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Post by Germany's Top Scorer on Jan 8, 2015 18:06:38 GMT
Goodwin's Law is that every conversation will turn to Chelsea at some point.
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Slim Jim
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Post by Slim Jim on Jan 8, 2015 18:11:17 GMT
CashisYeah, it is a bit backward and technically the prosecution do have to prove that the defendant did not reasonably believe that the complainant was consenting, it just seems to be the case in reality that the burden is more on the defendant to prove that he did reasonably believe they consented. They're also supposed to prove that the claimant didn't consent. The statutory view on consent is that "a person consents if he agrees by choice, and has the freedom and capacity to make that choice." so it's pretty open to interpretation and circumstance. The argument, obviously, is that she didn't have the capacity to make that choice. And the verdict in one of the cases I quoted before was essentially that it's not a black and white issue of conscious vs unconscious. Again, it comes down to the two questions a jury is asked to determine: did the defendant genuinely believe they were consenting? And was that belief a reasonable one? It's hard to pin down because there's no hard and fast "this is rape" "this is not", it's basically subjective. In this case, they must've thought McDonald believed she consented and that was reasonable, and that either Evans didn't genuinely believe she consented or that if he did it wasn't reasonable of him to believe that. I haven't read the full case notes to see exactly what his defense team put forward but it was probably the second one.
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Slim Jim
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Post by Slim Jim on Jan 8, 2015 18:19:13 GMT
The night porter I believe listened outside the room after Evans had gone it (it may have been before I'm not 100%, it's in the notes somewhere) and said he heard enthusiastic sex taking place. Which ties in to what both McDonald and Evans have said about her actively encouraging them, so it's more than just Evans word and Evans word alone that suggests she was consenting. Another thing is, the prosecution tried to find them both guilty using the same argument; she was too drunk and they were both taking advantage (as well as having gone out like predators looking for someone to rape which is how they were first reporting it), and if the prosecutions argument is good enough to find Evans guilty in that the jury believe that she was in no position to consent, I still cannot fathom how they found McDonald innocent. I understand the different circumstances in how they met, how the sexual acts began, but from everything I've read the key prosecution argument was around her level of intoxication and if you're accepting she was too drunk to consent to Evans then surely you're also accepting that she was too drunk to consent to McDonald? Such a minefield this Hearing enthusiastic sex isn't proof that she had the capacity to consent. I would expect the jury made their decision more on direction from the judge than from the prosecution in terms of making a distinction between the two. Again, it isn't whether or not she gave consent. They're saying she didn't have the capacity to give consent, and that seems to have been accepted by the judge/jury. So the question is then, on the basis that she wasn't capable of giving consent and therefore any "yes" wasn't valid so there was no consent, was it REASONABLE for McDonald/Evans to believe she was consenting? The decision from the jury would indicate that they thought the events of meeting, getting a taxi back, getting to the room, etc. over an extended period it was reasonable for McDonald to assume she was consenting but that Evans turning up uninvited by her and having sex with her that it wasn't reasonable to believe she was consenting. So in other words, she hasn't given either of them consent (whether she said yes or not...), but it is reasonable that McDonald believed she was consenting but not reasonable that Evans believed she was consenting. Obviously people are still going to argue about those distinctions but that's the distinction that's been made, I believe.
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Post by The Quito Diet on Jan 8, 2015 18:29:57 GMT
Hearing enthusiastic sex isn't proof that she had the capacity to consent. Surely if she's egging him on though it's reasonable for him to assume she was coherantly consenting? Yeah you've explained it better than I've seen in most other places tbh. But I still don't agree with a different decision for them both, as you say it's about the distinctions. If she has no memory from 3am (an hour before she even met McDonald) and is deemed to be not of capacity to consent, then is she not of capacity to agree to go back to the hotel too?
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Slim Jim
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Post by Slim Jim on Jan 8, 2015 18:38:16 GMT
Her memory of it is irrelevant if the deciding factor is whether it was reasonable for McDonald/Evans to believe she was consenting.
If she didn't have the capacity to give consent then saying yes or being enthusiastic doesn't matter, she didn't give consent. But that doesn't mean it was rape if the jury decide it was reasonable to believe she had given consent.
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Post by The Quito Diet on Jan 8, 2015 18:41:20 GMT
I meant if she's enthusiastic then isn't that going to suggest Evans would have reason to believe she was consenting (even if retrospectively it was decided she wasn't)?
Edit: Yeah as you go on to say I really should read posts twice.
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ic
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Post by ic on Jan 8, 2015 18:44:07 GMT
So if I'm drunk and my missus is drunk and we have sex does that mean that I'm a predator that'll have people protesting on the streets to stop me moving to Oldham?
I was sober and she was fucking mortal at new year there so you'd better lock me up now in case I affect anyone viewing me as a role model
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Slim Jim
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Post by Slim Jim on Jan 8, 2015 18:50:15 GMT
If they didn't think it was reasonable for him to believe that she was consenting then I suppose they must be implying that he should've realised she was too drunk to give valid consent.
McDonald has had from the time they met to getting back to the hotel room for her to make it clear she wants to have sex, and there's clear signs for him to interpret that way (her coming back and not having to be coerced in any way) so that makes it reasonable for him to believe she is consenting.
Evans has turned up to a hotel room with a random girl he's never met before, who is visibly drunk, and immediately had sex with her. It's a momentary decision, and it doesn't seem from any of the details that he cared enough to make sure she was in a position to give that consent, he just fucked her. At no point in that is her consent to either valid but McDonald has more reason to believe she has the capacity to consent. She didn't but there's a clear timeline that McDonald can point to as his reasoning.
All Evans has is a very drunk girl agreeing to sex. That might sound like enough but the courts don't see that as reasonable. He should've taken more steps to assess her capacity to make that choice but he didn't, he just went straight to having sex with her.
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Slim Jim
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Post by Slim Jim on Jan 8, 2015 18:56:46 GMT
So if I'm drunk and my missus is drunk and we have sex does that mean that I'm a predator that'll have people protesting on the streets to stop me moving to Oldham? I was sober and she was fucking mortal at new year there so you'd better lock me up now in case I affect anyone viewing me as a role model The point of the case isn't that drunk people can't have sex. If she was drunk to the point of being unconscious, then by law that's rape. If she doesn't bring a case against you then you've nothing to worry about but technically, it would be rape. If she was still conscious then all the other stuff I've said about consent applies. Basically, if she wasn't in a position to give valid consent, then there was no consent so the question is one of whether it was reasonable for you to believe she was consenting. I'm not sure how that case would go between husband and wife because on the one hand, you would assume she's okay with you having sex with her if you still have an active sex life but on the other as her husband you should probably know her better than anyone so should be more in a position to realise if she's in a position to consent to it. In short, you might have raped your wife but if she isn't going to press charges, you'll come to no bother.
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ic
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Post by ic on Jan 8, 2015 18:59:22 GMT
So if I have sex with someone and then regret it the next day I can say they raped me?
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Post by Maskya Yoshida on Jan 8, 2015 19:01:39 GMT
Stu is a multiple rapist then
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Post by Maskya Yoshida on Jan 8, 2015 19:02:04 GMT
As in the women regrets it.
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Post by Maskya Yoshida on Jan 8, 2015 19:02:19 GMT
Boom boom
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Slim Jim
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Post by Slim Jim on Jan 8, 2015 19:02:45 GMT
Depends. Rape is penetration with a penis, which includes surgically constructed ones but doesn't include dildos.
But just because you CAN say they raped you, doesn't mean anyone would believe you.
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Stu
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Post by Stu on Jan 8, 2015 19:02:52 GMT
At least I've put women in the position to be disappointed the next day!
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