There is nothing technical about it

A judge in a rape trial in South Australia is concerned that a rape conviction against a man who had sex with an unconscious woman may adversely affect his life and so is considering his verdict carefully.

First some background: the man and woman met at a pub and agreed to consensual sex. During foreplay the woman, who was intoxicated, fell asleep. The man continued despite the fact that his partner was unable to consent to the act. For me, that makes it rape, no technicalities.

The judge is concerned because there is a possibility that she may have consented if she were awake. Maybe she would have. But the point is that she didn’t get the opportunity to consent. The judge should also consider that maybe if she were awake she would have withdrawn her consent too.

Why is it so hard to make people understand that just because she has a vagina there is no implied consent?

Categories: gender & feminism, violence


18 replies

  1. ”There is an inference that she might have consented (to more sex) had she been awake,” [the judge] said.
    That someone might say yes isn’t a reason not to ask.
    And that she said yes earlier on doesn’t change anything, because she agreed to sex she could take part in and enjoy, not to be a socket.

  2. And don’t you love the lede? “A man who had sex with a drunken woman after she’d passed out…’.
    1) He didn’t have sex with her, he raped her
    2) Oh, and of course be sure to mention she was drunk
    3) That bit about her being unconscious, yeah, put that at the end of the sentence, it’s not like it’s an important bit
    When you can’t even get a rape conviction where the rapist pleads guilty to rape, I wonder why any woman ever bothers reporting it to police.

  3. I was reading that this morning, and trying to figure out how to post about it. Words fail me. “Technical” fucking rape, of a woman who is UNCONSCIOUS. Gobsmacked.
    If you’ve ever had sex, you’re unrapeable. If you’ve ever said ‘yes’, or even ‘maybe’, or someone thinks you have, you’re unrapeable. If you’ve had a drink or more, you’re unrapeable. If you go out at night, you’re unrapeable. Are there actually any rapeable women left in the world?

  4. Would the idea that “oh, they might say yes if they were awake” work as a defence/mitigation of any other crime on the statute books?
    Drunk man sleeping in a park – take his wallet – “he might have said yes if he was awake”? No?
    People asleep while the house was burgled – “oh, they might have said we could take it if they were awake”? No?
    Even another “domestic” situation – take money from mum’s purse while she’s snoozing – “oh, she might have said yes if she was awake”? No?

  5. I’m guessing from the fact that the trial has gotten this far that the woman involved who was raped has not agreed that she would have said yes had she been awake. She is strangely absent from the article.

  6. The guy pleaded guilty. The woman obviously went ahead with the prosecution to get to that point. So, yeah, I don’t think anyone except the judge has suggested that there was hypothetical consent.

  7. Good point, Mindy. Maybe she was just unconscious and MIGHT have consented to being left out of the article if she were awake?

  8. Is anyone naming and shaming the judges who spout this kind of s**t?

  9. The Judge in this case is District Court Judge David Smith .

  10. What made me scream when I had finished the article (apart from the obvious) was that they weren’t allowing comments. I can understand from a legal standpoint that things might be sub judice etc, but I wanted to take THE ADVERTISER to task for their use of language in the article and the way they report rape generally.
    Also, one of the things the judge highlighted in his deliberations was the fact that the man was drunk also, so he believed he had to consider the ‘diminished responsibility’ argument. Pfffft. Try using that argument if you kill someone whilst driving a car and see how far you get. It appears the only times ‘diminished responsibility’ is trotted out is in cases of murder and rape.
    I don’t know how many more times we, as women, have to say that the ownership of breasts or a vagina does not mean that we are, by definition, available for sex 24/7 unless we specifically say no. And even then, it seems, it’s up to the men themselves to decide whether or not we really mean it and when they persist after a clear ‘no’ the decision about whether or not to prosecute is made by (usually) male police officers and it then goes to court with (usually) male lawyers arguing the case, which is then ultimately deliberated upon by a (usually) male judge. Sheesh. How the hell are we ever going to make inroads until men themselves acknowledge that it is their own mindset that is the problem?

  11. Also, one of the things the judge highlighted in his deliberations was the fact that the man was drunk also, so he believed he had to consider the ‘diminished responsibility’ argument.
    How come when the man’s drunk it diminishes his responsibility, but when the woman’s drunk it increases hers?

  12. I’m so hopping mad that I’ve written to our A-G about this. He has some “form” when it comes to interfering in the courts and I hope he decides to do it in this case.

  13. Was I the only one for whom this line leapt out?
    Laura Finnegan, for Sloan, told the court the woman “willingly” went into the parklands with her client. “After a few minutes they started touching each other sexually,” she said.
    On initial read, my assumption was that she was a sex worker, but the article is lacking the usual “PROSTITUTE THINKS WHORES CAN BE RAPED, LAWL!” tone.
    I’m a little confused… because if she is a sex worker and that’s the only mention, they’ve actually covered a despicable result in quite a progressive and sex worker friendly fashion. That seems unlikely, so I’m wondering what the other possible reasons for “client” are.

  14. … and then it struck me that it’s the lawyer talking. Never mind!

  15. @chinda63
    It’s not looking good. The ABC has a story saying that the A-G supports the judge’s approach.

    Mr Atkinson says the case shows the legal system is working as it should.
    “The law is what the public of South Australia would want it to be but the judge is applying it in a sensible way because of the difficulties of this case,” he said.

  16. Deborah – yes, I saw that this morning. I have, instead, written a letter to the editor. Hopefully it will be published; we’ll wait and see.

  17. Women often (justifiably) complain about being infantilised when decision-making is taken out of their hands. Why do men not object to the concept that their only involvement in decision-making with respect to sex is to continue until a woman says “no” loudly and clearly enough for him to be convinced? (And sometimes even not then, but I am speaking about the default “acceptable” behaviour.)

  18. Hmmm Lisa Pryor’s article in Saturday’s paper was pretty sickening. According to her, all the people complaining about Smith’s judgment are just being naive and silly, because they don’t seem to realise the need for Judges to “rank the seriousness of offences”, to ensure offenders are punished “fairly” and consistently.
    Oh, the stand out quote:
    “By all means, women’s advocates should feel entitled to condemn Sloan for what he did, but let’s not interfere with a judge who is clearly working hard to deal with the nuances of a difficult case in a way which is fair to both perpetrator and victim”

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