Sexual Assault - developments in Wales (1 Viewer)

[Frigid]

a friend pointed out this case in Wales that has made the news these few days:

Drunk consent rape case scrutiny

The barrister who prosecuted a rape case - thrown out when the woman said she was too drunk to recall events - is to submit a report to the CPS.

Judge Mr Justice Roderick Evans agreed with the prosecution who said that "drunken consent is still consent". The jury at Swansea Crown Court was subsequently directed to return a not guilty verdict.

The ruling has been criticised, amid concerns that other women will be put off reporting cases of alleged rape.

The Crown Prosecution Service (CPS) said the outcome did not set a precedent for other rape cases and defence barrister Kirsty Brimelow told the BBC that people should not be worried by the judgement.

i cannot remember learning specific case law in this area while studying crim. I remember Morgan (subjective advertence, mistaken honest and reasonable belief), Kitchener/Banditt (inadvertence = recklessness). s61R and s428A do not seem precisely on the point...

anyone got any thoughts/comments?

 

[erawamai]

'Drunken consent is still consent'...

Funny thing to say. In rape cases no one is really concerned with the subjective state of mind of the victim, but rather with the state of mind of the accused.

The court isn't really testing whether there is consent or not, just whether the accused knew that there was no consent or was reckless as to the lack of consent.

 

[Frigid]

'Drunken consent is still consent'...

Funny thing to say. In rape cases no one is really concerned with the subjective state of mind of the victim, but rather with the state of mind of the accused.

The court isn't really testing whether there is consent or not, just whether the accused knew that there was no consent or was reckless as to the lack of consent.

reckon if, said in a New South Wales court, it is sufficient to amount to a misdirection? assuming our case law runs parallel, of course.

 

[MiuMiu]

Hehe I read this article too--it doesn't make sense at all.....I feel it has greatly fallen victim to Telegraph Sensationalism.

Either way, the only legal precedent that this establishes is that Wales is retarded. But we all knew that

 

[BillytheFIsh]

How can you prosecute someone when the complainant and only witness other than the accused can't recall what occurred?

That bit seems to make sense... but the article does appear to have not quite grasped the issues properly.

ps. my head hurts

 

[prosaic]

I can't recall very clearly but I think there was a successful challenge to non-advertent recklessness by the prosecution in Tolmie (1995, NSW).

But even regardless of that, if he knew that she was drunk thus suspected the possibility that her consent might not be true consent (and a reasonable person would likely think so) then an application of Kitchener would vitiate the consent.

 

[Frigid]

Banditt was heard in September in the High Court: transcript. but judgment is reserved so far.

 

[erawamai]

Get your own material frigid. I used 'summer daze' as a Custom Status years ago!

 

[Frigid]

*cough* with all due respect, i am older (at least on this site) than you

besides, i'm bored of my summer holidays already...

let's have a law MEAT-UP!!!!!11111

 

[prosaic]

I agree that Banditt is studied under the heading "sexual assault" but how is it related to drunken consent at all?

 

[Frigid]

I agree that Banditt is studied under the heading "sexual assault" but how is it related to drunken consent at all?

is drunken consent vitiated consent?

if consent is vitiated, then the offence of sexual assault is made out.

 

[Demandred]

Guys, it's the holidays, time to take off those wigs and silks.

 

[prosaic]

is drunken consent vitiated consent?

if consent is vitiated, then the offence of sexual assault is made out.

Banditt is the case where the bloke goes into his cousin's room and tries to have sex with her whilst she was sleeping - she wasn't drunk.

 

[MiuMiu]

Guys, it's the holidays, time to take off those wigs and silks.

Most people are doing law because they are genuinely very interested in it....its not just something we study.

 

[Frigid]

Banditt is the case where the bloke goes into his cousin's room and tries to have sex with her whilst she was sleeping - she wasn't drunk.

as i quoted in the News forum, Banditt was a case where the complainant was in a half-asleep state. i draw analogies between being half-asleep and being intoxicated. the trial judge in Banditt directed the jury in this way:

"Right, now the question you asked was whether it could be construed as consent if a woman, in a sort of half awake condition, non-verbally reacted in such a way as to appear to accommodate sexual intercourse, or words to that I think, and I said ‘no, that’s not consent’. That’s not consent for two reasons: it’s not a conscious decision, willingly, to co-operate in an act of sexual intercourse and or, perhaps these are alternatives, it may be a co-operative state brought about by a belief, for example, that the sexual partner is somebody else. A mistake about the identity of the person with whom one is engaged in sex vitiates consent. There can be no consent to sex with the actual person if the apparent consent is brought about by this misunderstanding. So that’s why it’s not consent. The question that you framed."

while i agree, the ratio of the NSWCCA appeal had nothing to do with intoxicated consent, but rather what constitutes advertent recklessness, i would also agree with what the trial judge said in the above quote.

out of interest, Banditt was heard in September in the High Court, and judgment is still reserved.

 

[Demandred]

Most people are doing law because they are genuinely very interested in it....its not just something we study.

I think the 'reasonable person' would beg to differ .

 

[prosaic]

Frigid - hmm, personally I am a little reluctant to draw analogies between intoxication and half-awake states for many reasons. But to avoid the risk of controversial confusion - as this trial judge seems to have caused, that paragraph could srsly have been worded better - I'll heed to your suggestion of waiting for the HC. Then we can pull their judgments apart .

Ms 12 - hear hear! You know if they still had those reputation block things I'd give you a point (points? Was never an expert with those things). The sentiment's there nonetheless, you know that.

Demandred - sorry to offend your reasonable person who'd like to work in ritual commercial conveyancing (not that you're a bad person, if you do. Please don't hurt me) but indeed the law is interesting to some who study it. I'd also wonder why you're here on Bored of Studies almost everyday during your break? AND going to the effort of posting in a thread you have no interest in? Well ok, it occurred to me just then that you might have a very avid interest in posting in threads on topics you have no interest in. Fair enough, but in that case you'll need us to continue our banter, don't you?

 

[Frigid]

Demandred, there is nothing wrong with being a comlaw i-bank desperado. in fact, on some days i feel like that as well. but i believe my interest in law is a genuine one, otherwise i would be studying something else. besides, having to take an almost grad-law student's load for law subjects, i have no choice but to dive headlong into the subjects. i confess, at times, i actually find it fun.

*frigey will read property and fedcon these holidays - promise*

i don't think i drink enough to know the difference between intoxication and being half-awake, mr prosaic

 

[Demandred]

Probably got me all wrong I not bagging you for studying all the time, I am saying that after working hard for a whole semester, you should treat yourself to a little break .

 

[Frigid]

okay this is very no life-ish of me, but the HCA handed down Banditt v The Queen [2005] HCA 80.

yay, holiday reading!

"38. The respondent's submission... is to the effect that in a particular case one or more of the expressions used in Morgan ["indifference", "willy-nilly", "not caring"] and by Professor Smith ["could not care less"], as well as those recorded in the respondent's submission, may properly be used in explaining what is required by s 61R(1). That submission... should be accepted.

39. The appellant's submission that proceeding with an awareness of a risk of non-consent cannot suffice without the "discrete mental state" described as "Even if I know, I would continue. It does not matter to me", should not be accepted."

- Gummow, Hayne & Heydon JJ