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Old 11-23-2005, 11:43 PM   #1
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Britain - an explosion of binge drinking - a pleasurable groaning sound?

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Binge-drink women may lose right to claim rape

By Frances Gibb, Legal Editor, Simon de Bruxelles and Sam Coates

WOMEN who are raped while drunk face losing the chance to bring their attackers to justice after a legal ruling on the eve of new licensing laws.

A High Court judge yesterday threw out the case of a student who claimed that she was raped while drunk and unconscious on the basis that “drunken consent is still consent”.

The judgment came hours before the sweeping relaxation of Britain licensing laws which introduces 24-hour drinking in pubs for the first time.

The change prompted police and doctors to warn that Britain was facing an explosion of binge drinking.

The prosecution in the rape case had said it could not go on after the woman admitted that she could not remember whether she gave consent or not or whether sex had taken place. The jury at Swansea Crown Court was told: “Drunken consent is still consent.”

The judge agreed, instructing the jury to return a verdict of not guilty “even if you don’t agree”.

The drama student was allegedly raped by another student, who was working as a security guard, while she claimed she was unconscious through drink in a corridor outside her flat in a university’s hall of residence.

She told the jury that she had no recollection of events but insisted that she would not have agreed to sex with the man.

“If I had wanted to sleep with him I would have taken the few steps to my bedroom,” she said.

Last night Jennifer Temkin, Professor of Law at Sussex University and an expert on sexual offences, said that the decision was on the face of it “extremely perturbing”.

She said: “At common law it has been recognised for over a century that there is no consent where a woman is unconscious through drink.”

Under the Sexual Offences Act 2003, a person consented if he or she agreed by choice and had the freedom and capacity to make that choice, she added.

“Clearly an unconscious woman does not consent under this definition.”

However, Professor Temkin agreed that being drunk in itself was no defence.

“If a woman has sex with a man just because she is drunk, and with whom she would not have had sex otherwise, then she cannot say she did not really consent because she was under the influence of drink.”

She added than any case where a woman was proved to be unconscious would be a long way down the line from that.

The alleged rape victim, from the West Country, said she did not wish to comment and was not prepared to waive her right to anonymity in order to warn other young women of the dangers of binge drinking. She has now left the university after completing her degree.

The man charged with the rape, Ryairi Dougal, a 20-year-old second-year student from Moville, Donegal, in Ireland, also declined to comment.

Earlier he had heard the judge say that he could face a long term of imprisonment if convicted.

When cross-examined by Mr Dougal’s barrister, Stephen Rees, the woman agreed “emitting a pleasurable groaning sound” at one stage but added: “I was unconscious. I stopped groaning as soon as I knew something was happening.”

In her statement to police she said: “I feel I am to blame because I got so drunk I could not remember the events.”

At the end of her evidence, Huw Rees, the prosecution barrister, said he was abandoning the case “in light of the evidence revealed in cross-examination”.

“The question of consent is an essential part of the case. Drunken consent is still consent.

“She said she could not remember giving consent and that is fatal for the prosecution’s case.”

The High Court judge, Mr Justice Roderick Evans, said he agreed with the prosecution’s decision to abandon the case in the light of the evidence.
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Old 11-24-2005, 12:31 AM   #2
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I found the info posted above puzzlingly incomplete, so I did a little digging and found an article from the Telegraph. This isn't the whole article, just what I thought were the most obvious missing links from what deep posted.
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Ryairi Dougal, 20, a student who was working as a security guard when the incident occurred, was accused of attacking the woman after walking her home to her halls of residence.

The woman, 21, had told the court that she drank "small vodkas" and a glass of wine while getting ready for a party at the arts centre of Aberystwyth University, west Wales. After only one glass of wine at the party she began to feel unwell and headed for the lavatory, where she slipped over. By now she felt "more drunk than ever before in my life".

A female member of staff said she would find someone to walk her the short distance home and came back with Dougal. They walked to her block of flats. She could not remember climbing the stairs but recalled fumbling for her keys outside the door to her bedsit.

There was little dispute about what happened next. Dougal, from Moville, Co Donegal, Northern Ireland, had sexual intercourse with the woman on the floor of the corridor. The woman said she passed out but came round to be aware that "something was happening but I didn't know what". She then lost consciousness again. Later, after Dougal had left, she went to sleep on top of books left on her bed. The next morning, she told the court: "I was very confused and tried to work out what had happened."

As she stepped outside she had a flashback to a scene from the night before and became worried. Two days later she approached the university's counselling service and the police were called. Dougal told the police that sexual intercourse had taken place.

Mr [Stephen] Rees put it to her that "effectively" she was saying that she could not remember what she got up to. "No it isn't," she replied. Mr Rees claimed that she now regretted having "steamy, exciting, spontaneous sex" with a stranger.
To what extent a man should be held responsible for accurately evaluating a drunken woman's capacity to consent is a justifiably debatable topic. But this seems, at the very least, an extraordinary case. Why was an on-duty security guard, charged with helping a drunken fellow student home, taking time to have sex with her in the first place? Surely the fact that she was too drunk to walk herself home safely should have raised a red flag?

And Mr S Rees' comments strike me as appallingly out of line. Maliciously ascribing the most damning hypothetical emotions possible to her was ugly, absurdly speculative and completely unnecessary for casting doubt on her nonconsensuality. If she truly had given consent, then whether or not she found the results "steamy" is irrelevant.
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Old 11-25-2005, 02:03 PM   #3
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i was appalled when i read this especially since it came a day or 2 after a disturbing study revealed that large percentages of the population believe that woman who flirt, wear revealing clothing and drink are responsible when raped.

the issues with this case are clear to me if not to the (idiotic) judge who presided over the case - she was so drunk she needed an escort and the man who was charged with looking after her, an on duty security guard, took advantage of that and completely abused the situation and the trust that had been placed in him. SHE NEEDED LOOKING AFTER! clearly that indicates thet she was in no state to agree or disagree to anything and the very fact that she needed an escort indicates that she was in a state that needed protection from exactly what happened to her.

as for "drunken consent" - being so drunk you can't say no, does NOT mean you said yes.
the woman passed out in the passage for christs sake, how does that mean that she told him he could have sex with her, that she allowed him to or that she even wanted him to and, unconscious, how was she supposed to protest otherwise.
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Old 11-25-2005, 02:56 PM   #4
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very interesting discussion ... where i went to college, in Massachusetts, by law if a woman has even had a single drink then she is unable to give legal consent to sex.

where is the line drawn? how responsible for our actions are we when we're drunk? and how drunk?
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Old 11-25-2005, 07:32 PM   #5
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Quote:
Originally posted by digsy

as for "drunken consent" - being so drunk you can't say no, does NOT mean you said yes.
the woman passed out in the passage for christs sake, how does that mean that she told him he could have sex with her, that she allowed him to or that she even wanted him to and, unconscious, how was she supposed to protest otherwise.
Yes indeed
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Old 11-25-2005, 09:08 PM   #6
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Quote:
Originally posted by digsy
the issues with this case are clear to me if not to the (idiotic) judge who presided over the case - she was so drunk she needed an escort and the man who was charged with looking after her, an on duty security guard, took advantage of that and completely abused the situation and the trust that had been placed in him.

as for "drunken consent" - being so drunk you can't say no, does NOT mean you said yes.
I am strongly inclined to agree with you. Mr Dougal's status as an on-duty security guard, charged with protecting his extremely drunk accuser, adds a twist to this case that makes the responsibility question much starker than the usual scenarios.
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Originally posted by Irvine511
very interesting discussion ... where i went to college, in Massachusetts, by law if a woman has even had a single drink then she is unable to give legal consent to sex.

where is the line drawn? how responsible for our actions are we when we're drunk? and how drunk?
I think this is one of those issues where the law's emphasis on finding one standard to fit all cases, is more a hindrance than a help when looking for ways to reduce the incidence of such cases to begin with.

Like many in here I'd imagine, I shared a house with several other students of both sexes during my gradschool years, and remember quite clearly that utterly shitfaced people of both sexes will amorously paw at, blow kisses to, and murmur slurred sweet nothings in the ear of pretty much anybody who shakes them out of their stupor, hauls them to their feet, and walks them down the hall to their room. A person in this state doesn't have anything resembling a realistic concept of who or what their behavior is directed towards, much less a clearheaded perception of how their behavior appears to others. In situations where a potential female "partner" is this drunk, I simply cannot take seriously any *sober* man who claims to believe she knew perfectly well what was going on.

Unfortunately though, usually the man involved is fairly drunk himself, which is one of the points at which the responsibility issue gets thorny. Another is that the woman involved is usually not as drunk as the description above, making any "taking advantage" that might have occurred harder to pinpoint.

My problem with sweeping preventive measures like the MA law is that no one is going to observe that standard all, or even most, of the time. (What about married couples? Dating students who have been together, and been having sex, for several months already? All the women who've engaged in a one-night fling after a few drinks, and feel they quite well intended and enjoyed the results?) Which means that the law quickly becomes useless as a preventive, because people get in the habit of thinking "Yeah, well, its intent doesn't apply here."

I think, when all is said and done, we have to hold men responsible--even if drunk at the time--for proceeding in the face of any explicit rejection of intensified contact from a drunk woman--even if conveyed in a mild tone, and even if she's still showing considerable interest in lesser degrees of contact, kissing, caressing, etc. I think this has to be the point at which his behavior can be said to be straying towards criminal territory, and we don't grant drunk people immunity from other kinds of criminal charges.

This should not be interpreted as making the woman responsible for the man's behavior--her responsibility is to convey her own desires (and lacks thereof), not how he ought to manage his. If a man feels he can't continue at (e.g.) the kissing-and-caressing level without getting carried away, then it's his responsibility to say so and extricate himself from the situation.

But I also think a woman who wasn't staggering, slurring, falling-down drunk at the time, has to be ultimately held responsible for living with the consequences if she didn't signal her unwillingness to proceed. Unfortunately, for many women the feeling of having
"been had" sexually is a source of very deep, and very painful, feelings of shame and humiliation; so what might seem to a man like a cause for mild self-rebuke, nothing more, may be experienced by a woman as a powerful threat to her self-respect as someone in control of her own body. And when one's state of mind at the time is the only means of distinguishing a humiliating forced submission from a (fleetingly) pleasurable shared intimacy, it can be disturbingly difficult to come to terms with, and accept, just what one's state of mind was.

Needless to say, culturally transmitted archetypes of women as beings who need special protection sexually--and who are "tainted" by sexual exploitation in a way that men aren't--doesn't help matters any. Nor does the real-world frequency of violent sexual victimization of women, and their ever-present awareness of any man's potential to perpetrate it.

It is simply impossible to ascribe legal responsibility in some of these cases without treading on landmines. I only hope that we can draw more constructive conclusions as to why this happens than the painfully familiar old men-as-lying-predators and women-as-vengeful-manipulators stereotypes.
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Old 11-26-2005, 10:20 AM   #7
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i wonder how these laws might apply to two men and/or two women.
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Old 11-26-2005, 12:55 PM   #8
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this makes me so angry i can barely see straight.

this is a classic case of blaming the woman for getting herself raped, rather than placing responsibility on the person who raped her. i don't know what happened that she ended up so incapacitated--one report i read implied that she may have been drugged at the party--but it doesn't really matter, does it? she was passed out in the damned hallway, and this letch decided it was perfectly okay to take advantage of her. (i won't even touch his repulsive comments that basically amount to bragging about what he did.) what's wrong with our society that so many men think this is acceptable? and the justice system turns around and justifies this?

frankly, i'm sick of being told what i can and can't do--don't go out alone at night, don't engage strange men in conversation, don't invite men up after dates if you don't intend to put out.... and if you do end up in a situation where a man rapes you, it was probably because you weren't vigilant enough in protecting yourself. sure, there's a level of common sense about keeping yourself as safe as possible, but all the vigilance in the world can't protect women from men who think it's okay and acceptable to force themselves on women.
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Old 11-26-2005, 02:09 PM   #9
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Quote:
Originally posted by Irvine511
i wonder how these laws might apply to two men and/or two women.
Would you say date rape is considered a significant problem in the gay and lesbian communities? I really wouldn't know.
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Old 11-26-2005, 06:51 PM   #10
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Originally posted by yolland

Would you say date rape is considered a significant problem in the gay and lesbian communities? I really wouldn't know.


i really don't know either. while i certainly have not had sex with everyone i've ever gone on a date with, i do think there are some cultural expectations -- i.e., men always want it -- that get very, very murky when you're dealing with two men. if i were to put myself in this situation, i think that there are some gender differences that would affect how i would react to the situaton.

firstly, i'm a big guy, so unless this is an NFL linebacker, the difference in physical size isn't going to be too much of an issue. it would probably result in a fight, which is an interesting area of concern in GLBT issues -- for example, because two men are (usually) of equal size and strength equality than a man and a women, the level of domestic violence actually rises, i.e., a man might pummel a woman, but two men will throw TV's at each other.

secondly, and this is getting into dangerous waters so please hear me out, but aside from the whole "man jumps out of the bushes and rapes you" style of rape (if i might be so crude), i can't imagine the more common form of rape (date rape) ever really being much of an issue. chances are, if i'm going to go on a date with you, i probably woudn't mind having sex with you even if i would choose to or not. does that make sense?

i suppose i think there's a difference between a violent attack -- i.e., jump out of the woods and pounce -- and what i understand as date rape -- a date where things go to far, the woman says no, but the man continues. so it might go further than i would necessarily choose to go, but i can't see myself feeling the same sense of physical and emotional violation that a woman would feel. perhaps i'm being almost macho about it, but i really can't envision an equivalent situaton, UNLESS it were someone wanting to have unprotected sex and trying to slide it in, so to speak, without a condom. so, for me, it's not the sex that is the issue, but it is the increased level of danger from unprotected sex that would cause me to feel violated.

putting myself in the shoes of the woman in the article, if i were really drunk and went home with someone and sort of came to in the throes of having sex, i'd probably just shrug it off. oh well. whatever. however, if it were *unprotected* sex, then i'd throw a fit because i'd feel as my health were being jepordized.

i don't know if that makes any sense. i'm only speaking for myself. it's not like anyone ever talks about man-on-man rape in any other context than pedophilia, so perhaps i lack the vocabulary to talk about it.
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Old 11-26-2005, 09:06 PM   #11
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Yes, I fully understand your perspective, as far as your own feelings about the possibility of being taken advantage of go. But you cannot legitimately put yourself in a heterosexual woman's shoes from this perspective, because it doesn't recognize the defining role that fear of being shamed, humiliated and disgraced plays in female sexuality.

It may be hard to see the social mechanisms that perpetuate this fear at first glance because, in theory at least, our society no longer regards women who have sex outside of marriage, or with multiple partners, as being any more "dirty" or corrupt or sluttish or "used up" than men who do the same. And, again in theory, we no longer regard a woman who, e.g., gets pregnant at 16 as having "disgraced" her family (though I think most would agree that parents, on average, still tend to endorse a strong double standard in terms of the messages about sexual responsibility they communicate to sons vs. daughters). Yet even the most unabashedly post-Sexual-Revolution approaches to women's sexual behavior primarily emphasize autonomy, control, YOU-call-the-shots etc., and in this sense they really are just continuations of the old archetype of woman-as-gatekeeper, doggedly proving and re-proving her integrity by how successfully she regulates male access to her body.

In some ways, I think the pervasive power of this archetype is analogous to the role that fear of being homosexual plays in the development of male heterosexual identity. Yes, there are identifiable factors feeding into that, and you yourself have discussed them at length in other posts: dread of being "feminized," dominated, being the penetrated rather than the penetrator, etc. But ultimately, this is really a profoundly irrational fear and there is no logical way to adequately account for how potent--or potentially damaging--it is. And just as straight men's fear of being "feminized" rests uneasily alongside their need for women's admiration and respect, so does straight women's need to be desired and sought after by men rest uneasily alongside the felt imperative to manage and control men's desires.

It is interesting in this regard that a rape fantasy is among the most common female sexual fantasies--the most common even, according to some studies. As with many other fantasies, what would be (to put it mildly) deeply offensive and undesirable in real life becomes pleasurable in fantasy, because the emotional consequences can be conveniently rewritten to the fantasizer's advantage. In this case--permission to savor the feeling of being desired uncontrollably, without the shame of forced submission, and the humiliation of having allowed oneself to "be had."
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however, if it were *unprotected* sex, then i'd throw a fit because i'd feel as my health were being jepordized.
Nonconsensual sex seldom, if ever, involves protection. And don't forget about the consequence of pregnancy...
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Old 11-28-2005, 10:07 AM   #12
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I don't think the day will ever come when women aren't blamed in one way or another for being raped
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Old 11-28-2005, 11:24 AM   #13
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Quote:
Originally posted by yolland
Yes, I fully understand your perspective, as far as your own feelings about the possibility of being taken advantage of go. But you cannot legitimately put yourself in a heterosexual woman's shoes from this perspective, because it doesn't recognize the defining role that fear of being shamed, humiliated and disgraced plays in female sexuality.


i think this is right.

there are some fundamental differences in gender that transcend gay/straight distinctions. i also haven't really thought about this, at least from a date rape perspective -- as opposed to man-jumps-out-of-the-bushes scenario -- so perhaps i need to do more thinking so i can come up with more cogent thoughts.

my comment about protection was that i think the threat of HIV/AIDS looms larger in the minds (at least in this country and Western Europe ... in Africa it might be a different story) of gay men than it does in the minds of straight people.
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