If they are all behaving like Evans, then yep agreed. It seems there are quite a lot of people out there who care more about their desire to have sex, then whether making sure someone's consented to having sex with them.
Well this is what is being suggested, that drunk, horny young people are often reckless and somewhat carefree with their behaviour. Nine times out of ten though, it will likely be passed off as simply having had a few too many and getting carried away.
Well quite, but you're moving the goalposts now. The consent element is what tipped this from, what I believe to be, common enough weekend shenanigans, into rape, but you listed everything else that happened and made a judgment against those as well, asking if it goes on. I answered that I believe it does, and so what if it does?
The goalposts have always been consent and capacity to consent.
If the behaviour is consensual, then there's no problem. You can't know how much of it is non-consensual, you're simply speculating.
Given the apparent threshold as demonstrated in this case, I can hazard a guess that quite a majority of it would fall short of being legally consensual.
Well this is what is being suggested, that drunk, horny young people are often reckless and somewhat carefree with their behaviour. Nine times out of ten though, it will likely be passed off as simply having had a few too many and getting carried away.
As long as drunk wild sex is consensual then there's no problem.
You seem very confused about the concept of consent.
But do loads of people text their mate to say 'I've got a bird'? Do loads of people go to a hotel with their mates (including their own brother) to film a random girl having sex with their mate as if it was all a bit of a joke (as if the girl in question was a joke), and then get in there have sex with the girl themselves, even if her capacity to consent is particularly questionable?
The issue of consent involved in all of these things - partner sharing, filming, and so on is brought up in the very first post I made on this issue. So, I don't really see the 'moving goalposts' bit.
The consent element is what tipped this from, what I believe to be, common enough weekend shenanigans, into rape, but you listed everything else that happened and made a judgment against those as well, asking if it goes on. I answered that I believe it does, and so what if it does?
BIB: If people are regularly bypassing consent then that's pretty worrying, as I made clear in my first post.
Given the apparent threshold as demonstrated in this case, I can hazard a guess that quite a majority of it would fall short of being legally consensual.
This is just baseless speculation. Drunk men and women can consent to have sex together individually and in groups.
You haven't really understood this case. And your assertion that the majority of holiday encounters is rape is based on no hard evidence whatsoever. Having worked with rape victims in the past, I think it's nonsense.
The goalposts have always been consent and capacity to consent.
The "goalposts" were referring to the poster's post, not consent or capacity to consent. To summarise, the poster made a list of the facts that occurred and asked whether they were common. When the answer was that they likely are, the poster then made a comment about consent, but that isn't what was originally referred to.
This is just baseless speculation. Drunk men and women can consent to have sex together individually and in groups.
You haven't really understood this case. Your assertion that the majority of holiday encounters is rape is based on no hard evidence whatsoever. Having worked with rape victims in the past, I think it's nonsense.
Given your catalogue of errors in this thread about the facts, I don't think you understand it either to be fair.
Clearly the jury disagrees; and what makes Evans' cases worse, even if we believe she was capable of consent (I don't think I her being in a capable decision making decision say, 1 hour before the Evans situation would mean she was capable of consent then a hour later), is that Evans didn't actually make steps to try and get informed consent. Asking your mate whether it's okay to have sex with the girl, rather than asking the opinion of the actual girl you're going to have sex isn't really informed consent.
If that is what happened then I would agree it was rape.
But according to both men the girl was asked and she said yes.
If that is what happened then I would agree it was rape.
But according to both men the girl was asked and she said yes.
Really? According to what I've heard Evans asked/implied to McDonald, rather than the girl in question that he wanted to have sex with her, and then after that specifically, McDonald then asked the girl if Evans ''could join in.'' In other words, Evans did not ask the girl himself whether he could have sex with her.
Really? According to what I've heard Evans asked/implied to McDonald, rather than the girl in question that he wanted to have sex with her, and then after that specifically, McDonald then asked the girl if Evans ''could join in.'' In other words, Evans did not ask the girl himself whether he could have sex with her.
I don't think consent is, or should have to be, one person specifically asking the other person 'Can I have sex with you?' and the other saying 'Yes'. Consent is receiving a clear sign from the other person that they are agreeing to sex with you. In most cases when sex happens there wouldn't even be a question and answer.
If we are assuming that she had the capacity to consent (as you were in your post) so knew what she was being asked, then if she was asked by anybody if Evans could have sex with her and she clearly said yes, then that is consent.
?? I've corrected your factual errors actually. You don't even seem to know what facts are, your line is wild speculation.
Okay. You've made a good few errors about the case itself throughout the thread, where other posters have had to correct you, but let's leave it there. My "wild speculation" is nothing more than simply pointing out the obvious, that very pissed people end up having sex with each other, and where a subjective view of capacity to consent through alcohol is made, a lot of it would likely not pass the test.
Really? According to what I've heard Evans asked/implied to McDonald, rather than the girl in question that he wanted to have sex with her, and then after that specifically, McDonald then asked the girl if Evans ''could join in.'' In other words, Evans did not ask the girl himself whether he could have sex with her.
But both agreed that she said yes...
.... And further.. actually requested oral sex.
Seems like consent to me, so the only issue is her capacity to consent.
Earlier you said she might have had capacity an hour earlier, but could lose that capacity by the time CE showed up.
Not sure how that works, given that her last drink was about 3 hours earlier.
I don't think consent is, or should have to be, one person specifically asking the other person 'Can I have sex with you?' and the other saying 'Yes'. Consent is receiving a clear sign from the other person that they are agreeing to sex with you. In most cases when sex happens there wouldn't even be a question and answer.
If we are assuming that she had the capacity to consent (as you were in your post) so knew what she was being asked, then if she was asked by anybody if Evans could have sex with her and she clearly said yes, then that is consent.
New laws on rape. Men must prove that a woman said "Yes"
Really? According to what I've heard Evans asked/implied to McDonald, rather than the girl in question that he wanted to have sex with her, and then after that specifically, McDonald then asked the girl if Evans ''could join in.'' In other words, Evans did not ask the girl himself whether he could have sex with her.
This is the error I believe has been made with regard to the following requirement:
"any steps A has taken to ascertain the consent of B"
Does it matter whether Evans was the person to ask as long as the question put to her was understood and responded to positively?
That to me, is thus a step that A can take to ascertain the consent of B. And that is what the law requires.
What I believe is being confused is the idea that A must take steps (himself) to "establish" the consent of B
"Can my mate A join in?"
"Yes of course he can"
Why must A therefore on hearing this not assume he has consent?
I don't think consent is, or should have to be, one person specifically asking the other person 'Can I have sex with you?' and the other saying 'Yes'. Consent is receiving a clear sign from the other person that they are agreeing to sex with you. In most cases when sex happens there wouldn't even be a question and answer.
Usually consent is implied; however in this case there are three people involved. So if Evans was seeking out consent, either spoken or implied, he should have done so towards to the girl himself. The trouble, is that Evans sought out verbal or implied consent through McDonald, not towards the girl himself. That muddies the waters significantly, and thus makes it difficult to conclude that he seeked, and established informed consent. In these cases, the issue of consent is twofold; there is the issue of the capacity to consent, and then the issue of gaining informed consent. My point, was that even if there was a situation where the girl had a capacity to consent, Evans did not seek out a informed verbal, or implied consent from the girl, and in this did not take the steps to ascertain consent.
My point, was that even if there was a situation where the girl had a capacity to consent, Evans did not seek out a informed verbal, or implied consent from the girl, and in this did not take the steps to ascertain consent.
If a girl had capacity to consent, why would you think she would not be making an informed decision to the question put to her of:-
"Can my mate join in?"
The reasonable belief element means he has to ascertain himself that he has consent, not that he himself has to establish it.
Usually consent is implied; however in this case there are three people involved. So if Evans was seeking out consent, either spoken or implied, he should have done so towards to the girl himself. The trouble, is that Evans sought out verbal or implied consent through McDonald, not towards the girl himself. That muddies the waters significantly, and thus makes it difficult to conclude that he seeked, and established informed consent. In these cases, the issue of consent is twofold; there is the issue of the capacity to consent, and then the issue of gaining informed consent. My point, was that even if there was a situation where the girl had a capacity to consent, Evans did not seek out a informed verbal, or implied consent from the girl, and in this did not take the steps to ascertain consent.
I'd have to disagree (even if I'm disagreeing with the new laws!). I still think if it is clear what is being asked of her and she agrees to it that should be enough for consent. Obviously if she doesn't have the capacity to consent or is being coerced unwillingly into consent then it would be invalid.
Also in this case, if we are to believe the men, she then requested oral sex from Evans. Again, if we are assuming capacity to consent, surely this would then swing it that she had consented?
But both agreed that she said yes...
.... And further.. actually requested oral sex.
Seems like consent to me, so the only issue is her capacity to consent.
Yes, but the trouble is it needs to be consent to the law; and again, the issue involves not only capacity to consent but whether Evans sought informed consent. Evans already undermines his own case but not even seeking consent, verbal or implied through the girl in question, but through his mate.
Earlier you said she might have had capacity an hour earlier, but could lose that capacity by the time CE showed up.
Not sure how that works, given that her last drink was about 3 hours earlier.
It was an example point regarding capacity, given you seemed to imply because at certain stages of the night she had a capacity to consent, in all stages she had a capacity consent. I was illustrating why I didn't see this as the case.
This is the error I believe has been made with regard to the following requirement:
"any steps A has taken to ascertain the consent of B"
Does it matter whether Evans was the person to ask as long as the question put to her was understood and responded to positively?[.QUOTE]
In this case, given the victim's capacity, yes, it does. I also believes it helps your case in general if you can prove, or illustrate that you took significant steps to gain consent. One would be asking the person who you want to have sex with yourself.
That to me, is thus a step that A can take to ascertain the consent of B. And that is what the law requires.
What I believe is being confused is the idea that A must take steps (himself) to "establish" the consent of B
"Can my mate A join in?"
"Yes of course he can"
The defendant (A) has the responsibility to ensure that (B) consents to the sexual activity at the time in question. It will be important for the police to ask the offender in interview what steps (s)he took to satisfy him or herself that the complainant consented in order to show his or her state of mind at the time.
BIB: This is why A must take steps to establish the consent of B.
Why must A therefore on hearing this not assume he has consent?
Because A didn't ask/imply to the person they were having sex with regarding the issue of consent. He essentially asked his mate if he could 'join in'; and thus asked his mate if he could have sex with the girl, not the girl herself. That then relies on McDonald seeking consent on behalf of Evans, rather than Evans taking steps to acquire consent himself. That's the problem.
Okay. You've made a good few errors about the case itself throughout the thread, where other posters have had to correct you, but let's leave it there. My "wild speculation" is nothing more than simply pointing out the obvious, that very pissed people end up having sex with each other, and where a subjective view of capacity to consent through alcohol is made, a lot of it would likely not pass the test.
I made one error about McD being a friend of the complainant, based on reports in the Independent which turned out to be incorrect. All there is to go on are media reports of the trial - some of which have turned out to be inaccurate. However, I dug up a whole lot of information that posters on here didn't have.
You have talked utter, unsubstantiated nonsense for the *entire* thread. It's easy to talk shit about this case if you just stick to wild speculation and assumptions with no basis in fact. You made wild claims about the jury based on nothing but your imagination.
Because A didn't ask/imply to the person they were having sex with regarding the issue of consent. He essentially asked his mate if he could 'join in'; and thus asked his mate if he could have sex with the girl, not the girl herself. That then relies on McDonald seeking consent on behalf of Evans, rather than Evans taking steps to acquire consent himself. That's the problem.
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!
Also in this case, if we are to believe the men, she then requested oral sex from Evans. Again, if we are assuming capacity to consent, surely this would then swing it that she had consented?
The trouble is, the men have to illustrate that she really did request oral sex, and that's going to be difficult to do.
If a girl had capacity to consent, why would you think she would not be making an informed decision to the question put to her of:-
"Can my mate join in?"
That's assessing her capacity to consent in general, in contrast to the issue Evans' particular assessment of her capacity to consent; which is a separate issue. What the other issue concentrates on is Evans, and what steps he took to gain informed/reasonable belief that the girl consented. Now in this case, clearly the jury did not feel Evans took steps to (a. make sure her capacity to consent was okay and (b. to make sure she consented. Now, clearly asking your mate to gain consent on your behalf doesn't satisfy the first, and such an indirect form of consent makes it difficult for Evans to argue, that he had a reasonable belief that she'd consented.
The reasonable belief element means he has to ascertain himself that he has consent, not that he himself has to establish it.
Even upon that correction, not ascertaining consent yourself by getting verbal or implied consent directly undermines your case.
Comments
Well this is what is being suggested, that drunk, horny young people are often reckless and somewhat carefree with their behaviour. Nine times out of ten though, it will likely be passed off as simply having had a few too many and getting carried away.
The goalposts have always been consent and capacity to consent.
Given the apparent threshold as demonstrated in this case, I can hazard a guess that quite a majority of it would fall short of being legally consensual.
You seem very confused about the concept of consent.
See my original post: So I'm not critical of drunken sex. The issue of consent involved in all of these things - partner sharing, filming, and so on is brought up in the very first post I made on this issue. So, I don't really see the 'moving goalposts' bit. BIB: If people are regularly bypassing consent then that's pretty worrying, as I made clear in my first post.
This is just baseless speculation. Drunk men and women can consent to have sex together individually and in groups.
You haven't really understood this case. And your assertion that the majority of holiday encounters is rape is based on no hard evidence whatsoever. Having worked with rape victims in the past, I think it's nonsense.
The "goalposts" were referring to the poster's post, not consent or capacity to consent. To summarise, the poster made a list of the facts that occurred and asked whether they were common. When the answer was that they likely are, the poster then made a comment about consent, but that isn't what was originally referred to.
Given your catalogue of errors in this thread about the facts, I don't think you understand it either to be fair.
?? I've corrected your factual errors actually. You don't even seem to know what facts are, your line is wild speculation.
If that is what happened then I would agree it was rape.
But according to both men the girl was asked and she said yes.
I don't think consent is, or should have to be, one person specifically asking the other person 'Can I have sex with you?' and the other saying 'Yes'. Consent is receiving a clear sign from the other person that they are agreeing to sex with you. In most cases when sex happens there wouldn't even be a question and answer.
If we are assuming that she had the capacity to consent (as you were in your post) so knew what she was being asked, then if she was asked by anybody if Evans could have sex with her and she clearly said yes, then that is consent.
Okay. You've made a good few errors about the case itself throughout the thread, where other posters have had to correct you, but let's leave it there. My "wild speculation" is nothing more than simply pointing out the obvious, that very pissed people end up having sex with each other, and where a subjective view of capacity to consent through alcohol is made, a lot of it would likely not pass the test.
But both agreed that she said yes...
.... And further.. actually requested oral sex.
Seems like consent to me, so the only issue is her capacity to consent.
Earlier you said she might have had capacity an hour earlier, but could lose that capacity by the time CE showed up.
Not sure how that works, given that her last drink was about 3 hours earlier.
New laws on rape. Men must prove that a woman said "Yes"
http://www.telegraph.co.uk/news/uknews/law-and-order/11375667/Men-must-prove-a-woman-said-Yes-under-tough-new-rape-rules.html
This is the error I believe has been made with regard to the following requirement:
"any steps A has taken to ascertain the consent of B"
Does it matter whether Evans was the person to ask as long as the question put to her was understood and responded to positively?
That to me, is thus a step that A can take to ascertain the consent of B. And that is what the law requires.
What I believe is being confused is the idea that A must take steps (himself) to "establish" the consent of B
"Can my mate A join in?"
"Yes of course he can"
Why must A therefore on hearing this not assume he has consent?
If a girl had capacity to consent, why would you think she would not be making an informed decision to the question put to her of:-
"Can my mate join in?"
The reasonable belief element means he has to ascertain himself that he has consent, not that he himself has to establish it.
I'd have to disagree (even if I'm disagreeing with the new laws!). I still think if it is clear what is being asked of her and she agrees to it that should be enough for consent. Obviously if she doesn't have the capacity to consent or is being coerced unwillingly into consent then it would be invalid.
Also in this case, if we are to believe the men, she then requested oral sex from Evans. Again, if we are assuming capacity to consent, surely this would then swing it that she had consented?
I made one error about McD being a friend of the complainant, based on reports in the Independent which turned out to be incorrect. All there is to go on are media reports of the trial - some of which have turned out to be inaccurate. However, I dug up a whole lot of information that posters on here didn't have.
You have talked utter, unsubstantiated nonsense for the *entire* thread. It's easy to talk shit about this case if you just stick to wild speculation and assumptions with no basis in fact. You made wild claims about the jury based on nothing but your imagination.
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!
I don't think it does, as long as the question asked is understood and responded to positively.