Informed consent?

[denny]

http://www.timesonline.co.uk/article/0,,2-1888035,00.html

I don't like this one at all. Okay, people who get so pissed that they can't remember their own names are obviously putting themselves in a vulnerable condition through their own choice, but then I'm not one to lecture about the perils of substance abuse. Regardless of the state you're in though, consent is still a positive action - saying 'yes' - the lack of a negative action is not the same thing. And informed consent requires the person giving their consent to be in a position to judge the consequences of their decision...

I dunno, she decided to get that hammered, but even so... I think the guy is at best an idiot and at worst a shit for sleeping with her in that state even if she did come on to him, and obviously the potential very clearly exists for it to have been entirely non-consensual. The problem is that there's not really any way to tell (is there?), if she's going to get herself into that much of a state that she can't remember anything about it.

I suppose I can take this as ratification of my personal policy of not sleeping with anybody who seems to be drunk, unless we have a well-established sexual relationship already. The fact remains that this shift in legal policy seems worrying to me... I can see more scope for it going wrong than right.

Comments

[naranek.livejournal.com]

Frankly, I think it's got to be the right answer. Any other decision would be a minefield; one really can't justify a conviction on a criminal offence based on a lack of evidence of innocence, especially when all the evidence is being provided by the unlucky defendant. As it's been reported, I really can't see anything at all here to hang a case on - even on the balance of probabilities; I'm fairly surprised that the crown opted to prosecute - unless the defendant's a very shady character indeed, no sane jury should believe that his behaviour amounts to anything more than deeply unpleasant and/or deeply reckless, and I don't think anyone is really proposing that being stupid and unpleasant should be a serious criminal offence (or are we?).

I presume it was an attempt to see just how far the `reckless as to consent' clause would go, and I'd hope it doesn't go very far at all; it's a bad idea, it's bad law, and it'll lead to bad convictions.

Erm, </rant>. Sorry.

[dennyd.livejournal.com]

no sane jury should believe that his behaviour amounts to anything more than deeply unpleasant and/or deeply reckless, and I don't think anyone is really proposing that being stupid and unpleasant should be a serious criminal offence

I can sometimes see a case for making stupidity a capital crime ;)

[hilarita.livejournal.com]

If you're both drunk, I can see reasonable grounds for throwing it out of court, as the bloke then isn't in a position to know that a girl's consent is only the result of being pissed out of her mind. But in law, consent means 'informed consent', and it is possible to be too drunk to give it. The onus is then on the sober party to ascertain that the drunk party really is able to consent to the acts involved.

[dennyd.livejournal.com]

I guess the problem if it all goes wrong is that you need to not only ascertain it, but be able to legally prove it. Unless you've got a signed Agreement To Copulate* of some kind then it all gets a bit 'your word vs. theirs' at that point.

Interesting point about 'if you're both drunk'. I wonder how often it happens that the girl is drunk, but the guy is completely sober? I would expect there to have been a level of drinking on both sides usually, so that makes it even less likely that the (potential/alleged) offense is prosecutable.


* the Post Office could sell some kind of standard form? :-P

[naranek.livejournal.com]

The trouble with that is that you then get into interesting discussions about people with psychological problems; suppose the guy in question was autistic? Depressed? Traditionally, we've chosen to deal with this in sentencing or by reducing the gravity of the offence (e.g. the distinction between murder and manslaughter on grounds of diminished responsibility).

It's also probably not desirable to rule on the basis of just how drunk (in the recollection of someone else who was also drunk and has a vested interest) someone was or wasn't. If you were on a jury, would you really want to send someone down for five years because the plaintiff reckons that, on balance, whilst pretty pissed, she reckoned he was quite sober?

[blackmetalbaz.livejournal.com]

If someone can actually give me a meanignful potential legal definition of what point of drunkeness it is that someone ceases to be able to give 'informed consent', then this discussion might actually be worth having. Until then, unfortunate as it is, there is no way in the world you could prosecute this guy, and any alteration to the law to try and define 'informed consent' will be meaningless.