telegraph: Men must prove a woman said 'Yes' under tough new rape rules

[Destino]

http://www.telegraph.co.uk/news/uknews/law-and-order/11375667/Men-must-prove-a-woman-said-Yes-under-tough-new-rape-rules.html

 

 

Men accused of date rape will need to convince police that a woman consented to sex as part of a major change in the way sex offences are investigated.
 

The Director of Public Prosecutions said it was time for the legal system to move beyond the concept of “no means no” to recognise situations where women may have been unable to give consent.

 

Alison Saunders said rape victims should no longer be “blamed” by society if they are too drunk to consent to sex, or if they simply freeze and say nothing because they are terrified of their attacker.

 

Instead, police and prosecutors must now put a greater onus on rape suspects to demonstrate how the complainant had consented “with full capacity and freedom to do so”.

 

Campaigners described the move as “a huge step forward” in ensuring fewer rapists escape justice.

 

[btfoom]

Glad I'm married now, that stuff is really ridiculous.

[Popeman38]

Hooray. Lets put the onus on the defense to prove their innocence instead of needing to prove guilt.

[mistertim]

Wait, how does one prove that a person said yes?

[Forehead]

Wait, how does one prove that a person said yes?

 

I suppose now men have an excuse to tape the event, right?  "But honey, I need it for proof."  That should set the mood nicely.

[RedBeast]

Easy solution. Ask her to put the condom on.

[tshile]

i get that rape is hard to prosecute because of various reasons, but this doesn't make any sense.

 

obviously you need to record her saying yes with your cell phone, i suppose you need to be in the picture.

 

will probably need to hold up the day's newspaper, proof of life style.

 

then she'll tell you the mood has been killed.

[Slateman]

i get that rape is hard to prosecute because of various reasons, but this doesn't make any sense.

 

obviously you need to record her saying yes with your cell phone, i suppose you need to be in the picture.

 

will probably need to hold up the day's newspaper, proof of life style.

 

then she'll tell you the mood has been killed.

Equality

[PokerPacker]

Easy solution. Ask her to put the condom on.

And how do you prove she put it on?

[Predicto]

I wish we had more women on this board at times like this.   

 

I also think the article might be overstating the issue.  It doesn't look like a shift in the legal burden of proof as much as a change to the consent defense and what police will investigate.  

 

You can't just say she consented if she was so smashed or terrified that she couldn't even speak, and have the police just drop the investigation.   I'm not sure I have a huge problem with that.  

[RedBeast]

And how do you prove she put it on?

Fingerprints

[TheGoodBits]

And how do you prove she put it on?

Video tape everything

Ok I'm done, rape is no joke.

[tshile]

I wish we had more women on this board at times like this.   

 

I also think the article might be overstating the issue.  It doesn't look like a shift in the legal burden of proof as much as a change to the consent defense and what police will investigate.  

 

You can't just say she consented if she was so smashed or terrified that she couldn't even speak, and have the police just drop the investigation.   I'm not sure I have a huge problem with that.  

 

I'm trying to figure out how you prove she said yes, if she's testifying she didn't say yes (or maybe that she even said no.) To me video seems to be the only safe bet. But you'd have to fend off accusations of manipulation of the video or that it's from a different event, or whatever; hence me saying things about being in the video with her and having a newspaper. It was somewhat in jest but also serious. I wouldn't want to rely purely on an audio recording, or on a video that you weren't in, or that a jury would simply accept a time-stamp on a digital file.

 

I'm not sure what a woman's perspective has to do with that.

 

edit: I've made a few edits because some people are making jokes, but I think they're making jokes about how to prove someone said yes, not about rape.

[RedBeast]

Ok I'm done, rape is no joke.

No doubt. Following your lead

[Destino]

Wait, how does one prove that a person said yes?

Yes?  What does yes mean?  You have to obtain consent.  Consent is an entirely differently animal and CPS put together this handy pdf explaining it.  http://www.cps.gov.uk/publications/equality/vaw/what_is_consent_v2.pdf

 

This is all quoted directly and the media is not involved or filtering any of this.

 

First you need context:

Context is all important to the consideration of freedom and capacity to choose. It is

necessary to focus on complainant’s state of mind in the context of all the relevant

circumstances.

These will include:

•their age, maturity and understanding;

•whether s/he knew or understood the position they were in and what they were being asked to do;

•the history of the relationship between the complainant and suspect;

•position of power over the complainant; and, especially for younger and/or vulnerable victims:

•any earlier provision by the suspect of any gifts, alcohol or drugs;

•promises by the suspect of a more secure or exciting way of life;

•insincere compliments and/or kindness shown by the suspect;

•any other evidence of exploitation or grooming so that s/he may not understand the full significance of what they are doing

Then you need Capacity to Consent. 

Capacity to consent:

Issues to consider include whether the complainant had the capacity to consent if:

•s/he was under the influence of drink or drugs;

•s/he suffers from a medical condition which limits their ability to consent or communicate consent;

•s/he has a mental health problem or learning disabilities;

•s/he was asleep or unconscious

Then you need Freedom to Consent

Freedom to consent:

Issues to consider include whether the complainant had the freedom to consent, for example, in situations such as:

•Domestic violence – where a partner or family member may use force or power to remove a complainant’s freedom to consent;

•Where the suspect was in a position of power where they could abuse their trust, especially because of their position or status – e.g. a family member, teacher, religious leader, employer, gang member, carer, doctor;

•The complainant was dependant on the suspect, e.g. financially or for care.

•If the complainant was young, was s/he significantly younger than the suspect?

•Was the complainant old enough to consent?

 

You have to show what you did to obtain consent, and that you didn't get it from someone you knew to be in a vulnerable time of their lives.  You must also prove that you didn't fail to notice or ignore a "sign" that the victim didn't want to continue and show that you received consent for each and every individual sex act.

 

That's a great deal more than "yes", wouldn't you say?  Many of those are obvious, some are not, and some are open to a great deal of interpretation. 

[Predicto]

I don't think any of us are saying anything different.

 

We're trying to figure out how you prove she said yes, if she's testifying she didn't say yes (or maybe that she even said no.) To me video seems to be the only safe bet. But you'd have to fend off accusations of manipulation of the video or that it's from a different event, or whatever; hence me saying things about being in the video with her and having a newspaper. It was somewhat in jest but also serious. I wouldn't want to rely purely on an audio recording, or on a video that you weren't in, or that a jury would simply accept a time-stamp on a digital file.

 

I'm not sure what a woman's perspective has to do with that.

 

 

Because we (as men) all jump to worrying about the unfairness that we imagine that might affect us guys.   We fear getting falsely accused of rape.  

 

Women fear actually being raped, and having the rapist get away with it (which happens a lot more often than false accusation of rape).  It lends a very different perspective to the discussion.

 

Rape has always been a difficult crime to judge fairly, because of the "he said she said" problem.   Every rapist claims that the woman consented.   

[tshile]

That's a great deal more than "yes", wouldn't you say? 

 

Also lots of ambiguity in multiple parts.

 

How much to drink is too much? What drugs are too far, and how much? What constitutes a vulnerable state in someone's life?

 

I mean damn near everyone in college was hooking up related to partying. This pretty much makes that super risky.

[Predicto]

The only thing this seems to change is the idea that you can get off scot-free simply by saying that "she didn't say no."   We all understand that if she was passed out, and didn't say anything, it doesn't mean that she consented, right?   It's the same principle.  Get a "yes" out of her, then smash.   It's not that tricky to understand.  

 

I think the story is doing us a huge disservice by suggesting that the overall burden of criminal proof has changed.  It hasn't.     

[tshile]

Because we (as men) all jump to worrying about the unfairness that we imagine that might affect us guys.   We fear getting falsely accused of rape.  

 

Women fear actually being raped, and having the rapist get away with it (which happens a lot more often than false accusation of rape).  It lends a very different perspective to the discussion.

 

Rape has always been a difficult crime to judge fairly, because of the "he said she said" problem.   Every rapist claims that the woman consented.   

 

Absolutely no disagreement.

 

So how do you prove consent? Specifically, how do you prove it when the other person is saying they never gave it?

 

The problem with the foundation of your argument is that your solution is still he-said-she-said.

 

Except you've shifted from: We cannot accuse you of a crime without actual proof to get past the he-said-she-said

To: We're going to assume she's telling the truth, accuse you of the crime, and now you have to come up with the proof to exonerate yourself.

 

I fail to see how that is any better. In fact, it seems worse, from a legal perspective. It seems to violate the idea of presumption of innocence.

[Destino]

The only thing this seems to change is the idea that you can get off scot-free simply by saying that "she didn't say no."   We all understand that if she was passed out, and didn't say anything, it doesn't mean that she consented, right?   It's the same principle.  Get a "yes" out of her, then smash.   It's not that tricky to understand.  

 

I think the story is doing us a huge disservice by suggesting that the overall burden of criminal proof has changed.  It hasn't.     

 

You don't think the definition of consent has/is changing considering what I posted above?  If laws require consent, changing the definition of consent changes everything including what should be considered rape. 

[Predicto]

Also lots of ambiguity in multiple parts.

 

How much to drink is too much? What drugs are too far, and how much? What constitutes a vulnerable state in someone's life?

 

I mean damn near everyone in college was hooking up related to partying. This pretty much makes that super risky.

 

 

I really don't think it makes it super risky.  In pretty much 99.9 percent of cases, all it means is don't have sex with women who are so blotto that they don't know what they are doing, and don't intimidate a woman into sex.   That's not a super high hurdle to meet, even in most frat houses.  

[tshile]

The only thing this seems to change is the idea that you can get off scot-free simply by saying that "she didn't say no."      

 

Maybe this is where we're confused.

 

I read:

"Men accused of date rape will need to convince police that a woman consented to sex as part of a major change in the way sex offences are investigated."

 

Which seems, to me, quite different from what you're saying.

 

You say the story is doing a disservice. Is it using the wrong wording, making stuff up, etc?

[Predicto]

Absolutely no disagreement.

 

So how do you prove consent? Specifically, how do you prove it when the other person is saying they never gave it?

 

The problem with the foundation of your argument is that your solution is still he-said-she-said.

 

Except you've shifted from: We cannot accuse you of a crime without actual proof to get past the he-said-she-said

To: We're going to assume she's telling the truth, accuse you of the crime, and now you have to come up with the proof to exonerate yourself.

 

I fail to see how that is any better. In fact, it seems worse, from a legal perspective. It seems to violate the idea of presumption of innocence.

 

 

Where are you getting the "you must prove" part from?   The headline or the actual story?  

[Kilmer17]

Because we (as men) all jump to worrying about the unfairness that we imagine that might affect us guys.   We fear getting falsely accused of rape.  

 

Women fear actually being raped, and having the rapist get away with it (which happens a lot more often than false accusation of rape).  It lends a very different perspective to the discussion.

 

Rape has always been a difficult crime to judge fairly, because of the "he said she said" problem.   Every rapist claims that the woman consented.   

 

Truth.

 

I am much more concerned about my daughters being victims of a sexual assault than I am of my son being accused of one.  However, there is still issues with this.  Particularly with young adults.  How does a drunk college guy have the capacity to comply with this law?  In a "he's drunk, she's drunk setting", why is the man always the perp and the female always the victim?  It certainly is that way MOST of the time, but not always.

[Destino]

Truth.

 

I am much more concerned about my daughters being victims of a sexual assault than I am of my son being accused of one.  However, there is still issues with this.  Particularly with young adults.  How does a drunk college guy have the capacity to comply with this law?  In a "he's drunk, she's drunk setting", why is the man always the perp and the female always the victim?  It certainly is that way MOST of the time, but not always.

 

I'd settle for simply knowing exactly how drunk is too drunk.  We know where the line is for driving precisely right?