Rape and Murder

johnnyskeleton

Something I've always wondered about is how do they prove consent in prosecutions where it is alleged that a person raped and then murdered another person?

It is a fundament prosecution proof in rape cases that the sexual intercourse was not consensual. This is invariably given by the complainant, after giving a graphic account of the rape, stating in a surreal way "I did not consent to being raped".

Obviously a deceased rape victim cannot give that vital proof, so how do they prove rape in rape and murder cases. Is it a case of there being semen found so the jury are intitled to infer that the victim did not consent to sexual intercourse. I have strong views on this point, but I would like to know what other people think about this first.

IT Loser

johnnyskeleton wrote: »

Something I've always wondered about is how do they prove consent in prosecutions where it is alleged that a person raped and then murdered another person?

It is a fundament prosecution proof in rape cases that the sexual intercourse was not consensual. This is invariably given by the complainant, after giving a graphic account of the rape, stating in a surreal way "I did not consent to being raped".

Obviously a deceased rape victim cannot give that vital proof, so how do they prove rape in rape and murder cases. Is it a case of there being semen found so the jury are intitled to infer that the victim did not consent to sexual intercourse. I have strong views on this point, but I would like to know what other people think about this first.

Circumstantial evidence, Previous Convictions, DNA, marital status of victim etc

Tom Young

johnnyskeleton wrote: »

Obviously a deceased rape victim cannot give that vital proof, so how do they prove rape in rape and murder cases. Is it a case of there being semen found so the jury are intitled to infer that the victim did not consent to sexual intercourse. I have strong views on this point, but I would like to know what other people think about this first.

Braddish and Dunne duty on the Gardai to seek out and preserve evidence per Hardiman J. Autopsy reporting and pathology should seek to endeavour to find signs of violence or forced intercourse, bruising etc. Fraud of course vitiates consent which is a key premise of Rape laws, both Section's 2 and 4 of the 1981 and 1990 acts. DPP v C, R v Linekar and DPP v Davies.

DNA typing while identifying is not totally reliable.

If the accused takes the stand and admits to the Murder but not to the rape the evidence might be taken at face value and in-line with the actual turn of events. I would however point to Lasky Jaggard and Brown and R v Brown in respect of rough sex cases that were prosecuted.

In respect of previous character evidence, again DPP v C is problematic. Other cases such as Makin, Boardman and others pose difficulties really for an accused.

I'd not have a clear view on how this would work, but I'd guess the pleading would drive quite a few of the matters in such an investigation. If the shield was used under 1921 CLA, 1(f) and not guilty entered, I'd not be confident that the Gardai and DPP would have the ability to adequately preserve the scene to arrive at a fair and reasonable outcome.

It really boils down to real evidence, but before an Irish jury with duff investigations, I'd imagine that a person would be getting concurrent life sentences for both charges.

Just my view.

Nevyn

Marital status of the victum ? cos married people never consent to sex with people they are not married to.

I would think defensive marks on the body, marks of restraint which were struggled against, an internal exam showing tearing and bruising due to rough penetration and defensive wounds on the defendant would pay a bigger part then just semen present.

This does give the defense a chance to proof that the deceased consented even to that level of rough sex and that it was a life style choice.

Tom Young

Thaedydal wrote: »

Marital status of the victum ? cos married people never consent to sex with people they are not married to.

Really? .....is that the case?

Croc

I would assume medical examination would prove or disprove the rape, i.e. the victim generally puts up a struggle hence there would be bruising etc to the vaginal area, not going to go into more details than that. Obviously cases vary but if would assume that if someone were violent enough to comitt murder then the rape its self was probably violent as well.

Nevyn

Well there are people who's sexual preference run to sex so rough that it would be rape of there was not consenting given but then can a person consent to sexual assault as under the law they can not consent to assault ?

johnnyskeleton

IT Loser wrote: »

Circumstantial evidence, Previous Convictions, DNA, marital status of victim etc

What circumstantial evidence/DNA? They can point to the presence of semen/hair etc to show that sex or some similar sexual contact took place, but that doesn't mean it was consensual. To take an example, if a husband has consensual sex with his wife before brutally murdering her, it is incorrect to say that he raped her.

As for previous convictions they are usually inadmissable, and they are certainly not enough to hang a conviction on.

I don't see how marital status is relevant. A man can rape his wife just as easily as a woman can have consensual sex outside of marriage.

Tom Young wrote: »

Braddish and Dunne duty on the Gardai to seek out and preserve evidence per Hardiman J. Autopsy reporting and pathology should seek to endeavour to find signs of violence or forced intercourse, bruising etc. Fraud of course vitiates consent which is a key premise of Rape laws, both Section's 2 and 4 of the 1981 and 1990 acts. DPP v C, R v Linekar and DPP v Davies.

But brusing of the genetal areas only occurs in a few cases, and genetal burising can also occur when there has been consensual sex.

Tom Young wrote:

If the accused takes the stand and admits to the Murder but not to the rape the evidence might be taken at face value and in-line with the actual turn of events. I would however point to Lasky Jaggard and Brown and R v Brown in respect of rough sex cases that were prosecuted.

But for that to even arise the prosecution must have a case to answer as regards a rape count. I cannot see how they would prove the lack of consent, although I accept that they could prove that sexual intercourse could take place.

Thaedydal wrote: »

Marital status of the victum ? cos married people never consent to sex with people they are not married to.

Hey Thaed, take a walk on the wild side.

Thaedydal wrote:

I would think defensive marks on the body, marks of restraint which were struggled against, an internal exam showing tearing and bruising due to rough penetration and defensive wounds on the defendant would pay a bigger part then just semen present.

The defensive marks on the body would show a struggle, but this could be contemporaneous with the murder as opposed to the sex. For example, a man has sex with his wife, lets just say in the Naul, goes for a bit of a wander for a few hours, and when he comes back she has been brutally murdered by a third party. The fact of sexual intercourse might unfairly lead the jury to believe that the victim was raped and then murdered, whereas they were only murdered.

Also, there usually isn't tearing and burising of the genetal area from a rape, but even if there was, it could be due to a number of other unkowns - i.e. previous birthing marks reopened due to a consensual sexual experience.

Furthermore, if there is no DNA evidence but there is evidence of physical trauma to the genitals, this in no way proves who caused the genital injuries - was it the murderer or some other 3rd party? It might even have been a passing necro.

Thaedydal wrote:

This does give the defense a chance to proof that the deceased consented even to that level of rough sex and that it was a life style choice.

But it is the golden thread of our system of criminal justice that the prosecution must prove every element of their case, while the defence do not have to prove anything.

I honestly can't see how anyone logically can be satisfied beyond reasonable doubt that a person did not consent to sexual intercourse unless that person gives evidence.

Tom Young

Not sure I quite understand that post. If consent is present then the matter should not arise. But the matter becomes clouded when the person dies, is murdered etc. So back to Johnny's point, in effect a consensual act and potentially prior to the murder or manslaughter or indeed suicide, leaves the accused in the original position as outlined in OP.

johnnyskeleton

Croc wrote: »

I would assume medical examination would prove or disprove the rape, i.e. the victim generally puts up a struggle hence there would be bruising etc to the vaginal area, not going to go into more details than that. Obviously cases vary but if would assume that if someone were violent enough to comitt murder then the rape its self was probably violent as well.

Generally a woman will not struggle against a rapist due to two factors:
1) they are usually terrified and feel that resisting will only make it worse
2) it has been argued that for societal or biological reasons that some people become passive, vulnerable and unable to resist an aggressive sexual assault and therefore don't struggle.

But again, there usually isn't genetal injury in rape cases, and it is equally possible that the genetal injury comes from consensual intercourse.

Thaedydal wrote: »

Well there are people who's sexual preference run to sex so rough that it would be rape of there was not consenting given but then can a person consent to sexual assault as under the law they can not consent to assault ?

In law a person can consent to an assault, or more accurately, a fundamental ingredient of the offence of assault is that there is force applied without consent. Likewise, consensual sexual assault is, in legal terms, just a good time.

Nevyn

johnnyskeleton wrote: »

Hey Thaed, take a walk on the wild side.

I forgot the sarcasm tags

Nevyn

johnnyskeleton wrote: »

Generally a woman will not struggle against a rapist due to two factors:
1) they are usually terrified and feel that resisting will only make it worse
2) it has been argued that for societal or biological reasons that some people become passive, vulnerable and unable to resist an aggressive sexual assault and therefore don't struggle.

1) the level of aggresion of the attacker
2) shock.

johnnyskeleton wrote: »

But again, there usually isn't genetal injury in rape cases, and it is equally possible that the genetal injury comes from consensual intercourse.

There is a level of bruising from a vicious rape that usually will not be present with consenting sex, most people and their sexual partners do not engage in coitus so that the person has such a bruised pelvis that they can not walk the next day.

johnnyskeleton wrote: »

In law a person can consent to an assault, or more accurately, a fundamental ingredient of the offence of assault is that there is force applied without consent. Likewise, consensual sexual assault is, in legal terms, just a good time.

Interesting would this also apply to bdms activities in this country ?

johnnyskeleton

Tom Young wrote: »

Not sure I quite understand that post. If consent is present then the matter should not arise. But the matter becomes clouded when the person dies, is murdered etc. So back to Johnny's point, in effect a consensual act and potentially prior to the murder or manslaughter or indeed suicide, leaves the accused in the original position as outlined in OP.

I think that if you are trying to infer a lack of consent in circumstances where the victim is no longer alive to give that evidence, the circumstantial evidence must be so strong as to leave no reasonable doubt as to there being any other alternative. I cannot see what facts would be so strong as to allow a jury to correctly come to that conclusion.

Put another way, no rape prosecution could succeed if the complainant (in this situation still alive and giving evidence) does not give evidence that she did not consent. Even if the complainant was observed by a third party who says that she looked like she wasn't consenting, that still doesn't prove that she didn't consent. As Thaedydal says, she might like it dirty.

IT Loser

Thaedydal wrote: »

Marital status of the victum ? cos married people never consent to sex with people they are not married to..

:D:D:D

Will the Jury likely believe that a HAPPILY MARRIED {!!!} woman consented to sex with an unseemly suitor, a la HOBO,DRUNK, VILLAGE IDIOT, etc etc???

IT Loser

Thaedydal wrote: »

1) the level of aggresion of the attacker
2) shock.



There is a level of bruising from a vicious rape that usually will not be present with consenting sex, most people and their sexual partners do not engage in coitus so that the person has such a bruised pelvis that they can not walk the next day.




Interesting would this also apply to bdms activities in this country ?

How do you know what MOST PEOPLE are into, or what MOST PEOPLE are getting up to together???

IT Loser

Thaedydal wrote: »

Well there are people who's sexual preference run to sex so rough that it would be rape of there was not consenting given but then can a person consent to sexual assault as under the law they can not consent to assault ?

Uhhhh.......

johnnyskeleton

Thaedydal wrote: »

I forgot the sarcasm tags

I however, did not forget that you are a mod in sex and sexuality.

Thaedydal wrote: »

There is a level of bruising from a vicious rape that usually will not be present with consenting sex, most people and their sexual partners do not engage in coitus so that the person has such a bruised pelvis that they can not walk the next day.

No, they do it to get their jollies, but the most likely location of bruising after a vicious rape will be bruising to the arms, legs etc, as the victim is initially restrained. These are also consistent, in my view, with bruising from a struggle prior to murder.

http://www.cmaj.ca/cgi/reprint/159/1/33.pdf
"The results suggest that genital injuries are more common in women without prior sexual intercourse experience but that substantial proportions of all women, regardless of their prior sexual experience at the time of assault, will not have visible genital injuries.

http://www.cmmc.nhs.uk/...%20norfolk%20white.pdf
"It is now widely accepted that naked eye examination of the genitalia reveals genital injury in only about 20–30% of rape victims4–7 and that the absence of genital injury on naked eye examination does not exclude rape."

Thaedydal wrote:

Interesting would this also apply to bdms activities in this country ?

BDMS?

seamus

IT Loser wrote: »

:D:D:D

Will the Jury likely believe that a HAPPILY MARRIED {!!!} woman consented to sex with an unseemly suitor, a la HOBO,DRUNK, VILLAGE IDIOT, etc etc???

It would be up to the prosecution to prove that consent wasn't forthcoming, surely. The type of person should be largely irrelevant unless you could show that there was a previous negative confrontation/relationship between the parties concerned.

Nevyn

Sorry pesky dyslexia

http://en.wikipedia.org/wiki/BDSM

johnnyskeleton

IT Loser wrote: »

:D:D:D

Will the Jury likely believe that a HAPPILY MARRIED {!!!} woman consented to sex with an unseemly suitor, a la HOBO,DRUNK, VILLAGE IDIOT, etc etc???

From my vast experience of pornography tells me anything, it is yes.

IT Loser wrote: »

How do you know what MOST PEOPLE are into, or what MOST PEOPLE are getting up to together???

This is it, if there is an alternative interpretation that is plasuable, however unlikely, which favours the accused, he must be given the benefit of the doubt.

IT Loser

seamus wrote: »

It would be up to the prosecution to prove that consent wasn't forthcoming, surely. The type of person should be largely irrelevant unless you could show that there was a previous negative confrontation/relationship between the parties concerned.

THATS TRUE

But.....you think back to that shop owner that was raped and murdered by the local weirdo in Kildare a few years back.

She was married, with Kids and and, oddly enough, a Husband.

Proving that she WOULD NEVER CONSENT to sex with the BOZO charged was as easy as describing HIM to the jury and then describing HER.

That and the DNA pretty much nailed him.

Nevyn

IT Loser wrote: »

THATS TRUE

But.....you think back to that shop owner that was raped and murdered by the local weirdo in Kildare a few years back.

She was married, with Kids and and, oddly enough, a Husband.

Proving that she WOULD NEVER CONSENT to sex with the BOZO charged was as easy as describing HIM to the jury and then describing HER.

That and the DNA pretty much nailed him.

I doubt that taboo often plays a part in sexual attraction and the more unsuitable a sexual partner the more of a taboo it is.

johnnyskeleton

Thaedydal wrote: »

Sorry pesky dyslexia

http://en.wikipedia.org/wiki/BDSM

I suspected some sort of deviant activity alright .

As Tom says, the Laskey, Jaggard and Brown v. UK case, (or the R. v. Brown prosecution) discusses this issue. However it is couched in terms of indecency as opposed to assault. If you consent to bondage, that's a perfect defence to assault, just like if you consent to surgery, you consent to being sliced open. If there are a few people involved though, it could be affray or a related public order charge.

IT Loser

johnnyskeleton wrote: »

From my vast experience of pornography tells me anything, it is yes.

Be real............

IT Loser

johnnyskeleton wrote: »

I suspected some sort of deviant activity alright .

As Tom says, the Laskey, Jaggard and Brown v. UK case, (or the R. v. Brown prosecution) discusses this issue. However it is couched in terms of indecency as opposed to assault. If you consent to bondage, that's a perfect defence to assault, just like if you consent to surgery, you consent to being sliced open. If there are a few people involved though, it could be affray or a related public order charge.

Real Life Case

When I was n Free Legal Aid, in the CIC...I asked the solicitor there if an assault could not be brought against a dentist who kept drilling despite the pleas of his patient to STOP.

He asked me if I really wanted to drag dentists up to the Bridewell.

Makes sense. If every low-tolerance sort couldn't take the pain, and asked to stop, then the dentist would get nowhere. Also, how many dentists will stay in the profession if they kept getting nailed for a nanosecond of non-consensual drilling??

johnnyskeleton

IT Loser wrote: »

THATS TRUE

But.....you think back to that shop owner that was raped and murdered by the local weirdo in Kildare a few years back.

She was married, with Kids and and, oddly enough, a Husband.

Proving that she WOULD NEVER CONSENT to sex with the BOZO charged was as easy as describing HIM to the jury and then describing HER.

That and the DNA pretty much nailed him.

That can't be helped - juries can sometimes take a dislike to a person and disbelieve them on their demeanor alone. I think it would be more usual that such a Bozo would deny completely the sex and murder, and the jury would use this denial as positive evidence.

Thaedydal wrote: »

I doubt that taboo often plays a part in sexual attraction and the more unsuitable a sexual partner the more of a taboo it is.

The old pretty girl crying / sleazy looking guy trick. Works 3 / 4 times*.


*Actual results may vary.

IT Loser

Thaedydal wrote: »

I doubt that taboo often plays a part in sexual attraction and the more unsuitable a sexual partner the more of a taboo it is.

The more unsuitable the sexual partner, the more likely it is rape.

The more TABOO the sexual partner...means nothing.

Totally Taboo= NOTHING.

Totally Unsuitable: Perfectly presentable reasonable evidence of a lack of consent.

johnnyskeleton

IT Loser wrote: »

Real Life Case

When I was n Free Legal Aid, in the CIC...I asked the solicitor there if an assault could not be brought against a dentist who kept drilling despite the pleas of his patient to STOP.

He asked me if I really wanted to drag dentists up to the Bridewell.

Makes sense. If every low-tolerance sort couldn't take the pain, and asked to stop, then the dentist would get nowhere. Also, how many dentists will stay in the profession if they kept getting nailed for a nanosecond of non-consensual drilling??

I would say [and since you have referenced a real life experience I will say IMHO, seek legal advice, hypothetical etc] that if you ask a dentist to stop, they must stop, as consent can be withdrawn at any time.

johnnyskeleton

IT Loser wrote: »

The more unsuitable the sexual partner, the more likely it is rape.

The more TABOO the sexual partner...means nothing.

Totally Taboo= NOTHING.

Totally Unsuitable: Perfectly presentable reasonable evidence of a lack of consent.

The jury must be satisfied on the facts as presented, and look at it from the point of view of the persons involved, as opposed to general standards or prejudices.

Nevyn

If the victim was being already painted as having deviant sexual preferences then it can be painted as a rape fantasy gone awry.

kopparberg

has anybody every been charged not to mention stood trial for a rape and murder where the accused claimed that the he had sex with the victim first before the murder took place. in all the cases i know of the accused claimed that they did not murder or have sex with victim. the question of consent iz then proved by the ommisions of the accused (infrences are drawn if the accused had sex and did not admit it the reason for this is that it was without consent) that coupled with thorn clothing medical evidence , personall history of the victim etc would all be taken ino account,

anyway the murder would be the main charge and the rape would be secondary ( both carry the same sentance)

IT Loser

johnnyskeleton wrote: »

I would say [and since you have referenced a real life experience I will say IMHO, seek legal advice, hypothetical etc] that if you ask a dentist to stop, they must stop, as consent can be withdrawn at any time.

Sure it can.

Suppose the patient withdraws consent but can't communicate it, thanks to the fact that their MOUTH is being operated on??

Is Dentist still in trouble??

Suppose they VERBALLY communicate the discontinuance of their consent, and he can't hear them over the whine of the drill??

Thats the point my lawyer was making to me. The line is too fine, and besides, where is the public interest in pursuing assault charges against dentists where there is NO MALICE, and where the damage is transient anyways.

IT Loser

johnnyskeleton wrote: »

The jury must be satisfied on the facts as presented, and look at it from the point of view of the persons involved, as opposed to general standards or prejudices.

Thats my point. Thats why a TABOO can never ever count for anything.

Victor

johnnyskeleton, yis are being awfully hypothetical here.

One needs to look at the totality of the evidence. For the prosecution to come up with a charge of rape, there must be some evidence (assuming they aren't completely stupid). Were there witnesses? Video or audio? Had victim or accused made any statements before or after the fact? In their dying words (acceptable evidence) did the victim say "he raped me and stabbed me" (or vice versa) to the garda?

johnnyskeleton wrote: »

What circumstantial evidence/DNA? They can point to the presence of semen/hair etc to show that sex or some similar sexual contact took place, but that doesn't mean it was consensual. To take an example, if a husband has consensual sex with his wife before brutally murdering her, it is incorrect to say that he raped her.

Again take a look at the totality of the evidence. Are the injuries inconsistent with the murder? Are there torn clothes? Internal bleeding (to what degree will the vagina of a rape victim self-lubricate)?

On the balance of probabilites and beyond a reasonable doubt, what conclusion can a jury come to?

johnnyskeleton wrote: »

A man can rape his wife just as easily as a woman can have consensual sex outside of marriage.

What are these persons demeanours, behaviours, etc.?

johnnyskeleton wrote: »

But brusing of the genetal areas only occurs in a few cases, and genetal burising can also occur when there has been consensual sex.

And cuts, tears and other marks? Are you telling the truth the whole truth, etc.?

johnnyskeleton wrote: »

But for that to even arise the prosecution must have a case to answer as regards a rape count. I cannot see how they would prove the lack of consent, although I accept that they could prove that sexual intercourse could take place.

Was the victim capable of consent? Were they a minor? Incapacitiated? Intoxicated and unconscious? Unconscious from the blows that lead to her death?

johnnyskeleton wrote: »

The defensive marks on the body would show a struggle, but this could be contemporaneous with the murder as opposed to the sex.

Well what does the autopsy say? Fresh marks at the time of the murder will appear different to marks only a few hours old (as the heart is stopped the blood will settle differently).

johnnyskeleton wrote: »

Also, there usually isn't tearing and burising of the genetal area from a rape, but even if there was, it could be due to a number of other unkowns - i.e. previous birthing marks reopened due to a consensual sexual experience.

Desperation?

Furthermore, if there is no DNA evidence but there is evidence of physical trauma to the genitals, this in no way proves who caused the genital injuries - was it the murderer or some other 3rd party?

So why did the arresting garda find the accused wearing a pair of household gloves (bloodied with vaginal secretions) and a .357 in his pocket?

It might even have been a passing necro.

Actually, what is the legal situation there?

But it is the golden thread of our system of criminal justice that the prosecution must prove every element of their case, while the defence do not have to prove anything.

Only beyond a reasonable doubt for all the evidence taken together.

johnnyskeleton wrote: »

In law a person can consent to an assault, or more accurately, a fundamental ingredient of the offence of assault is that there is force applied without consent. Likewise, consensual sexual assault is, in legal terms, just a good time.

Wouldn't R v Brown be at least persuasive in this matter. While one migh consent to a petty assualt, it is against public policy to allow consent to, say, GBH.

johnnyskeleton wrote: »

I think that if you are trying to infer a lack of consent in circumstances where the victim is no longer alive to give that evidence, the circumstantial evidence must be so strong as to leave no reasonable doubt as to there being any other alternative. I cannot see what facts would be so strong as to allow a jury to correctly come to that conclusion.

Put another way, no rape prosecution could succeed if the complainant (in this situation still alive and giving evidence) does not give evidence that she did not consent. Even if the complainant was observed by a third party who says that she looked like she wasn't consenting, that still doesn't prove that she didn't consent. As Thaedydal says, she might like it dirty.

What if "dirty" went beyond what is acceptable (acceptable to the law, not the local gossips).

johnnyskeleton wrote: »

IT Loser wrote: »

Will the Jury likely believe that a HAPPILY MARRIED {!!!} woman consented to sex with an unseemly suitor, a la HOBO,DRUNK, VILLAGE IDIOT, etc etc???

From my vast experience of pornography tells me anything, it is yes.

That they will have sex or that the jury will believe it?

IT Loser wrote: »

Makes sense. If every low-tolerance sort couldn't take the pain, and asked to stop, then the dentist would get nowhere. Also, how many dentists will stay in the profession if they kept getting nailed for a nanosecond of non-consensual drilling??

Biologically, it takes approximately 1-2 seconds for someone to feel pain and for that pain to be communicated and understood by the dentist, so we aren't dealing with nanoseconds.

IT Loser wrote: »

Suppose the patient withdraws consent but can't communicate it,

Consent isn't withdrawn if it isn't communicated. Its just "thinking about withdrawing consent" or "thinking of telling the dentist you withdraw consent".

IT Loser wrote: »

thanks to the fact that their MOUTH is being operated on??

One can still communicate in such a situation whether though "AUUUNNGNGG", hand motions or punching the dentist and walking out

IT Loser wrote: »

Is Dentist still in trouble??

IT Loser wrote: »

Suppose they VERBALLY communicate the discontinuance of their consent, and he can't hear them over the whine of the drill??

Its a dental drill, not a Kango hammer.

Thats the point my lawyer was making to me. The line is too fine, and besides, where is the public interest in pursuing assault charges against dentists where there is NO MALICE, and where the damage is transient anyways.

Whatever about malice, how about indifference? The damage might be permanent. There was a case where a dentist messed up so badly in the duration of 200 hours of dental work on one patient that and further 100 hours work was needed to repair the damage.

A competent dentist should be able to understand communication, even from an inconvenienced patient.

johnnyskeleton

kopparberg wrote:

has anybody every been charged not to mention stood trial for a rape and murder where the accused claimed that the he had sex with the victim first before the murder took place.

The accused does not have to prove anything, the prosecution have to prove everything. Several people have been charged with rape and murder, but in my view the rape must be unsustainable and should be dismissed on direction of the trial judge.

kopparberg wrote:

in all the cases i know of the accused claimed that they did not murder or have sex with victim. the question of consent iz then proved by the ommisions of the accused

How can the consent of one person be proved by the ommission of the accused? It seems to me that it is only glossed over by the prosecution.

kopparberg wrote:

(infrences are drawn if the accused had sex and did not admit it the reason for this is that it was without consent)

The right to silence, though bruised, is not destroyed yet.

kopparberg wrote:

that coupled with thorn clothing medical evidence , personall history of the victim etc would all be taken ino account,

All these could prove are that sex took place and / or that there was a struggle. I don't see how the personal history of the victim would be taken into account because, apart from anything else, s.3 of the Rape act applies to all questions of sexual experience.

kopparberg wrote:

anyway the murder would be the main charge and the rape would be secondary ( both carry the same sentance)

There was a case a few years ago (called M, or Z or something) where the accused was sentenced to life for murder and 25 years for rape. It was argued that the sentence of 25 years was in all liklihood a more severe sentence than the life sentence. In any case, it's not about sentence it's about what you're convicted of.

IT Loser wrote: »

Sure it can.

Suppose the patient withdraws consent but can't communicate it, thanks to the fact that their MOUTH is being operated on...The line is too fine, and besides, where is the public interest in pursuing assault charges against dentists where there is NO MALICE, and where the damage is transient anyways.

There are other ways to communicate non consent; most normal dentists will stop their proceedure if the patient appears physically to be in pain.

In those cirucmstances the dentist must have known that the consent was withdrawn. There is very much a public interest in preventing dentists and surgeons from carrying on with a proceedure, if the consent is withdrawn half way through.

Victor wrote: »

johnnyskeleton, yis are being awfully hypothetical here.

In direct response to those who want to make this a forum about discussing law academically (but who never seem to post about such topics themselves), I've started a lot of non-sense threads. Run with it, and wait for the complaints to roll in.

Victor wrote:

On the balance of probabilites and beyond a reasonable doubt, what conclusion can a jury come to?

It's criminal, so beyond reasonable doubt.

Victor wrote:

johnnyskeleton wrote:

Also, there usually isn't tearing and burising of the genetal area from a rape, but even if there was, it could be due to a number of other unkowns - i.e. previous birthing marks reopened due to a consensual sexual experience.

Desperation?

Do you mean tearing of the genitalia due to sexual frustration, or are you suggesting that I'm clutching at straws. If the latter, see above.

Victor wrote:

So why did the arresting garda find the accused wearing a pair of household gloves (bloodied with vaginal secretions) and a .357 in his pocket?

Nothing in that to suggest that she didn't consent to the sex part.

Victor wrote:

Wouldn't R v Brown be at least persuasive in this matter. While one migh consent to a petty assualt, it is against public policy to allow consent to, say, GBH.

Public policy. We're not talking about whether we should allow recovery for nervous shock - it's a criminal case and it is about strict proofs as against an individual. R. v. Brown was about "public morality" and has no place in Irish law. The Laskey, Jaggard and Brown case that went to the ECHR was based on the right to do whatever you want with your own body, and this includes having things done to you.

______________

To summarise the rest of your posts, you are suggesting that the totality of the evidence could prove a lack of consent, and these include:
1) witnesses
2) video or audio
3) injuries / internal bleeding

These things are very rare in rape cases.

4) statements of the victim or the accused

hearsay

5) dying words exception to hearsay

has no place in modern law

6) torn clothes

not relevant as to consent

7) person's demeanour

"he's a rapist, come on, just look at him" - this seems to be the way the person is convicted, but I don't think they should be.

8) [I'm not sure what the "are you telling the truth thing is"]

9) capacity to consent

This is fair enough; if there is a rule of law which would presume that there was a lack of consent the person could be convicted of rape and murder. But other than in those limited circumstances, I still don't see how