Philobiblon

After the depressing findings about public attitudes to rape, more bad news: a British judge has thrown out a case on the basis that an alleged victim was too drunk to be able to say definitively that she had not consented.

The prosecution in the rape case had said it could not go on after the woman admitted that she could not remember whether she gave consent or not or whether sex had taken place. The jury at Swansea Crown Court was told: “Drunken consent is still consent.”
The judge agreed, instructing the jury to return a verdict of not guilty “even if you don’t agree”.
The drama student was allegedly raped by another student, who was working as a security guard, while she claimed she was unconscious through drink in a corridor outside her flat in a university’s hall of residence.
She told the jury that she had no recollection of events but insisted that she would not have agreed to sex with the man.

Now I wasn’t sitting in court so I can’t comment on the facts of this particular case, but let’s imagine a hypothetical. A woman is huddled outside her room in a drunken stupor and a security guard, a man with at least a moral duty of care, comes along – on duty, (presumably) stone-cold sober

It is obvious the woman is drunk. And that she can’t, in any meaningful sense of the term consent – she is temporarily mentally disabled. (Were she indeed a sufferer of a permanent mental disability, there would surely be no questions that this is a crime.)

If he has sex with her, is that not rape? Or should, at least, a jury be allowed to decide – based on the full details of the case, the demeanour of the witnesses before them, and their own commonsense.

I would have thought so, and I thought the law indicated so. But it seems it is time to work again to reform the law … or maybe the judges.

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Another time warp – John Kerry, remember him? One of his young speechwriters has set out what he thinks went wrong. The gist is that instead of relying on focus groups, set-up situations and all the tricks of the spin-doctor’s trade, it might be time to pick a good, decent candidate, and let them campaign as their conscience dictates. Interesting thought. Would be nice to think it would work.