No one seems, in their rush to condemn Dawkins as a sexist misogynist dinosaur that damages the atheist movement, to actually see what the law states regarding evidence of rape when alcohol has been consumed. Nor that about 40% of rape cases brought by the Crown and Prosecution Service end in no conviction. I am going to try and deal with all of this. Bear with me.
That was the basis of Dawkins’ discussion on twitter, and the high profile rebukes I saw made no attempt to discuss how this applies under law in the UK. If any lawyer followers have any additional input, or clarifications please feel free to comment on this post or via twitter so I may include.
An appeal court judgment in 2007 in the UK attempted to clarify rape law regarding alcohol consumption:
Sir Igor Judge, Lady Justice Hallett and Mrs Justice Gloster said the appeal had required them to “address the effect of voluntary heavy alcohol consumption as it applies to the law of rape”.
In making the ruling, Sir Igor said: “If, through drink – or for any other reason – the complainant has temporarily lost her capacity to choose whether to have intercourse on the relevant occasion, she is not consenting, and subject to questions about the defendant’s state of mind, if the intercourse takes place, this would be rape.
“However, where the complainant has voluntarily consumed even substantial quantities of alcohol, but nevertheless remains capable of choosing whether or not to have intercourse, and in drink agrees to do so this would not be rape.”
He added that the “capacity to consent may evaporate well before a complainant becomes unconscious”. [BBC News]
The ruling was based on the Sexual Offences Act 2003 (which when Dawkins previously talked about mild rape and mild pedophilia I referred to here).
It states in section 75 that I linked to above (emphasis my own on points Dawkins making on twitter):
75 Evidential presumptions about consent
(1)If in proceedings for an offence to which this section applies it is proved—
(a)that the defendant did the relevant act,
(b)that any of the circumstances specified in subsection (2) existed, and
(c)that the defendant knew that those circumstances existed,the complainant is to be taken not to have consented to the relevant act unless sufficient evidence is adduced to raise an issue as to whether he consented, and the defendant is to be taken not to have reasonably believed that the complainant consented unless sufficient evidence is adduced to raise an issue as to whether he reasonably believed it.
(2)The circumstances are that—
(a)any person was, at the time of the relevant act or immediately before it began, using violence against the complainant or causing the complainant to fear that immediate violence would be used against him;
(b)any person was, at the time of the relevant act or immediately before it began, causing the complainant to fear that violence was being used, or that immediate violence would be used, against another person;
(c)the complainant was, and the defendant was not, unlawfully detained at the time of the relevant act;
(d)the complainant was asleep or otherwise unconscious at the time of the relevant act;
(e)because of the complainant’s physical disability, the complainant would not have been able at the time of the relevant act to communicate to the defendant whether the complainant consented;
(f)any person had administered to or caused to be taken by the complainant, without the complainant’s consent, a substance which, having regard to when it was administered or taken, was capable of causing or enabling the complainant to be stupefied or overpowered at the time of the relevant act.
(3)In subsection (2)(a) and (b), the reference to the time immediately before the relevant act began is, in the case of an act which is one of a continuous series of sexual activities, a reference to the time immediately before the first sexual activity began.
The law stands that a person can be drunk but still voluntarily give consent, but where that capacity has been lost to consent due to a state of inebriation it would be rape. A court on the basis of evidence would attempt to clarify what happened.
Going back to the BBC news coverage of the Court of Appeal case in 2007:
It is the first time the Court of Appeal has looked at the issue since a legal definition of consent in rape cases was established by the Sexual Offences Act 2003.
The law says a person consents to sex if they agree by choice and have the freedom and capacity to make that choice.
Mr Bree had denied raping the woman, who cannot be named for legal reasons, but was convicted by a jury at Bournemouth Crown Court and jailed for five years last year.
The student said she had not consented to sex after they had been out in Bournemouth drinking vodka and Red Bull and cider.
The quashing of his conviction related to “deficiencies” in the trial judge’s summing up, and Mr Bree was freed from prison on 13 March.
The issue here is whether the complainant lacked capacity to consent to a sexual act – the tweet by Dawkins does not address that, but rather recollection. Other evidence might exist but Dawkins is dismissing that being the case. In the jargon, evidential presumption of consent cannot be proved a negative.
If it can be proved that alcohol had nullified her capacity to consent, but the defendant went against this, it would be rape. That would be crucial evidence in Dawkins hypothetical case for the prosecution and defence to examine. Especially Crown Prosecution in bringing the case to trial.
This is twitter, and lacks space, so what did Dawkins say regarding evidence?
It would be rather uncharitable to state Dawkins means here if you are unconscious and raped you cannot bring about an accusation. Again, this is twitter.
To see how ridiculous that interpretation, it would be like saying you cannot accuse someone of murder unless the corpse has a recollection. The point is evidence existing for a trial to be brought against someone.
To the charge that Dawkins is insensitive about rape:
You only have to think of recent rape victims of ISIS jumping to their deaths rather than living, to see the horrendous attitudes to rape victims that have to be overcome in the world.
There have been accusations made against prominent people in the atheist movement of using their status to sleep with women. No prosecutions, but versions of events have played out in the blogosphere. Writers and bloggers, rather than prosecution and defense experts, have poured over testimony as amateur sleuths to make pronouncements.
I can only add that yes, I have seen celebrity status used in the hope of one night stands at conferences with female volunteers (not Dawkins but lips sealed as to who unless she makes public). It happens. This attitude to women needs challenging across many civil movements. Women are not there to provide sexual entertainment. They are delegates and advocates in their own right. More of them need to be given a platform to speak on atheist and secular issues.
In a rationalist community sex should be something dealt with by grown ups in social intercourse. Ideas of written consent forms, or fears that lots of men are being maliciously prosecuted are misplaced (see the graph by the Enliven Project here). A gentlemen does not ask a woman he has just met in an elevator for coffee in his hotel room at 4am. He knows which way that might be taken, whatever he says to mitigate. It is creepy, scary and not on. Neither would he ensure that a woman drinks more than himself in an attempt to make her more suggestible. Especially if he knows it would be a big “No” sober.
Was Dawkins weighing in on this last accusation doing the rounds for sometime, or perhaps wanted to discuss based on Cee Lo Green ‘People who have really been raped REMEMBER!!!’ series of deleted tweets this month?
Yes when I read one of Dawkins tweets I hit the roof. What on earth was he getting at? So after I peeled myself from the ceiling realizing what a field day this will be for Dawkins’ opponents, I read his tweets.
The tweet that seems to have set off this latest episode:
A reply made Dawkins continue:
It was a discussion and Dawkins was looking to be challenged. Regarding his do not accuse if you have no recollection tweet, came this point:
This though was the kicker for me from Dawkins:
Until you see how he clarifies:
The issue of capacity to consent when intoxicated:
Now I can take any one of Dawkins’ tweets to say how horrible and disgusting his attitude is. When you go back through the timeline, it is a discussion on rape and alcohol. It would be wrong to take one tweet on its own then flesh out without reference to the others.
The Real World
The huge problem with such a conversation is it ends up being weighted against women imbibing rather than men raping. Their credibility as a witness means rapists may well get away with it.
On this subject do read this post:
I have one very clear memory that still haunts me two years later. I remember waking up during the night and seeing him on top of me, my trousers around my ankles and my shirt still on. I pulled away and heard him mutter “Oh no, it fell out” to himself, at which point I blacked out again. I assume he continued to rape me.
I told very few people at the time, but a friend came with me to the police station. The receptionist, on learning I was reporting a sex offence, insisted on me giving details in front of everybody in the waiting room before taking me somewhere private. Two officers then came to my house, where I was questioned further. One described rape as “just something that happens”, especially at university. The only advice I received was to drink less in future.
Appalling attitudes exist. A woman that has been drinking is considered to have been asking for it. Just as if she was not covered up. Dawkins was trying to discuss all this. On twitter how evidence and credibility is used in court. The idea that he wants rapists to get away with it or blames women for being raped is wrong. How the real world works, how court cases examine evidence, are valid points of discussion.
Yet it has been twisted into Dawkins saying “What if she is lying?” which he never said. Also “For good measure, Dawkins argued that rape victims shouldn’t be considered trustworthy if they were drinking.” when Dawkins was discussing how court of laws operate in a hypothetical case in the real world when no other evidence existed but testimony.
There will be plenty of things to disagree with Dawkins on. He discusses some things and I want to have a go at him because I think he is wrong, or I can see how it will play out in the public sphere. What really needs discussing is how we reduce incidences of rape and ensure rapists are convicted. When rape convictions are at around 60% we need a public discourse whether the law is being correctly applied, if it needs changing, and that women who are raped have the confidence to come forward.
Dawkins tried to have a conversation about that. It has been turned instead to condemnation over things he was not saying. Still, people will not often follow links, and if one tweet is presented not look to see if it has a context that explains it differently from isolation.
As to demands that we denounce Dawkins, as if atheists could be put on a Salem court trial to pass a test whether we dance with the devil, my answer is this. When he is right I will stand with him. When he is wrong I will say so. No one is my leader in atheism. Do not try to make my views less by associating my none belief with other people.
I once thought it would be good for Dawkins to talk beyond religion, secularism and science.
I bet even he is beginning to wonder if it is worth the aggro.
Article written by John Sargeant on Homo economicus’ Weblog
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