Oops, I accidentally raped her....the problem of intent vs consent

If a woman is sexually assaulted by a man who claims he was sleepwalking at the time or was too intoxicated to realise she wasn't giving her consent to the act, there's a good chance he will be acquitted of raping her.

Take a recent case involving James Thomas, a 22 year-old from Middlefield in Edinburgh. He was cleared of raping a young woman (who was herself asleep at the time of the incident) because he said he was sleepwalking. Despite the fact that the woman was incapable of giving consent to the act, the jury decided the case against him wasn't proven.

The 2003 Sexual Offences Act says:
(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.

It seems sleepwalking is therefore deemed to be a valid excuse as the man can claim he didn't intend the penetration etc. and he was in no position to "not reasonably believe that B consents". The same goes for being too drunk, as another recent case highlighted in this blog illustrates. Haydor Kahn was acquitted of rape after having sex with a woman (also asleep at the time the incident began) because he was too drunk to realise it wasn't his girlfriend.

So it seems where there is a direct confrontation between a man's inability to intentionally rape a woman and her inability to give consent, the man's assertion that he "didn't mean to" wins out.

Well, that's comforting for women to know, is it not?

Too boozed up to say no...or yes.

A few years ago there was a minor panic in the UK over drink-spiking and its role in "date rape". Numerous reports recounted how rapists were slipping Rohypnol ("Roofies") or Gammahydroxybutyrate (GHB) into women's drinks then taking advantage of them when they became disorientated from the effects of the drugs.

Undoubtedly, this did and still does happen. But a study commissioned by the Association of Chief Police Officers reported in 2006 that only one in 12 of suspected "drug-assisted rapes" actually involved so-called "date rape drugs". In fact, the main culprit rendering women incapable and vulnerable to attack was alcohol.

Many press reports responded to this study by choosing the angle that date rapes were therefore mainly down to the victim's regrettable binge-drinking. Take this quote from The Daily Mail: "rather than furtively spiking drinks in bars, predatory sex attackers often committed 'opportunistic' assaults after victims had willingly drunk themselves into a state of helplessness" (my italics).

Are we seeing a pattern here? Once again, responsibility for the rape is shifted to the victim. And sadly, juries have often been shown to be unwilling to convict those accused of rape if the victim was drunk at the time of the attack.

And not just juries. Take the notorious 2005 court case of Ryairi Dougal, a security guard at Aberystwyth University who had sex with a student while she lay in a drunken stupor outside the door to her room. Judge Roderick Evans ruled the jury should acquit Dougal when, under cross examination, the student admitted she was too inebriated to recall whether she gave her consent to sex or not. "Drunken consent to sex is still consent," said Judge Evans.

Actually nowadays, it isn't. Under UK law, someone who is rendered helpless by alcohol or any other intoxicant is judged to be legally incapable of giving consent to sex. Unfortunately, the problem is measuring how drunk is too drunk to give consent and here is a classic loophole through which would-be rapists can secure an acquittal in court.

There are many decent men out there. And decent men will not deliberately ply a woman with drink to render her acquiescent so he can jump on her while she is in a state of severe drunkenness. Even if a woman has been flirting with him. A decent man, I believe, will STOP if it becomes clear the woman is too inebriated to be aware of what's going on.

And if you are a woman, beware the man who buys you a drink. Then another. And another. And another...

Too drunk to spot the difference - a valid defence?

On the 26th of February, The Daily Mail reported the case of Haydor Khan, a 22 year-old waiter who was charged with rape after going into a sleeping woman's room at a small hotel in Surrey and having sex with her.

Khan's defence was that he was too drunk to realise the woman wasn't his girlfriend.
Khan's girlfriend, according to the report, had already refused sex with him earlier in the evening because she was feeling ill.

For reasons best known to itself, the Daily Mail then tagged another report on the end of its account concerning a prosecution of a woman for making a false rape claim.
It should be stated here that rapes are depressingly common. False rape claims are rare, but they attract a disproportionate amount of press coverage.

A fortnight later, the newspaper followed up its report of Khan's acquittal with a piece from the point of view of the woman Khan had accosted. Joanne Freeman chose to waive her right to anonymity so the Daily Mail could report her anger and disbelief at the verdict.

She told the paper that "the verdict made her feel suicidal, adding: ‘It was excruciating telling a jury of strangers what happened. It has devastated the whole family. My father is heartbroken and my own daughter had to sit through the court case.’
"Her friend Karen Berry, 43, said Miss Freeman had ‘changed completely’, adding: ‘She is a shell of her former self. She tries to be strong but then you see she has a vacant look in her eyes or she breaks down.’"

So, from what we can gather from the two reports, a jury accepted that Khan's drunken belief he had the consent of the woman he "accidentally" had sex with, didn't constitute rape.

IS THIS REALLY JUSTICE?