The problem is to my mind a misunderstanding of what Evans was required to do. Evans was required in law to take steps to ascertain belief that he had consent, that is the wording of the law. He would be asked "How is it you were certain you had consent?" to which his answer would have been "McDonald asked her if I could join in and she said yes"
The law doesn't say that HE had to establish or acquire the consent himself. It doesn't. It states that he has to "ascertain" consent, that is, he has to be certain in his mind that he had consent, whichever way that is gained, and that belief has to be reasonable.
BIB: Yes, and that still doesn't change that relying on your mate to gain informed consent most likely in a court isn't going to be a great example of the steps you took to ascertain consent. Because by relying on someone else to gain informed consent, it undermines your own position of having to illustrate that you have reasonable belief that someone consented. In measuring that reasonable belief, you have to illustrate steps you took to back up that belief. This relates to the objective test of reasonable consent, where the jury assess whether Evans' belief was reasonable or not.
For example. If I am at a party and Alison whispers in my ear "Jane has the hots for you, she wants to know if you fancy getting it on with her upstairs in the little bedroom"
If I agree, have I consented to Jane even though she didn't directly seek consent with me herself? Of course I have!
If you go upstairs, and get direct implied consent from Jane, then yes. The trouble with Evans' case, which would have help him regarding reasonable belief is that he did not seek direct, but indirect forms of consent, through others. That effects his ability to claim a reasonable belief.
The trouble is, the men have to illustrate that she really did request oral sex, and that's going to be difficult to do.
Well yeah. It comes down to a he said she said (sort of!) and unfortunately in those situations you generally have to give the accused the benefit of the doubt or you could end up convicting a lot of innocent people.
But if we believe the men's statements then Evans had consent.
If you feel there's enough evidence to prove they were lying then fair enough, he may not have had consent. I don't think there is.
The problem is to my mind a misunderstanding of what Evans was required to do. Evans was required in law to take steps to ascertain belief that he had consent, that is the wording of the law. He would be asked "How is it you were certain you had consent?" to which his answer would have been "McDonald asked her if I could join in and she said yes"
The law doesn't say that HE had to establish or acquire the consent himself. It doesn't. It states that he has to "ascertain" consent, that is, he has to be certain in his mind that he had consent, whichever way that is gained, and that belief has to be reasonable.
For example. If I am at a party and Alison whispers in my ear "Jane has the hots for you, she wants to know if you fancy getting it on with her upstairs in the little bedroom"
If I agree, have I consented to Jane even though she didn't directly seek consent with me herself? Of course I have!
He has to get consent for himself, he can't rely on something that was said to his mate. Hypothetically, for example, the girl may not have heard or understood what McD was asking her.'My mate said' is not adequate.
If you get it on with Jane the relevant consent in that scenario is when you go into the bedroom and she consents to sexual activity. Anything that has been said prior to that, whoever it is said to, is not relevant.
I don't think it does, as long as the question asked is understood and responded to positively.
Yes, and the trouble with it being 'understood' is that relates the the girl's capacity to consent, and thus what steps Evans took to ensure that her capacity to consent was okay. Secondly, in regards to a positive reaction, that'll also be hard to actually demonstrate in a court of law.
BIB: Yes, and that still doesn't change that relying on your mate to gain informed consent most likely in a court isn't going to be a great example of the steps you took to ascertain consent. Because by relying on someone else to gain informed consent, it undermines your own position of having to illustrate that you have reasonable belief that someone consented; and in measuring that reasonable belief, you have to illustrate steps you took to back up that belief. This relates to the objective test of reasonable consent, where the jury assess whether Evans' belief was reasonable or not.
If you hear a woman being asked if she is happy to have sex with you and she says yes, how on earth would it be unreasonable to believe she wanted to have sex with you? (again, this is assuming capacity to consent)
He has to get consent for himself, he can't rely on something that was said to his mate. Hypothetically, for example, the girl may not have heard or understood what McD was asking her.'My mate said' is not adequate.
If you get it on with Jane the relevant consent in that scenario is when you go into the bedroom and she consents to sexual activity. Anything that has been said prior to that, whoever it is said to, is not relevant.
This is why I added the caveat that the question has to be understood.
I'm glad you added the second paragraph, because I agree that the peripheral circumstances are irrelevant, only the core activity in the bedroom and the consent given therefore is relevant.
This is why I have argued (in my capacity for utter nonsense) throughout the thread that the circumstances of Evans' arrival and departure are, to my mind, also irrelevant, even though they have been used to paint a picture of far more "sinister" behaviour than what I believe it would have been.
If you hear a woman being asked if she is happy to have sex with you and she says yes, how on earth would it be unreasonable to believe she wanted to have sex with you? (again, this is assuming capacity to consent)
Yes, but you have to demonstrate that in a law court. Demonstrating that reaction is going to be hard, which is why, the safer approach would be gaining consent from the person directly. That way, in terms of proving reasonable belief, you have more to back up that belief with.
He has to get consent for himself, he can't rely on something that was said to his mate. Hypothetically, for example, the girl may not have heard or understood what McD was asking her.'My mate said' is not adequate.
Hypothetically, if he had asked the girl himself she may have not heard. What would there be not to understand about 'Can my mate join in'?
If you get it on with Jane the relevant consent in that scenario is when you go into the bedroom and she consents to sexual activity. Anything that has been said prior to that, whoever it is said to, is not relevant.
I thought Idlewilde was asking if he has consented, not if Jane has consented.
Yes, and the trouble with it being 'understood' is that relates the the girl's capacity to consent, and thus what steps Evans took to ensure that her capacity to consent was okay.
He didn't have to ascertain her capacity though. For a defence of reasonable belief he had to take "any steps (as A) to ascertain that B consented (to sexual activity)"
Yes, but you have to demonstrate that in a law court. Demonstrating that reaction is going to be hard, which is why, the safer approach would be gaining consent from the person directly. That way, in terms of proving reasonable belief, you have more to back up that belief with.
Demonstrating what reaction? That she said yes? Given that there is no other direct evidence as to what happened in that room, we are only going on the men's statements. Even if Evans had asked directly, he wouldn't have been able to prove this given that there is no video evidence.
If the jury believed what the guys said to be true, I really do not see how they could have believed the woman didn't consent (assuming capacity again)
This is why I added the caveat that the question has to be understood.
Which is subjective and questionable and why you have to get consent for yourself.
If you're in hospital and you consent to a doctor to do x procedure and he asks you if you're ok with another doctor doing y procedure - you would have to consent to each doctor and each procedure. Doctor y can't say 'oh well doctor x said she consented to my doing y'.
Yes, but you have to demonstrate that in a law court. Demonstrating that reaction is going to be hard, which is why, the safer approach would be gaining consent from the person directly. That way, in terms of proving reasonable belief, you have more to back up that belief with.
You keep missing the bit where she asked CE to lick her out.(backed up by CM)
That sounds like reasonable belief to me.
Also using your argument...
What steps did she take to prove reasonable belief that CE consented or had ability to consent.
Oh, but she was drunk when she demanded he lick her out, you say...
But...
"Drunken men who demand sex from their wives or girlfriends should be treated as rapists and no longer allowed to claim their judgment was blurred by alcohol, according to the head of the government's review of the rape laws.".....
""Being drunk is voluntary and people who become drunk are responsible for their actions. It is not the alcohol that commits the rape. It is not an excuse. It used to be regarded as such, but it is not an excuse . It is an aggravating factor." http://www.theguardian.com/society/2009/dec/14/stern-review-rape-laws-alcohol
Oh, my mistake ,that only applies if the drunk person is male.
He didn't have to ascertain her capacity though. For a defence of reasonable belief he had to take "any steps (as A) to ascertain that B consented (to sexual activity)"
You keep on quoting that bit but you omit the equally important part. SOA 2003 (1) says:
"(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."
Having regard to all the circumstances, including...!
'What steps were taken' is only part of the test for reasonable belief. What steps are considered reasonable will tend to vary in each case, depending on what other things happened beforehand, and at the time, and other relevant circumstances.
He didn't have to ascertain her capacity though. For a defence of reasonable belief he had to take "any steps (as A) to ascertain that B consented (to sexual activity)"
Of course he has to taken steps to ascertain her capacity. Consent is dependent on capacity.
With nothing to dispute it, what else is there to go on?
Well, the criminal justice system doesn't just accept something because someone said so!
Demonstrating what reaction? That she said yes? Given that there is no other direct evidence as to what happened in that room, we are only going on the men's statements. Even if Evans had asked directly, he wouldn't have been able to prove this given that there is no video evidence.
BIBl Yes, that's the problem. And if Evans had asked directly, while he wouldn't have had proof it would have helped reasonable belief in consent case, at least showing a clear step he took to ascertain himself consent. That may not be what the law explicitly says, but I think it would have helped his case nonetheless.
If the jury believed what the guys said to be true, I really do not see how they could have believed the woman didn't consent (assuming capacity again)
Yes, and the trouble is
(a. the jury either didn't believe the men where telling the truth or
(b. that the steps the men took where not sufficient enough for Evans to have a reasonable belief in consent.
You keep missing the bit where she asked CE to lick her out.(backed up by CM)
That sounds like reasonable belief to me.
Again, CE and CM either had to provide proof, or at least convince the jury that this did happen. And if it is clear that her capacity to consent is also affected then that effects reasonable belief.
Also using your argument...
What steps did she take to prove reasonable belief that CE consented or had ability to consent.
The jury wasn't measuring that, as she was the victim (or the accused victim) in the case. If it was the reverse way round, then that would be up for measurement.
Oh, my mistake ,that only applies if the drunk person is male.
Of course he has to taken steps to ascertain her capacity. Consent is dependent on capacity.
He doesn't, because there is no gauge to ascertain capacity. This is the issue, the jury are asked to gauge what "capacity" is, and they have no idea of what it is either, they just end up making a subjective judgment.
If the girl was deemed not fit enough to consent to either men, which it would seem is the case due to both men being charged, then the case moves to reasonable belief. This seems to have been found for McDonald, but the jury found against Evans. He was required to demonstrate "any steps A took to ascertain the consent of B* " *to sexual activity
He is not asked to demonstrate "any steps A took to ascertain the capacity to consent of B"
The scenario I put forward was to highlight that I didn't need to be asked by Jane to consent to Jane.
But in a situation like the one in which Evans found himself, given the manner of his arrival and "having regard to all the circumstances", I suggest that a reasonable person would have done more than Evans did in order to ascertain consent.
And I pointed out that you do. You need to get Jane's consent and she needs to get yours.
What either of you said to other people is irrelevant.
But Jane can reasonably assume my consent because I understood what Alison asked of me and I responded in the positive. Jane doesn't have to ask me directly.
Which is subjective and questionable and why you have to get consent for yourself.
If you're in hospital and you consent to a doctor to do x procedure and he asks you if you're ok with another doctor doing y procedure - you would have to consent to each doctor and each procedure. Doctor y can't say 'oh well doctor x said she consented to my doing y'.
I don't see why you're bringing up two procedures. If we're comparing to the case a more accurate analogy would be just the one procedure.
But if I was in hospital and doctor x was preforming a procedure on me and he asks me, with doctor y standing next to him, if I'm happy for doctor y to continue with the procedure, which i agreed to, I would be perfectly happy that i had consented to doctor y doing the procedure.
He doesn't, because there is no gauge to ascertain capacity. This is the issue, the jury are asked to gauge what "capacity" is, and they have no idea of what it is either, they just end up making a subjective judgment.
If the girl was deemed not fit enough to consent to either men, which it would seem is the case due to both men being charged, then the case moves to reasonable belief. This seems to have been found for McDonald, but the jury found against Evans. He was required to demonstrate "any steps A took to ascertain the consent of B* " *to sexual activity
He is not asked to demonstrate "any steps A took to ascertain the capacity to consent of B"
Its both. As PP said, to ascertain consent he has to ascertain capacity.
Indeed, Christa. As I said before, consent is dependent on capacity; if you have no capacity to consent then you cannot consent. The whole idea of reasonable belief is attempting to ascertain consent, and ergo a part of consent is capacity.
There is no specific 'gague' to assess what levels of alcohol should be drunk before capacity is no longer available; that doesn't meant that alcohol, and drug levels aren't a part of the law in regards to assessing capacity. By and large, ascertaining capacity is dependent on the individual case.
Its both. As PP said, to ascertain consent he has to ascertain capacity.
He doesn't, there is no wording in the law that requires it, and no-one can ascertain "capacity" because it is a subjective test. This is one of the arguments in this case, that "capacity" is such a subjective and immeasurable concept. The test is "reasonable belief".
The judge couldn't even give a measurement of it when sending the jury out, he gave a set of things for them to think about ie "In a state of dim and drunken awareness you may, or may not, be in a condition to make choices. Was she in a condition in which she was capable of making any choice one way or another?"
The law on reasonable belief asks a person to demonstrate "any steps A has taken to ascertain consent"
Comments
If you go upstairs, and get direct implied consent from Jane, then yes. The trouble with Evans' case, which would have help him regarding reasonable belief is that he did not seek direct, but indirect forms of consent, through others. That effects his ability to claim a reasonable belief.
Well yeah. It comes down to a he said she said (sort of!) and unfortunately in those situations you generally have to give the accused the benefit of the doubt or you could end up convicting a lot of innocent people.
But if we believe the men's statements then Evans had consent.
If you feel there's enough evidence to prove they were lying then fair enough, he may not have had consent. I don't think there is.
He has to get consent for himself, he can't rely on something that was said to his mate. Hypothetically, for example, the girl may not have heard or understood what McD was asking her.'My mate said' is not adequate.
If you get it on with Jane the relevant consent in that scenario is when you go into the bedroom and she consents to sexual activity. Anything that has been said prior to that, whoever it is said to, is not relevant.
If you hear a woman being asked if she is happy to have sex with you and she says yes, how on earth would it be unreasonable to believe she wanted to have sex with you? (again, this is assuming capacity to consent)
This is why I added the caveat that the question has to be understood.
I'm glad you added the second paragraph, because I agree that the peripheral circumstances are irrelevant, only the core activity in the bedroom and the consent given therefore is relevant.
This is why I have argued (in my capacity for utter nonsense) throughout the thread that the circumstances of Evans' arrival and departure are, to my mind, also irrelevant, even though they have been used to paint a picture of far more "sinister" behaviour than what I believe it would have been.
Hypothetically, if he had asked the girl himself she may have not heard. What would there be not to understand about 'Can my mate join in'?
I thought Idlewilde was asking if he has consented, not if Jane has consented.
He didn't have to ascertain her capacity though. For a defence of reasonable belief he had to take "any steps (as A) to ascertain that B consented (to sexual activity)"
With nothing to dispute it, what else is there to go on?
Demonstrating what reaction? That she said yes? Given that there is no other direct evidence as to what happened in that room, we are only going on the men's statements. Even if Evans had asked directly, he wouldn't have been able to prove this given that there is no video evidence.
If the jury believed what the guys said to be true, I really do not see how they could have believed the woman didn't consent (assuming capacity again)
Which is subjective and questionable and why you have to get consent for yourself.
If you're in hospital and you consent to a doctor to do x procedure and he asks you if you're ok with another doctor doing y procedure - you would have to consent to each doctor and each procedure. Doctor y can't say 'oh well doctor x said she consented to my doing y'.
You keep missing the bit where she asked CE to lick her out.(backed up by CM)
That sounds like reasonable belief to me.
Also using your argument...
What steps did she take to prove reasonable belief that CE consented or had ability to consent.
Oh, but she was drunk when she demanded he lick her out, you say...
But...
"Drunken men who demand sex from their wives or girlfriends should be treated as rapists and no longer allowed to claim their judgment was blurred by alcohol, according to the head of the government's review of the rape laws.".....
""Being drunk is voluntary and people who become drunk are responsible for their actions. It is not the alcohol that commits the rape. It is not an excuse. It used to be regarded as such, but it is not an excuse . It is an aggravating factor."
http://www.theguardian.com/society/2009/dec/14/stern-review-rape-laws-alcohol
Oh, my mistake ,that only applies if the drunk person is male.
You keep on quoting that bit but you omit the equally important part. SOA 2003 (1) says:
"(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."
Having regard to all the circumstances, including...!
'What steps were taken' is only part of the test for reasonable belief. What steps are considered reasonable will tend to vary in each case, depending on what other things happened beforehand, and at the time, and other relevant circumstances.
(a. the jury either didn't believe the men where telling the truth or
(b. that the steps the men took where not sufficient enough for Evans to have a reasonable belief in consent.
Personally, I think the latter is more likely.
When people are really drunk they don't necessarily process what you say to them, hence the laws around consent.
They both consent to each other.
The scenario I put forward was to highlight that I didn't need to be asked by Jane to consent to Jane.
And I pointed out that you do. You need to get Jane's consent and she needs to get yours.
What either of you said to other people is irrelevant.
He doesn't, because there is no gauge to ascertain capacity. This is the issue, the jury are asked to gauge what "capacity" is, and they have no idea of what it is either, they just end up making a subjective judgment.
If the girl was deemed not fit enough to consent to either men, which it would seem is the case due to both men being charged, then the case moves to reasonable belief. This seems to have been found for McDonald, but the jury found against Evans. He was required to demonstrate "any steps A took to ascertain the consent of B* " *to sexual activity
He is not asked to demonstrate "any steps A took to ascertain the capacity to consent of B"
Its both. As PP said, to ascertain consent he has to ascertain capacity.
But in a situation like the one in which Evans found himself, given the manner of his arrival and "having regard to all the circumstances", I suggest that a reasonable person would have done more than Evans did in order to ascertain consent.
But Jane can reasonably assume my consent because I understood what Alison asked of me and I responded in the positive. Jane doesn't have to ask me directly.
I don't see why you're bringing up two procedures. If we're comparing to the case a more accurate analogy would be just the one procedure.
But if I was in hospital and doctor x was preforming a procedure on me and he asks me, with doctor y standing next to him, if I'm happy for doctor y to continue with the procedure, which i agreed to, I would be perfectly happy that i had consented to doctor y doing the procedure.
There is no specific 'gague' to assess what levels of alcohol should be drunk before capacity is no longer available; that doesn't meant that alcohol, and drug levels aren't a part of the law in regards to assessing capacity. By and large, ascertaining capacity is dependent on the individual case.
He doesn't, there is no wording in the law that requires it, and no-one can ascertain "capacity" because it is a subjective test. This is one of the arguments in this case, that "capacity" is such a subjective and immeasurable concept. The test is "reasonable belief".
The judge couldn't even give a measurement of it when sending the jury out, he gave a set of things for them to think about ie "In a state of dim and drunken awareness you may, or may not, be in a condition to make choices. Was she in a condition in which she was capable of making any choice one way or another?"
The law on reasonable belief asks a person to demonstrate "any steps A has taken to ascertain consent"