The following arguments should be unnacceptable defence against a charge of sexual violence:
1. Commentary of victim's clothing, reputation or behaviour prior to the initiation of the sexual act.
2. The perpetrator and/or victim was intoxicated with drugs or alcohol.
3. The victim didn't verbalise a "no" at any point.
1. Already rape laws implemented, though don't have insight to what extent they're followed.
https://en.wikipedia.org/wiki/Rape_shield_lawThough I have seen it argued that in sexual harassment cases, information about clothing for example is introduced by the victim and not allowed when defendant might press it if mentioned at all.
http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1109&context=djglpYet, as I explain below, very few cases discuss this issue. Instead, target dress is being used in a variety of ways and often is introduced by the plaintiff in sexual harassment cases.
2. There does need to be some changes of how things are done but not sure whether in terms of law.
The problem is that being severely drunk or drugged is not approached in terms of diminished consent as much as it's framed as making one an unreliable witness to damage credibility. I think there is a fear of setting precedents of convicting someone in a scenario with alcohol intoxication resulting in prosecuting ALL alcohol related sex.
[url]http://www.trinitinture.com/documents/wallerstein.pdf[url]
Admittedly, this does not completely resolve the concern that some women get drunk in order to have sex, because in many cases the preintoxication consent is not with regard to a specific person, but more general in nature (that ‘they will have sex later on that evening with whoever they fancy’).64 The fear is that recognising such consent as sufficient consent could undermine the requirement that the consent required has to be specific (person and event). However, protecting the positive dimension of the sexual autonomy of these women comes at the price of not protecting the negative dimension of other women who chose to get drunk without such intention—just because the wanted to
enjoy themselves or because they had a bad day at the office. These women suffer because society does not recognise the (grievous) harm of rape that was caused to them, and continues to legitimise the behaviour of preying men who take advantage of their drunken condition. Wertheimer argues that because the disinhibiting effects of alcohol are widely understood, a permissive approach should not be regarded as introducing predatory behaviour in which ‘A takes advantage of B’s ignorance’. 65 But this is a misrepresentation. The issue is not one of ignorance, but of vulnerability. Predatory behaviour is a behaviour of taking advantage of a person found in a vulnerable position. Women who get drunk become vulnerable even if they get into this position consciously. When men take advantage of such a situation, they act in a predatory manner, and, therefore, when the law is willing to legitimise such behaviour (by acknowledging a drunken consent as valid consent), the law legitimises predatory behaviour. This is a question of getting the balance between the positive and negative aspect of sexual autonomy right. As a sole public policy consideration, it is not weighty enough to tilt the balance and overcome the problem of lack of capacity to consent, especially when accepting a less restrictive approach (which does not require pre-intoxication consent) comes at the expense of women who are being harmed and view themselves as victims of rape (and are recognised as such as a matter of normative fact).
...
Yet, this difference in the level of intoxication required to negate the capacity to consent is a reflection of a deeper disagreement as to the underlying assumptions and beliefs about the effects of alcohol and of various values connected with the idea of sexual autonomy. These are summarised by the default position set out in the shorthand summary of the law according to which ‘a drunken consent is still consent’. Whereas the court in Bree held that ‘a drunken consent is consent’, it is proposed that the default position should hold that ‘a drunken consent is not consent’.
When discussing this suggestion with colleagues, I encountered some who were concerned with the implications of the position advanced in this article on the mens rea requirements, fearing that it would result with unfair convictions of defendants who did not possess the relevant mens rea for rape. In this section, I will respond to these concerns and put them to rest. Once it is accepted that ‘a drunken consent is not consent’ then the defendant’s state of mind should not create any special difficulties. The law requires proof that the defendant did not reasonably believe that the victim consented. According to s. 1(2) of the 2003 Act, in making this decision we have to ‘regard all the circumstances, including any steps [the defendant] has taken to ascertain whether B consents’. If the defendant is aware that the woman had ‘a lot to drink’ and is drunk (as was the case in both Dougal and Bree), it would no longer be reasonable to believe that she can give a valid consent. This is true, even if the woman has consented while being drunk. It should be clear to the defendant that a drunken woman is incapable of making a valid consent given her drunken condition. This is obviously true where the defendant encourages the woman to drink more alcoholic drinks in the hope that it would increase the likelihood of having sex with her, but it is similarly true if the defendant is not encouraging the woman to get drunk. Many people admit that they have ‘taken advantage’ of the drunken condition of women.78 The fact that they admit that there is an element of ‘taking advantage’ is a proof that they are aware of the effects of alcohol on the ability to consent or, more accurately, the diminishing ability to reject, sexual intercourse.79
In this, to help prove that a scenario was rape or a sexual assault, one would emphasize the predatory nature of the behaviour to discern that the accused was aware that the other was so intoxicated that they were beyond some interpertaion of having capacity to give valid consent. While there can be debate to where to draw the line, there are certainly example where a person is far beyond the fuzzy boundary of still having their faculties intact to make an informed decision.
I think in terms of application, it's not a problem of law but attitudes and discretion of the justice system. I don't imagine most people under law would end up convicted for their drunken sexual encounters. In much the same way that laws are still waiting to change in a lot of places so sexual images between minors that are consensual aren't landing them with child pornography charges are in practice not being chared despite the overly broad legislation as the discretion of police means they aren't prosecuting these teens.
https://aifs.gov.au/cfca/publications/images-children-and-young-people-onlineWhile sexting is relatively common in teenage relationships, it is important to know that in some states and territories, the misuse of such images may be against the law and can result in criminal charges; however, the police are unlikely to prosecute if there is no harm to those involved (Cybersmart n.d.). Instances are more likely to result in legal implications where one person deliberately shares a photo or video of another person without that person's consent, particularly if the person who shared the image had an intention to humiliate or embarrass.
Victoria was the first state in Australia to introduce sexting legislation. In October 2014, the Victorian Government passed the Crimes Amendment (Sexual Offences and Other Matters) Bill. As part of the new legislation, young people under the age of 18 who engage in non-exploitative sexting can no longer be charged with child pornography charges or be put on the sex offender's register. However, it is an offence to send an intimate image of a person under the age of 18 years to a third party, even if the person under 18 has provided their consent. The law also states that adults who threaten to distribute an intimate image without consent will face charges (Victoria Legal Aid, 2014).
Though I have seena case where for some reason in the US unviersities deal with sexual violence in what appear to be entirely inadequate courts where two freshmen were both beyond teh capacity to consent an the guy ended getting expelled and the girl dropped out with possible PTSD symptoms. The mishandling of the case by the unviersity was pretty abysmall and instead they should've sought means to support the girl and let the guy off, acknowledging that he couldn't have consented either and that though tragic, there's no basis for punishment. -
http://www.businessinsider.com.au/occidental-sexual-assault-2014-9What oftne gets lost in translation when discussing rape and being drunk is considering consent and how that creates varying outcomes.
So above we have two people who can't give valid consent because they're too drunk, though they did give consent presumably as the evidence suggests they both pursued it. = Both Drunk, Both Consented, both consents were invalid, court should've ruled no rape since two people incapable of giving cosnent can't comphrensibly rape one another becuse who then is the victim?
Another scenario is the one in drunken consent paper, where...
The leading case on this issue is the Court of Appeal decision in Bree. The case involves a complainant who was continually vomiting in her bathroom after a long night of heavy drinking. The defendant was helping her out, washing her face and hair. He then went on to have sex with her—according to his account, with her consent, although the complainant claimed that due to her drunken condition she had gaps in her memory of the event and could not remember whether consent was given
Here, the woman only was exceptionally drunk, to the point that reasonably believe she was far beyond giving valid consent, unclear she could even give an invalid expression of consent. Which doesn't matter in this case anyway. = One severely drunk, can't give consent, the other not heavily intoxicated, took advantage = rape. Though the court concluded otherwise and the paper argues why this was incorrect.
In another scenario one perhaps rather common, two people are relatively drunk, but not so ridiculously drunk they're vomiting and barely there, they meet at the bar and go home and fuck like rabbits and they both consented to it, wanted it. Their level of intoxication even if somewhat strong, what ever a relative term like that means, there's no crime committed.
Hell, one could get a bit more dubious but think unless had strong case for it being predatory, you could go someone being mildly intoxicated whilst the others dead sober, they both want sex and it's considered consensual and not rape. Because being moderately drunk doesn;t seem to be firmly in the grounds that a person is incapable of giving consent, though depending on how harsh want the law to be, it could come down on those that acted in ambiguous circumstances and consider them predatory if the case was pursued through the courts. But I imagine, depending on the surrounding circumstances like it being between a couple or strangers or what ever would change how likely and how harsly anyone would judge such circumstances. It might at worst be deemed immoral but to murky to criminalize and consider rape.
3. I agree with this one and though stil not completely familar with the affirmative consent thing, my impression is once again call for reform i met with exaggerated fears that think that someone can be convicted without evidence. The prosceution would still need to prove the case was rape, affirmative consent laws merely make an attempt to put into practice that women aren't in the eyes of the law ina state of constant consent until they revoke that consent and instead apply a more realistic sense in that consent is negotiated and not ever present until explicitly expressed otherwise. Also, the idea that sexual consent is expressed purely in the content of words like no and yes takes an extremely shallow sense of communication, whcih is where par tof the hyberbolic fears that people will have to say a bland yes to every sexual act to express consent are idiots.
And even if these reofmr is implemented, it isn't guaranteed it's followed in practice as state of Tasmania, Australia shows -
http://eprints.utas.edu.au/14748/2/whole-cockburn-thesis.pdfBut should also note it's not some golden bullet to the poor response we have to sexual violence since one could have perfectly written laws and still fail because of the attitudes that inform their practice.
There is a significant attrition rate at play before people even get to court.
In part because cops are dullards that introduce misconceptions into their considerations of people's claims. Thus over report false reports because they think peolpe who are, by rule of thumb, more vulnerable (drunk/drugged persons, people with disabilities, children). Viewing them as incompetent witnesses and or liars instead of positioning them as having a more credible position since these demographics are in fact the most likely to be vicitms of sexual violence.
PS. Hate talking law online, law varies so much from region to region let alone country to country, so getting into specifics can be a bit messy in regards to law and its practice.
There is a matter that it is indeed difficult to get convictions for such violence but it's certainly true that quite often many flaws in the entire justice system chips away at the capacity for people to have a good chance at getting a conviction.
There are still changes that could be made beyond just cultural attitude sbut just for better ivnestigations like pre-text calls -
http://justicewomen.com/handbook/part2_d.html#fAnd as a freebie if you're interested is this good paper discussing conceptions of consent.
http://moritzlaw.osu.edu/osjcl/Articles/Volume2_1/Commentaries/Westen-PDF-11-29-04.pdfThat should provide you with some fun leisurely reading if you're ever interested.
Unfortunately, convicted rapists espouse sexist values that are prevalent in most cultures. We can't deny that changing our culture to one that automatically believes victims of rape in the same way one automatically believes the victim of an assault would make a huge impact. That's why there is a huge cultural movement against victim blaming and promoting affirmative consent (yes means yes).
One doesn't need to assume anyone is correct, police should do their bloody jobs and investigate the case for evidence. One doesn't need to presume that the victim is certainly telling the truth to do this, in fact it can maintain skepticism. The problem certainly is though that police and people presume innocence without collaborating evidence that readily deduces that a claim is false, not realizing that doubts/suspicions aren't proof and one actually need to show that there is no subsntial evidence for a criminal offence.
https://www.ethicalpolitics.org/ablunden/pdfs/For%20Ethical%20Politics.pdf#page90
-For Ethical Politics