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.
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.
Personally, I think the latter is more likely.
I just don't understand how the jury could believe what the men said to be true but believe it unreasonable Evans thought he had consent. He heard her respond to the question of whether he could have sex with her with a yes and then heard her ask for oral sex!
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.
Ascertain consent! Not ascertain capacity! The question is
"How were you certain she consented to sexual activity?"
not
"How were you certain she was able to consent to sexual activity?"
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"
Sexual offences Act 2003
Section 74
Consent:
"a person consents if he agrees by choice, and has the freedom and capacity to make that choice"
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.
If neither party says anything on entering the room and just start having sex, do either of them have consent? Have they just raped/sexually assaulted each other?
If neither party says anything on entering the room and just start having sex, do either of them have consent? Have they just raped/sexually assaulted each other?
Evidence that consent was sought would not be available in probably upwards of 95% of sexual encounters that people have with each other every day all over the country. It's why not only having that as a consideration in law is a nonsense the fact that the burden of proof is on the accused to provide it also seems to go against the very principle of innocent until proved guilty.
Part of me worries if it also doesn't contravene Art. 8 of the ECHR, which guarantees a right to a private life as the test applied implies that there has to be an element of public/wider awareness of what's happening. In this case McDonald was found not guilty because he was seen with her in public. Evans wasn't but the need in this case to effectively publicise the relationship would perhaps seem at odds with that article.
"a person consents if he agrees by choice, and has the freedom and capacity to make that choice"
Why are you quoting this when it is irrelevant to the point being made on reasonable belief as a defence?
I know what the law states in the Sexual Offences Act about capacity, the point was that where a person is thought not to have capacity, the accused may have a defence of reasonable belief of consent and as part of that is required to demonstrate steps taken to ascertain consent.
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"
There's no wording because ascertaining consent involves the capacity to consent. And of course you can ascertain capacity. If someone is comatose its' fairly obvious for example, that you can assess their capacity to consent does not exist. Just because something is subjective, not objective does not mean you cannot do it.
And capacity, in the law in general is subjective and dependent upon the case in question. That's not just an argument in this case; but against the law in general. The test is both capacity and reasonable belief; as the law outlines. The judge couldn't 'even give a measurement of' it because the law doesn't; capacity is considered something which cannot be quantified into this universal thing which can be applied across the board, and I agree with the law on this. There are too many variables in each case, to quantify capacity in the way, many seem to want to happen.
You keep on mentioning that quote, but again consent includes capacity; that is the point. So, by the sheer mention of consent in that quote, ascertain of capacity is brought up anyway.
I heard about this change - and factor in my autism - I am now COMPLETELY confused.
Suppose someday I wanted to experience nourishing sex... how am I supposed to prove after the fact that it was wanted, and not be at the mercy of a woman's whim?
How do I obtain independently valid proof of consent?
Determining capacity to consent isn't obligated upon the man, it's something that has to be concluded after the event. The accused has to substantiate that he reasonably believe he had consent.
The two are very different things. One is something that is a factual determination,the other is what is an honest held belief. Unless it becomes mandatory for men to carry around blood alcohol testing kits, this won't change.
If someone is found to have technically been unable to consent but it's found the man had reasonable causeto believe she could, the fact she couldn't doesn't make it rape.
Determining capacity to consent isn't obligated upon the man, it's something that has to be concluded after the event. The accused has to substantiate that he reasonably believe he had consent.
The two are very different things. One is something that is a factual determination,the other is what is an honest held belief. Unless it becomes mandatory for men to carry around blood alcohol testing kits, this won't change.
If someone is found to have technically been unable to consent but it's found the man had reasonable causeto believe she could, the fact she couldn't doesn't make it rape.
Yes, we know that. It's why McDonald was found 'not guilty'.
Why are you quoting this when it is irrelevant to he point being made on reasonable belief as a defence?
You said:
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".
Sexual Offences Act 2003
1 Rape
(1) A person (A) commits an offence if—
(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,
(b) B does not consent to the penetration, and
(c) A does not reasonably believe that B consents.
(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.
Consent is defined as per Section 74
"a person consents if he agrees by choice, and has the freedom and capacity to make that choice"
In summary, to gain consent, you have ascertain whether B consents with regard to all the circumstances, and that B has the freedom and capacity to give consent.
There's no wording because ascertaining consent involves the capacity to consent. And of course you can ascertain capacity. If someone is comatose its' fairly obvious for example, that you can assess their capacity to consent does not exist. Just because something is subjective, not objective does not mean you cannot do it.
The reasonable belief element comes into play when it has already been decided by a jury that the capacity to consent was not present and it thus forms a defence along those lines. The jury decides on capacity, and then the defendant is tested to see whether he had reasonable belief of consent.
The reasonable belief element comes into play when it has already been decided by a jury that the capacity to consent was not present and it thus forms a defence along those lines. The jury decides on capacity, and then the defendant is tested to see whether he had reasonable belief of consent.
Hmmm... [edit edit!] Christa has answered that one, but you haven't responded to my earlier post (#4322) so here it is again:
In a situation like the one in which Evans found himself, given the manner of his arrival and "having regard to all the circumstances" [SOA 2003], I suggest that a reasonable person would have done more than Evans did in order to ascertain consent.
The reasonable belief element comes into play when it has already been decided by a jury that the capacity to consent was not present and it thus forms a defence along those lines. The jury decides on capacity, and then the defendant is tested to see whether he had reasonable belief of consent.
No it doesn't, reasonable belief as a defence applies to all rape cases, including those in which the complainant had the capacity to consent.
(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,
(b) B does not consent to the penetration, and
(c) A does not reasonably believe that B consents.
(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.
Consent is defined as per Section 74
"a person consents if he agrees by choice, and has the freedom and capacity to make that choice"
In summary, to gain consent, you have ascertain whether B consents with regard to all the circumstances, and that B has the freedom and capacity to give consent.
Where does it say there that A must ascertain the capacity to consent of B?
The law requires the BIB which is what I said, it is a reasonable belief including the steps A has taken to ascertain whether B consents, not whether B is able to consent.
The ability or capacity to consent is the subjective decision of the jury, and if they decide in the negative, they then look to see if A has a defence of reasonable belief in the consent of B.
A is not required to be certain that B has the ability to consent.
A has to show a reasonable belief in his certainty that B was consenting, because it has already been decided that B hadn't the capacity.
The reasonable belief element comes into play when it has already been decided by a jury that the capacity to consent was not present and it thus forms a defence along those lines. The jury decides on capacity, and then the defendant is tested to see whether he had reasonable belief of consent.
That reasonable belief comes into play after capacity to consent is concluded to be not present doesn't alter that the reasonable belief of the ascertain of consent involves capacity. As has been mentioned previously in this thread, that consent, as defined by the law in the Sexual Offences Act 2003, includes the issue of capacity to consent. Ergo, even if capacity to consent is concluding as not existing, A as part of ascertaining consent, has to ascertain B's capacity to consent; even if that conclusion is wrong, it is still important in the element of reasonable belief, that it is illustrated that steps were taken to ensure that B could reasonably believe capacity to consent existed.
In summary, to gain consent, you have ascertain whether B consents with regard to all the circumstances, and that B has the freedom and capacity to give consent.
No you do not. The defence does not have to prove the defendant made sure of two things, both ability to consent and consent. It is the prosecution that has to prove beyond reasonable doubt two things.
For a rape conviction the prosecution has to pass two hurdles.
First Hurdle: That B was beyond reasonable doubt incapable of consent or that B beyond reasonable doubt did not consent.
Second Hurdle: That a person in A's position could not have reasonably believed B consented.
If there is any doubt it goes in the defendants favor.
Hmmm... [edit edit!] Christa has answered that one, but you haven't responded to my earlier post (#4322) so here it is again:
In a situation like the one in which Evans found himself, given the manner of his arrival and "having regard to all the circumstances" [SOA 2003], I suggest that a reasonable person would have done more than Evans did in order to ascertain consent.
She asked him to perform oral sex on her, what else was there to ascertain?
Should he have asked her to stand on one leg and recite the alphabet backwards?
She asked him to perform oral sex on her, what else was there to ascertain?
Should he have asked her to stand on one leg and recite the alphabet backwards?
Well oral sex isn't sexual intercourse, and a Jury has the benefit of seeing and hearing all the witnesses and evidence presented, so is able to judge whether or not to believe what they claim. Unlike you or anyone else outside the Jury room.
Where does it say there that A must ascertain the capacity to consent of B?
The law requires the BIB which is what I said, it is a reasonable belief including the steps A has taken to ascertain whether B consents, not whether B is able to consent.
Consent is defined as agreeing to something by choice and having the freedom and capacity to make that choice.
For your belief in consent to have been reasonable B has to have consented and have had the capacity to consent.
If someone does not have the capacity to consent - they are asleep or unconscious, threatened with violence, physically disabled in a way that makes it impossible for them to indicate non-consent etc (there's a whole list of evidential presumptions about consent) then they have not consented.
If you have had sex with a severely physically handicapped person whom you claim consented, but they did not have the capacity to communicate non-consent, then your claim to reasonable belief in consent will not stand up.
Comments
I just don't understand how the jury could believe what the men said to be true but believe it unreasonable Evans thought he had consent. He heard her respond to the question of whether he could have sex with her with a yes and then heard her ask for oral sex!
Ascertain consent! Not ascertain capacity! The question is
"How were you certain she consented to sexual activity?"
not
"How were you certain she was able to consent to sexual activity?"
Sexual offences Act 2003
Section 74
Consent:
"a person consents if he agrees by choice, and has the freedom and capacity to make that choice"
If neither party says anything on entering the room and just start having sex, do either of them have consent? Have they just raped/sexually assaulted each other?
It would depend on the circumstances.
In the circumstances mentioned by idlewilde
Part of me worries if it also doesn't contravene Art. 8 of the ECHR, which guarantees a right to a private life as the test applied implies that there has to be an element of public/wider awareness of what's happening. In this case McDonald was found not guilty because he was seen with her in public. Evans wasn't but the need in this case to effectively publicise the relationship would perhaps seem at odds with that article.
Why are you quoting this when it is irrelevant to the point being made on reasonable belief as a defence?
I know what the law states in the Sexual Offences Act about capacity, the point was that where a person is thought not to have capacity, the accused may have a defence of reasonable belief of consent and as part of that is required to demonstrate steps taken to ascertain consent.
And capacity, in the law in general is subjective and dependent upon the case in question. That's not just an argument in this case; but against the law in general. The test is both capacity and reasonable belief; as the law outlines. The judge couldn't 'even give a measurement of' it because the law doesn't; capacity is considered something which cannot be quantified into this universal thing which can be applied across the board, and I agree with the law on this. There are too many variables in each case, to quantify capacity in the way, many seem to want to happen.
You keep on mentioning that quote, but again consent includes capacity; that is the point. So, by the sheer mention of consent in that quote, ascertain of capacity is brought up anyway.
Suppose someday I wanted to experience nourishing sex... how am I supposed to prove after the fact that it was wanted, and not be at the mercy of a woman's whim?
How do I obtain independently valid proof of consent?
The two are very different things. One is something that is a factual determination,the other is what is an honest held belief. Unless it becomes mandatory for men to carry around blood alcohol testing kits, this won't change.
If someone is found to have technically been unable to consent but it's found the man had reasonable causeto believe she could, the fact she couldn't doesn't make it rape.
Jeez, it's like Groundhog Day in here.
Sexual Offences Act 2003
1 Rape
(1) A person (A) commits an offence if—
(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,
(b) B does not consent to the penetration, and
(c) A does not reasonably believe that B consents.
(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.
Consent is defined as per Section 74
"a person consents if he agrees by choice, and has the freedom and capacity to make that choice"
In summary, to gain consent, you have ascertain whether B consents with regard to all the circumstances, and that B has the freedom and capacity to give consent.
The reasonable belief element comes into play when it has already been decided by a jury that the capacity to consent was not present and it thus forms a defence along those lines. The jury decides on capacity, and then the defendant is tested to see whether he had reasonable belief of consent.
Hmmm... [edit edit!] Christa has answered that one, but you haven't responded to my earlier post (#4322) so here it is again:
In a situation like the one in which Evans found himself, given the manner of his arrival and "having regard to all the circumstances" [SOA 2003], I suggest that a reasonable person would have done more than Evans did in order to ascertain consent.
No it doesn't, reasonable belief as a defence applies to all rape cases, including those in which the complainant had the capacity to consent.
Where does it say there that A must ascertain the capacity to consent of B?
The law requires the BIB which is what I said, it is a reasonable belief including the steps A has taken to ascertain whether B consents, not whether B is able to consent.
The ability or capacity to consent is the subjective decision of the jury, and if they decide in the negative, they then look to see if A has a defence of reasonable belief in the consent of B.
A is not required to be certain that B has the ability to consent.
A has to show a reasonable belief in his certainty that B was consenting, because it has already been decided that B hadn't the capacity.
Well if he isn't certain in his own mind, he should stop. Right there.
For a rape conviction the prosecution has to pass two hurdles.
First Hurdle: That B was beyond reasonable doubt incapable of consent or that B beyond reasonable doubt did not consent.
Second Hurdle: That a person in A's position could not have reasonably believed B consented.
If there is any doubt it goes in the defendants favor.
She asked him to perform oral sex on her, what else was there to ascertain?
Should he have asked her to stand on one leg and recite the alphabet backwards?
But the law says he has a defence if he has a reasonable belief of consent. It's because it is a subjective element.
The defendant can simply claim "Of course she was capable your honour!"
The answer to that of course must be "We'll be the judge of that my lad!"
Did not reasonably believe. Not "could not have reasonably believed". Not the same.
Well oral sex isn't sexual intercourse, and a Jury has the benefit of seeing and hearing all the witnesses and evidence presented, so is able to judge whether or not to believe what they claim. Unlike you or anyone else outside the Jury room.
Consent is defined as agreeing to something by choice and having the freedom and capacity to make that choice.
For your belief in consent to have been reasonable B has to have consented and have had the capacity to consent.
If someone does not have the capacity to consent - they are asleep or unconscious, threatened with violence, physically disabled in a way that makes it impossible for them to indicate non-consent etc (there's a whole list of evidential presumptions about consent) then they have not consented.
If you have had sex with a severely physically handicapped person whom you claim consented, but they did not have the capacity to communicate non-consent, then your claim to reasonable belief in consent will not stand up.