alcohol consumption and paterns of public behavior have changed, and it seems that some men have been taking advantage of that. So why have the convictions for these offences failed to keep up with the surge in complaints? Instead of saying that Spiked are just too contrarian to bother engaging, some of these things should be answered IMO.

I had quite admired the Channel 4 newsreader/journalist Cathy Newman …. until I saw her chasing Ken Clark down the street with her camera crew following, firing questions at him about his comments on rape, in a way where it was impossible to answer back properly. But he had dared question the ”rape is rape” idea and had to be hounded about it. How dare he?

In many cultures, including ours to a degree – certainly in the past, the rape of a woman was seen as so terrible, because like in Pakistan, the woman was deemed to then be damaged goods. Her honor had been taken. Again, I think the Spiked people have been talking about this aspect of rape for several years. Because, it’s only a penis at the end of the day. A small fleshy appendage of a man’s body.
Why has it been seen as such a serious crime throughout human history? Why do the religious holy books consider it such a terrible thing? That a man’s wife or daughter might be raped? Because it shames the whole family, or even tribe I guess. Which is hardly a progressive idea.
Rape need not be any worse than any assault on a person. It’s an assault. A crime. How bad on the scale of crime and assault is something I’d like to hear discussed. But our society is too up-tight and fearful to have such a debate, as the shouters will start shouting.

Rape law: did Ken Clarke have a point?
The expanded definition of rape in recent years is causing discomfort for politicians, lawyers and jurors.

http://www.spiked-online.com/site/article/10541/

Rape need not be any worse than any assault on a person. It’s an assault. A crime. How bad on the scale of crime and assault is something I’d like to hear discussed.

Well, damon, is rape worse than murder? No. Is it worse than a serious beating? Probably not. But if you’re a female and you find yourself in a badly-lit street at night, or if a car starts slowing down beside you, or if a bloke is following you, it’s not murder or a serious beating you fear – it’s rape. It’s not a crime exclusively aimed at women, but it’s one that does keep them in fear. It’s one that reminds
you of your comparative physical weakness and vulnerability.

Because, it’s only a penis at the end of the day. A small fleshy appendage of a man’s body.

So if it’s nothing why do men make such a big deal of persuading a woman to accept this “small fleshy appendage” inside her body somewhere?

damon,

Whatever Assange is alleged to have done, isn’t as bad as stranger rape at knifpoint.

The first sentence is a bit like saying, “having one limb forcibly amputated isn’t as bad as having two or three limbs forcibly amputated”. Well yes, it’s certainly true that it isn’t as bad, but it’s still bad. The problem is the language you’re using is close to excusing it.

If people insist the allegations against Assange are as bad and as forced rape, they should explain why. Thst’s the point I think the Spiked people are making.

I don’t know of anyone who has insisted that. Certainly Sweden’s criminal justice system hasn’t. Maybe people are taking “rape is rape” too literally / broadly and then conflating that with legal stuff.

But I think it is definitely worth continuing on with. It said that there had… ”been an enormous increase in the number of rape complaints being made over the past 20 years, with no concurrent rise in convictions”.
How can that be then? Something is surely not right. Much of the increase in these allegations of rape have come from the ”date-rape” phenomenon, which wasn’t so prevalent in past decades.
Women’s alcohol consumption and paterns of public behavior have changed, and it seems that some men have been taking advantage of that. So why have the convictions for these offences failed to keep up with the surge in complaints? Instead of saying that Spiked are just too contrarian to bother engaging, some of these things should be answered IMO.

But people are looking into and discussing and attempting to answer such things. For example, the Stern Review. Another example: A gap or a chasm? Attrition in reported rape cases. It’s not just that Spiked is contrarian, it’s saying things that are simply false.

Rape need not be any worse than any assault on a person. It’s an assault. A crime. How bad on the scale of crime and assault is something I’d like to hear discussed.

Well damon, how would you feel if a strange man stuck his cock up your bum without your consent? Discuss.

@a&ecn #51:

Presumably something changed, or the Sexual Offences Act would not have brought in a new definition of rape in 2003 – rape is not conditional on force, or violence – absence of consent is the defining factor.

That change did not occur in 2003, but in 1976. Absence of consent was always a defining factor, but prior to the 1976 Act the ingredients of the offence required that the victim’s will be overborne by force or threat of force.

The 2003 Act included anal and oral rape as rape; and made it an equal opportunity offence. Behaviour involving penetration of the vagina that would not have been rape before the Act was not however rendered rape by the Act. Evidential presumptions were however introduced to make the offence easier to prove.

Those who engage in consensual sex, especially those who engage in consensual sex an hour or two after meeting somebody then assume post coital sex is on the menu again run the risk of being defined as a rapist unless explicit consent is obtained before acting on that presumption.

I love that expression “defined as a rapist”; it seems to suggest that someone who takes part in non-consensual sex without an honest belief in consent isn’t really a rapist at all… Then what is he?

[55] ‘I love that expression “defined as a rapist”; it seems to suggest that someone who takes part in non-consensual sex without an honest belief in consent isn’t really a rapist at all… Then what is he?’.

A rapist – all I’m saying is that in recent years there are probably hundreds of thousands of rapists by this definition.

I’ll give you an example – imagine two 15 year olds embarking on intercourse with all of the attendant fumbling, and embarrassment that go with this sort of sexual experimentation.
Consent may not have been explicitly obtained so legally this makes the boy a rapist ……. he doesn’t really have an honest belief about anything apart from his own immediate needs (such as avoiding premature ejaculation).
The girl didn’t exactly say ‘no’ but neither did she exactly say yes being ambivalent about how far she wanted things to go.

By the way if you have any objections with the ‘new’ concept of rape take it up Baroness Stern – she is the one who says ‘The Sexual Offences Act 2003 brought in a new definition of rape’.
The law does not say force has to be used for it to be defined as
rape. Violence is not part of the definition. The absence of consent is the defining factor. And the absence of consent can be to one form of penetration althought here has been agreement to another (p13).
http://beneaththewig.com/wp-content/uploads/2011/08/Stern_Review_acc_FINAL4.pdf

Rosie. I’m sure you’re right. Fear of crime can be pretty scary. My elderly mum is frightened of ”the hoodies” (teenagers) who hang around at the shops. She thinks they might snatch her handbag, so she goes down the road with her purse in a plastic bag.

I am a little tense sometimes walking home at night.
Just two nights ago I walked past the park railings about 10pm and there was a guy standing in the darkest place under a tree. Doing what, I have no idea, but he creeped me out for a few seconds.

ukliberty, sexual assault or rape is not something that I have ever been concerned about, probably because it seems statistically far less likely to happen that a common mugging or getting beaten up or stabbed. If it was to happen, I don’t know how I would feel about it. It would all depend on how it happened.
I would not feel that I SHOULD feel this way or that way about it. I think I would be most concerned about phisical injury. But can’t say for sure. I’m not ”programmed” to think it would be something more terrible than the phisical or psychological actuality of it though.

Rape, in our culture, has always been deemed to be ‘particularly’ dreadful. And a victim of it can be pratically railroaded into feeling terribly traumatised, even if they weren’t.
I would have thought there could be a whole spectrum of responses to it – much the same as being the victim of any other crime.
I always find it a bit objectionable when I hear it said that a child who suffers sexual abuse will be traumatised for life by it.
When there is actually nothing to prevent that child just putting it behind them and rationalising it in a way that suits them. It’s the reaction of adults which really makes it much worse.

So you got fiddled with by the priest when you were an alter boy. Big deal. You don’t have to be a victim of that your whole life.

This article in Spiked from 2003 was quite good on the pedophile story that surrounded Jonathan King back then.
http://www.spiked-online.com/Articles/00000006DBF6.htm

Corday himself – ‘a silly, fluffy man’ as Jimmy Pursey puts it – always seemed harmless enough. It was well known that those teenagers to whom he took a shine were invited backstage to sit around with such ‘stars’ as Jonathan King, sipping whisky in their Coke. What might have happened after that, we could only have guessed – if we could have been bothered to. It was clear, however, that the lads involved were not bullied into having a drink or a ride in a big car. Nor could they have been left in much doubt about the preferences of Cordez’s friends. The trial evidence showed that the teenagers whom King was convicted of abusing (whom he had not met at the Hop) all visited him or went off with him again afterwards, some several times. None of them told him ‘No’ or ‘Stop’.

Some people will call that contrarian, but I think it’s very astute.

Damon – as you want to form a hierarchy of crime, you could perhaps consider ukliberty’s point:-

damon, how would you feel if a strange man stuck his cock up your bum without your consent? Discuss.

Wouldn’t you find that a different sort of crime from having your wallet nicked or even being kicked around a bit? Which would you find the most humiliating? Which would make you more distrustful of other human beings who could do the same thing to you? Which would cause you more pain and shame if you knew the whole incident had been video’d and put up on YouTube – the wallet stealing, the kicking or the rape?

When people like the Syrian government forces want to cause terrible humiliation to their opponents they rape them or force them to engage in sex acts. I don’t say that that is crueller than, say, gouging out their eyes, but it is seen as not just different in degree but different in kind from other forms of punishment.

So you got fiddled with by the priest when you were an alter boy. Big deal. You don’t have to be a victim of that your whole life.

It’s a brave new world where they very worst thing you can ever do is be a victim. Justice? Grow up!

not sure what your point is damon.

Can you make it without citing a Spiked article?

@ 49 SMFS

“But I take it you are not so far gone that you wouldn’t agree that people tend to share the politics of the people in the same damn political party?”

Tend to, sure. But look at the divisions in all the parties – even the relatively small UKIP seems to be a marriage of convenience between libertarians and little-Englander conservatives. If you want to show that Party Member A believes something, the fact that Party Member B believes it is not a smoking gun.

“No it isn’t. At least it isn’t from where the thread was. Having sex with someone who hasn’t given consent isn’t necessarily rape, or at least was not until recently. The alleged rapist needs a lack of reasonable belief that consent had been given – whether or not it had.”

Sigh. You ignored part of my post, then “informed” me of something I had in fact just said. Well done.

57. damon

The trial evidence showed that the teenagers whom King was convicted of abusing (whom he had not met at the Hop) all visited him or went off with him again afterwards, some several times. None of them told him ‘No’ or ‘Stop’.

Just in passing, the Greens in Germany apparently want to decriminalise non-violent sexual relations between adults and children. So King wouldn’t have been convicted there.

Some people will call that contrarian, but I think it’s very astute.

I call it vile. Children are still children and so unable to consent even if they do not object.

61. Chaise Guevara

Tend to, sure. But look at the divisions in all the parties – even the relatively small UKIP seems to be a marriage of convenience between libertarians and little-Englander conservatives. If you want to show that Party Member A believes something, the fact that Party Member B believes it is not a smoking gun.

No but the fact that Yaqoob worked with people who think rape only occurs with four adult male eye witnesses for years, holds similar views herself, served in a political party devoted to changing British law to that end, does tend to suggest her complaints about George are rubbish now doesn’t it? She can hardly have woken up one morning and smelt the coffee. George probably has the least offensive views on rape in the entire party.

Sigh. You ignored part of my post, then “informed” me of something I had in fact just said. Well done.

No you did not. You got it wrong. You said:

Having sex with someone who hasn’t given consent remains rape even if they’re asleep, legally and morally.

And this is not a correct statement of the law as it existed and perhaps even as it still exists. Having sex with someone who has not given consent is not rape. It can be. It often is. But it is not by definition rape.

@ 62 SMFS

“No but the fact that Yaqoob worked with people who think rape only occurs with four adult male eye witnesses for years, holds similar views herself, served in a political party devoted to changing British law to that end, does tend to suggest her complaints about George are rubbish now doesn’t it? She can hardly have woken up one morning and smelt the coffee. George probably has the least offensive views on rape in the entire party.”

You might be right here, but I’ll need sources, especially RE her holding similar views.

“No you did not. You got it wrong. You said:

Having sex with someone who hasn’t given consent remains rape even if they’re asleep, legally and morally.

And this is not a correct statement of the law as it existed and perhaps even as it still exists. Having sex with someone who has not given consent is not rape. It can be. It often is. But it is not by definition rape.”

Yep, you ignored part of my post, and then when challenged on doing so, quoted a different part of my post. Here’s the relevant bit, which you inexplicably didn’t quote just now, despite it following on from the bit you did quote:

“It’s more complicated on a case-by-case basis, because there’s room for honest confusion over consent and so on”

I was doing the short version and I pointed out that I was doing so while alluding to what makes the law more complicated. I’m honestly not sure what you wanted to achieve by lying to me about what I said.

@a&ecn #56:

<blockquote.I’ll give you an example – imagine two 15 year olds embarking on intercourse with all of the attendant fumbling, and embarrassment that go with this sort of sexual experimentation.
Consent may not have been explicitly obtained so legally this makes the boy a rapist ……. he doesn’t really have an honest belief about anything apart from his own immediate needs (such as avoiding premature ejaculation).
The girl didn’t exactly say ‘no’ but neither did she exactly say yes being ambivalent about how far she wanted things to go.

Shall we say two 16-year olds, to avoid confusion about 15-year olds not legally being able to consent?

The fact that consent has not explicitly been obtained does not make this rape. Consent can be given implicitly; and an belief in consent is still a defence to rape. So no; your 16 year old is not a rapist by any definition, unless the girl in fact did not consent, and he had no reasonable belief in consent.

Where there is a difference is in the defence; previously, belief in consent needed only to be honest; it now needs also to be reasonable. As was made clear in DPP v Morgan, however, that will make very little difference. The definition of the offence, however, remains the same in relevant respects.

You have quoted the Stern review; perhaps you can explain quite what Baroness Stern meant by her reference to a changed definition of rape?

[64] ‘Shall we say two 16-year olds, to avoid confusion about 15-year olds not legally being able to consent?’ – I don’t think we can sweep it under the carpet quite so easily given that as many as 40% of teens engage in sex before 16 – including 1 in 20 before the age of 12.
http://www.nursingtimes.net/four-in-ten-teenagers-having-underage-sex/5001150.article

Being under 16′s does not mean you lack capacity, and it certainly does not preclude an epidemic of teenage bonking – yet by the law’s definition many of them are rapists.

Implied consent cannot be measured objectively (unlike somebody saying yes, or no) – implied consent is a recipe for misunderstanding especially given the likely background of drugs and alcohol to facilitate casual sex amongst our randy teens.

Rosie @58

Wouldn’t you find that a different sort of crime from having your wallet nicked or even being kicked around a bit? Which would you find the most humiliating?

I think it would really depend on the circumstances.
I don’t think I should feel humilliated. Or if I did, I think I could rationalise agaist that feeling.
I know there are some pretty bad people out there, and falling prey to one doesn’t have a set script on how one should react or feel about it.
I would not feel the need to feel ashamed about anything though. I’m pretty sure of that.

Much of our attitudes to rape and sex crime come from the baggage of our history. I was brought up as a catholic, where Mary was called ”The Ever-virgin Mother of God”. Which is pretty weird when you think about it. But that’s where we have come from culturally.

I don’t think what happens with prisoners in middle east war situations really should apply to us. They have very particular ideas about male and female rolls, and what a ”real man” or woman should be.
I might prefer a bit of ‘sexual humilliation’ to a beating. I certainly could deal with that I think, it would be the threats of violence, or even death that would really get under my skin.

We have taken our ideas of rape and sexual crimes against women (particularly) from history.
Things have changed now, because society and behavior has changed.

From the Spiked article on Ken Clarke:

This legal reform has changed rape from a rare and aberrant crime to an occurrence that is – though not ideal – certainly commonplace. While rape reformers have been fervent in their insistence that rape is both extremely common and unbelievably heinous, this involves walking such a tightrope that it is inevitable that occasionally someone like Ken Clarke will fall off.

And Harriet Harman and Salma Yaqoob are never going to talk about that rationally.

btw, I liked Laurie Penny’s column on the difference between the ”British and American ways” of finding a partner.

“Dating”, to my mind, is something invented by Hollywood. It’s not the proper, British way of doing things, which is to get drunk at a party, fall into bed with someone you fancy, and decide in the morning whether you actually have anything in common. That seems like the logical order of business to me. Wild sex with an otherwise tiresome stranger will never be a total loss, but a girl doesn’t want to confess her verbatim recall of every episode of Firefly before satisfaction is assured.

http://www.independent.co.uk/voices/commentators/laurie-penny-my-new-york-date-was-going-really-well-until-7593439.html

@a&ecn #65:

‘Shall we say two 16-year olds, to avoid confusion about 15-year olds not legally being able to consent?’ – I don’t think we can sweep it under the carpet quite so easily given that as many as 40% of teens engage in sex before 16 – including 1 in 20 before the age of 12

I wasn’t sweeping it under the carpet; I was trying to avoid complications in issues of consent introduced by the fact that under 16s cannot legally consent to sexual intercourse. In fact, while it is certainly possible for an under-16 to rape another under-16, the charge would be far more likely to be under s13 than s1, unless of coruse there was evidence of lack of (factual, not legal,) consent.

Being under 16?s does not mean you lack capacity

It means you lack legal capacity to consent to sexual intercourse.

Implied consent cannot be measured objectively (unlike somebody saying yes, or no) – implied consent is a recipe for misunderstanding especially given the likely background of drugs and alcohol to facilitate casual sex amongst our randy teens.

Not sure what the emphasised part is relevant to.

And have you thought about what change you think Baroness Stern was referring to when she said that the 2003 Act changed the definition of rape?

So Much For Subtlety @62

I call it vile. Children are still children and so unable to consent even if they do not object.

Austria has an age of consent of 14 and in the US it’s 18. We changed our age of consent laws a few years ago to ”stop protecting” boys just a few months older than 15 from people like Johnathan King and his pervy friends. In that article, the guy who wrote it, who was a teenager back then and went to the place where King used to meet boys, said it wasn’t really a big deal amongst his peers. People knew what the older men were, and if you wanted to stay away from them you just did.
Of course, we mostly know of the story from the massive hype the tabloid press put on it.

ukliberty. I thought it was a good article myself.
We are now in another round of peado stories about the teacher and the girl in France, and even Jimmy Saville.
The guy makes the point that in the 1970s, there wasn’t so much over-concern and worry about protecting teenagers from sleeze. I’m not sure which was better;
negligence back then, or hyper-concern about ”stranger-danger” that we have today.

What I think happens with the Spiked people, is that many people are ”choking” on thier style and that they say such differrent things to what’s the accepted norm. And that many people (like you yourself admitted up-thread) then refuse to follow their arguments further.

Btw, ukliberty, this is just from today, about George Galloway. They’re right.

Disaster averted. The National Union of Students (NUS) has again stepped forward to protect the meek and feeble students of the United Kingdom. Once more, the NUS has taken it upon itself to decide which speakers students are permitted to hear speaking and debating. With students being the vulnerable creatures they are – still recovering from the emotionally traumatic experience of leaving home at 18 years of age – the NUS has assumed the role of mollycoddling mother, preventing the bad men of the world from infecting students’ young minds.

http://www.spiked-online.com/site/article/12933/

damon,

In that article, the guy who wrote it, who was a teenager back then and went to the place where King used to meet boys, said it wasn’t really a big deal amongst his peers. People knew what the older men were, and if you wanted to stay away from them you just did.

Yeah, that author wasn’t affected by something that didn’t happen to him. Great.

Other people claim they were affected, and still are today, therefore they complained to the police.

What I think happens with the Spiked people, is that many people are ”choking” on thier style and that they say such differrent things to what’s the accepted norm. And that many people (like you yourself admitted up-thread) then refuse to follow their arguments further.

The articles you’ve linked to in this thread:

1. say things that are trivially true

2. make claims that are demonstrably false

3. offer no novel or reasonable argument

4. invent things to argue with.

If I thought it would make a difference I’d be happy to ‘fisk’ them but I think it will be a waste of my time.

Have you read the Stern Review or Attrition in Rape Cases documents yet?

No I haven’t read those reports ukliberty. They sound very dry and legalistic. Also, they are pdf files which I can’t download on this laptop.

I also find your approach to these internet boards overyly dry and legalistic. Given the nature of how things move on here and how ad-hoc the commenting is, it usually leaves me a bit cold.

Even the simplist thing often gets ignored here, or lost by the wayside. An example would be the way LC supports the direct action movements like was promoted in that awful film (I saw at the cinema) called ‘Just Do It”. About all the various campaigns where people take the law into their own hands to highlight things they are concerned about.
A couple of years later and there still isn’t the slightest bit of engagement to my question of why does LC promote this stuff. Even when it ends up like the last couple of months of the Occupy protest in London (which was a total embarrassment).

I think part of the problem is that these internet boards are just not the right vehicles to have difficult debate with people just joining in at random and no-one really knowing who they are talking to.

If Spiked is silly, LC is sillier for promoting that eco-warrior nonsense. In the meantime I will give the Spiked people some cudos, because they are right about those protesters (IMO) and the John Terry racism case and much more.

And how ”rape must be rape” in the way that got Ken Clarke into so much hot water remains to be answered.

When Harriet Harman speaks on something like this, she is playing to the very safe, mainstream gallery (of feminism). As was Salma Yaqoob I think. Why jump on GG’s comments so heavilly and highlight them to the point where she felt she had to leave the party? Because that’s the way things are debated now in our society. Through who has the loudest megaphone.
Say ”the wrong thing” on Radio Five-Live and the shrill activists will burst into action.

btw, they didn’t make it up that the ridiculous NUS has just ”no-platformed” George Galloway.

damon,

In this thread you’ve endorsed articles that make claims I know to be false. You say that we’re too scared to take on such a controversial view as your’s / Spiked. I point you to the evidence for my claims and you say you haven’t read it and won’t read it. But you express wonder at the lack of substantive engagement with your posts! Brilliant.

And how ”rape must be rape” in the way that got Ken Clarke into so much hot water remains to be answered.

I realise you don’t care or understand why people get upset about being sexually assaulted or raped, but many, many people do. Which means that politicians – particularly those with responsibility for crime – have to take great care with their language. Ken Clarke was not careful about his language.

@ UKL

To be fair, Clarke was in an interview setting, not creating a perfectly-crafted statement, there was apparently a plan underfoot (not necessarily by the interviewer) to twist the issue by discussing a general crime policy solely in terms of rape, and the excuse used to condemn him was extremely thin. If he’d happened to talk about “more serious” cases rather than “less serious” cases, nobody would have batted an eyelid even though the statement would have been effectively identical.

Huh. Apparently “underway” and “afoot” have joined forces in my mind to create “underfoot”.

ukliberty, as I said. The format of these internet boards just doesn’t work when there is any kind of disagreement. Sunny has set this one up that way, and it’s his project.

I really don’t know what you ”know” – as you say you can’t really be bothered to say. Apparently I have to read some PDF file reports to be able to understand the subject.
What percentage of people in Britain have read the Stern Review and the other report you mentioned do you think? One percent? I very much doubt even that. How then can anyone discuss this with any claim to know what they are talking about?
Who was Harriet Harman talking to when she spoke up about this? Not just people who had read the Stern Review obviously.

The meaning of rape was changed when it became something that was happening every weekend to thousands of women who had fallen into bed with someone they just met after getting drunk …. which Laurie Penny describes so plainly above.
They never meant to go all the way, or hoped that the fella was all right and was safe to sleep with after a snog and a fumble. And the courtship was meant to be resumed in the morning when they’d sobered up and made pancakes together. But the bloke turned out to be a pervy bastard who started sexual touching when the woman was asleep. The prisons would be full if everyone who did that was sent to prison for five years.

damon,

I really don’t know what you ”know” – as you say you can’t really be bothered to say. Apparently I have to read some PDF file reports to be able to understand the subject.
What percentage of people in Britain have read the Stern Review and the other report you mentioned do you think? One percent? I very much doubt even that. How then can anyone discuss this with any claim to know what they are talking about?

I don’t object to people not having an opinion. I don’t object to people having an opinion about something. But I do think when you endorse an article that criticises a 150 page paper, you ought to have some familiarity with the 150 page paper so that you know it’s criticisms are valid before you endorse them.

Who was Harriet Harman talking to when she spoke up about this? Not just people who had read the Stern Review obviously.

I don’t understand how that relates to what I wrote; I haven’t made a link between Harman and the Stern Review.

They never meant to go all the way, or hoped that the fella was all right and was safe to sleep with after a snog and a fumble. And the courtship was meant to be resumed in the morning when they’d sobered up and made pancakes together. But the bloke turned out to be a pervy bastard who started sexual touching when the woman was asleep. The prisons would be full if everyone who did that was sent to prison for five years.

It wouldn’t be five years damon. You’ve just invented another problem. I hesitate to point you to the Sentencing Guidelines for the Sexual Offences Act 2003 pdf, but…

So Much, Chaise 62 & 62

No but the fact that Yaqoob worked with people who think rape only occurs with four adult male eye witnesses for years, holds similar views herself, served in a political party devoted to changing British law to that end, does tend to suggest her complaints about George are rubbish now doesn’t it? She can hardly have woken up one morning and smelt the coffee. George probably has the least offensive views on rape in the entire party.

GG’s campaign relied on a lot of Muslim women in Bradford who were fed up with the Labour “clan vote” system. When he made his rape comments he was hauled in front of the Bradford Muslim Women’s Council to explain and apologise. Now, you’d think the Bradford MWC would be a fairly socially conservative bunch – would think that if a woman went to bed with a bloke she couldn’t complain about penetration without consent – would think that a wife should submit to her husband. But the women reacted like any post new wave feminism woman – with anger at his remarks about rape.

So whatever the Islamic rulings about rape, Salma Y and her activist women comrades do not hold to them.

As I found GG’s sectarian campaign – accusing his opponent of being a bad Muslim etc – pretty disgusting, this was very cheering.

http://www.guardian.co.uk/uk/the-northerner/2012/sep/13/georgegalloway-bradford-west-byelection-2012-muslim-women-salma-yaqoob-rape?fb=optOut

But I do think when you endorse an article that criticises a 150 page paper, you ought to have some familiarity with the 150 page paper so that you know it’s criticisms are valid before you endorse them.

Hmmm. What were their criticisms again?
This I presume:

The Stern report does not challenge the way in which women today are encouraged to see themselves as victims and how they are regarded as less accountable for their actions than men. And in suggesting that women reporting rape should be believed from the outset, Stern is insisting that, when it comes to alleged crimes of rape, the accused is guilty until proven innocent.

Now whether Stern says that or not I don’t know.
It’s a subjective thing I guess.

I understand though what the Spiked people mean when they say that. It’s a criticism of that school of feminism that Kate Roiphe was not impressed with when she went to Harvard in the 1980s.
http://www.amazon.com/Morning-After-Sex-Fear-Feminism/dp/0316754323

As I say, I have no idea if Stern was saying that too.
It doesn’t really matter. Plenty of people are. The mainstream are. Just look at the ”Take back the Night” marches all over the English speaking world.
I have watched several of them on Youtube and listened to the speeches made on them. Some come across as very flaky IMO. Like those Slutwalks ones too.
That is something more easy to criticise, as it doesn’t take close reading of a 150 page pdf file.

damon,

Hmmm. What were their criticisms again?
This I presume:
And in suggesting that women reporting rape should be believed from the outset, Stern is insisting that, when it comes to alleged crimes of rape, the accused is guilty until proven innocent.

Now whether Stern says that or not I don’t know.
It’s a subjective thing I guess.

This is the kind of thing Stern says about believing the victim:

The improvement in the way the police deal with rape complaints has been a long road, and there is still some way to go for a number of police forces. There is a long history of disbelief, disrespect, blaming the victim, or not seeing rape as a serious violation, and therefore deciding not to record it as a crime.
…
Many victims and organisations who work with victims told us what they wanted from the system. To see the person who had harmed them convicted of a crime was, for many, a very worthwhile outcome. But almost all of those we spoke to told us they wanted more than that. They wanted to be treated well throughout the process, to be listened to, to be believed, to be kept informed. ‘It is probably more a need for complaints to be taken seriously than a punishment result,’ we were told. ‘A conviction is less important than the treatment of the victim overall. Survivors of rape say that if they are treated with respect and dignity they “can cope with an acquittal”.’ Victims wanted to know that their experience had been understood and its effects acknowledged.

To me, it is not that the complainant should be “believed from the outset”, so much as they should not be disbelieved from the outset, they should be taken seriously and treated with sensitivity, and they should be kept informed.

What can happen as a result of not taking them seriously?

Worboys was first identified as a suspect following an allegation of sexual assault in July 2007. He was arrested but not charged with any offence, and went on to attack a further seven women before he was charged in February 2008.

(I would recommend the IPCC report on the Worboys investigation but again it is a PDF.)

Here is another quote from that Spiked article:

Stern suggests that the way to encourage women to report rape (and by extension to increase conviction rates – an ambition normally restricted to totalitarian states)…

It isn’t inherently totalitarian to want to increase conviction rates. I don’t understand the point of the remark, except to be edgy or ‘contrarian’ for the sake of it.

—

The wider point to make about the report is that I can’t do it justice in a blog comment. It is about 150 pages long and the conclusions and recommendations section alone is over four pages.

77. Rosie

GG’s campaign relied on a lot of Muslim women in Bradford who were fed up with the Labour “clan vote” system.

Well no. You do not protest against sectarian and family politics by voting for a sectarian and family party. What you mean is that George was better at mobilising that clan voting system than Labour was. Nor is there any evidence that George relied on the Muslima vote. He won by too much for that to be true. And we, none of us, know how people vote. So you have a Sista cheering on her Sistas in the Guardian. But it doesn’t mean anything. Certainly does not prove anything.

When he made his rape comments he was hauled in front of the Bradford Muslim Women’s Council to explain and apologise. Now, you’d think the Bradford MWC would be a fairly socially conservative bunch – would think that if a woman went to bed with a bloke she couldn’t complain about penetration without consent – would think that a wife should submit to her husband. But the women reacted like any post new wave feminism woman – with anger at his remarks about rape.

Women? You mean one woman at that meeting took him to task. He was utterly unrepentant about it and that was about it. New Wave feminism? More likely Yaqoob’s Muslim sisters took her side against a man who is still nominally a Catholic.

So whatever the Islamic rulings about rape, Salma Y and her activist women comrades do not hold to them.

Obviously they do or they would not be pious Muslims.

As I found GG’s sectarian campaign – accusing his opponent of being a bad Muslim etc – pretty disgusting, this was very cheering.

If it is as you say. But as it isn’t, it doesn’t matter.

Fair points ukliberty. That line about wanting more convictions being totalitarian does sound a bit iffy. I would like to hear an explaination of that.
I can guess what I think it might mean, but am not sure. As for the Stern Review itself, it’s just one womans opinion I suppose. It would be more balanced if you heard from these ”dreadfuly macho uncaring police” from down the years who supposedly have been going easy on rapists and giving women the brush off. Things like that can easilly become self-perpetuating myths.

There was Julie Bindel in the Guardian just yesterday in the Guardian talking about Jimmy Saville under the headline ”When will we start listening to children who are abused?”
It’s like ‘what planet’s she been living on this past 20 years’? There’s been peado-mania for much of it. And survivors telling their stories.
But it suits a certain narrative to always be blaming the powers that be. A section of the black political movement also likes to make out that things haven’t changed so much from the 1970s either, with racist institutions keeping the black population down and oppressed. Even the highest ever ranking Muslim policeman resigned amid accusations of being kept back because of racism and islamophobia.
Which I would guess were complete fantasy on his part.

Bringing the failings of the Worboys investigation into this might be a bit of a side issue, as there may well have been some very glaring failings with the police there, but the trickiest part of this rape issue is the ‘date-rape’ one. In which a woman is said to be not able to grant consent if she’s too drunk, but a man must be under control of his actions even if he’s just as drunk. Which means there’s a gender disparity there. Everyone makes mistakes, and going home with the wrong man, or thinking it’s OK to go to sleep with a stranger you’ve drunkenly snogged at a party is risky behavior. It’s a difficult issue, and having ”Reclaim the Night” or ”Slutwalk” marches about these issues of men’s behavior to women gets nowhere really, other than to close down the space for quiet discussion, as it all gets too shouty.

I don’t know for sure if Spiked get it all right or all wrong, but they have been pretty consistent in their criticism of initiatives like the ”Setting the Boundaries” one from over a decade ago.
http://www.spiked-online.com/site/article/11826/

The reviewers make the following recommendation on who should be considered guilty of rape under the new regime:

‘Anybody who is so reckless as to consent that he did not seek to take all the steps that were reasonable in the circumstances to find out whether he had free agreement would not under our proposals be able to argue that he had an honest belief in consent’ (3).

They go on to argue: ‘A defence of honest belief in free agreement should not be available where there was self-induced intoxication, recklessness as to consent, or if the accused did not take all reasonable steps in the circumstances to ascertain free agreement at the time’ (4).

What we are presented with here would be a new definition of rape. Rather than rape being a clear crime of violence, it would be one of recklessness, thoughtlessness or even bad manners. This is the report’s hidden message: an attempt to promote a particular approved form of sex, and an attempt to criminalise other sorts.

But maybe that’s just contrarian too.

“Also, they are pdf files which I can’t download on this laptop”

You can download a pdf reader for free from several websites – use google. If you are using a work laptop that won’t enable you to do this, then (a) your work IT department are stupid for not enabling you to read pdfs, and (b) you shouldn’t be using it to access liberal conspiracy.

Or alternatively you just made this up because you can’t be arsed to read a lengthy document.

Perhaps it’s you that is the one afraid of having a different view to your cultish friends?

As for the Stern Review itself, it’s just one womans opinion I suppose.

But it isn’t “just one woman’s opinion” damon. It is a document produced by five people after hearing from / talking with lots of people (over 300?), including victims, victim support, police, prosecutors, judges, and medical staff, as well as quite a bit of reading (the Bibliography occupies eight pages).

damon,

The reviewers make the following recommendation on who should be considered guilty of rape under the new regime:

‘Anybody who is so reckless as to consent that he did not seek to take all the steps that were reasonable in the circumstances to find out whether he had free agreement would not under our proposals be able to argue that he had an honest belief in consent’ (3).

They go on to argue: ‘A defence of honest belief in free agreement should not be available where there was self-induced intoxication, recklessness as to consent, or if the accused did not take all reasonable steps in the circumstances to ascertain free agreement at the time’ (4).

What we are presented with here would be a new definition of rape. Rather than rape being a clear crime of violence, it would be one of recklessness, thoughtlessness or even bad manners. This is the report’s hidden message: an attempt to promote a particular approved form of sex, and an attempt to criminalise other sorts.

But maybe that’s just contrarian too.

I’m not sure what is the author’s underlying point or principle. Is it that a person should not have to take all the steps that were reasonable in the circumstances to find out whether he had free agreement?

Is it that people who have sex with drunk people should not be subject to a risk of going to prison?

@ukliberty #84:

They go on to argue: ‘A defence of honest belief in free agreement should not be available where there was self-induced intoxication…

Is it that people who have sex with drunk people should not be subject to a risk of going to prison?

I think that you’ve misinterpreted the argument above. It is the defendant’s drunkenness beign referred to. The defence referred to as “honest belief in free agreement” is one of mistake; that the defendant believed, mistakenly, that free agreement had been given. In general, in criminal prosecutions, if the defendant did the deed under a mistaken belief, the defendant’s “guilty mind” is judged as if the belief were not mistaken.

The point being made is that if that mistake arose because the defendant was so slaughtered that he didn’t know what day it was, let alone whether the girl had just said “No” rather than “Yes”, he doesn’t get to rely upon his mistaken belief to excuse him.

and as for damon #81:

In which a woman is said to be not able to grant consent if she’s too drunk, but a man must be under control of his actions even if he’s just as drunk. Which means there’s a gender disparity there.

Errm – no gender disparity there at all.

Everyone makes mistakes, and going home with the wrong man, or thinking it’s OK to go to sleep with a stranger you’ve drunkenly snogged at a party is risky behavior.

Let’s get this straight; if, when drunk, you are apt to rape women, or to misinterpret their wishes – then don’t get drunk in the company of women. If, when sober and presented with a woman who is obviously three sheets to the wind and as incapable of giving consent as of standing up for three seconds at a time, you would do the right thing and refuse the offer, why should your becoming that paralytic yourself excuse your actions?

” why should your becoming that paralytic yourself excuse your actions?”

In general I would say that few rapists are themselves paralytic when comitting the act. Getting their victims drunk is an obvious tactic they employ, whilst ensuring they remain in control of the situation – for the obvious reason that morons likes Damon will assume they are innocent if the victim admits to being drunk.

Indeed the far more likely result of a pissed man attempting to have sex is that they will fall asleep after failing to get it up.

The assumption behind Spiked’s claim that being pissed excuses or mitigates rape is itself offensive nonsense. The assumption behind it is that men are all rapists, and that when we lose our inhabitions as a result of a little beer, we act like animals incapable of controling ourselves in a lawful manner. That view says more about spiked than it does about society really.

@ 85 Robin Levett

I think we’re talking about two people who both happen to be drunk, not one person already drunk and the other deliberately then getting drunk as a ploy to avoid responsibility.

If an equally very drunk man and woman go home together and have sex, does that morally make him a rapist and her a rape victim? If so, what justifies that discrimination? That’s the gender disparity that damon seems to be referring to.

Planeshift @82

Or alternatively you just made this up because you can’t be arsed to read a lengthy document.

Ha you’re funny. You dismissed me as a ”concern troll” over a year ago and now suggest I might be a liar too.
I said these talkboards are a bit pointless when people jump in and out of discussions like that.

Perhaps it’s you that is the one afraid of having a different view to your cultish friends?

What could be more cultish than the Eco and Occupy movements that LC gives broad support to?
Invading high street stores shouting ”pay your tax”.

Damon – I put it to you that somebody capable of using an internet browser is more than capable of downloading a pdf reader.

So the real reason you won’t the report suggested is because you can’t be arsed.

@Chaise #87:

If an equally very drunk man and woman go home together and have sex, does that morally make him a rapist and her a rape victim?

Yes; assuming, that is that she was sufficiently drunk not to be capable of consenting.

The implication of the agument is that had he been sober, he would not have taken advantage of the offer; why then should his own deliberate act in getting drunk excuse him? I am not saying that his reason for getting drunk is as a ploy to excuse himself; just that getting drunk is deliberate and that he is fully responsible for his actions in that condition.

Self-induced intoxication either rendering the defendant incapable of recognising the nature and consequences of his actions or simply inducing a mistake of fact is usually treated that way in the criminal law; it is only a defence to crimes requiring a specific intent (of which rape is not one).

If so, what justifies that discrimination? That’s the gender disparity that damon seems to be referring to

But there is none. The woman isn’t relying upon her drunkenness to excuse her having done something that would be a crime were she sober. The man seeks to.

@planeshift #86:

<blockquote.Indeed the far more likely result of a pissed man attempting to have sex is that they will fall asleep after failing to get it up.

Although of course this is not an issue on which I would care to claim personal experience, point taken.

@ 90 Robin

“But there is none. The woman isn’t relying upon her drunkenness to excuse her having done something that would be a crime were she sober. The man seeks to.”

Then you’re relying solely on the legal quirk that it’s not rape for a woman to have normal intercourse with a man without his consent. I assume it would be serious sexual assault, though, so would you have her prosecuted for that at the same time as he’s prosecuted for rape?

In the scenario I described above, the actions of both people are identical. Both have slept with someone without the other’s consent, and neither are immune from the consequences due to their own actions. So if anything they’re both guilty, although frankly it would seem less harmful to both parties if no charges were brought.

Your position seems to be that, at least in the case of drunken sex, men are responsible for their actions and women are not. Can you justify that morally, not behind the shield of legal technicalities?

@ 86 Planeshift

“In general I would say that few rapists are themselves paralytic when comitting the act. Getting their victims drunk is an obvious tactic they employ, whilst ensuring they remain in control of the situation – for the obvious reason that morons likes Damon will assume they are innocent if the victim admits to being drunk.”

I wonder. There must be loads of people who have very-drunk sex with each other every night – both one-night stands and couples – and I imagine it would have a huge effect on the stats if this was routinely reported as rape. I guess it kinda depends how high the bar is for “too drunk to consent”.

“Indeed the far more likely result of a pissed man attempting to have sex is that they will fall asleep after failing to get it up.”

Sure, but leaving aside use of Viagra etc., I’m not convinced that the law should take the view that a man who can get an erection must be capable of consent.

I do hope our randy teens are following all of this – judging by the criteria outlined above we probably have an epidemic of rapists in our midst.

Eventually more jails will be needed to accommodate them all (unless non-custodial sentences are appropriate for younger offenders, such as the precocious 12 year olds).

Here’s another scenario – supposing a couple have sex, then continue with post coital alcohol consumption – the bloke assumes that since there was no objection the first time, she is unlikely to object later on even though she is now pretty tipsy.

Is a jail sentence, and ruined life inevitable?

@ Robin

“But there is none. The woman isn’t relying upon her drunkenness to excuse her having done something that would be a crime were she sober. The man seeks to.”

Robin, I really don’t get this. Are you really saying that if a woman had sex with a man while she was sober and he was too drunk to consent, no crime of any kind would have been committed? And, if so, are you actually supporting that position as in any way morally acceptable, or coherent with what would quite rightly happen were the genders reversed?

I put it to you that somebody capable of using an internet browser is more than capable of downloading a pdf reader.

I’ve had one on this laptop before, but need a new one. When I have clicked to download one (the ”Acrobat” one I think), it seems to take an age, and there are some technical issues I’m not sure about. Like this warning:

Please note, depending on your settings, you may have to temporarily disable your antivirus software.

You didn’t answer my second question, about who is more cultish. A group of people who write for an internet magazine, or people who end up trying to defy and outmanouver the police in set piece confrontations in high streets and at places like working power stations? I’ve been to ”Climate Camp” at Blackheath and to the ”Stop runway three” at Heathrow airport.
I’ve sat in on the ”direct action” workshops.

Spiked don’t even come close on the cult scale.

btw, The Stern Report is a bit of a red herring here.
I may not have read that pdf file, but have seen the way that mainstream feminism takes on the issue of violence against women. Like here on their ”Reclaim the Night” marches.
http://www.youtube.com/watch?v=uS4LkFCDk3k&feature=related

The simple point is ….. that I (and I think Spiked) view that approcah as deeply flawed. But it can’t be discussed if people will start throwing insults to easily. Which is what invariably happens.

have seen the way that mainstream feminism takes on the issue of violence against women. Like here on their ”Reclaim the Night” marches.
http://www.youtube.com/watch?v=uS4LkFCDk3k&feature=related

The simple point is ….. that I (and I think Spiked) view that approcah as deeply flawed.

What are the flaws? How can it be improved? In your own words.

Chaise/93: I imagine it would have a huge effect on the stats if this was routinely reported as rape.

Well, it’s fairly well established already that if all cases of sex without consent were reported as rape this would basically add an extra zero on to the figures. (And then if we by some miracle were able to successfully secure a conviction in each case our prison population would leapfrog the USA’s, unless our estimates for average rapes per rapist are way off)

Or, you could look at it the other way: a routine presumption within society that someone who is drunk is not able to consent [1] would reduce the rate of rape.

[1] I think there’s an obvious double standard here. With the exception of sexual activity we generally do not expect people to be able to give meaningful consent to a wide range of things – from trivial promises to help a friend assemble a bookcase tomorrow to major events such as signing mortgages or agreeing to surgery – while drunk.

84/a&ecn: the bloke assumes that since there was no objection the first time, she is unlikely to object later on even though she is now pretty tipsy.

Is a jail sentence, and ruined life inevitable?

He’s made an unjustifiable assumption. From this point several things can happen:
1) His assumption, while unjustifiable, turns out to be right, for the reason that she continues to consent and so does not object. No crime has occurred, but he took a bit of a risk.
2) His assumption turns out to be wrong and she does object (there are a variety of methods by which she could express the objection, which isn’t relevant here). He immediately stops (clearly if he doesn’t, that’s rape). No crime has occurred, but he could have avoided the risk by asking first.
3) His assumption is literally correct in that she does not object – but due to incapacity, not because she actually consents. Clearly by definition he’s having sex without consent. Exactly how ruined her life is by being raped will depend on a number of factors; his chance of a jail sentence is probably fairly low.

From his perspective, he has no way to tell at the time, in the absence of explicit objection, which of 1 and 3 is the case (and since he knows that she’s had a lot to drink, he can’t take the usual route of establishing this by asking). The sensible thing to do is therefore not to take the risk. If he does take the risk, he’s basically saying “it might be sex, it might be rape, but I don’t care” which is an attitude which pretty much guarantees that he will eventually be a rapist, even if not this time.

@ 98 cim

“Well, it’s fairly well established already that if all cases of sex without consent were reported as rape this would basically add an extra zero on to the figures.”

Sure – that’s why I said “routinely” rather than always. Basically, if both-too-drunk-to-consent was reported at the same ratio as one-too-drunk-to-consent, I don’t think the former would turn out to be a small fraction of the combined figure.

“Or, you could look at it the other way: a routine presumption within society that someone who is drunk is not able to consent would reduce the rate of rape.”

Agreed. It’s a message that needs to get out. I just don’t think the way to do that is by encouraging an insane system where two drunk people have sex and one of them is jailed purely based on their gender.

“I think there’s an obvious double standard here.”

Yeah. It’s possibly because the moral and legal difference between rape and consensual sex is so much vaster than, say, the difference between shaving a mate’s head for a joke when he’s drunkenly agreed to it and doing the same when he’s fairly soberly agreed to it.

[98] people don’t usually get drunk before assembling bookshelves, but many do use alcohol to facilitate a variety of social interactions, with casual sex high on this list.

Surely one of the questions we must ask ourselves is why booze, and casual sex are inseparable in many cases.

“Although of course this is not an issue on which I would care to claim personal experience, point taken.”

But at least I am able to install a pdf reader on a laptop

“You didn’t answer my second question”

Because it was about as relevant to this discussion as asking me whether I thought the west yorkshire historical society were cultish.

What are the flaws? How can it be improved? In your own words.

I don’t think it can really be improved, as the debate, if there ever was one, would to too hot tempered.
You can guess that those kinds of women (and their supporters) do not take criticism lightly, and are more likely to start shouting and calling people names.

Is that Shami Chakrabarti in that Youtube @ 2 minutes in?
Asking ”Brothers, when will we see you marching on the streets demanding an end to male violence agaist women?”
It looks and sounds like her.

As for those placards they are carrying on their demos, which say: ”End Violence Against Women” … they are as realistic as ones which could say ”End Violence”.
It’s daft.

But first this brand of feminist action would have to be an agreed topic of discussion, and it’s probably too late in this thread for it to start now. And I suspect there probably isn’t the will either.

We could also take up Katie Roiphe’s experiences at university in the States in the 1980s, and her book about this very thing, called ”The Morning After: Sex, Fear, and Feminism.”
http://www.amazon.com/Morning-After-Sex-Fear-Feminism/dp/0316754323

”The morning after” meaning, the morning after the night before you went to bed with this rather unappealing bloke and you can’t figure out why you did.

@ 101 a&e

“Surely one of the questions we must ask ourselves is why booze, and casual sex are inseparable in many cases.”

Well, they’re hardly inseparable. I think there’s a pretty simple medical answer here: booze tends to boost confidence and reduce inhibitions. You’re more likely to make a move and less likely to say no if someone else does. For exactly the same reasons, I take it as read that alcohol is associated with infidelity.

damon,

4. damon
What are the flaws? How can it be improved? In your own words.

I don’t think it can really be improved, as the debate, if there ever was one, would to too hot tempered.

Well that’s the end of that, then.

Thanks for engaging.

@ 104 damon

“Asking ”Brothers, when will we see you marching on the streets demanding an end to male violence agaist women?”
It looks and sounds like her.”

I have to admit it seems a bit weird to expect people to go on a march against criminals.

“I have to admit it seems a bit weird to expect people to go on a march against criminals”

In fairness, the tabloids and the right demands it from the muslim community after every islamic terrorist act.

Is that Shami Chakrabarti in that Youtube @ 2 minutes in?
Asking ”Brothers, when will we see you marching on the streets demanding an end to male violence agaist women?”
It looks and sounds like her.

I thought she looked like Laurie Penny.

@ 108 Planeshift

“In fairness, the tabloids and the right demands it from the muslim community after every islamic terrorist act.”

Nothing like a broad-brush attack. In fairness, going on an anti-terrorist march would make some sense if you were a UK Muslim – but only to try to counter the guilt-by-association being laid on you by said tabloids in the first place.

I hate when people demand to know why the “Muslim community” isn’t doing anything. Why aren’t you doing anything, I always wonder.

@Chaise #92:

Then you’re relying solely on the legal quirk that it’s not rape for a woman to have normal intercourse with a man without his consent.

Not at all; intercourse without consent doesn’t happen that way around, for very good physical reasons. There’s a pretty reliable physical flag of a man’s consent that,if it is not present, makes normal intercourse impossible. It is that physical quirk that I am relying upon.

An attempt by a woman to have intercourse with an unwilling man (if she can find one) would be sexual assault, and properly so; but it is odds-on that if there was intercourse, it was initiated by the man, for purely physical reasons.

Your position seems to be that, at least in the case of drunken sex, men are responsible for their actions and women are not.

Nope. But in the case of drunken intercourse specifically, the man is the actor, the woman the actee; all the woman did is not prevent the man from doing what he wanted to do.

Other sexual acts – that logic doesn’t necessarily apply, and the question becomes who started it, and who laid back and thought of England.

It may well be impossible to determine who did what in those other cases, in which case a charge would be unwise at the very least.

Can you justify that morally, not behind the shield of legal technicalities?

I don’t need to, because that is not my position – see above.

@Chaise #95:

Robin, I really don’t get this. Are you really saying that if a woman had sex with a man while she was sober and he was too drunk to consent, no crime of any kind would have been committed? And, if so, are you actually supporting that position as in any way morally acceptable, or coherent with what would quite rightly happen were the genders reversed?

I hope that my answer to this is obvious from my immediately preceding answer.

We could also take up Katie Roiphe’s experiences at university in the States in the 1980s, and her book about this very thing, called ”The Morning After: Sex, Fear, and Feminism.”

We could. Though I’m not entirely sure what one women’s anecdotal experiences can really tell us. It’s a poor comparison to the Stern Report, which asked lots of women, for example.

[105] all I mean is that alcohol is a perennial factor – boffins have noted ‘Drinking was strongly related to the decision to have sex and to indiscriminate forms of risky sex (e.g., having multiple or casual sex partners)’ – many are likely to have not obtained explicit consent.
http://www.ncbi.nlm.nih.gov/pubmed/12022716

At the same time sexual arousal is a further mechanism that impairs decision making – see, ‘The Heat of the Moment: The Effect of Sexual Arousal on Sexual Decision Making’
DAN ARIELY & GEORGE LOEWENSTEIN (2006)

Given such factors the consent issue is far from straight forward.

Robin, I really don’t get this. Are you really saying that if a woman had sex with a man while she was sober and he was too drunk to consent, no crime of any kind would have been committed?

We are taking into account that the people in question generally have to bring these things to the police’s attention in order for something to become prosecuted as a crime anyway right? Though big props to the guy being so shitfaced he can’t articulate his desire to not have sex yet still manage to achieve tumescence.

A less vague situation that is likely to see the male in question rush to the police station involves roofie tea and strap-ons. If the wider question actually being asked is ‘can women rape men?’.

@ 111 Robin

“Not at all; intercourse without consent doesn’t happen that way around, for very good physical reasons. There’s a pretty reliable physical flag of a man’s consent that,if it is not present, makes normal intercourse impossible. It is that physical quirk that I am relying upon.”

Wow. So, if a woman is hot enough to give a man an erection, his actual choices count for naught? Queen Victoria would have loved you. Christ, Robin, this is ludicrous. Are you in favour of allowing “she enjoyed it” as a defence too? Or “she was wet”?

Consent reduced to an instinctive physical reaction. That’s just great.

“An attempt by a woman to have intercourse with an unwilling man (if she can find one) would be sexual assault, and properly so; but it is odds-on that if there was intercourse, it was initiated by the man, for purely physical reasons.”

Um, one can initiate sex with a vagina. And I’m really not sure why I should give a damn about anything being “odds-on” when we’re talking about whether something is possible, not common.

“Nope. But in the case of drunken intercourse specifically, the man is the actor, the woman the actee; all the woman did is not prevent the man from doing what he wanted to do.”

See above RE your confusion over what “consent” means.

Robin, I am honestly shocked. I’m not messing about, I really am stunned by what I just read, considering the source. I’d ask if you’d been possessed by the spirit of SMFS, except that I doubt even he would have such a neolithic attitude about this. The idea that an erection overrules a man’s right to deliberate consent is frankly disgusting.

“I hope that my answer to this is obvious from my immediately preceding answer.”

Horrifically so, yes.

@ 115 Cylux

“We are taking into account that the people in question generally have to bring these things to the police’s attention in order for something to become prosecuted as a crime anyway right?”

No: it’s a hypothetical. If a woman had sex with a guy when he was too drunk to consent, and he reported it to the cops, would that be considered a crime? Seems pretty likely seeing as a woman can be done for pinching a man’s bottom.

“Though big props to the guy being so shitfaced he can’t articulate his desire to not have sex yet still manage to achieve tumescence.”

Word of advice: sexual assault victims tend not to like being told “props” when they tell you of their experiences.

It’s conceivable that it’s physically impossible for a man to be incapable of consent due to booze, but capable of an erection. I’d need facts and figures, though. What I’m getting so far is basically “alcohol can make it harder to get it up, ergo women can’t use booze to rape men”, which I find unconvincing in itself.

“A less vague situation that is likely to see the male in question rush to the police station involves roofie tea and strap-ons. If the wider question actually being asked is ‘can women rape men?’.”

Pretty sure that’s rape anyway, under the law. Anal rape is rape; rape with an object is rape; ergo that’s rape.

a&e, I sense you’re trying to show up the law but you don’t seem to consider the importance of the circumstances to the jury. Wrt your points about alcohol, sure, lots of people are less inhibited when they drink. But how drunk is the woman in your hypothetical scenario? If she was falling down drunk, is the jury more or less likely to be persuaded beyond reasonable doubt that she didn’t have capacity to consent? If she had one or two small glasses of wine and seemed merely ‘merry’, is the jury more or less likely to be persuaded beyond reasonable doubt that she didn’t have capacity?

Maybe you are concerned about the potential criminalisation of something lots of men do every weekend? But I’m not sure the fact that lots of men do that should be in itself a reason not to have the law as it is.

111/Robin Levett: with an unwilling man (if she can find one)

Aside from everything Chaise has already expressed shock at, which saves me a lot of typing, I’ll just point out that men do not exist in a permanent state of consent to sex any more than women do…

(So men who have been raped sometimes find it hard to admit it, because surely they should always want sex … and women who have been raped get victim-blamed because don’t you know men always want sex, and what did you expect leading him on like that.)

118/Chaise: Pretty sure that’s rape anyway, under the law

Morally, yes. Under the law, not in England and Wales. It would be “assault by penetration”, which is a separate crime with equivalent sentencing to rape. (The Act gets a lot right, but its splitting of rape into “rape”, “assault by penetration” and “causing sexual activity without consent (subsection 4)” is just bizarre)

“A less vague situation that is likely to see the male in question rush to the police station involves roofie tea and strap-ons. If the wider question actually being asked is ‘can women rape men?’.”

Pretty sure that’s rape anyway, under the law. Anal rape is rape; rape with an object is rape; ergo that’s rape.

By definition, only people with a penis can rape.

The strap-on would be assault by penetration, the non-consensual penetrative sex (woman forces man) would be causing sexual activity without consent.

SMFS @77.

What you mean is that George was better at mobilising that clan voting system than Labour was. Nor is there any evidence that George relied on the Muslima vote. He won by too much for that to be true. And we, none of us, know how people vote. So you have a Sista cheering on her Sistas in the Guardian. But it doesn’t mean anything. Certainly does not prove anything.

A Muslima vote would not have swung it, but there was plenty of Muslima activism. AS for GG being better at mobilising the clan voting system:-

“A common theme was frustration at clan politics in Bradford, known by the Urdu word Bradree, meaning relation or family, which here has become a byword for exclusivity. Many felt that too many important decisions were taken in Bradford by a small number of Pakistanis who came from Mirpur, a small town in Kashmir, and who had carved up the most important Labour party positions between them over the years.”

http://www.guardian.co.uk/politics/2012/mar/30/george-galloway-star-power-bradford

“So whatever the Islamic rulings about rape, Salma Y and her activist women comrades do not hold to them.

Obviously they do or they would not be pious Muslims.”

I don’t know if they are “pious” or “devout” but they are observant and identify themselves as Muslim. An observant Catholic is quite capable of ignoring the Church’s teachings on birth control or pre-marital sex. You are falling into the “no true Scotsman” fallacy. Similarly, a Muslim will say after the latest Islamist suicide bombing “the people who did that aren’t really Muslims”. The world would be a much more horrible place if the religious were doctrinally consistent. Most religious people cherry pick, for good or ill.

Women? You mean one woman at that meeting took him to task. He was utterly unrepentant about it and that was about it. New Wave feminism? More likely Yaqoob’s Muslim sisters took her side against a man who is still nominally a Catholic.

The article is reproduced on the Bradford Muslim Women’s Council’s website, so presumably there must be more than one woman who approves of it.

“So, Galloway’s refusal to clarify the confusion about his faith makes his religious invocations all the more perplexing. This was especially the case at the Bradford Muslim Women’s Circle meeting, where although the women were undeniably Muslim, it was local issues we wanted to speak to Galloway about. The issues the women raised clearly reflected their commitment to equal rights and to Bradford. In fact, the women were more interested in Galloway’s moral stance than his faith. This is why his insistence on addressing us purely in terms of our religious identity, made the meeting all the more frustrating.”

It’s the moral stance that’s important, not the faith – which is pretty much how the descendants of observant Christians operate in this country. In the main the UK population speaks the language of morality, not religion. Also equal rights. New wave feminism introduced it and now it’s become part of the culture we breathe. Would any gang of women in this country – the Women’s Institute, the Catholic Women’s League – be against equal rights? If the religion says “not equal rights” they’ll ignore that bit of it.

So I continue to be cheered by this. Playing identity politics might have helped Galloway to get his seat, but showing his basic sexism, not to mention his usual neglect of his constituency duties has brought his stock down among his supporters.

And where does just plain regret at a bad experience come into this? Some nights will end badly, but it doesn’t mean it was rape or sexual assault, it might have just been impaired judgement. How drunk is too drunk to give consent for sex? At that which you can’t legally drive a car? That’s too low obviously. So twice that amount then? Who’s measuring the alcohol in the blood?

I have walked home from the pub (a few times) so drunk I don’t remember how I got home, but I did, and even said goodnight and had a quick chat to some people at home before falling into deep sleep. I know this only because I was told the next day and had no memory of it. A couple in this state could get themselves into all kinds of legal bother if they had sex in that kind of condition. Who would really know what went on the night before? This must be what has happened in some of the cases that Harriet Harman is talking about.

Well damon, s4(7) Sexual Offences Act 2003 says,

A person (A) commits an offence if—
(a)he intentionally causes another person (B) to engage in an activity,
(b)the activity is sexual,
(c)B just plain regrets the experience.

damon, how can your question be answered without knowing more of the circumstances of the case? The law can’t be so detailed that every possible scenario is predicted and considered. Ultimately a jury will hear both sides of the story (if the case is prosecuted) and decide beyond reasonable doubt if (say) the man could not have had reasonable belief in consent (if say the kebab shop staff saw her fall into and out of the shop, tipping the kebab down her top).

damon, maybe there is a rather larger problem in terms of men taking advantage of drunk women than there is of women regretting sex they freely consented to (and had capacity to consent to? I think this is another problem you have invented.

But do tell us how you think the law should be changed.

@Chaise #116:

Wow. So, if a woman is hot enough to give a man an erection, his actual choices count for naught? Queen Victoria would have loved you. Christ, Robin, this is ludicrous. Are you in favour of allowing “she enjoyed it” as a defence too? Or “she was wet”?

Consent reduced to an instinctive physical reaction. That’s just great.

And you accuse me of Neolithic attitudes?

May I remind you that I am a man; I realise that people misspelling the forename they share with me may confuse the issue.

I don’t get an erection simply because I find a woman “hot”. Nor could I maintain an erection if I didn’t want to have sex with a woman who was trying to force herself on me. Maybe I’m guilty of assuming others are the same as me; but if you look carefully, you are the one displaying a Neolithic attitude, and I am the one pointing out that consent comes before erection (or at elast is required to maintain an erection), whatever the “hotness” of the woman concerned.

Um, one can initiate sex with a vagina.

Not if, because of lack of consent, there’s no erection.

See above RE your confusion over what “consent” means.

Robin, I am honestly shocked. I’m not messing about, I really am stunned by what I just read, considering the source. I’d ask if you’d been possessed by the spirit of SMFS, except that I doubt even he would have such a neolithic attitude about this. The idea that an erection overrules a man’s right to deliberate consent is frankly disgusting.

There’s definitely confusion here, but not on my part. The Neolithic attitude on display here is “see woman, have erection”.

Oh, and in your reply to Cylux: cim is right. Rape requires the use of a penis.

@cim #120:

111/Robin Levett: with an unwilling man (if she can find one)

Aside from everything Chaise has already expressed shock at, which saves me a lot of typing, I’ll just point out that men do not exist in a permanent state of consent to sex any more than women do…

Come on! Was a smiley really necessary there?

@ 120 cim

“Aside from everything Chaise has already expressed shock at, which saves me a lot of typing, I’ll just point out that men do not exist in a permanent state of consent to sex any more than women do…”

Thanks, I was beginning to think I was losing it there. Seemed to be in a thread full of yahoos going “he’s got a boner, what’s the problem?”

And I should have noticed that “unwilling man – if she can find one, boom boom!” thing myself. Aside from the fact that it appears to use terrible stand-up humour in place of argument, the implication is that I’m permanently ready to cheat on my girlfriend the moment an attractive woman invites me to bed.

@ cim and ukliberty

“assault by penetration”

Thanks for the heads-up. I’m not too bothered that the terms are different if(?) sentences are about the same, although it does bother me slightly that they’ve maneuvered things so that some people can be labelled “rapists” when others can’t. And of course it allows for all sorts of stat-twisting and so on.

cim, more generally I agree that the whole “men always want to have sex” thing hurts men and women both, with very real and serious consequences.

@ 126 ukliberty

“damon, maybe there is a rather larger problem in terms of men taking advantage of drunk women than there is of women regretting sex they freely consented to (and had capacity to consent to? I think this is another problem you have invented.”

Hang on, though. A false rape accusation that results in conviction means years in a jail and a lifetime of being unemployable, a pariah, and a potential vigilantee target. It’s hardly a minor issue where it does happen. We’re talking about destroying someone’s life here.

I don’t think it’s likely that a woman would wake up, regret having consensual sex and think “oh, better accuse him of rape, then”. But it does seem possible that a woman would be horrified at her actions from the night before and rationalise it as “I would never have done that, it must have been rape” or, indeed, “my boyfriend would dump me if he found out, so it must have been rape”.

I chose the word “rationalise” there with care, by the way: it seems unlikely to me that people would falsely accuse each other of rape after a one-night stand out of sheer malice. The one guy I know who was falsely accused of rape was accused out of malice, but the circumstances were different: he and the woman were on opposite sides of an ongoing feud between two groups, and the accusation was just the next stage of the stupid escalation between the two groups.

@ Chaise

And I’m really not sure why I should give a damn about anything being “odds-on” when we’re talking about whether something is possible, not common.

Er, it’s possible for all the nuclear reactors in the UK to go critical tomorrow and wipe out all Human life in the British Isles, but it’s also so unlikely that it’s not worth even giving it a moment’s thought. I’m not sure what value a discussion about the possible could have if the likelihood of said ‘possibility’ is vanishingly small. It’s also possible the SWP will sweep into power. Lets discuss the implications for Labour and the Conservatives should this happen…

For the record the number one cause of male rapes is other men. Even without the thorny issue of how rape is classified legally.

Word of advice: sexual assault victims tend not to like being told “props” when they tell you of their experiences.

Which sexual assault victims would these be? Given what’s being presented is a hypothetical scenario.
(I’m actually trying to look up news reports of ‘man raped by women’, Google is performing astonishingly shite – the best it manages are women raped by men reports, it doesn’t even bring up that Law & Order episode, which is fiction, I might add, though possible if that’s important, although even in that the guy was in control of his faculties at the time and said no a lot, he were just tied to a bed and had a knife to his throat – so not even a close match to the hypothetical scenario)

@Cim

So men who have been raped sometimes find it hard to admit it, because surely they should always want sex

We still in the realms of ‘is it possible?’ Most centres that deal with male victims of rape seem to be under the impression that the reason why men find it hard to admit it has more to do with disturbance from the notion that they could not protect themselves from an attack and that this can lead male victims to question their ability to be what they perceive as a “man” and question their masculinity as a whole. Rather than introspective questions about why they weren’t gagging for it. Still, they could all be wrong I suppose.

But do tell us how you think the law should be changed.

Who said I wanted the law changed? This issue will be with us forever. And so will those ”Reclaim the Night” kind of feninists who are forever saying that more must be done.

I was out in the centre of Leeds at 3 AM the saturday before last. It was a bit crazy out. McDonald’s was full of noisy drunk people all about to make their way home. Many of the people there could be judged to be not in their right minds at that time.
I have no doubt that a lot of men take advantage of drunk women. What any percentages are to that, or just regret at bad sex is impossible to say.
If it happens to you once though, you might not let it happen twice.

I have a big problem listening Harrriet Harman on anything like this though.
Even right-on (PC) LBC radio presenter James O’Brien calls her ”Ms Harperson” (for a joke).
She’s actually quite awful I find.

Chaise, who is talking about false rape accusations? Don’t tell me damon insinuated there is a significant number of women reporting rape when in fact they “just plain regret a bad experience”?

Surely he wouldn’t.

@ Robin Levett

“And you accuse me of Neolithic attitudes?”

Um, yes. Just did. Is there a point here?

“May I remind you that I am a man; I realise that people misspelling the forename they share with me may confuse the issue.”

I’m aware you’re male. Believe it or not, I don’t care what gender people are when they say something appalling.

“I don’t get an erection simply because I find a woman “hot”. Nor could I maintain an erection if I didn’t want to have sex with a woman who was trying to force herself on me. Maybe I’m guilty of assuming others are the same as me”

Yeah, looks like it. So if a man does sustain an erection under those circumstances, you think it’s ok for him to be raped/assaulted/whatever. What a wonderful person you are.

“but if you look carefully, you are the one displaying a Neolithic attitude”

Oh, yeah, right. You don’t believe in the right to withhold sex due to lack of consent. You seem to believe that all men want to have sex pretty much all the time with all women. You believe that sex happens between male “actors” and female “actees”. You are a goddamn Neanderthal. You can reply “I know you are, but what am I” if you like. Have fun with that.

“and I am the one pointing out that consent comes before erection (or at elast is required to maintain an erection), whatever the “hotness” of the woman concerned.”

You may as well “point out” that the moon is made of cheese. Because consent is not about how someone’s body responds to sexual overtures, it’s about whether they say “yes” or “no”.

I notice you didn’t answer over whether “she was enjoying it” or “she was wet” should be considered defence against rape. By your logic, they should. What with people’s bodies having priority over their actual decisions and all that crap.

“Not if, because of lack of consent, there’s no erection.”

What if there is an erection, but because of lack of consent the man says “no”?

“There’s definitely confusion here, but not on my part. The Neolithic attitude on display here is “see woman, have erection”.”

Victim-blaming. Nice. God, you’re horrible.

damon,

Who said I wanted the law changed?

I have the impression you think the law is flawed.

111. Robin Levett

Not at all; intercourse without consent doesn’t happen that way around, for very good physical reasons. There’s a pretty reliable physical flag of a man’s consent that,if it is not present, makes normal intercourse impossible. It is that physical quirk that I am relying upon.

Good news for Jonathan King! Damon will be pleased. One of the American feminist sites had an article up by a woman who woke up one morning to find her boyfriend erect. So she started in on him. Only when he actually woke up, he was shocked and accused her of rape. Now you’re saying this can’t be rape because men can’t get an erection without consenting?

I would have thought an erection flagged an erection. Not consent. But that is me.

An attempt by a woman to have intercourse with an unwilling man (if she can find one) would be sexual assault, and properly so; but it is odds-on that if there was intercourse, it was initiated by the man, for purely physical reasons.

Well the chances are good, but it is interesting to see you seem to deny that statutory rape exists for young males. The teachers of Britain will be heartened. There is a famous case in the UK where two women kidnapped a Mormon missionary and held him down while trying to have sex with him. I would have guessed that an erection was a more or less involuntary response to oral sex, but, hey, that is just me. Good to know it is not rape.

Nope. But in the case of drunken intercourse specifically, the man is the actor, the woman the actee; all the woman did is not prevent the man from doing what he wanted to do.

That is a very limited view of drunken sex. You know, women do sometimes want to have sex. I know this may shock those of us with more Victorian attitudes, but it does happen.

@ 131 Cylux

“Er, it’s possible for all the nuclear reactors in the UK to go critical tomorrow and wipe out all Human life in the British Isles”

Oh, FFS. Logically possible. Robin’s position above is, in essence: if a woman forces a man to have sex with her, it’s not actual rape or even assault because he had a hard-on and has therefore sacrificed his right to say “no”. If that happened, Robin would cheerily wave away the man’s right to consent. Incidentally, that erection would not have to be maintained for long. The moment she forced him to start sex would morally be rape.

Although I’m sure plenty of men have had sex when too drunk to legally consent. Shit, it’s possible that I have, given what my intake used to be like. Alcohol doesn’t seem to have that much effect on my ability to get it up (in case you think I’m being macho, I should point out that I’m physically incapable of having sex if I take so much as half a dose of ecstasy, which I’m told is unusual).

“Which sexual assault victims would these be? Given what’s being presented is a hypothetical scenario.”

Let’s say you introduce a hypothetical scenario of a woman being raped because she was trying to walk home while too drunk to stand. I reply “Props to her for still looking attractive enough to rape when she’s that pissed!” Would you say “Hah, yeah, well done hypothetical woman!” or would you think I was being an arsehole?

Incidentally, there probably is a debate to had over whether forced normal sex is as bad when a woman does it to a man than when vice-versa. But I can’t really have that debate when you’re being facetious and Robin is making me hate the whole goddamn species.

@ UKL

“Chaise, who is talking about false rape accusations? Don’t tell me damon insinuated there is a significant number of women reporting rape when in fact they “just plain regret a bad experience”?

Surely he wouldn’t.”

The rest of damon’s comment makes it clear he’s talking about regret turning into rape accusations. No comment on whether he’s saying that there’s a significant number of people doing that. I haven’t been closely following your conversation with him, and I’ve now been rather horribly side-tracked by a caveman.

Incidentally, there probably is a debate to had over whether forced normal sex is as bad when a woman does it to a man than when vice-versa. But I can’t really have that debate when you’re being facetious and Robin is making me hate the whole goddamn species.

Apparently its funny :- http://www.youtube.com/watch?v=j4qtuGmyZoI

This is prety boring now – and pointless too (as often is the case here). But just to clarify Chaise, I think I have suggested there can be some grey area about what exactly did happen, and doubt if it was or wasn’t a sexual assault. There’s certainly a lot of anguish involved often by the sounds of it, even when it may not have been criminal.
But this really isn’t the right forum for such a discussion IMO. It just doesn’t work.

@ 139 Cylux

Well, that was mildly funny. But sorta also a big problem with our society. I assume you’ve gone with the “remaining facetious” option.

@ 140 damon

“This is prety boring now – and pointless too (as often is the case here). But just to clarify Chaise, I think I have suggested there can be some grey area about what exactly did happen, and doubt if it was or wasn’t a sexual assault. There’s certainly a lot of anguish involved often by the sounds of it, even when it may not have been criminal.”

I agree with you. There’s certainly a tendency among a lot of people to err on the side of judgementalism. We need to make sure that you can jail someone for exploiting someone who’s so drunk they don’t know what they’re doing, but at the same time we don’t want to take the normal friday night activity of many couples and call them both rapists when they’re both fine with what’s going on. It’s kind of a thin line, obviously.

“But this really isn’t the right forum for such a discussion IMO. It just doesn’t work.”

Oh, I dunno. I find LC better for this than, say, the pub, where everyone sits around and agrees with each other to avoid social discomfort.

@Chaise #134:

So if a man does sustain an erection under those circumstances, you think it’s ok for him to be raped/assaulted/whatever.

Pardon me while I remove these words that i seem to have found in my mouth – I wonder who put them there?

Read what I said., not what you want to read there. Please point to where I said anything of the kind; bear in mind that my premise was that a man wouldn’t be able to maintain an erection if he did not consent, and hence an erection was a reliable indicator of consent. If I am wrong about it being a reliable indicator of consent, do you really believe that my response is “Well so what, he looks like he is consenting?”

What a wonderful person you are.

I’m not the one putting words in someone else’s mouth and insulting him for saying them…like here:

Robin’s position above is, in essence: if a woman forces a man to have sex with her, it’s not actual rape or even assault because he had a hard-on and has therefore sacrificed his right to say “no”. If that happened, Robin would cheerily wave away the man’s right to consent.

Withdraw that claim.

[144] – an erect penis is a sign of sexual arousal not consent – the act itself might be a problem for religious reasons, say, or because the other party is your brother’s wife (for example).

Not an everyday occurrence perhaps but there is a distinction as chaise says.

@Chaise – That Mormon in chains story that SMFS brought up was considered by the nation’s press to be a comic relief story that would lighten the mood of the nation and was reported as such. Even though it included kidnapping and false imprisonment. So apparently it’s funny.

I’m also not surprised that it just happened to be the boyfriend of a blogging feminist that concluded he was being raped by his girlfriend. No doubt in their long labourious conversations about rape what was omitted, as it frequently is because it muddies the waters considerably, is that consent can and often is granted retroactively, but that it conversely cannot be removed retroactively.

128/Robin: On a LibCon comment thread with some of the views on consent that usually get stated? You really need to work on your comic timing…

131/Cylux: We still in the realms of ‘is it possible?’

I’ve seen a few male victims of rape talk about having trouble realising what had happened to them for years for precisely that reason. Whether or not this is the most common feeling (and I’ve no reason to believe it is) I’m not aware of any studies on.

142/Chaise: at the same time we don’t want to take the normal friday night activity of many couples and call them both rapists when they’re both fine with what’s going on.

Well, if they’re both fine with what’s going on, then neither is going to complain about it, and because they both consented it’s not rape by definition. So there should be no need to worry on their behalf.

Chaise

There’s certainly a tendency among a lot of people to err on the side of judgementalism.

Ha, I wonder who you might mean. I can think of at least two here.
But LC is set up that way. It’s pretty fundamentalist.

144. the a&e charge nurse

the act itself might be a problem for religious reasons, say, or because the other party is your brother’s wife (for example).

Or because you don’t fancy her. Girls can be stunning but still too nuts for a sane man to get involved with. We have increasing numbers of rules about sex – and especially about who men can’t have sex with. Teachers and students, doctors and patients, therapists and their patients. If your 16 year old student turns up naked on your front door, you may know better but your penis might not.

Not an everyday occurrence perhaps but there is a distinction as chaise says.

More common than you might think.

145. Cylux

That Mormon in chains story that SMFS brought up was considered by the nation’s press to be a comic relief story that would lighten the mood of the nation and was reported as such. Even though it included kidnapping and false imprisonment. So apparently it’s funny.

You mean two people quoted in Wikipedia claim it as such. Of course women could not rape men in the law at the time.

I’m also not surprised that it just happened to be the boyfriend of a blogging feminist that concluded he was being raped by his girlfriend. No doubt in their long labourious conversations about rape what was omitted, as it frequently is because it muddies the waters considerably, is that consent can and often is granted retroactively, but that it conversely cannot be removed retroactively.

I could find the thread if you liked. It thought it was more sad than enlightening.

The problem with any case based on one person’s word against another is consent can and is both granted and retracted retroactively.

146. cim

I’ve seen a few male victims of rape talk about having trouble realising what had happened to them for years for precisely that reason. Whether or not this is the most common feeling (and I’ve no reason to believe it is) I’m not aware of any studies on.

I think most men would admit to having been a little coerced into sex at one time or another. Society’s approach is to shrug it off and get on with the rest of your life. That is probably a reasonable attitude. At least when it comes to heterosexual rape. I hate to think what the chances of conviction are.

Well, if they’re both fine with what’s going on, then neither is going to complain about it, and because they both consented it’s not rape by definition. So there should be no need to worry on their behalf.

Except they are engaging in high risk activity where one side can unilaterally change the nature of the relationship if she feels hard done by for any reason. That is not wise. Nor is it something we ought to be encouraging. The only thing that makes a difference between a mutually pleasurable evening and a 10 year jail term is whether the woman in question is in a good mood? Not sensible.

@ 143 Robin

“Pardon me while I remove these words that i seem to have found in my mouth – I wonder who put them there?

Read what I said., not what you want to read there. Please point to where I said anything of the kind; ”

OK, let me split the right hair for you. Your position as thus advertised is that you would claim it wasn’t rape/assualt in the first place.

“bear in mind that my premise was that a man wouldn’t be able to maintain an erection if he did not consent, and hence an erection was a reliable indicator of consent. If I am wrong about it being a reliable indicator of consent, do you really believe that my response is “Well so what, he looks like he is consenting?””

No, I think your response is “Well, he IS consenting”. Even though the man in question might disagree.

“I’m not the one putting words in someone else’s mouth and insulting him for saying them…like here:”

Oh, stop whinging. You take a shitty position, you get called out on it. You can split hairs all you want, but the fact remains that you’ve just declared that a man’s erection overrules his right to conscious consent. And no, you did not say those exact words, they’re just logically essential to your position.

“Withdraw that claim.”

No. You said that a man who has a hard-on must have consented to sex. Ergo you have decided that the physical reaction trumps his actual right to consent. If you find your position unpleasant – and you really fucking should – you should revise it.

OK, Robin, you apparently think you’ve been misrepresented. I, on the other hand, think I’m representing your position perfectly. So let’s sort this out: what IS your position? And how would it apply in the following scenario?

Woman and man are naked in bed together. Woman tries to initiate sex. Man is aroused but turns her down. Woman physically forces intercourse on him.

To my mind, that’s serious sexual assault by the law, and morally rape. What would you call it morally?

SMFS,

Well, if they’re both fine with what’s going on, then neither is going to complain about it, and because they both consented it’s not rape by definition. So there should be no need to worry on their behalf.

Except they are engaging in high risk activity where one side can unilaterally change the nature of the relationship if she feels hard done by for any reason. That is not wise. Nor is it something we ought to be encouraging. The only thing that makes a difference between a mutually pleasurable evening and a 10 year jail term is whether the woman in question is in a good mood? Not sensible.

No-one’s encouraging false complaints.

Why on earth are people inventing problems? There are more than enough real problems.

Shall we look at things from a ‘reasonable belief in consent’ angle?
Someone who holds a knife to someone’s throat while they force themselves inside them does not have a reasonable belief in consent.
Someone of age who sleeps with a willing underage teen does not have a reasonable belief in consent. (Re: age of consent)
Someone who forces themselves on someone else despite repeated protestations does not have a reasonable belief in consent.
Someone who initiates intercourse with their long term steady partner while they sleep does have a reasonable belief in consent.
Someone who initiates intercourse wearing protection with someone who they slept with the night before with the condition that they wear protection and is asleep has a reasonable belief in consent.
Someone who initiates intercourse sans protection with someone who they slept with the night before with the condition that they wear protection and is asleep does not have a reasonable belief in consent.
Someone who goes out gets drunk and ends up with someone else equally drunk who can’t take their hands off one another before going home together have reasonable belief of consent
Someone who feeds someone drinks in order to get them drunk or otherwise drugs them doesn’t have reasonable belief in consent. (Due to the deliberate attempt to circumvent consent)

A women initiates sex with a man too drunk to consent (unconscious?) with a hard-on – without knowing more of the details it’s hard to say if her belief is reasonable or unreasonable, would consent be retroactively granted? Would it not? Are they involved in a long term relationship? Or just met? Where is this occurring? – His bedroom? (probably reasonable in that case) Her bedroom? (Gray area again) The street? (probably unreasonable in that case) Without knowing much else I would er on the side of her belief in him being consenting if he could articulate that desire was reasonable, if she were merely taking cues from his member, however that is divorced from what his reaction actually would be.

@Chaise #149:

No. You said that a man who has a hard-on must have consented to sex. Ergo you have decided that the physical reaction trumps his actual right to consent.

You’re doing it again. Firstly, there is a yawning chasm of logic fail between your premise and your conclusion above.

Secondly, I have said that (I believe that) a man who doesn’t consent to sex would not be able to maintain an erection, and for that physiological reason normal intercourse could not be forced upon a man; that is not a moral position, but a physiological one; the relevance of my being a man is that I can speak with a little authority (at least as much as any other man) as to that physiology, since I possess it.

If I am wrong on that physiological point (and others here seem to claim to be able to maintain an erection despite not consenting, so either I am wrong, or they are all mouth and no trousers), that does not logically lead to the moral judgment that they should be treated as consenting anyway; it leads to a re-assessment of whether my physiological conclusion that normal intercourse cannot take place with an unwilling man is correct, and whether an erection is indeed a reliable indicator of consent.

So I will repeat my demand – withdraw the claim you made.

Oh, stop whinging. You have a shitty position wrongly attributed to you, you get called out on it.

Fixed that for you.

You can split hairs all you want, but the fact remains that you’ve just declared that a man’s erection overrules his right to conscious consent.

To the contrary – I stated my belief that a man couldn’t have an erection without consent. That is not splitting hairs – it is a quite different statement with a quite different meaning.

And no, you did not say those exact words, they’re just logically essential to your position.

You really need both to reconsider your logic, and to step back and consider whteher the position you have attributed to me is in any way consistent with what I have actually said in this thread, or with my stated positions in other threads on similar topics.

#150:

Woman and man are naked in bed together. Woman tries to initiate sex. Man is aroused but turns her down. Woman physically forces intercourse on him.

To my mind, that’s serious sexual assault by the law, and morally rape. What would you call it morally?

If that is physically possible, then since I said this at #111:

An attempt by a woman to have intercourse with an unwilling man…would be sexual assault, and properly so; but it is odds-on that if there was intercourse, it was initiated by the man, for purely physical reasons.

(apparently inappropriate levity removed)

I believe I’ve pretty much answered that. If the purely physical reasons don’t exist (ie I’m wrong on my physical judgment), we’re pretty much agreed on the moral judgment.

@ Robin

Statement withdrawn. If you’d made it clear from the start that your position was wholly contingent on the assumption that the threat of non-consensual sex would cause a man to instantly lose his erection, I wouldn’t have said it. I withdraw “Neolithic” while I’m at it, for the same reasons.

However, that assumption is dangerously wrong, for the following reasons:

1) Erections don’t vanish instantly. It takes awhile, especially pre-orgasm. Rape is rape even if it’s only for a few seconds.

2) As SMFS points out, it’s probably possible to coax an erection out of a man via foreplay even if he doesn’t want one.

3) It is possible to know you’d enjoy sleeping with someone, and still refuse. Maybe you’ve got a girlfriend you don’t want to cheat on. Maybe sex outside marriage is against your religion. Maybe you just don’t feel ready.

I have turned down sex while hard on many occasions. Normally the reason has been that I knew the girl fancied me and was hoping that sex would turn into a relationship, whereas I knew that wouldn’t happen. On some occasions it’s taken a lot of willpower to say no. Had one of those girls tied me up to shag me, I seriously doubt I would have lost my erection.

Indeed, presumably there are people out there who are actively turned on by the idea of a woman taking control of them sexually. Those people are still entitled to choose whether to have sex.

I’m also still kinda weirded out by your idea that sex involves male actors and female actees. And that the existence of an erection proves that what the man “wants to do” is have sex with the person nearest him. And the whole general concept of men as hunters and women as gatekeepers.

Just realised that my paragraph above that starts “I have turned down sex…” comes off as if I’m supposed to be some kind of gentlemanly stud. Not the case. It’s more to do with the fact that I’ve always worried about the consequences of supposedly no-strings sex, when a lot of people around me didn’t, which put me in the position of being the one to refuse from time to time. I’m not saying I get hit on regularly.

All this knob talk is getting a bit odd …. but don’t forget the so-called ‘morning glory’.

http://www.urbandictionary.com/define.php?term=morning%20glory

@Chaise #154:

I’m also still kinda weirded out by your idea that sex involves male actors and female actees.

It follows from the belief as to physiology.

And that the existence of an erection proves that what the man “wants to do” is have sex with the person nearest him. And the whole general concept of men as hunters and women as gatekeepers.

All of which is attributing to me positions I don’t hold.

@ 157 Robin

“It follows from the belief as to physiology.”

How, exactly? Sure, men have to be aroused to be able to have sex. How does that make them the exclusive “actors”? Seems like a weird leap to me. If the woman suggests sex and then goes on top, doesn’t that make the man more of an “actee”, if anything?

“All of which is attributing to me positions I don’t hold.”

Well, up-thread you said, in the context of the “hard-on demonstrates consent” thing:

“Nope. But in the case of drunken intercourse specifically, the man is the actor, the woman the actee; all the woman did is not prevent the man from doing what he wanted to do.”

From which I’m getting that if a man is erect near a woman, he must want to have sex with her. What is the correct interpretation?

The “men=hunters, women=gatekeepers” thing wasn’t about you specifically. That’s why I said “general”. It’s a well-known social attitude that your comments appear to be examples of.

I notice you’re being reticent regarding my objections to your main thesis.

151. ukliberty

No-one’s encouraging false complaints.

You seem to have posted a comment utterly unconnected to the thread section you quoted, but that seems to refer back to the start of this thread. Yes, people are. The more people we encourage to report rape – especially incident that they would not otherwise report – the more false complaints we are going to get. Especially if we refuse to punish people who lie.

Why on earth are people inventing problems? There are more than enough real problems.

It is a real problem. People are going out and getting hammered and then committing acts that are only not rape by the grace of the little moppet concerned. The very real possibility of miscarriages of justice is there. Presumably we do jail people for this.

@Chaise #158:

I notice you’re being reticent regarding my objections to your main thesis.

I think that I’ve been pointing out that they’re irrelevant, because the “main thesis” you attribute to me isn’t mine. Let’s be clear – what do you think my main thesis is?

SMFS,

You seem to have posted a comment utterly unconnected to the thread section you quoted,

Except they are engaging in high risk activity where one side can unilaterally change the nature of the relationship if she feels hard done by for any reason. That is not wise. Nor is it something we ought to be encouraging.

What is being encouraged, if not a complaint to the police?
What’s she complaining about, if not rape?
What is a complaint about rape if one merely “feels hard done by” if not false?

SMFS,

Why on earth are people inventing problems? There are more than enough real problems.

It is a real problem.

Feel free to cite evidence SMFS.

People are going out and getting hammered and then committing acts that are only not rape by the grace of the little moppet concerned. The very real possibility of miscarriages of justice is there. Presumably we do jail people for this.

Undoubtedly it is rape (or another sexual offence as applicable) if (say) the woman does not have capacity to consent. So you seem to be saying, we should not be encouraging women who lacked capacity to consent to complain they’ve been raped?

@ 160 Robin Levett

“I think that I’ve been pointing out that they’re irrelevant, because the “main thesis” you attribute to me isn’t mine. Let’s be clear – what do you think my main thesis is?”

That lack of consent will make a man lose his erection, so the existence of an erection is proof in itself of consent.

That’s what you’ve just told me your position is, and it’s what I responded to – and you ignored – in my numbered points above.

Oh, and Robin, you get in another frump about me allegedly misrepresenting you, and then when I straight-out ask you for the correct interpretation of your comments, you ignore the request. This evasiveness is getting tiresome. If you don’t know what you mean, you can’t expect me to either.

@Chaise #163:

That lack of consent will make a man lose his erection, so the existence of an erection is proof in itself of consent.

That, subject of course to my being corrected as to the physiology, is almost a complete statement of my position. The missing part is the addition of the words “while having sexual intercourse”.

The emboldened part of this, however (from your comment #158):

“Nope. But in the case of drunken intercourse specifically, the man is the actor, the woman the actee; all the woman did is not prevent the man from doing what he wanted to do.”

From which I’m getting that if a man is erect near a woman, he must want to have sex with her. What is the correct interpretation?

is not my position; it neither follows from my comments in relation to intercourse between partners too drunk to have the capacity to consent, nor is it a restatement of my position as stated above.

I have never said anything remotely equivalent to (for example “If a man gets an erection watching a stripper, that means he can be taken to consent to sex with the stripper”. The issue is only whether he will be able to have or maintain an erection if he does not consent to sexual intercourse (in existence or imminent).

As for my position itself: I am happy to have my physiological knowledge corrected; and correction of that knowledge means that the physiological conclusion no longer follows.

You suggest I am being evasive – but you said, at #154, that:

If you’d made it clear from the start that your position was wholly contingent on the assumption that the threat of non-consensual sex would cause a man to instantly lose his erection

When my very first comment on this issue was:

Not at all; intercourse without consent doesn’t happen that way around, for very good physical reasons. There’s a pretty reliable physical flag of a man’s consent that,if it is not present, makes normal intercourse impossible. It is that physical quirk that I am relying upon.

which makes it very clear indeed (read with any charity at all) that my position was contingent upon my understanding of the physiology.

when I straight-out ask you for the correct interpretation of your comments, you ignore the request

I assume you refer to the question in #158 I quote above. It is, as I say above, certainly not a restatement of the position you quote as my main thesis. It ignores the context (which is drunken sex – so drunken that the participants have no capacity to consent). It followed the pattern you had established in this thread of apparently wilfully misinterpreting my position.

The correct interpretation of my comment in that context is that whatever the position as to whether lack of consent can kill an erection, too much alcohol will. While I am prepared to be corrected on the physiology, the interpretation is that for a man to maintain an erection sufficient to have sex while semi-comatose would take a great deal of effort, whereas a woman need not expend that effort.

In fact, this whole line of argument should probably have been closed off at the start as unrealistic, since the legal position is probably that you have to be incapacitated to be incapable of consent; it is not sufficient that by reason of (voluntarily consumed) alcohol the person makes a different decision as to consent to that which s/he would make when sober; s/he has to be incapable of making a decision at all. If both parties are that incapacitated then no sex could take place.

@ Robin

“I have never said anything remotely equivalent to (for example “If a man gets an erection watching a stripper, that means he can be taken to consent to sex with the stripper”. The issue is only whether he will be able to have or maintain an erection if he does not consent to sexual intercourse (in existence or imminent).”

You’ve moved the goalposts. You DID say that an erection near a woman means you must want to sleep with that woman (possibly with the added requirement of drunkeness). I quoted it already. Please explain why “Nope. But in the case of drunken intercourse specifically, the man is the actor, the woman the actee; all the woman did is not prevent the man from doing what he wanted to do.” does not mean what I think it does, without going off topic.

“As for my position itself: I am happy to have my physiological knowledge corrected; and correction of that knowledge means that the physiological conclusion no longer follows.”

Good, very reasonable of you.

“When my very first comment on this issue was:

Not at all; intercourse without consent doesn’t happen that way around, for very good physical reasons. There’s a pretty reliable physical flag of a man’s consent that,if it is not present, makes normal intercourse impossible. It is that physical quirk that I am relying upon.

which makes it very clear indeed (read with any charity at all) that my position was contingent upon my understanding of the physiology.”

No, no, no. Because we’ve established that your position is predicated upon the assumption that the threat of assault will make a man instantly lose his erection. Your quoted statement does not say that, and makes no distinction between your actual position and “if a man has a hard-on, that’s all the consent you need”. Hence me taking it at the latter as I was unaware of your unannounced biological assumptions.

“It ignores the context (which is drunken sex – so drunken that the participants have no capacity to consent).”

I cut drunkenness for brevity and because I couldn’t see how it was directly related to the question (are you now saying that you meant erections indicate consent only when pissed?).

“It followed the pattern you had established in this thread of apparently wilfully misinterpreting my position.”

It was a direct request for a clarification. That’s as far as you can get from cynically misrepresenting people. If you refuse those, then you must WANT to be misinterpreted.

You misrepresented yourself, by the way. I apologise for the epithets earlier, seeing as it turns out you don’t deserve them, but I’m not going to be demonised for taking your words at the the most likely meaning (indeed, the only one that occurred to me).

“In fact, this whole line of argument should probably have been closed off at the start as unrealistic, since the legal position is probably that you have to be incapacitated to be incapable of consent”

Nobody yet has linked to the definition of “too drunk to consent”. I agree it would shine a lot of light on the conversation.

As an aside, I do know of a case in the US that got at least as far as an arrest, where a boy was accused of raping a girl on the basis that she was too drunk to consent. When they were discovered, she was on top. So if you’re right about the meaning, it’s either still an issue in the US, or the US police are not properly trained here.

@165. Robin Levett: “As for my position itself: I am happy to have my physiological knowledge corrected…”

My understanding is that some medicines (Viagra and clones) or some illegal drugs (crystal meth) change male responses to sexual activity or social interaction. Walking around with a perpetual hard-on may be a consequence.

Even if I am wrong about those particular drugs, there is the hypothetical drug that creates a perpetual hard-on whilst the poor victim is trying to work out calculus. Involuntary penetrative sex by a man is at least theoretically possible.

@Chaise #165:

Please explain why “Nope. But in the case of drunken intercourse specifically, the man is the actor, the woman the actee; all the woman did is not prevent the man from doing what he wanted to do.” does not mean what I think it does, without going off topic.

Read my #165. I actually explained what I meant in the post to which you are replying.

I cut drunkenness for brevity and because I couldn’t see how it was directly related to the question (are you now saying that you meant erections indicate consent only when pissed?).

No. The issue here was actor/actee, not consent per se. Again, this is explained in the post to which you are replying.

Your quoted statement does not say that, and makes no distinction between your actual position and “if a man has a hard-on, that’s all the consent you need”.

Don’t. Be. Ludicrous.

Sit down, take a deep breath, re-read what I said and ask yourself whether what I said – that lack of consent means that the man won’t have an erection, could possibly mean that if a man has an erection without consenting his actual state of mind can be ignored and one can go by his erection. I even said that I was relying upon that stated physical quirk.

161. ukliberty

What is being encouraged, if not a complaint to the police?

Well I don’t see that anyone is encouraging anything.

What’s she complaining about, if not rape?
What is a complaint about rape if one merely “feels hard done by” if not false?

Except it is not false. If they both got hammered and had sex, it is rape. She could not consent. The more we weaken the standards of proof, the bigger the problem gets. The only thing stopping it being rape is her retrospective view in the morning. This is a bizarre situation in that what amounts to the national pastime is illegal more or less by default and depends on the whim of some young girl for it not to be so.

162. ukliberty

Undoubtedly it is rape (or another sexual offence as applicable) if (say) the woman does not have capacity to consent. So you seem to be saying, we should not be encouraging women who lacked capacity to consent to complain they’ve been raped?

No I am not saying that. I don’t know what the solution is, but it is, presumably, to encourage boys and girls not to get hammered before they have sex. That ain’t going to happen – the British would cease to reproduce altogether if they couldn’t get pissed first. So we are left with, I don’t know, the divide between how most jury members know people behave – they get pissed and have sex – and what the law says. Of course the left thinks the solution is to take Brecht’s advice and elect a new people or at least re-educate them to agree with the State’s political views. But perhaps the more sensible solution is to bring the law in line with community standards? Either way people should not be having sex after having a few.

@SMFS #169:

So we are left with, I don’t know, the divide between how most jury members know people behave – they get pissed and have sex – and what the law says.

See my #168 above – there is no real divide. Being pissed isn’t enough; nor is being pissed enough to change a “no” to a “yes”.

[170] ‘nor is being pissed enough to change a “no” to a “yes”’ – there doesn’t have to be a no, that is SMFS’s point.

Being pissed equates with being at least partially incapacitated, and having sex while partially incapacitated = rape under the law, even though such behaviour occurs every single weekend.

In the cold light of day the finest liberal minds seem to be having trouble arriving at consensus about the boundaries (depending on your view about drug fueled sex) – so what chance for pissed up and barely educated youngsters from places like Hartlepool, the so called teen pregnancy capital of England?

Of course a lot of misunderstanding might be reduced if protagonists did not rely so heavily on various substances, and if they refrained from going to bed with each other at the end of a heavy sesh
http://looneyfun.com/img/dead-drunk-girls/dead-drunk-girls04.jpg

It’s an interesting view that the only way the entirety of the population of a nation manages to reproduce is to get shitfaced beyond self awareness first.

I’m also not sure what point A&E had with his picture, are we to assume that were a passerby was to initiate sex with one of them that said passerby would have had a reasonable belief in consent?

161. ukliberty

What is being encouraged, if not a complaint to the police?

Well I don’t see that anyone is encouraging anything.

“Except they are engaging in high risk activity where one side can unilaterally change the nature of the relationship if she feels hard done by for any reason. That is not wise. Nor is it something we ought to be encouraging.”

Your words. So you’re saying we aren’t</em encouraging that. What a relief.

What’s she complaining about, if not rape?
What is a complaint about rape if one merely “feels hard done by” if not false?

Except it is not false. If they both got hammered and had sex, it is rape. She could not consent.

If she had capacity to consent and consented, it isn’t rape. If she didn’t have capacity, it is rape. In essence, your concern is that women who don’t have capacity to consent are making rape complaints. Or something.

@a&ecn #171:

‘nor is being pissed enough to change a “no” to a “yes”’ – there doesn’t have to be a no, that is SMFS’s point.

If that is SMFS’s point, he’s right but in a pretty trivial way.

But this:

Being pissed equates with being at least partially incapacitated, and having sex while partially incapacitated = rape under the law, even though such behaviour occurs every single weekend.

is outright wrong.

The correct position is set out in R v Bree, in the Court of Appeal in 2007:

If, through drink (or for any other reason) the complainant has temporarily lost her capacity to choose whether to have intercourse on the relevant occasion, she is not consenting, and subject to questions about the defendant’s state of mind, if intercourse takes place, this would be rape. However, where the complainant has voluntarily consumed even substantial quantities of alcohol, but nevertheless remains capable of choosing whether or not to have intercourse, and in drink agrees to do so, this would not be rape. We should perhaps underline that, as a matter of practical reality, capacity to consent may evaporate well before a complainant becomes unconscious. Whether this is so or not, however, is fact specific, or more accurately, depends on the actual state of mind of the individuals involved on the particular occasion.

I’ve emboldened the relevant passage. Partial incapacity is not enough.

[174] ‘We should perhaps underline that, as a matter of practical reality, capacity to consent may evaporate well before a complainant becomes unconscious. Whether this is so or not, however, is fact specific, or more accurately, depends on the actual state of mind of the individuals involved on the particular occasion’ – fine words, but without any objective measure in the real world.

‘The state of mind’ indeed – sounds like a case for mystic meg or sigmund freud – it is impossible to fully know another person’s mind, one can only make assumptions, or inferences based on preceding behaviour.
Rightly or wrongly in the minds of many, booze +foreplay + boudoir = invitation to sex?

As a matter of interest how does the law expect capacity to be measured in such circumstances – in the medical domain capacity has proved rather elusive in determining it’s absence or presence in some instances.
http://www.fresno.ucsf.edu/norcal/downloads/nov2_2011Handout.pdf

Capacity prefigures consent, and relies on information before the act itself (such as which orifices are available, etc) – alcohol derails this process – the simple fact is the standards expected by law are not being met in the real world, that would require far more time, and negotiation as opposed to the usual free for all that takes place on a drunken saturday night.

@a&ecn #175:

Couldn’t you just have accepted that “having sex while partially incapacitated = rape under the law” is wrong, given that Bree says emphatically that it is not?

@ Robin

“Read my #165. I actually explained what I meant in the post to which you are replying.”

Wait, do you mean this: “the interpretation is that for a man to maintain an erection sufficient to have sex while semi-comatose would take a great deal of effort, whereas a woman need not expend that effort”?

…From which I infer that you mean he must be deliberately inducing an erection with the aim of having sex, right?

Well, ok. That makes sense. Although it’s based on yet another supposition that you decided to keep quiet about for most of the argument, and seems to ignore the fact that there are things one can enjoyably do with an erection that aren’t intercourse. Or that one can withdraw consent.

“No. The issue here was actor/actee, not consent per se.”

The two things do seem to have become mangled.

“Again, this is explained in the post to which you are replying.”

This one I can’t see in said post. Even if he is inducing it, I don’t see how that automatically makes him the do-er and her the done-to.

“Don’t. Be. Ludicrous.

Sit down, take a deep breath, re-read what I said and ask yourself whether what I said – that lack of consent means that the man won’t have an erection, could possibly mean that if a man has an erection without consenting his actual state of mind can be ignored and one can go by his erection.”

I have re-read it. It totally comes off that way. Well, more accurately, it comes of as “if he claims later to have refused, he must be lying, because look, a hard-on”.

Bear in mind that I DON’T randomly assume that it’s impossible to get an erection while too drunk to consent. Ergo that leaves room for a man to refuse yet still be physically capable of sex. And in said situation, your comment could only be read as saying his erection takes precedent over his word. Call me ludicrous if you like, but I wasn’t the only one to be severely creeped out by your statement that turns out to have carried unspoken and factually incorrect caveats.

“I even said that I was relying upon that stated physical quirk.”

Yes, but that’s a statement of the bloody obvious. You made a point about erections that relied on the concept of erections. It’s hardly a game-changer, is it?

@ 171 a&e

“Being pissed equates with being at least partially incapacitated, and having sex while partially incapacitated = rape under the law, even though such behaviour occurs every single weekend.”

I find that hard to believe, or otherwise couples who play consensual tie-up games would be raping each other.

@178. Chaise Guevara: “I find that hard to believe, or otherwise couples who play consensual tie-up games would be raping each other.”

Nope, because “safe word” practice means “stop, I remove consent”.

—
Please can you and Robin stop shouting at each other. There is a fag paper of difference between your arguments. On a couple of points, there are differences, but let the differences lie for a bit. Time for reflection and all that.

—
Many years ago I had a vociferous debate with mate Tony during a car journey, endured by another mate, Mark. At the end of the trip, Mark was concerned that Tony and I had fallen out. My response to Mark was that vociferous debate with Tony was normal, that we agreed on so much that differences in opinion would be hard to follow, that spotting tiny differences meant that we were on the same side.

170. Robin Levett

See my #168 above – there is no real divide. Being pissed isn’t enough; nor is being pissed enough to change a “no” to a “yes”.

I looked at your 168 and it contained nothing relevant. Being pissed is close enough to enough because who decides if someone is pissed enough they could not consent? It has to go to Court and they have to decide. Or more usually, the police decline to prosecute. But this is what the Guardian Tendency wants to change.

173. ukliberty

Your words. So you’re saying we aren’t</em encouraging that. What a relief.

Are you trying to annoy or simply determined not to follow simple and clear English? It is the situation we should not be encouraging.

That’s right. But you said she merely “feeds hard done by”.

No I didn’t. I said it is a retrospective problem where if she is in a good mood, it isn’t rape, but if she is in a bad mood, it is. So you’re wrong on so many levels I have to wonder why you are wasting my time. You are starting to make me miss Jim.

If she had capacity to consent and consented, it isn’t rape. If she didn’t have capacity, it is rape. In essence, your concern is that women who don’t have capacity to consent are making rape complaints. Or something.

Except if she didn’t have capacity and she is happy with what she did, it isn’t rape. The only real test for whether she did or did not have capacity is her word for it. The Court has to decide. They can tell if she was drinking and they can hear her say she did not. But that does not mean she did or she didn’t. It comes down to her word.

174. Robin Levett

However, where the complainant has voluntarily consumed even substantial quantities of alcohol, but nevertheless remains capable of choosing whether or not to have intercourse, and in drink agrees to do so, this would not be rape.

And how does a Court decide the level of incapacity?

SMFS,

It is the situation we should not be encouraging.

Who is encouraging it?

No I didn’t. I said it is a retrospective problem where if she is in a good mood, it isn’t rape, but if she is in a bad mood, it is. So you’re wrong on so many levels I have to wonder why you are wasting my time. You are starting to make me miss Jim.

“they are engaging in high risk activity where one side can unilaterally change the nature of the relationship if she feels hard done by” @148

What a bizarre thing for you to lie about.

Except if she didn’t have capacity and she is happy with what she did, it isn’t rape.

It is rape (according to the law), it’s just that she isn’t making a complaint.

The only real test for whether she did or did not have capacity is her word for it. The Court has to decide. They can tell if she was drinking and they can hear her say she did not. But that does not mean she did or she didn’t. It comes down to her word.

It comes down to (1) her making the complaint, (2) the police taking it seriously, (3) the prosecutor prosecuting the man, (4) the jury believing the man guilty beyond reasonable doubt. Tell us how it can be improved. Or, if you can’t, why do you keep banging on?

@ 179 Charlieman

“Nope, because “safe word” practice means “stop, I remove consent”.”

Yes, but if you’re tied up you’re currently incapacitated to a degree, right? I just think that either a&e has the facts wrong, or this is another case where law as defined is not the same as law as practiced.

“Please can you and Robin stop shouting at each other. There is a fag paper of difference between your arguments.”

Yeah, we have pretty much reached the arguing-about-the-argument stage, and no good ever came of that.

“Many years ago I had a vociferous debate with mate Tony during a car journey, endured by another mate, Mark. At the end of the trip, Mark was concerned that Tony and I had fallen out. My response to Mark was that vociferous debate with Tony was normal, that we agreed on so much that differences in opinion would be hard to follow, that spotting tiny differences meant that we were on the same side.”

I get that sort of thing, although my response is less complex. More than once I’ve been in a heated row with a friend, someone else has interjected to stop the “fight”, only to have both of us say “Uh, you realise we’re both having fun with this, right?” It’s like sparring for wimpy people like me.

@SMFS #180:

And how does a Court decide the level of incapacity?

This is a statement of the bleedin’ obvious, but:

Evidence is called and a jury decides whether the prosecution has established beyond reasonable doubt that the woman was so intoxicated as to be incapable of giving consent. It’s a very simple process, called a “trial”.

Thank you, Charlieman (#179); I was beginning to doubt myself.

@182. Chaise Guevara: “Yes, but if you’re tied up you’re currently incapacitated to a degree, right?”

It is intrinsic to safe, sane, consensual BDSM that the submissive has the opportunity to express “stop”. If the submissive is gagged, for example, there has to be another way to signal consent or lack of consent.

The argument that s/he has submitted in this way for years does not suffice. There have to be ways to express consent or lack of it.

In a completely different arena, Stirling Moss abruptly stopped racing old cars last year. At the age of 80 odd, he’d been racing cars for 60 odd years. But, when preparing for a race of historic cars at which he was a star driver, he determined that it was no longer right for him and retired. After 60 or so years, you can change your mind.

@ 185

The fact that you have a safe-word to use to stop yourself being incapacitated does not mean that you are not currently incapacitated.

It’s not like I’m arguing that bondage should be illegal. I just think that the reality must be more complicated than a&e makes out.

@Chaise:

Yes, but if you’re tied up you’re currently incapacitated to a degree, right?

No; in this context we’re talking about mental capacity, not physical. Being incapacitated in this sense is the stage beyond being so pissed you’d decide to agree to do something you’d never think of doing sober; it’s being unable actually to decide at all.

@ 187 Robin

Oh, ok. So it’s kind of that you lack the capacity to consent, rather than the capacity to defend yourself.

@Chaise #188:

It’s exactly that you lack the capacity to cosnent.