Rape or not?

Discussion in 'Australia, NZ, Pacific' started by m2catter, May 7, 2018.

  1. m2catter

    m2catter Well-Known Member

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  2. Diuretic

    Diuretic Well-Known Member

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    Blame? That's usually the defence approach. Admit the act but claim it was consensual or that the deft thought it was consensual. Juries are reluctant to convict in these cases, they know human nature and have sufficient life experience to understand what might be going on and when the deft is portrayed as being mistaken, confused or whatever they tend to give the benefit of the doubt.

    I don't know that the law in NSW is but here in SA it's complex.

    46—Consent to sexual activity

    (1) In this section—

    sexual activity includes sexual intercourse.

    (2) For the purposes of this Division, a person consents to sexual activity if the person freely and voluntarily agrees to the sexual activity.

    (3) Without limiting subsection (2), a person is taken not to freely and voluntarily agree to sexual activity if—

    (a) the person agrees because of—

    (i) the application of force or an express or implied threat of the application of force or a fear of the application of force to the person or to some other person; or

    (ii) an express or implied threat to degrade, humiliate, disgrace or harass the person or some other person; or

    (b) the person is unlawfully detained at the time of the activity; or

    (c) the activity occurs while the person is asleep or unconscious; or

    (d) the activity occurs while the person is intoxicated (whether by alcohol or any other substance or combination of substances) to the point of being incapable of freely and voluntarily agreeing to the activity; or

    (e) the activity occurs while the person is affected by a physical, mental or intellectual condition or impairment such that the person is incapable of freely and voluntarily agreeing; or

    (f) the person is unable to understand the nature of the activity; or

    (g) the person agrees to engage in the activity with a person under a mistaken belief as to the identity of that person; or

    (h) the person is mistaken about the nature of the activity.

    Example—

    A person is taken not to freely and voluntarily agree to sexual activity if the person agrees to engage in the activity under the mistaken belief that the activity is necessary for the purpose of medical diagnosis, investigation or treatment, or for the purpose of hygiene.

    47—Reckless indifference

    For the purposes of this Division, a person is recklessly indifferent to the fact that another person does not consent to an act, or has withdrawn consent to an act, if he or she—

    (a) is aware of the possibility that the other person might not be consenting to the act, or has withdrawn consent to the act, but decides to proceed regardless of that possibility; or

    (b) is aware of the possibility that the other person might not be consenting to the act, or has withdrawn consent to the act, but fails to take reasonable steps to ascertain whether the other person does in fact consent, or has in fact withdrawn consent, to the act before deciding to proceed; or

    (c) does not give any thought as to whether or not the other person is consenting to the act, or has withdrawn consent to the act before deciding to proceed.
     
  3. Sallyally

    Sallyally Well-Known Member Donor

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  4. m2catter

    m2catter Well-Known Member

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    Hmmm,
    he lured her outside, so that takes her to follow him.
    Yes, and she had 10 standard drinks, not cool, but that"s the way it was.
    She was okay with fondling/kissing, but some where down the line she felt uncomfortable.
    Her first time, to top it off, and in an alleyway. Not really romantic, is it?
    So far I understand.
    What I don't understand, that she didn't make it clearer that he had to stop.
    Shout, try to run away, push him away with all her force. Do anything.
    But to get on your knees and to practice anal sex?
    She was 18 at the time, not a minor.
    Sorry, but I just don't buy it that way.....
    In general terms, when a girl (or boy) says stop, that should do. In my opinion anyway.
    But here we have two young people, somewhere pissed and getting aroused, leaving the club for some private moments.
    I would have expected her to make more noise, make it clearer.
    Maybe I am wrong, and I know people are not the same, some just can't say no.
    But this story doesn't ad up to me.
    Do we need to rewrite our laws?
    Possibly,
    reg.
     
    Last edited: May 8, 2018
  5. danielpalos

    danielpalos Banned

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    Last edited: May 8, 2018
  6. kazenatsu

    kazenatsu Well-Known Member Past Donor

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    This is what people mean when they say it wasn't "real rape".
    In some types of situations, there are varying shades of grey. Obviously he doesn't deserve to be treated like someone who ambushed a woman in a dark alley.

    However, a literal interpretation of that law sounds like something a feminist cooked up. And the wording of these laws can end up having profound consequences on people's lives.

    The type of sex he had with her is a little bit different (stereotype = painful for the woman) from regular vaginal sex, so probably should have required a little bit more affirmative consent, but that's just my quick view.

    When it comes down to it, the real problem with these laws is they make it real easy for a woman to claim she didn't consent to the sex. Then the man is automatically labeled a rapist.
     
    Last edited: May 9, 2018
  7. Sallyally

    Sallyally Well-Known Member Donor

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    He is an assertive sort of boy- She had gravel rash on her knees-
    If I'd had ten standard drinks, I would not be able to make a rational decision about anything. I wonder if she had been capable of making a physical rejection of him. Accepting kissing and fondling is not the same as anal sex on the ground outside a nightclub.
    I think he spotted an easy mark who would be easy to overpower and dominate.
    She had traumatic injury to her anus and was bleeding. Sounds as though a bit of force was used.
     
    Last edited: May 9, 2018
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  8. danielpalos

    danielpalos Banned

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    why did she, "change her mind"? why not simply be equal and state, i don't want to do it, but hey, how about a hand job. i don't let my new friends go home with blue balls.

    why is it soo difficult, to find nice girls who are willing to be friends, in modern times.
     
  9. Diuretic

    Diuretic Well-Known Member

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    Let's not forget the young woman was sexually inexperienced. As well as probably fairly intoxicated. He obviously wasn't so much a partner in the act, he was just taking what he wanted.

    Forget the legalese for a minute. Use some common sense.

    There must have been some good evidence gathered during the investigation for it to be approved for prosecution.

    Always remember what the jury is allowed to hear is usually only a fraction of the evidence that would be available without our, in my opinion, overly restrictive laws on the admissibility of evidence. And that's where this needs to go.

    But it's easier for the knee-jerk pollies to fiddle around the with definition of rape than it is to confront the possibility that our mediaeval restrictions on evidence being admitted to trial has caused terrible miscarriages of justice over the years.
     
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  10. JakeJ

    JakeJ Well-Known Member Past Donor

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    I would have found him guilty. No dispute she would clearly have appeared very drunk. Didn't know each other. Said she was a virgin. No kissing or romance. Had her down hands and knees on gravel? Anal with no indication of lubricant? Then joked about doing a virgin to someone else, referring to her as a trophy, indicating he was a predator even to his own mind?

    Even if I believed him where the two differed on their recount?

    Guilty. Very guilty.

    However, the punishment I would do would be less than if there had been other violence done to her, a weapon involved, extreme assaulting physical force, or jumping a total stranger. So, for how law is worded here, I would find him guilty of rape (sexual assault), but not aggravated sexual assault.
     
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