evildrneil Posted February 25, 2011 Share Posted February 25, 2011 WEll I agree with you that we don't really have enough information or evidence either way and its not an easy case. I dont know the Canadian legal system very well but just as you have said there is no crime for rape, I would be unsure whether 'inconsiderate behaviour' is a criminal offence either? Inconsiderate behaviour is unlikely to be a crime - but he was given a conditional discharge not a sentence. The problem seems to be that there is a presumption of guilt here and people are looking for reasons why the judge let him off. It's perfectly possible that the judge didn't think there was enough evidence to bring a conviction but because there as 'inconsiderate behaviour' wanted to give some sort of warning. Now I'm not saying that this is what happened but it is as consistent a reading of the (very skimpy) facts as "the judge let the victim off". Canadian law is with the exception of recent case law pretty much identical to UK law. Voluntary agreement is an explicit yes isn't it? The point I was trying to make was that it must be positive agreement. Consent has to be given, rather than it having to be expressly denied. What I'm asking is what qualifies as an explicit yes. Do both parties have to actually say "I consent to sexual intercourse taking place" or is their conduct enough? It seems to amount to, you raped her, but I can see why you would have thought she wanted to have sex with you, so I'm letting you off with a lighter sentence than if she had been dressed as a nun with a sign saying 'no sex please'. This depends on your reading I think. I read it as the judge said you didn't rape her but you also didn't behave properly so I'm giving you a conditional discharge rather than an absolute one. Your comments beg the question though, why should Tracey at the office party be treated any differently to a nun because of what they are wearing if they are raped? I don't think they should, and neither their rapists. It's not just a case of what they are wearing though is it? If Tracy from the office party is flirtatious and provocative all night, goes home with you, jumps into your bed naked but never says the line "lets have sex" would you say consent has been given? I think most people would. Admittedly that's an exaggeration when compared with what appears to have happened here but clothing and behaviour combined were the factor that lead to confusion. Link to comment Share on other sites More sharing options...
Kthebean Posted February 25, 2011 Share Posted February 25, 2011 As far as I know a conditional discharge is when you have been found guilty, but because you have no previous record or because what you did was lessened in severity by certain factors, you are told by the judge that they are not going to send you to prison but if you do anything else you will go straight down. Its for people who they think are at low risk of reoffending. It is a possible sentence for when someone is guilty of a crime. I would be happy to be corrected on that by someone a law degree Evildrneil, I do agree with you on this It's not just a case of what they are wearing though is it? If Tracy from the office party is flirtatious and provocative all night, goes home with you, jumps into your bed naked but never says the line "lets have sex" would you say consent has been given? I think most people would. Admittedly that's an exaggeration when compared with what appears to have happened here but clothing and behaviour combined were the factor that lead to confusion but I think that should have been used in determining whether he was guilty or not , not deciding what sentence he got if he was guilty. If he genuinely thought she was consenting and was justified in that belief then he's not guilty, is he. If you prove someone guilty of sexual assault, the punishment should be the same no matter how the person you sexually assaulted was dressed/behaved. Link to comment Share on other sites More sharing options...
Cyclone Posted February 25, 2011 Share Posted February 25, 2011 Inconsiderate behaviour is unlikely to be a crime - but he was given a conditional discharge not a sentence. The problem seems to be that there is a presumption of guilt here and people are looking for reasons why the judge let him off. It's perfectly possible that the judge didn't think there was enough evidence to bring a conviction but because there as 'inconsiderate behaviour' wanted to give some sort of warning. Now I'm not saying that this is what happened but it is as consistent a reading of the (very skimpy) facts as "the judge let the victim off". To be given a conditional discharge you must first have been found guilty. A judge can't impose any kind of sentence on someone who is not guilty. QED the man was guilty of rape (legally at least). What I'm asking is what qualifies as an explicit yes. Do both parties have to actually say "I consent to sexual intercourse taking place" or is their conduct enough? Of course not, I thought I'd made that clear? Conduct is sufficient, and generally in a case of rape the prosecution try to establish that consent was not given (as otherwise there is no case). That could include being incapable of giving it (ie being drunk unto unconsciousness). This depends on your reading I think. I read it as the judge said you didn't rape her but you also didn't behave properly so I'm giving you a conditional discharge rather than an absolute one. It could possibly be that the judge decided that he was guilty of a lesser offence. But he was found guilty of something. It's not just a case of what they are wearing though is it? If Tracy from the office party is flirtatious and provocative all night, goes home with you, jumps into your bed naked but never says the line "lets have sex" would you say consent has been given? I think most people would. Admittedly that's an exaggeration when compared with what appears to have happened here but clothing and behaviour combined were the factor that lead to confusion. It's irrelevant. If Tracy at some point says 'stop', 'no' or pushes you off then you no longer have consent. If she's partaking of the activity then she has implicitly consented. It doesn't matter what her behaviour was before, either party can withdraw consent at any time. Link to comment Share on other sites More sharing options...
Cyclone Posted February 25, 2011 Share Posted February 25, 2011 If you prove someone guilty of sexual assault, the punishment should be the same no matter how the person you sexually assaulted was dressed/behaved. There wouldn't be a range given for the possible sentencing if that were the case, there'd just be a defined sentence. Link to comment Share on other sites More sharing options...
evildrneil Posted February 25, 2011 Share Posted February 25, 2011 As far as I know a conditional discharge is when you have been found guilty, but because you have no previous record or because what you did was lessened in severity by certain factors, you are told by the judge that they are not going to send you to prison but if you do anything else you will go straight down. Its for people who they think are at low risk of reoffending. It is a possible sentence for when someone is guilty of a crime. I would be happy to be corrected on that by someone a law degree It's kinda confusing - the only thing I could find about it is on wikipedia (so the usual caveats apply!) which says it's entered when someone is guilty of an offence but deemed not to have been convicted. I'm not all sure how that works unless it means "you did something dodgy but we can't convict you of an actual offence"? If you prove someone guilty of sexual assault, the punishment should be the same no matter how the person you sexually assaulted was dressed/behaved. I agree with you on the "dressed" here. Going back to the Tracy/nun example if both had been jumped on in a dark back alley and raped then the cases should be treated with equal severity as simple attire should not be considered a mitigator for the crime. I think that the "behaved" bit is always going to be more problematic though. Link to comment Share on other sites More sharing options...
Cyclone Posted February 25, 2011 Share Posted February 25, 2011 How can clothing ever be considered mitigation for rape? 'She asked for it' is an opinion that belongs in the dark ages. Link to comment Share on other sites More sharing options...
quisquose Posted February 25, 2011 Author Share Posted February 25, 2011 The story still doesn't have any details, but it sounds like there might have been reasons (beyond what she was wearing) that he thought she was consenting. If that was the case he would have been found "not-guilty", but he wasn't. Judges can't start retrospectively applying sentences based on how reliable they think the judgement was. If he had said, "you are otherwise of good character", or "you were acting out of character because you were drunk", or "I accept that in the heat of the moment you failed to notice her refusal", or "you have shown remorse", then I could accept the judge handing down a lighter sentence. What is unacceptable is blaming the victim in any way whatsoever, and that is what the judge has done here with his misogynistic statements. Link to comment Share on other sites More sharing options...
Cyclone Posted February 25, 2011 Share Posted February 25, 2011 If that was the case he would have been found "not-guilty", but he wasn't. Judges can't start retrospectively applying sentences based on how reliable they think the judgement was. If he had said, "you are otherwise of good character", or "you were acting out of character because you were drunk", or "I accept that in the heat of the moment you failed to notice her refusal", or "you have shown remorse", then I could accept the judge handing down a lighter sentence. What is unacceptable is blaming the victim in any way whatsoever, and that is what the judge has done here with his misogynistic statements. They do have the power to apply sentences within the guidelines though. And they have to exercise that power based on something. We are trying to analyse this with very little information at all, I wonder if his comments have been taken out of context... Reading between the lines, it would seem that the judge doesn't really agree with the guilty verdict at all and so has given out a very lenient punishment. Link to comment Share on other sites More sharing options...
Noob Posted February 25, 2011 Share Posted February 25, 2011 Nice one judge, bit of common sense at last. Bet there are a load of blokes banged up for some cheap bint wailing rape. Link to comment Share on other sites More sharing options...
Conrod Posted February 25, 2011 Share Posted February 25, 2011 Legally an unambiguous 'yes' is required. Failure to object is not giving consent. In reality nobody actually asks verbally if consent is given, actions would seem to be enough in most cases. There isn't a lot of detail in the case though, so it's not clear how or when she withdrew consent, the defence were probably arguing that she did so in the morning when she regretted it, something she obviously can't do. But unfortunately that's what a lot of women do when they make these sort of false accusations. Can a man report a woman for a similar sexual asault if he was drunk and wakes up with regret at the side of some greasy fat bison? Link to comment Share on other sites More sharing options...
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