Accused rapist Ched Evans to be released from prison

[bimble]

In that report I linked to, it was clear that where women saw that they did not have capacity to consent had nothing to do with the disinhibitory effects of alcohol or drugs - and everything to do with extreme effects on motor skills (which would stop someone from verbally or physically expressing or refusing consent) and effects on consciousness less than being unconscious - such as confusion (which would stop someone from understanding what was happening). The report says that where current legislation and case law stands, someone would have to be almost unconscious for them to have a lack of capacity to consent. Thre were also a number of women in the survey who thought that they did have capacity to consent at the time of the assault, despite being under the influence of drugs and alcohol (but reporting less of the extreme symptoms on motor skills or level of conciousness), but whose lack of consent was ignored by their attacker through force. I think that most women - and men- do know the difference between being off their heads but having capacity to consent, and where they start to lose capacity because they can't express their consent or know what they are consenting to, and I think that most women - and men - know where their consent has been violated.

Note if someone has a range of drink or drug-related symptoms which means that they are verbally or physically unable to express or refuse consent or understand what is happening, or unconcious, they are almost certainly not taking an active role in the sexual activity - so you are talking apples and oranges - someone (male or female) to perpertrating rape or sexual assault is very unlikely to lack capacity at the time, even if they have taken drugs or alcohol. And the reason we are mostly talking about men as perpetrators here, is that in many women's and men's experience, its largely men who are acting in a predatory way towards drunk/high women and men. Of course women do perpetrate sexual assault or rape against women and men, but I've never (despite going to lots of lesbian clubs) seen women, for example, working together to pick out isolated, very drunk women or man in a nightclub, or seen a woman try to separate a very wasted woman or man from their friends, in the way I've seen men do this (and intervened), and I don't think many women are adjusting their behaviour in the ways you say you are doing because they are scared of predatory women (and I don't think many men are adjusting their behaviour in these ways at all).

Women from both groups (and the professionals surveyed) expressed problems with accessing justice, and additional stigma, to do with the fact they had drunk or taken drugs when the attack happened. The problem is that women are blamed for their own rapes and sexual assaults, rather than that they are seen as having less responsibility.

You say that there are many measures you unfortunately have to take to keep safe. Speak to most women, and they'll say the same thing. But for loads of different reasons, not every woman will be able to take the same precautions as you - there may be some precautions that I take which you can't take. And failing to take precautions does not make us responsible - morally or legally - if we are raped. Its always the perpetrator who is responsible for rape or sexual assault (and perpetrators are not always men). And here's the thing - we can take all the precautions that anyone could think of, and there's no guarantees that a predatory or aggressive man will not rape or assault us (and thats before we even think about predatory and violent women)! This piece expresses what i'm trying to say.

Totally spot on as usual crossthebreeze. My worry about women being seen as having less responsibility than men is just a load of theoretical tosh when you look at it next to the facts of what we're really talking about.

 

[ViolentPanda]

this.

if the law is unable to prosecute a serious sexual violation that isnt penile penetration as rape, then the law is an ass.

IIRC current legislation encompasses penetration with penis, digits or objects rather than just penis, but it's still skewed.

 

[ViolentPanda]

Sass said no woman had been convicted of raping a man.

EG said "YOU ARE WRONG" and cited the case of Joyce McKinney. Joyce McKinney WAS NOT convicted of raping a man.

equationgirl then badgered Sass to respond to her nonsense.

She's an arse.

Now fuck off, ya dong.

Quoted in the somewhat vain hope that in the morning you're feeling a little bit guilty for being such a wanker.

 

[ViolentPanda]

I don't have a problem with the offences being different as long as the sentences are appropriate.

Well, that's part of the problem.
The criminal justice system treats rape (badly) as the "gold standard" of major sexual assaults, and sentences for other major sexual assaults are usually lesser, and some would say - including me - often inappropriate to the severity of the crime and the trauma it has caused.

 

[ViolentPanda]

Is " a dirty and abusive session" a crime? Does your partner have to be of 'equal social rung' to you to make dirtiness ok?

Fessing up, cos it's late on a Sunday, and I've had a few drinks, I'm probably what casually red would call a Sex Person - I like 'weird' sex sometimes, and some of what I want my friend to do to me sometimes is illegal, according to the strict letter of uk law. So yes, asking about the law is ok by me, the law is supposed to be there to help us, to define the contours of a moral world we want to live in, not to be some giant scary thing carved in stone that we're just subject to.

The lived reality for most of us is that the law is carved in stone, and is something we're subjected to, and expected to be complicit with.

 

[Athos]

Yes, we've discussed rape as an accessory or under JE. As you say the non-consent crimes that women can be charged with are assault by penetration etc., but in the UK a woman cannot be individually charged with or convicted of rape. It's a legally defined term.

A woman could be individually charged with and convicted of rape.

 

[Spymaster]

A woman could be individually charged with and convicted of rape.

How? Other than in concert with a man.

 

[Athos]

How?

A man and a woman commit a rape. He is not caught, but she is; she is charged and prosecuted individually i.e. without a co-defendant.

 

[Spymaster]

Yeah, righto.

The gymnastics to get here would be more convincing had you said they both get caught and charged but the bloke dies before he gets to court. The crime still needed a man.

 

[Athos]

Yeah, righto.

The gymnastics to get here would be more convincing had you said they both get caught and charged but the bloke dies before he gets to court. The crime still needed a man.

Yes, that would be another way of demonstrating that your claim was false.

 

[Athos]

You see my point, though, about the tediousness of definitional hair-splitting?

 

[Spymaster]

Yes, that would be another way of demonstrating that your claim was false.

I don't think so. I think she'd be charged as an accessory.

Happy to see any case law you have to support your theory though.

 

[Athos]

I don't think so. I think she'd be charged as an accessory.

Happy to see any case law you have to support your theory though.

There is no case law on that specific point, either way. But no reason in principle why she wouldn't be charged alone. Individuals have been charged with e.g. conspiracy.

 

[Spymaster]

There is no case law on that specific point, either way.

Hmmmm

But no reason in principle why she wouldn't be charged alone. Individuals have been charged with e.g. conspiracy.

But no lone female with rape.

I'm afraid you'll need to come up with something a bit better than 'it's never happened but it can because I say so' !

 

[Athos]

I'm afraid you'll need to come up with something a bit better than 'it's never happened but it can because I say so' !

I have: I gave an analgous situation. Can you come up with anything to suggest it couldn't happen?

 

[Spymaster]

I have: I gave an analgous situation.

So you have the absolute entire history of British law but can't give one single example of it ever happening, or anything other than analogy to suggest it could?

And the fact still remains that no woman acting alone has ever been convicted of raping a man under UK law, nor could they.

 

[belboid]

I think I'd be really fascinated, or possibly, enthralled, by belboid's input.

And you took me off ignore specifically to try and have a bun fight. Not content with being abusive towards women on a thread about rape (where you are, apparently, the only person who understands what it actually involves), you try to pick another fight.

What a sad and nasty little man you are.

 

[Athos]

So you have the absolute entire history of British law but can't give one single example of it ever happening, or anything other than analogy to suggest it could?

And the fact still remains that no woman acting alone has ever been convicted of raping a man under UK law, nor could they.

The second part is correct. The first is correct insofar as it hasn't happened, but incorrect insofar as it couldn't.

 

[Spymaster]

....but incorrect insofar as it couldn't.

I don't think so. There's the presumption of innocence until proven guilty. If the bloke Is never tried he's legally presumed innocent so how can the woman be found guilty on a joint charge which absolutely requires the bloke's guilt?

 

[Athos]

I don't think so. There's a presumption of innocence until proven guilty. If the bloke doesn't reach court he's legally presumed innocent so how can the woman be found guilty on a joint charge which absolutely requires the bloke's guilt?

In the same way that one of a number of conspirators can be found guilty!

It'd be a matter for the jury.

 

[Spymaster]

In the same way that one of a number of conspirators can be found guilty!
.

It's not the same. The law does not require that you have a penis to commit conspiracy.

 

[Athos]

It's not the same. The law does not require that you have a penis to commit conspiracy.

No, but the requirement for two or more people to commit the offence doesn't preclude the possibility of prosecuting just one.

There's no way that, if a woman who'd taken part in a gang rape was caught, the law would allow her to walk because the rest of the gang hadn't been caught.

Notwithstanding that there's no specific precedent for this rape scenario, the similarity with conspiracy is enough to allow this.

 

[Athos]

More's the point, the CPS guidance specifically addresses just this possibility:

(2) Where D assists or encourages P to commit a single crime
In this scenario, P, with the fault element, carries out the conduct element
alone. D is an accessory (assists or encourages the offence). D does not
need to be present at the scene of the offence. Both are liable for the offence.
P is liable as a principal. Ds liability as a secondary party is based on proving:
 P’s commission of the offence, although P need not be identified,
charged or convicted. (Note that where the offence is committed
through the medium of an innocent agent, such as a child or any other
person who is not criminally responsible, the person who incites the
crime is liable as a principal.)
 D giving assistance or encouragement to P: R v Clarkson [1971] 1
WLR 1402; R v Jones and Mirrless (1977) 65 Cr. App. R. 250, CA.
 D’s intent to assist or encourage: R v Clarkson; R v Jones and
Mirrless.
 D’s knowledge of the essential elements of P’s offence: Johnson v
Youdon [1950] 1 K.B. 544, DC. The courts have interpreted
knowledge broadly in this context. It has been held to include belief,
contemplation or foresight that the essential elements might be
committed. See para 8.4.2.2 of Smith and Hogan’s Criminal Law (13th
ed, 2011) for a detailed commentary.

 

[Spymaster]

More's the point, the CPS guidance specifically addresses just this possibility:

(2) Where D assists or encourages P to commit a single crime
In this scenario, P, with the fault element, carries out the conduct element
alone. D is an accessory (assists or encourages the offence). D does not
need to be present at the scene of the offence. Both are liable for the offence.
P is liable as a principal. Ds liability as a secondary party is based on proving:
 P’s commission of the offence, although P need not be identified,
charged or convicted. (Note that where the offence is committed
through the medium of an innocent agent, such as a child or any other
person who is not criminally responsible, the person who incites the
crime is liable as a principal.)
 D giving assistance or encouragement to P: R v Clarkson [1971] 1
WLR 1402; R v Jones and Mirrless (1977) 65 Cr. App. R. 250, CA.
 D’s intent to assist or encourage: R v Clarkson; R v Jones and
Mirrless.
 D’s knowledge of the essential elements of P’s offence: Johnson v
Youdon [1950] 1 K.B. 544, DC. The courts have interpreted
knowledge broadly in this context. It has been held to include belief,
contemplation or foresight that the essential elements might be
committed. See para 8.4.2.2 of Smith and Hogan’s Criminal Law (13th
ed, 2011) for a detailed commentary.

So, re your highlighted part, how do you legally prove that X raped Y, without trying him? He doesn't get a chance to defend himself.

The fact that this has never, ever happened in the case of rape, speaks volumes.

 

[Athos]

So, re your highlighted part, how do you legally prove that X raped Y, without trying him? He doesn't get a chance to defend himself.

The fact that this has never, ever happened in the case of rape, speaks volumes.

You are desperately clutching at straws. You would prove it the same way so you would with other abetting offences; the CPS guidance specifically envisages exactly that scenario i.e. Where the principal's guilt is proven, without him having to be convicted, or even identified. It's a matter of evidence, for a jury.

The fact that it's never happened is because it's a very, very unlikely set of circumstances; how often do you think a woman artists in a rape, and is caught but the man is not.

But it remains the case that it absolutely could happen; you have the law wrong, here.

 

[Spymaster]

You are desperately clutching at straws.

The fact that it's never happened is because it's a very, very unlikely set of circumstances; how often do you think a woman artists in a rape, and is caught but the man is not.

You're desperately trying to manufacture ridiculous scenarios to suit your agenda!

I've no idea how often the circumstances you suggest have occurred but I'd think it likely that a woman and a man may have been jointly charged with rape and he's died before prosecution or otherwise avoided trial.

Yet still no cases of a lone woman being convicted of rape. Ever.

 

[Athos]

You're desperately trying to manufacture ridiculous scenarios to suit your agenda!

I've no idea how often the circumstances you suggest have occurred but I'd think it likely that a woman and a man may have been jointly charged with rape and he's died before prosecution or otherwise avoided trial.

Yet still no cases of a lone woman being convicted of rape. Ever.

But surely you understand that, just because something hasn't happened, it doesn't mean it can't in law.

Given the tiny number of women who have been prosecuted alongside one or more men, what makes you think that there are similar cases in which all the men involved have died? On what basis do you think that 'likely'?

I've shown you the CPS guidance which very clearly explains that the principal doesn't have to be convicted for the accessory to be convicted of the same offence. Are you saying that's wrong? Or that it doesn't apply to rape? If the latter, why?

The answer cannot be that the principal offence requires a penis, because the whole point of the doctrine of joint enterprise is to allow conviction of people who don't satisfy the requirements for the substantive offence in their own right (because, if they did, there'd be no need for it).

If you think there's any reason in law why a woman can't be prosecuted individually (which would mean a conviction for rape, by virtue of her role in the joint enterprise), please explain; please don't repeat the logically nonsensical 'argument' that it can't happen because it hasn't.

 

[Orang Utan]

Two men talking about whether women can rape men on a thread about a man who raped a woman. Shabby.

 

[Athos]

Two men talking about whether women can rape men on a thread about a man who raped a woman. Shabby.

No. One man telling another man why the arguments he was using to have a pop at a woman on a thread about rape are wrong.

 

[Spymaster]

No. One man telling another man why the arguments he was using to have a pop at a woman on a thread about rape are wrong.

Well that stands regardless of what you and I agree or disagree on.

It was clearly stated that women have been prosecuted for raping men. They haven't.

I will however, apologise to equationgirl for the aggressive manner in which I made that point on Sunday night.