[Please read the note at the bottom of this post before commenting.]
The Daily Telegraph reports: “Law ‘turns boys into rapists’ “
For other takes on this, check out Shakesville, abyss2hope, and The Curvature.
Gah. I’ve been holding off blogging on this, because I’m too irritated. The concern-trolling around this issue seems to assume that we’re talking about a couple who had a couple of glasses of wine over dinner and jumped into bed together. That’s NOT what this is about.
[cut for rape triggers.]
This sort of law reform is designed to not let assholes who rape unconscious and semi-conscious women off the hook, just because they can claim that “She didn’t yell No and fight, your honour, so I figured she was up to it! And she wiggled a bit, halfway through!” They can’t just assume that an absent-No means Yes; they have reasonable grounds to assume valid consent. They can’t get away with it any more just because they didn’t quite realise that raping comatose women is not ok. (Duh, chaps.)
This sort of thing is so prevalent that it even happened on television recently, on a Big Brother show. There are so many men in the world who think this sort of behaviour is just fine and dandy, that this bloke didn’t think twice about shoving his fingers into a passed-out woman on national TV. Rape culture everywhere.
Back to the Telegraph. Attorney-General John Hatzistergos said:
“If a person is drunk it does not automatically mean that consent can’t be given. What it means is that the onus is on the other person, usually a man, to show he had reasonable grounds to believe the woman had consented.
“It’s difficult to take the Bar Association seriously on this matter when, in their own submission, they concluded that just because a woman was asleep or unconscious (it) doesn’t negate consent.”
“Reasonable grounds”. All this means is that the absence of screaming, clawing, and “NONONO” can’t be considered consent for sex anymore in New South Wales. It’s close to a legal adoption of the “enthusiastic participation” standard for consent, which is simple basic commonsense. Anyone who doesn’t adopt this standard SHOULD be on shaky ground.
We don’t have an epidemic of false rape convictions; what we have is endemic unreported rape, courtroom revictimisation, and a low conviction rate relative to rape rate. This law is one tiny, tiny step to attempt to start to address some of those problems. I notice there is more outcry around the traps about the step in this direction than there has ever been about women getting raped and revictimised in the first place, which shows where our society’s priorities lie – apparently, the poor widdle rapist sons of lawyers, as far as the Bar Association is concerned. I have more concern for the people who they rape, and I’m not going to apologise for it.
We live in a country where a gang of near-adult teenage sociopaths get a few months of “therapy” for gang-raping a girl with an intellectual disability, pissing on her, setting her on fire, and selling the DVDs, and almost no-one seems to know about it, let alone care much. Where’s the Bar Association on that one? And now we’re boohooing over rapists, instead of over their victims. Priorities, priorities.
So, instead of postulating that this law defines being over 0.05 as automatically rendering any person completely incompetent and incapable of consent, and whining that we’re therefore all rapists, now, perhaps a good idea would be to read the actual Bill.
You can read the actual Bill here. (PDF download at the bottom of the page.)
From the Explanatory notes (emphases are mine):
The object of this Bill is to amend the Crimes Act 1900:
(a) to define “consent” for the purposes of sexual assault offences as free and voluntary agreement to sexual intercourse, and
(b) to include in the cases when consent to sexual intercourse is or may be negated: incapacity to consent, intoxication, persons who are asleep or unconscious, unlawful detention, intimidatory or coercive conduct and abuse of a position of authority or trust, and
(c) to provide that a person commits sexual assault if the person has no reasonable grounds for believing that the other person consents to the sexual intercourse.
[…]Meaning of consent
Consent is an element in each of the offences under sections 61I, 61J and 61JA.
Proposed section 61HA (2) provides that a person consents to sexual intercourse if the person freely and voluntarily agrees to the sexual intercourse.
[…]
Proposed section 61HA (6) provides that the grounds on which it may be established that a person does not consent to sexual intercourse include:
(a) if the person has sexual intercourse while substantially intoxicated by alcohol or any drug, or
(b) if the person has sexual intercourse because of intimidatory or coercive conduct, or other threat, that does not involve a threat of force, or
(c) if the person has sexual intercourse because of the abuse of a position of authority or trust.
Proposed section 61HA (7) provides that a person is not to be regarded as consenting to sexual intercourse by reason only of the fact that the person does not offer actual physical resistance to the sexual intercourse. This replaces a similar provision currently contained in section 61R (2) (d).
There is absolutely nothing in this that says that if a person is “over the limit”, they are automatically legally incapable of consent. It says that substantial intoxication may be grounds to establish a lack of legal consent, and that men may no longer fuck passive/incoherent women and assume that a lack of a fighting “No” meant that they were gagging for it.
Why the flying fuck is this controversial?
“It will turn our sons into criminals,” new Bar Association president Anna Katzmann SC said yesterday.
I’m guessing two possible motivations for the opposition (you’re welcome to postulate more). Firstly, it’s possible that the opposition is motivated by party political leanings. Secondly, it’s possible that their overprivileged goldensons are actually routinely sowing their wild oats on semi-conscious women and girls, and they don’t want them convicted for it, which would ruin their up-and-coming careers following in mummy and daddy’s footsteps. Well, here’s a thought, society: how about we start teaching ALL people that women aren’t RealDolls, they’re actual people. That would be a good start.
No law can turn Katzmann’s son into a rapist. He’s either a rapist, or he isn’t. All the law can do is possibly slightly increase the chances that any rapist sons will become convicted rapists. You said it, Bar Association, not me.
If Anna Katzmann has a son, and he isn’t a rapist, I feel deeply, deeply sorry for him. How repulsive that his mother is running around to the media saying that he is.
~~~
NOTE: FEMINIST COMMENTERS ONLY. I’m going to try something new here, and request that ONLY feminist commenters contribute to this thread, for a non-derailed discussion and out of respect for all the people in our readership who have been raped. If you don’t self-identify strongly as a feminist, don’t comment. If your comment isn’t coming from a feminist and victim-centric place in your heart, don’t comment. (If you’re male and your comment fits these criteria, but you don’t use the word “feminist” out of respect for women who prefer “ally”, you’re welcome too.)
Categories: gender & feminism, law & order, violence
Friday Hoyden: Gillian Triggs 
DUFC #69 
Advising women to prevent their own rapes is not brave or edgy or helpful 
Hoyden About Town 
As someone pointed out elsewhere – drunk _consensual_ sex is not being criminalised – lots of people do that and then regret it the next morning when their inhibitions return – but that’s not a crime and still won’t be – hell, drunk sex is pretty much routine in certain uni subcultures.
Despite the rape apologists claim that it is common – i have had only one experience of a false rape claim […]
[detailed description deleted in accordance with the comments policy in the post. …lauredhel]
[…] tales of fake rape claims are used by rapists and rape apologists to demonise and degrade real victims.
To end the rape culture we have to get out of the left-liberal bubble and work at changing the average mainstream who are largely not liberal or that educated and are very vulnerable to emotional manipulation and appeals to stereotypical beliefs and instinctive reactions.
We also need to work more with younger boys and men – it is much easier to pluck a seedling then it is to tear down a tree.
Not wanting to derail things, but Paul W., I just wanted to address your anecdote about the false assault claim– while she may have made it up, it’s also not uncommon for women to recant and say that they were lying when they are put under pressure to do so– and she may well have received that sort of pressure from her peers.
Back on topic– I’ve just been looking over comments at Shakesville (and commented there myself) and I just can’t believe (or maybe I just don’t want to believe) how many people are just willfully misinterpreting this law. The responses on the actual Daily Telegraph comments are even worse (as you’d expect)– I left my own comment there yesterday, but it hasn’t been published.
gaargh! Thanks Beppie; I couldn’t believe that the first comment out of the blocks was a detailed description of an allegedly false rape claim. What Beppie said, Paul; since the majority of rapes are never reported to police you may have witnessed your first incidence of a woman being pressured to recant. There is an overwhelming pressure on women and girls NOT to make a fuss, NOT to disclose, NOT to go to the police. Never more so than when the rapist or abuser is known to the victim and their close friends or family which is, as we know the vast majority of cases.
I have more to say but I have to calm down a bit first. The Law Society is just as prone to the influence of rape culture as the rest of society.
I’ve deleted that part of the comment. Paul W., have you read the comments policy at the foot of the post?
Let’s move on, and not make this thread all about Paul. If there are signs that the thread is likely to veer that way, I’ll delete his comment altogether. Recantation issues are interesting, however, and I’m more than happy to talk about them here in a way that doesn’t focus on the deleted part of the comment.
I’m sorry if i caused offence – you can delete my posts if you feel it’s needed.
I didn’t know about all the pressure on girls women to recant – I’m disabled by cerebral palsy and pretty isolated socially and emotionally – even when i was in school – if there was pressure behind the scenes i was never told of it.
Again i apologise – i did try to make clear in the rest of my post that i wish an end to the rape culture – i just reiterated as i did elsewhere – that living in a bubble supremely confident that people will just follow you doesn’t work – Phyllis Schlafly was able to use the mainstream to defeat and humiliate the feminists of the ’70s and John Howard was able to use the mainstream to defeat the refugee advocates of the ’00s.
No one here is doing that. Moving on.
John Hatzistergos: may his tribe increase. There’s a lot to bag our current NSW Government for, but not him.
I wonder how many guilty minds there are at the Bar Association? I think they are also resistant to anything that will make the job of rape defence less of a sure bet. Dr Annie Cossins, senior lecturer in law at UNSW said; “You talk to any defence council and they’ll admit off the record that doing a sexual assault trial is easy money. They just walk in the door, they attempt to demolish her – a woman or a child who already is emotionally vulnerable – it’s a very easy job for a skilled practitioner to do,and then they walk out.”
The proposed switch from a subjective to an objective mens rea test is little different to that enacted in Victoria in 1991. And yet Victorian jails are not groaning with a surfeit of Anna Katzman’s innocent sons. WA, QLD and Tasmania don’t even require that the prosection prove mens rea. Ms Katzman is no doubt completely aware of this but that is not going to stop her.
The idea that in order to protect the individual from the state you must enforce a certain standard of proof and therefore accept that a proportion of the guilty will go free is held by some to mean that any attempt to improve the conviction rate in rape cases is necessarily an assault upon civil liberties. The fact that the conviction rate amongst the tiny proportion of rape cases that proceed to trial is only half that of other crimes is something that either does not concern them at all, or is a matter about which they make vague concerned noises while vociferously blocking any attempt to actually deal with the problem.
There is that underlying sense that women are especially expendable, that keeping men out of jail trumps the need to protect women from violence time and again. This attitude dovetails nicely with society’s reflexive dismissal of women’s expressions of violation. It begins with dismissing women’s anger at sexism as “humorlessness”, progresses to dismissing their outrage about routine harassment as “being a poor sport” and then to dismissing sexual assault as “not worth destroying someone’s life over.” In a situation of divided loyalties where both the victim and perpetrator are known, families and friends frequently choose to believe and support the male. The degree of self-deception that can accompany this choice is quite shocking. I have a store of horror stories about the lengths to which families will go to prevent their daughters/sisters/mothers from speaking about, let alone reporting rape.
Anna Katzman’s quote about ‘our sons’ reminds me of another by NZ Justice Bruce Robinson who said that if his son was accused of rape he would want him dealt with under our system. But if his daughter was raped, he would not put her through our system.
Lauredhel, it is nice to read another sane viewpoint on this manner. The media coverage has missed the mark as usual when it comes to matters about the law. I doubt even if the journalists who wrote about this bothered to read the bill. I’ve been attempting to respond to the uninformed and misguided on a thread related to this matter on the Whirlpool forum, which anyone can view at http://forums.whirlpool.net.au/forum-replies.cfm?t=846353&p=-1#bottom and believe me it is like talking to a brick wall. Some people just don’t get it.
When I first read the media reports a few weeks ago I was a little surprised about how far this proposed law would go, especially when someone from the Rape Crisis Centre was quoted as saying that the new law would even mean there is no consent where trickery or deception is involved. In my view this would go too far, with the exception of trickery in relation to the nature of the sexual act, but I interpreted the spokesperson as referring to trickery in relation to procuring consent in general. I found the speech by Morris Iemma in parliament announcing the changes to the law in the Parliamentary Hansard and it made it far clearer than the media did. Trickery was not mentioned once by Mr Iemma and it is not included in the bill. The spokesperson from the Rape Crisis Centre was obviously paraphrasing (with liberty) and the media just printed it without qualification.
Upon my reading of the bill presently before Parliament the only significant change this law makes is adding the reasonableness test to the fault element of the law, so that a jury will no longer have to acquit a man who had an unreasonable belief that a woman consented. This in my opinion is a positive change. As I put in on Whirlpool, why should women be at the peril of an unreasonable man?
In relation to the question of an intoxicated person consenting sections 61HA (4),(5) and (6) appear to merely codify the finding that a jury ought to come to under the present law (intoxication does not appear at all in the current statute), namely that a person who did not have the capacity or opportunity to consent quite clearly did not consent.
Section 61HA(6) does appear to allow a jury to find that a person did not consent due to being substantially intoxicated by a drug or alcohol, even if it does not find under section 61HA (4) that the person lacked the capacity (i.e. remained able to choose) or opportunity to consent.
So, in circumstances where a substantially intoxicated person does some affirmative act indicating consent (i.e. is enthusiastic, or says yes when asked) it would appear that a jury is free to vitiate that consent. If this was the intention of this section then in my view it goes too far. Having said that, I cannot imagine why a jury would seek to vititate consent where that consent was indicated by an affirmative act, such as saying yes. If the jury did, I do not believe the jury would be free to convict though, since the defendant would in my view have reasonably believed that the alleged victim did consent if the alleged victim did some affirmative act indicating consent, such as saying yes.
I suspect that section 61HA(6) is actually intended for circumstances where the victim does no affirmative act indicating consent, but also no affirmative act indicating no consent. It would be possible in this circumstance for the jury to again not find under section 61HA (4) that the person lacked the capacity (i.e. remained able to choose) or opportunity to consent. So section 61HA(6) may be included to allow the jury to find that the person necessarily did not consent because the person was substantially intoxicated. In my view, in these circumstances a jury ought to find no consent under the current law. If nothing was done by the victim to indicate consent the jury ought to find there was no consent, since actual resistance is not required to establish there was no consent. So really, this section is merely codifying the circumstances in which a jury is expected to find there was no consent.
And yet on John Laws the other morning he was asking if people thought that women didn’t have a resonsibility not to get drunk and get themselves into these situations. I tuned out and didn’t listen to the rest of the program, I couldn’t face people ringing up to blame women for enjoying themselves and having a few drinks. Interestingly he didn’t mention date rape drugs. In short John – no it’s not their reponsibility, it is the responsibility of men to not take advantage of women who are intoxicated and don’t consent to sex. That’s rape. How simple can it be?
“So, in circumstances where a substantially intoxicated person does some affirmative act indicating consent (i.e. is enthusiastic, or says yes when asked) it would appear that a jury is free to vitiate that consent … I cannot imagine why a jury would seek to vititate consent where that consent was indicated by an affirmative act, such as saying yes. If the jury did, I do not believe the jury would be free to convict though, since the defendant would in my view have reasonably believed that the alleged victim did consent if the alleged victim did some affirmative act indicating consent, such as saying yes.”
Before I read this I had become convinced that ms Katzmann was incorrect in her reading of the law (I was thorughly blasted by a poster at curvature for assuming she was correct) yet this paragraph is the best support anyone could have given her. You ask why the jury would want to vitiate consent when it was indicated by an affirmative act- this is where Katzmann’s example comes in, a girl who did indicate consent under the influence but who later changes her mind. in this case, as you say, the law can decide that she did not consent even if it also decides she was not unable to, and since she is no longer providing the evidence that she consented, the defendant can not argue he believed she consented, because not saying no is no excuse (Section 61HA (7))
I appreciate that this comment will probably be deleted, since it does not appear to express full support for this law. But make no mistake, I have all the support for this law, (in fact i was shocked to see that its taken 107 years for the laws on sexual assault in nsw to be revisited) it just seems too vague to be fully useful. Trust me, i don’t want ms Katzmann and the bar association to be right (those bizarre claims about the unconscious being able to consent, for example) but if she is right regarding this particular loop hole, then there’s a problem.
cziffra: My reading is that it’s a bit more complicated than that. We’ll only know after a few cases have been tried, but right now what I’m seeing is that a jury may find, for example, that there were it is not reaosnable to interpret a random stranger murmuring “oh, alright” through a dribble of vomit as someone offering valid consent.
The law says “may be”, not “must be”. Substantial intoxication doesn’t automatically invalidate consent; there is room there for a jury to make a determination as to whether or not the consent was valid. I don’t see this as a “loophole”.
This puts the onus back on people to ensure there is real, considered consent: I like the “enthusiastic participation” metric. This means engaging in a modicum of basic human decency and respect, instead of a running narrative of “Can I get away with sticking my dick in this?”.
cziffra, you’ve got it a bit wrong. You said “a girl who did indicate consent under the influence but who later changes her mind.” That’s just not how it works. If she wants to change her mind then that suggests that she did consent in the first place. A person’s feelings about the event post hoc are not relevant to determining whether the person consented at the time of the event. The law (a jury) can decide that the person did not consent, but the person can not.
“and since she is no longer providing the evidence that she consented, the defendant can not argue he believed she consented, because not saying no is no excuse”
First, I don’t quite understand what you meant by that, the first part of the sentence I mean.
Second, where the law says that a failure on the person to resist or say no does not suggest that the person consented it applies to the physical element of the crime. It does not go to the mental element of the crime, the state of mind of the accused. Section 61HA(7) does not preclude the defendant from claiming that he believed the person consented. A jury will be free to find that there were no reasonable grounds to form that belief.
Now when you say “this paragraph is the best support anyone could have given her” I can understand why you say that. I feel that I need to clarify what I said though and then I doubt you will say the same. I said:
“So, in circumstances where a substantially intoxicated person does some affirmative act indicating consent (i.e. is enthusiastic, or says yes when asked) it would appear that a jury is free to vitiate that consent.”
I should have also pointed out the definition of consent under the new law. Consent is defined as “free and voluntary agreement”. So what I really should have said was this:
So, in circumstances where a substantially intoxicated person does some affirmative act (apparently) indicating consent (i.e. is enthusiastic, or says yes when asked) it would appear that a jury is free to vitiate that (apparent) consent if it decides that there was no free and voluntary agreement.
A jury cannot vitiate consent in every circumstance where it finds the person was substantially intoxicated. A jury can only vitiate consent if it finds that by virtue of being substantially intoxicated the person did not freely and voluntarily agree to have sex.
Nothing in the law suggest that a substantially intoxicated person is not capable of freely and voluntarily agreeing to have sex.
This is clearly a difficult and controversial topic- indeed, i have now been banned from “the curvature” blogsite for “misogyny/racism/homophobia” even though I made no comments of the sort. (in fact, the person who runs the blog was not afraid of saying that she doesn’t care if this law will “lock up asshole white guys,” which seems quite racist to me.) Fortunately, this board (particularly natrap) has actually bothered to listen and has posted some very informative things.
“A person’s feelings about the event post hoc are not relevant to determining whether the person consented at the time of the event.”
I was imagining a situation where the person’s feelings after the event were the reason they pursued charges. I actually agree with you that a person’s feelings after the event are not relevant, and this is why i’m so uncertain about this law. How does the law distinguish between a person who consented at the time and later changed their mind (and is therefore not going to say that they did consent at the time) and someone who genuinely didn’t consent?
(this is what i meant by my confusing sentence, “and since she is no longer providing consent.” If the person prosecuting refuses to admit they consented then of course it will appear like the man is a rapist. In most cases this would be true, but it can’t be guaranteed for all cases.)
This would be great if the law was definite on what constitutes consent, but it still seems vague.
I’ve been rereading your paragraph again and again and again:
“So, in circumstances where a substantially intoxicated person does some affirmative act (apparently) indicating consent (i.e. is enthusiastic, or says yes when asked) it would appear that a jury is free to vitiate that (apparent) consent if it decides that there was no free and voluntary agreement”
It seems to me that if this is an accurate analysis of the law (and i think it is) then it could be used to suit whatever temperament the reader happens to be. A feminist could use this to vitiate consent in a situation where they were convinced the male was a rapist- a chauvinistic male could use it to decide (even in that same situation) that the consent was obvious to all.
I’ve discussed this with one of my lawyer friends, and he politely made fun of me for assuming that the law will be able to settle everything in black and white terms. According to him, this level of ambiguity is essential in law, because discretion is always necessary in dealing with any criminal behaviour, and if you have discretion, you have to have this window of ambiguity.
So it seems lauredhel is right- for the moment it’s a great improvement and we’ll have to see it in action for a while to really know if this ambiguity is good or not.
I’m just going to make sure I don’t have sex with any women who are slurring there speech, no matter what they say.
cziffra, I’d like you to take a moment to re-read the footnote on this post. In particular, the part where my request asks that comments be both feminist _and victim-centric_. Thanks.
cziffra, the answer to your question “how the law distinguishes…” is with great difficulty. A common-sense approach might be to assume that if a woman comes forward and says she didn’t consent to sex there can be no better evidence suggesting she did not. In most cases that might be appropriate. But it won’t always, therefore the law can’t assume that. I suppose I would say this in defence of the law. 1. The question of whether the person consented is asked from an objective standpoint, so the defendant’s or the victim’s viewpoint is not the sole determining factor. 2. There is the requirement that the defendant either knew the victim didn’t consent, was reckless in discovering if the victim consented, or did not have reasonable grounds to believe the victim consented (the mental element). Most probably, in circumstances where the jury has doubt about whether the person consented, but leans toward the negative, it will also have doubt that the mental element is present, and will have more trouble leaning toward the affirmative there. And remember, to find against the defendant the jury must be satisfied its findings are correct beyond reasonable doubt.
You are also right that the law allows a lot of scope to lean one way or the other. And I agree with your lawyer friend that the criminal law (especially matters like consent that are not absolute) needs discretion in the hands of the jury. I don’t believe that this law has really added to the discretion and ambiguity when intoxication and consent are in issue. I think the law has just articulated the issue where previously it was not, and essentially made it compulsory for a jury to consider intoxication in their determination where previously it was not.
The big (and positive, bringing it in line with most if not all other states) step the law has taken is establish a responsibility on the defendant to have reasonable grounds for his (or her) belief that the alleged victim consented. (Note that the burden is on the prosecution to prove that there were no reasonable grounds.)
P.S. Lauredhel I have to come out in defence of cziffra here. Why does a person have to have one-sided views to be hear. The best argument is an objective argument. Czifrra’s comments were certainly not anti-feminist or anti-victim.
natrap: Read again. “Victim-centric”, not “not-anti-victim”. Then read the last line of cziffra’s comment, which is the part I have a problem with in this thread.
On your dig about “one-sided views”, I was ABSOLUTELY clear that this is a feminist-only thread. If you aren’t a feminist, kindly stop commenting.
I couldn’t disagree with you more on “the best argument is an objective argument” – it is male privilege that allows you to distance yourself emotionally from this issue. The notion of “objectivity” is used over and over again by men to dominate discourse and dismiss feminist points of view, particularly in the arena of violence against women. I’ve started to talk about that here.
I’m not interested in playing male-privilege-games further in this thread, nor am I interested in who you guys choose to fuck after a night on the town.
If you have any further issues with the parameters I have set for this comments thread, please address them to me by email.
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Noone has said you are the enemy. You would really like us to though since you came here spoiling for a fight from your very first comment;
But you weren’t deleted; drat! Institue plan B.
So you make an inflammatory remark:
Which you say actually means;
Those two statements bear no similarity to each other. The second is correct and the first is a boring what-about-the- menz whine.
I’m going to steal one of tigtog’s lines to say that there is a strong whiff of eau de troll here.
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I find it really interesting that the Bar association worried about “turning our sons into rapists”, but not “Offered a bit more protection for our daughters”. Do lawyers not have daughters? Or do they just have really scummy sons who tread a fine line with every woman they go out with? Or is it, as I suspect, that they think that their daughters would never be like those nasty little trollops who have the temerity to go out and get drunk and therefore deserve what’s coming to them?
Rebel L: I suspect your ultimate sentence is the most accurate, but I’m in no way ruling out your penultimate one.