I'm really going to regret engaging with this, again. But, here goes...
It seems that your ever-shifting position has now alighted on the notion that the reason the outcome of this case was unsatisfactory is not because it means the court went beyond what parliament intended, or for any of the other spurious reasons you raised previously, but because, in your view, the judge's direction to the jury in this case was inconsistent with the direction given in Bree. And, as far as I can gather, your concern is that, in future, judges will adopt a wording similar to that in the Evans case, which, in your view, 'lowers the bar'.
Before I respond to that, does that accurately reflect your position?
my core issue has remained the same from start to finish, this case seems to have lowered the bar at which drunken consent turns into rape compared to previous cases.
Beyond that I've then investigated the specifics of the case, and previous case law mainly due to being pushed into doing that by you in order to justify that position. Obviously during 2 days of investigating the specifics of the law, and previous cases under heavy attack, my understanding of the precise details of the situation and previous judgements etc changed a little, but I've not found anything, or been shown anything that changes my initial view of this that this case has dramatically changed the situation over what constitutes drunken consent vs someone not having the capacity to consent due to being drunk.
IMO this conviction was in large part based on the false assumption that because someone has a complete blank in their memory, then they automatically must have been too drunk to consent, and that it must also have been obvious that they were too drunk to consent.
This completely misunderstands how people can behave during periods of alcoholic blackout, and misses the point that she actually lost her memory at some point around the takeaway, where she spent an hour, but can barely remember any of it, then managed to get in the front of a taxi herself, walk into the hotel herself etc all while in the same alcoholic blackout state she was in when she can't remember if she consented to have sex with either guy or not.
En bloc memory impairments tend to have a distinct onset. It is usually less clear when these blackouts end because people typically fall asleep before they are over. Interestingly, people appear able to keep information active in short–term memory for at least a few seconds. As a result, they can often carry on conversations, drive automobiles, and engage in other complicated behaviors. Information pertaining to these events is simply not transferred into long–term storage
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I've djed an entire 2 hour set while in almost complete alcoholic blackout, woken up the next day to complain about my tunes being all over the place to be asked if I didn't remember playing for a good 2 hours - djing takes a considerable degree of co-ordination, so I'm just giving that as an example of what I've personally done while in alcoholic blackout. It's about memory formation, not necessarily how co-ordinated or lucid someone might be / appear to be.
This quote illustrates why this is important, and why I've been saying all along that this judgement is dangerous, unsound law that potentially criminalises the regular drunken but consensual night time activities of fuckloads of young people (and not so young).
Fifty–one percent of the students who had ever consumed alcohol reported blacking out at some point in their lives, and 40 percent reported experiencing a blackout in the year before the survey. Of those who had consumed alcohol during the 2 weeks before the survey, 9.4 percent reported blacking out during this period. Students in the study reported that they later learned that they had participated in a wide range of events they did not remember, including such significant activities as vandalism, unprotected intercourse, driving an automobile, and spending money.
Reading the appeal court judgement, and the dismissal of the attempt by the defence to basically introduce this point at appeal via an expert witness saying the same thing, it's pretty clear that the defence in the original trial fucked this right up by attempting to state that the woman must have been lying and hadn't drunk enough to have got full memory blackout as she claims. That was bollocks, she'd drunk 8 shots of vodka in the space of 90 minutes, on top of 2 big glasses of wine earlier, which is easily enough in that short space of time to induce alcoholic blackout (note, this isn't different to my previous position, to me someone ending up in alcoholic blackout isn't particularly unusual for that type of night out, what I was disputing was that this was enough to make her obviously too drunk to consent).
The court of appeal judges refused leave to appeal on these grounds on the basis that this hadn't formed part of the direction of the judge to the jury, but that doesn't in any way mean that the jury didn't make their own judgements about what the implications were of her being too drunk to remember what happened, and the defence hadn't made the point to them that being in alcoholic blackout doesn't necessarily mean that someone can't still appear relatively coherent.
Unless people have experienced this situation themselves, they're probably not going to appreciate this distinction, and I can't see any way that this didn't inform the jury's decision making, probably made worse by the defence trying to paint her as a lier and effectively leaving the impression that if she wasn't lying then she was blacked out and by implication must have been incapable, otherwise why would the defence have not properly challenged it on that basis. At least that's how I'd have interpreted it if the defence had taken that line, and not challenged the notion that blackout doesn't necessarily equal obvious incoherence.
