Presumption of innocence (Rape)
Discussion
Dr Jekyll said:
That isn't what's happening though.
“We want police and prosecutors to make sure they ask in every case where consent is the issue - how did the suspect know the complainant was saying yes and doing so freely and knowingly?”
I may well be missing something, but I'm not sure why that is problematic. Do you not think that the issue of how a defendant formed their belief in the complainant's consent is relevant to the reasonableness of that belief?“We want police and prosecutors to make sure they ask in every case where consent is the issue - how did the suspect know the complainant was saying yes and doing so freely and knowingly?”
Edited by SamHH on Friday 30th January 16:17
SamHH said:
Dr Jekyll said:
That isn't what's happening though.
“We want police and prosecutors to make sure they ask in every case where consent is the issue - how did the suspect know the complainant was saying yes and doing so freely and knowingly?”
I way well be missing something, but I'm not sure why that is problematic. Do you not think that the issue of how a defendant formed their belief is relevant to the reasonableness of that belief?“We want police and prosecutors to make sure they ask in every case where consent is the issue - how did the suspect know the complainant was saying yes and doing so freely and knowingly?”
Dr Jekyll said:
The problem is how in the name of blazes is the defendant supposed to prove how the belief was formed?
The defendant doesn't need to.It's up to the prosecution to prove that the defendant's belief was unreasonable. In investigating the reasonableness of the defendant's belief, it seems to me sensible that the police would ask the defendant how their belief was formed. But asking that question does nothing to shift the onus of proof.
Dr Jekyll said:
That isn't what's happening though.
“We want police and prosecutors to make sure they ask in every case where consent is the issue - how did the suspect know the complainant was saying yes and doing so freely and knowingly?”
Nothing about 'police and prosecutors should be alive to nuances'.
I know you're answering a specific question, but how do you imagine the police question people when there's an issue over consent? “We want police and prosecutors to make sure they ask in every case where consent is the issue - how did the suspect know the complainant was saying yes and doing so freely and knowingly?”
Nothing about 'police and prosecutors should be alive to nuances'.
It's a bit of an odd statement as anyone sexual offence investigator is going to spend a lot of time questioning very thoroughly around every aspect of consent where it's an issue. That's always been the case.
It's also fundamental to allowing the suspect to demonstrate they had a reasonable belief they had consent.
La Liga said:
know you're answering a specific question, but how do you imagine the police question people when there's an issue over consent?
It's a bit of an odd statement as anyone sexual offence investigator is going to spend a lot of time questioning very thoroughly around every aspect of consent where it's an issue. That's always been the case.
It's also fundamental to allowing the suspect to demonstrate they had a reasonable belief they had consent.
I don't know how the police question people in these situations, presumably they ask for the suspects version of events leading up to the alleged rape.It's a bit of an odd statement as anyone sexual offence investigator is going to spend a lot of time questioning very thoroughly around every aspect of consent where it's an issue. That's always been the case.
It's also fundamental to allowing the suspect to demonstrate they had a reasonable belief they had consent.
What in your view is the benefit of this 'guidance'? On the one hand it's supposed to be a wonderful idea that will increase the number of prosecutions so anyone who so much as queries it is clearly up to no good, on the other hand it isn't a change and doesn't make any difference.
Dr Jekyll said:
. . . and still be curious as to how exactly I'm supposed to prove consent. A question that is still being conspicuously evaded.
The question has already been answered on this thread. Perhaps, then, a different approach.If you had had sex with a woman and were asked - not by a police officers at this stage - how you knew she had consented, what would you say? The answer should be a complete defence.
Another way of looking at is is how the woman, and the prosecution, would prove, and beyond a reasonable doubt, that she had not.
Stripped of emotive content and demands, it should be becoming a bit clearer.
There is no need for signed contracts, for overt agreement. There are many pointers.
In any case, a defendant does not have to prove that the woman, or man, consented. All he has to do is prove that his belief that she had consented was reasonable.
So an offence of rape can have been committed without an offender.
Dr Jekyll said:
I don't know how the police question people in these situations, presumably they ask for the suspects version of events leading up to the alleged rape.
What in your view is the benefit of this 'guidance'? On the one hand it's supposed to be a wonderful idea that will increase the number of prosecutions so anyone who so much as queries it is clearly up to no good, on the other hand it isn't a change and doesn't make any difference.
The problem I have it what I have read is so devoid from what is being represented by people and the media, that it's difficult to align and talk of the two things. The strategy / guidance is here: http://www.cps.gov.uk/publications/equality/vaw/in...What in your view is the benefit of this 'guidance'? On the one hand it's supposed to be a wonderful idea that will increase the number of prosecutions so anyone who so much as queries it is clearly up to no good, on the other hand it isn't a change and doesn't make any difference.
There's ample scope for improvement in all the areas it covers, and I fail to see anything objectionable.
I've also failed to see anyone actually reference anything tangible i.e. any of the documents / guidance as to what is apparently so objectionable. Surely it's not much to ask people raising points of objection to actually reference some material which supports their objections.
To avoid further expenditure on trials/solicitors etc. etc.
I would advocate that in the case of 'the one night stand' - whosoever complains of misconduct, condemns all parties to a period of incarceration and irredeemable reputational damage.
Adoption of such a policy may, to a certain extent, lead to more circumspection in the games that people play.
I would advocate that in the case of 'the one night stand' - whosoever complains of misconduct, condemns all parties to a period of incarceration and irredeemable reputational damage.
Adoption of such a policy may, to a certain extent, lead to more circumspection in the games that people play.
SamHH said:
Dr Jekyll said:
How?
Derek's use of terminology was unfortunate, because as has already been pointed out, the defendant need prove nothing. Do you not believe that?Derek Smith said:
All he has to do is prove that his belief that she had consented was reasonable.
Dr Jekyll said:
Derek Smith said:
In any case, a defendant does not have to prove that the woman, or man, consented. All he has to do is prove that his belief that she had consented was reasonable.
How?Sexual Offences Act 2003 said:
1 Rape
(1) A person (A) commits an offence if—
(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,
(b) B does not consent to the penetration, and
(c) A does not reasonably believe that B consents.
(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.
Even if the victim did not consent, it still has to be proven that the accused didn't reasonably believe there was consent.(1) A person (A) commits an offence if—
(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,
(b) B does not consent to the penetration, and
(c) A does not reasonably believe that B consents.
(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.
Section 1, which I've quoted above, is subject to Section 75, which is as follows;
Section 75 said:
75 Evidential presumptions about consent
(1) If in proceedings for an offence to which this section applies it is proved—
(a) that the defendant did the relevant act,
(b) that any of the circumstances specified in subsection (2) existed, and
(c) that the defendant knew that those circumstances existed, the complainant is to be taken not to have consented to the relevant act unless sufficient evidence is adduced to raise an issue as to whether he consented, and the defendant is to be taken not to have reasonably believed that the complainant consented unless sufficient evidence is adduced to raise an issue as to whether he reasonably believed it.
(2)The circumstances are that—
(a) any person was, at the time of the relevant act or immediately before it began, using violence against the complainant or causing the complainant to fear that immediate violence would be used against him;
(b) any person was, at the time of the relevant act or immediately before it began, causing the complainant to fear that violence was being used, or that immediate violence would be used, against another person;
(c) the complainant was, and the defendant was not, unlawfully detained at the time of the relevant act;
(d) the complainant was asleep or otherwise unconscious at the time of the relevant act;
(e) because of the complainant’s physical disability, the complainant would not have been able at the time of the relevant act to communicate to the defendant whether the complainant consented;
(f) any person had administered to or caused to be taken by the complainant, without the complainant’s consent, a substance which, having regard to when it was administered or taken, was capable of causing or enabling the complainant to be stupefied or overpowered at the time of the relevant act.
(3) In subsection (2)(a) and (b), the reference to the time immediately before the relevant act began is, in the case of an act which is one of a continuous series of sexual activities, a reference to the time immediately before the first sexual activity began.
I've put the bit most here have been discussing in bold- where someone is so drunk they cannot consent (they are unable to communicate one way or the other or otherwise stop what is happening), they are taken to be unconscious and therefore not to have consented. If the accused is aware that the person is so drunk as to be unable to consent, they cannot be assumed to have held a reasonable belief that consent had been granted.(1) If in proceedings for an offence to which this section applies it is proved—
(a) that the defendant did the relevant act,
(b) that any of the circumstances specified in subsection (2) existed, and
(c) that the defendant knew that those circumstances existed, the complainant is to be taken not to have consented to the relevant act unless sufficient evidence is adduced to raise an issue as to whether he consented, and the defendant is to be taken not to have reasonably believed that the complainant consented unless sufficient evidence is adduced to raise an issue as to whether he reasonably believed it.
(2)The circumstances are that—
(a) any person was, at the time of the relevant act or immediately before it began, using violence against the complainant or causing the complainant to fear that immediate violence would be used against him;
(b) any person was, at the time of the relevant act or immediately before it began, causing the complainant to fear that violence was being used, or that immediate violence would be used, against another person;
(c) the complainant was, and the defendant was not, unlawfully detained at the time of the relevant act;
(d) the complainant was asleep or otherwise unconscious at the time of the relevant act;
(e) because of the complainant’s physical disability, the complainant would not have been able at the time of the relevant act to communicate to the defendant whether the complainant consented;
(f) any person had administered to or caused to be taken by the complainant, without the complainant’s consent, a substance which, having regard to when it was administered or taken, was capable of causing or enabling the complainant to be stupefied or overpowered at the time of the relevant act.
(3) In subsection (2)(a) and (b), the reference to the time immediately before the relevant act began is, in the case of an act which is one of a continuous series of sexual activities, a reference to the time immediately before the first sexual activity began.
The legislation above is well established and is not proposed to be changed by the guidance under discussion here. What is proposed is that in the grey area around consent when impaired, the Police and CPS take a more robust approach supported by the existing provisions in s75.
TTwiggy said:
It was a little tongue in cheek, hence the smiley, but I've been on here quite a while and I think it's fair to say that when it comes to women, it's possible to split this site largely (though certainly not wholly) into three different groups who don't seem too keen on the opposite sex, namely: The middle-aged divorced dad who feels that the cards are stacked against those with a penis; the 'powerfully built company director' who thinks they're all 'snakes with tits' after his money and the (younger one presumes) posters who revel in phrases like 'kick her back doors in.'
In answer to your earlier point, I agree that it's sometimes not comfortable to be a man in that 'oh god, does she think I'm following her?' scenario, but on balance I'd rather feel (erroneously) like a potential perpetrator than a potential victim.
I agree with the 3 groups, PH is a bit like that - well done for taking the time to post them. And as for the final point, I do wonder if some people on here have any female friends/relatives they care about. Because their undue (in my opinion) their concern about some hypothetical situation where they are falsely accused of rape suggests not. In answer to your earlier point, I agree that it's sometimes not comfortable to be a man in that 'oh god, does she think I'm following her?' scenario, but on balance I'd rather feel (erroneously) like a potential perpetrator than a potential victim.
SamHH said:
Why?
It's just not true. It's a basic rule that it is for the prosecution to prove that the crime has been committed. Subject to the point above about evidential presumptions (which don't require the defendant to prove anything), the law of rape is no different.
Sometimes an offence has a statutory defence or condition that requires the defendant to prove something (typically to the balance of probabilities standard of proof, rather than beyond reasonable doubt). This doesn't change the overall burden of proof for the offence resting on the prosecution.It's just not true. It's a basic rule that it is for the prosecution to prove that the crime has been committed. Subject to the point above about evidential presumptions (which don't require the defendant to prove anything), the law of rape is no different.
If the complainant says she did not consent and prosecution allege you could not have held a reasonable belief, that the victim had, it falls on you to convince the court that you did- the prosecution cannot prove the negative and without your reasonable belief you're up s
t creek.Edited by allergictocheese on Friday 30th January 20:34
Take away all the sexual connections of rape and let's look at a simple case of theft.
A woman complains to the police that you have stolen her watch. You are arrested and the police find the watch on you.
She has the receipt and everything.
You could, for instance, say it was a gift. People give watches away. You have been friends for years and three days previously it was your birthday.
her word against yours. But there is a lot of circumstantial evidence. (Don't fall for the 'only circumstantial evidence' you hear mentioned in defence of the lad who was destined to be a great footballer. Circumstantial is good. It can convict.)
Questions the police might ask you is how did you know the watch was for you. You mention the wrapping, it being pushed across the table at you. They might ask if you often got birthday presents so early in a relationship and you might say no, but the woman seemed very taken with you. You could even say that you felt it would have been rude to refuse.
You might mention that you showed the watch to a friend and said that you'd like to see the girl again. You texted her and was disappointed when she didn't reply. You tried again but you assumed she'd decided to end the relationship as the watch didn't really suit you.
You could mention that your friends saw her pushing it towards you.
In those circs, there would be no case to answer.
If your mate came to you and said that the girl you saw him drinking with last night had had something wrapped in very nice coloured paper and he'd decided it was a present for him, and when he took it from her, she made no objections. She now says that it was expensive and that she'd got it for her boyfriend. She was too drunk to realise he'd taken it and so it was her fault. Do you suggest it was all a feminist plot against men? Or do you tell him to get a lawyer?
A woman complains to the police that you have stolen her watch. You are arrested and the police find the watch on you.
She has the receipt and everything.
You could, for instance, say it was a gift. People give watches away. You have been friends for years and three days previously it was your birthday.
her word against yours. But there is a lot of circumstantial evidence. (Don't fall for the 'only circumstantial evidence' you hear mentioned in defence of the lad who was destined to be a great footballer. Circumstantial is good. It can convict.)
Questions the police might ask you is how did you know the watch was for you. You mention the wrapping, it being pushed across the table at you. They might ask if you often got birthday presents so early in a relationship and you might say no, but the woman seemed very taken with you. You could even say that you felt it would have been rude to refuse.
You might mention that you showed the watch to a friend and said that you'd like to see the girl again. You texted her and was disappointed when she didn't reply. You tried again but you assumed she'd decided to end the relationship as the watch didn't really suit you.
You could mention that your friends saw her pushing it towards you.
In those circs, there would be no case to answer.
If your mate came to you and said that the girl you saw him drinking with last night had had something wrapped in very nice coloured paper and he'd decided it was a present for him, and when he took it from her, she made no objections. She now says that it was expensive and that she'd got it for her boyfriend. She was too drunk to realise he'd taken it and so it was her fault. Do you suggest it was all a feminist plot against men? Or do you tell him to get a lawyer?
allergictocheese said:
................If the complainant says she did not consent and prosecution allege you could not have held a reasonable belief, that the victim had, it falls on you to convince the court that you did- the prosecution cannot prove the negative and without your reasonable belief you're up st creek.
Surely you give your reasons for believing,and then the CPS has to prove it was not reasonable to believe in those circumstances?t creek.But it will still come down to 1v1 evidence:
Woman:I was raped,he forced me
Cop:So what made you think she consented sir?
Bloke:She was lying on her back with her lips parted,Squealing like a stuffed pig!
Reasonable? Members of the jury,you decide!
Randy Winkman said:
I agree with the 3 groups, PH is a bit like that - well done for taking the time to post them. And as for the final point, I do wonder if some people on here have any female friends/relatives they care about. Because their undue (in my opinion) their concern about some hypothetical situation where they are falsely accused of rape suggests not.
I guess you've never been on the end of a spurious police report from a woman? I can't recommend it. Luckily for me it wasn't of a sexual nature, but it still entailed 6 hours in a cell and being treated like a piece of st.Even the services of an expensive solicitor couldn't prevent it from going to court. Thankfully once there the attendant CPS chap, after looking though the case notes, said to my solicitor "There's nothing here, why has this gone this far?"
But that experience has soured my opinion of the police when it's the word of a female against a male, let alone my opinion of women as an entity to be trusted - and this was someone I'd been in a relationship with for thirteen years until she decided to f
k someone else. I can't begin to imagine how the system would have treated me if it was a serious sexual allegation.
Impasse said:
I guess you've never been on the end of a spurious police report from a woman? I can't recommend it. Luckily for me it wasn't of a sexual nature, but it still entailed 6 hours in a cell and being treated like a piece of st.
Even the services of an expensive solicitor couldn't prevent it from going to court. Thankfully once there the attendant CPS chap, after looking though the case notes, said to my solicitor "There's nothing here, why has this gone this far?"
But that experience has soured my opinion of the police when it's the word of a female against a male, let alone my opinion of women as an entity to be trusted - and this was someone I'd been in a relationship with for thirteen years until she decided to fk someone else.
I can't begin to imagine how the system would have treated me if it was a serious sexual allegation.
Perhaps that is a question he should be asking his colleagues seeing as it's the CPS who decides what cases go to court, not the police? t.Even the services of an expensive solicitor couldn't prevent it from going to court. Thankfully once there the attendant CPS chap, after looking though the case notes, said to my solicitor "There's nothing here, why has this gone this far?"
But that experience has soured my opinion of the police when it's the word of a female against a male, let alone my opinion of women as an entity to be trusted - and this was someone I'd been in a relationship with for thirteen years until she decided to f
k someone else. I can't begin to imagine how the system would have treated me if it was a serious sexual allegation.
As for 'spending six hours in a cell and being treated like s
t', that would have happened regardless of whether it was a 'spurious complaint' from a woman or if you'd been nicked for burglary or punching someone. Edited by Oakey on Friday 30th January 21:58
The police could have dealt with the matter differently. They had more than one option available to them, they just chose the most potentially damaging for me. You would have to ask the officer in charge why he chose the route he did. But both me and my (female) solicitor agreed that it would have been a case of NFA if the genders were reversed.
Gassing Station | News, Politics & Economics | Top of Page | What's New | My Stuff