Consent (Sexual)

tillyfilly

bubblypop wrote: »

Does a murder have to be proven in court to prove it happened?
What about the dead person?
Does a burglary have to be proven in court for your house to have been burgled?
No.

Court decides the guilt or not guilt of a person.

you need a body as evidence to report a murder, you don't need any evidence to report a rape or sexual assault

tillyfilly

tillyfilly wrote: »

If a person is reported missing they will never be classified as murdered unless the body is found as evidence

That is not true, a person can be convicted of murder even if a body is not found.

Eric Cartman

Eric Cartman wrote: »

, the rape crisis centre says less than 1% of claims are false, there is no way its that low

Why not?

banie01

tillyfilly wrote: »

you need a body as evidence to report a murder, you don't need any evidence to report a rape or sexual assault

You don't, that is quite a pervasive myth tho.

alastair

tillyfilly wrote: »

but when there is a murdered body you can prove a murder took place,it is evident, when there is a report of rape there does not have to be evidence

If a person is reported missing they will never be classified as murdered unless the body is found as evidence so why should a report of rape alone be evidence enough

There are a number of ongoing murder investigations with no body ever discovered. Arlene Arkinson for example. Most definitely classified as murdered.

CtevenSrowder

bubblypop wrote: »

Why not?

How would they know?

CtevenSrowder

CtevenSrowder wrote: »

How would they know?

Presumably they have admitted to the accusation being false, or else how could they have a figure?

Princess Consuela Bananahammock

banie01 wrote: »

Very coincidentally, I attended a talk last night by the president of the Court of appeal last night on the topic of consent in criminal law.

Excellent speaker in Mr Justice Birmingham and a very wide ranging explanation of the current state of play.
Particularly with regard sexual consent and it's initial acquiescence and it's need to be continual.
It's not just your Mickey that can be withdrawn!

The legislative definition of consent is something that is enshrined in the Irish criminal law act, sexual offences act 2017, s9 amendment of the 1990 act.

It gives a robust and workable framework as to what consent is, and more importantly what it is not.

There is also some particularly interesting rulings from Canada and NZ.
1 Canadian case in particular, the name escapes me.
Husband and wife engaged in consensual choking.
The wife agreed to be choked until she passed out.
Upon coming to, her husband was engaged in an act to which she hadn't consented.
He was held to have commited rape and the conviction was upheld in the Canadian supreme court.

Even at that decision however there was a strong dissenting opinion and whether prior consent was acceptable as an expression of bodily autonomy.

This would depend on what the act was and whether or not she had been consulted on the possibility of it happening beforehand.

banie01

Princess Consuela Bananahammock wrote: »

This would depend on what the act was and whether or not she had been consulted on the possibility of it happening beforehand.

The act was one she had given no prior consent for.
I'll dig out a case report later if I have time, I know it's 2011 but cannot remember the name currently so will have to search.

Her being unconscious, vitiated her consent. Even if it was an act to which she would normally consent, or had previous to passing out.
As she was unconscious her consent was not active hence the offence was held.

CtevenSrowder

bubblypop wrote: »

Presumably they have admitted to the accusation being false, or else how could they have a figure?

But what about the cases were the person doesn't admit it was a fake claim? I wonder (and I sincerely doubt) they take such situations into account.

CtevenSrowder

CtevenSrowder wrote: »

But what about the cases were the person doesn't admit it was a fake claim? I wonder (and I sincerely doubt) they take such situations into account.

But sure how could they?
That's just stupid.
False rape accusations account for 1% of accusations, as per rcc.

tillyfilly

It boggles my mind that someone may get be found not guilty of rape but that that case will be registered as a rape in the crime stats simply because it was reported

CtevenSrowder

bubblypop wrote: »

But sure how could they?
That's just stupid.
False rape accusations account for 1% of accusations, as per rcc.

The man could say it was. But that's my point. They can't know it's as low as 1%. The question is then, do they make clear that this 1% figure is potentially a under-representation of the actual figure?

tillyfilly

tillyfilly wrote: »

It boggles my mind that someone may get be found not guilty of rape but that that case will be registered as a rape in the crime stats simply because it was reported

You can report any crime you want. It may or may not have happened.
If you make a false report you are liable to prosecution.
Gardai investigate reported crimes. If during an investigation it turns out to be a false report, the reporting person is guilty of an offence.
Obviously

CtevenSrowder

CtevenSrowder wrote: »

The man could say it was. But that's my point. They can't know it's as low as 1%. The question is then, do they make clear that this 1% figure is potentially a under-representation of the actual figure?

They know it's 1% because that's the amount of rapes that have been proven false.
You think there are more false rapes reported, but you have no way to know that.
You are just assuming.

tillyfilly

bubblypop wrote: »

You can report any crime you want. It may or may not have happened.
If you make a false report you are liable to prosecution.
Gardai investigate reported crimes. If during an investigation it turns out to be a false report, the reporting person is guilty of an offence.
Obviously

but if the accused is found not guilty, should the report not be removed from the stats? Thereby reducing the numbers of reported rapes, whatever about the false report crime, that's a separate issue

tillyfilly

tillyfilly wrote: »

but if the accused is found not guilty, should the report not be removed from the stats?

No.
Just because a person is not guilty does not mean a crime has not been committed.
People are found not guilty all the time for all sorts of reasons.

Princess Consuela Bananahammock

banie01 wrote: »

The act was one she had given no prior consent for.
I'll dig out a case report later if I have time, I know it's 2011 but cannot remember the name currently so will have to search.

Her being unconscious, vitiated her consent. Even if it was an act to which she would normally consent, or had previous to passing out.
As she was unconscious her consent was not active hence the offence was held.

If no consent was given beforehand, then her being unconscious is not going to hcange anything. Assumed consent doesn't hold. I mean - playing Devil's Advocate - he could make a case if she usually consented to the act, but I'm pretty sure that woudln;t hold up either.

CtevenSrowder

bubblypop wrote: »

They know it's 1% because that's the amount of rapes that have been proven false.
You think there are more false rapes reported, but you have no way to know that.
You are just assuming.

No I don't. And yes I am assuming. That's why I said potentially. The point being we assume (rightly imo) that rapes are under-reported.

But why not the same with false rape accusations?

alastair

tillyfilly wrote: »

It boggles my mind that someone may get be found not guilty of rape but that that case will be registered as a rape in the crime stats simply because it was reported

Most rapes are not reported to the Gardai. Of those that are reported, only 10% result in a conviction. If you’re looking for an accurate measure of the prevalence of rape, convictions are not the best place to look. Just as is the case with pretty much any crime.

tillyfilly

bubblypop wrote: »

No.
Just because a person is not guilty does not mean a crime has not been committed.
People are found not guilty all the time for all sorts of reasons.

all reported cases should not be recorded as crimes, what about the ones were the accused is found not guilty or a case doesn't even make it to court, no crime can be proven to have occurred , no wonder the stats are skewed to make it seem like we are living in a rape culture

CtevenSrowder

alastair wrote: »

Most rapes are not reported to the Gardai. Of those that are reported, only 10% result in a conviction. If you’re looking for an accurate measure of the prevalence of rape, convictions are not the best place to look. Just as is the case with pretty much any crime.

How do they know most rapes aren't reported?

tillyfilly

tillyfilly wrote: »

all reported cases should not be recorded as crimes, what about the ones were the accused is found not guilty or a case doesn't even make it to court, no crime can be proven to have occurred , no wonder the stats are skewed to make it seem like we are living in a rape culture

Well that's crime reporting.
What would you suggest?
What about crimes that are committed and no offender is found? Should those be taken out of crime figures?

alastair

tillyfilly wrote: »

all reported cases should not be recorded as crimes, what about the ones were the accused is found not guilty or a case doesn't even make it to court, no crime can be proven to have occurred , no wonder the stats are skewed to make it seem like we are living in a rape culture

I guess my car wasn’t actually stolen that time then! Since the culprits were never convicted, I must check that experience down as fictitious.

Must be those nefarious NGO’s pushing the lie of joyriders.

CtevenSrowder

CtevenSrowder wrote: »

No I don't. And yes I am assuming. That's why I said potentially. The point being we assume (rightly imo) that rapes are under-reported.

But why not the same with false rape accusations?

We don't assume, victims may tell other people, such as rcc, doctors, counsellors, etc.
Doesn't count in crime statistics if they are not reported to gardai
So we know they are under reported.

Why don't you assume the same for all crimes? Do you think many other reported crimes are false?

alastair

CtevenSrowder wrote: »

How do they know most rapes aren't reported?

Because the Rape Crisis Centres log their numbers of contacts, which are higher than those reported to the Gardai, and they know well that they don’t get contacted by all victims of rape.

tillyfilly

bubblypop wrote: »

Well that's crime reporting.
What would you suggest?
What about crimes that are committed and no offender is found? Should those be taken out of crime figures?

What about crimes that are committed and no offender is found? Often these are single counts of offenses such as assault or robbery in the street where the offenders ran away

But with sex offenses these can be in the many multiples of offenses, and if no conviction occurs in a case it looks like 50 rapes or sex assaults took place that were never proven

CtevenSrowder

bubblypop wrote: »

We don't assume, victims may tell other people, such as rcc, doctors, counsellors, etc.
Doesn't count in crime statistics if they are not reported to gardai
So we know they are under reported.

Why don't you assume the same for all crimes? Do you think many other reported crimes are false?

Well you are assuming. You don't know they are a victim of rape, you are assuming they are because they said they were. You are assuming they are telling the truth.

Now if a man says that he was the victim of a false-rape allegation, will you so easily believe him aswell?

And yes I do. Insurance fraud is a huge issue in this country.

banie01

Princess Consuela Bananahammock wrote: »

If no consent was given beforehand, then her being unconscious is not going to hcange anything. Assumed consent doesn't hold. I mean - playing Devil's Advocate - he could make a case if she usually consented to the act, but I'm pretty sure that woudln;t hold up either.

I don't know why you are playing devil's advocate?
The verdict held him Guilty.
He committed an act she hadn't consented to.
The courts majority agreed, and upheld his conviction.

The crux of the issue fell to that, if consent cannot be given when unconscious, it also cannot be withdrawn and as such the assumption of consent is false even in a situation where such an act had been performed consensually previously.

Assumed/implied consent cannot hold when it's withdrawn, and as consent must be active and continuous an unconscious person can't.

The dissenting opinion offered by the court held that a person may consent to allow such an act prior to their becoming unconscious as an expression of their bodily autonomy.

That in my own view, and the view of the majority of the court was wrong as consent must be capable of being withdrawn and as she was unconscious from the agreed choking, anything that happened after that point was vitiated by her inability to either consent or to withdraw consent.

Princess Consuela Bananahammock

banie01 wrote: »

I don't know why you are playing devil's advocate?
The verdict held him Guilty.
He committed an act she hadn't consented to.
The courts majority agreed, and upheld his conviction.

The crux of the issue fell to that, if consent cannot be given when unconscious, it also cannot be withdrawn and as such the assumption of consent is false even in a situation where such an act had been performed consensually previously.

Assumed/implied consent cannot hold when it's withdrawn, and as consent must be active and continuous an unconscious person can't.

The dissenting opinion offered by the court held that a person may consent to allow such an act prior to their becoming unconscious as an expression of their bodily autonomy.

That in my own view, and the view of the majority of the court was wrong as consent must be capable of being withdrawn and as she was unconscious from the agreed choking, anything that happened after that point was vitiated by her inability to either consent or to withdraw consent.

Losing consciousness should be considered revoking consent.

But again - if she never consented beforehand, where's the continuity you mentioned in your initial post?