Drunken rape

[misanthropic_clown]

Alcohol, rape and diminished capacity: Would the introduction of a specific intent and basic intent distinction in rape cases improve conviction rates?

Just to define a few terms given that the members here come from a variety of places which have laws different to England.

The use of being under the influence of alcohol as a diminished capacity defence is not widely accepted as being drunk is considered to be a voluntary action, which you undertook in the knowledge that you might behave in an inappropriate way. This led to the concept of specific and basic intent crimes as a way to recognise the diminished ability for a drunk person to control their actions, without letting drunkenness become an all encompassing defence

Specific intent crimes are offences that require the prosecution to prove that the defendant intended to commit the crime, or an action which foreseeably led to the crime occurring. Crimes of basic intent are offences that only require the prosecution to prove that the defendant committed a crime. Thus if someone were drunk, they would usually only be convicted of a basic intent crime as opposed to a specific intent crime had they been sober.

With this in mind, being drunk is not a defence to rape cases as rape is considered to be a crime of basic intent – the prosecution only has to prove the rape occurred, not that the rape was committed whilst the defendant was in full control of his or her mental faculties.

Thus at first glance, there can be seen to be no problem as far as conviction rates go. Surely if the rape charge is all encompassing, there should be no need to change things around? I suggest otherwise. Not strictly from a legal standpoint, but from a jury standpoint.

Distinguishing between types of rape may be key in helping clarify to a jury what exactly constitutes a rape. Whilst being drunk is not considered a valid legal defence, to a jury it must surely confuse the matter when considering the crime if they have preconceptions of rape only being rape if committed in a sober and predatory fashion. If these notions were separated out, I imagine it would help prevent jury confusion.

Let’s use murder as a model. You have a wide ranging set of offences that essentially say the defendant killed a person with varying levels of seriousness depending on the circumstances. First degree murder is a specific intent charge as it implies premeditation. Perhaps having something like first degree rape would help distinguish between violent predatory rapists and people who make a drunken mistake, not only legally but also in the eyes of jurors who are evidently confused if reported conviction rates are anything to go by.

Discuss!

 

[sandandfoam]

distinguish between violent predatory rapists and people who make a drunken mistake

I don't think there's any need to seperate the two. I think what's important is the victim, if the rapist raped by 'mistake' or on-purpose - he's still a rapist.
I think the law as ( outlined above) it stands is coming at the crime correctly - being drunk is no defence.
If juries need education regarding the law then it should be provided. Changing the law would be a mistake. Imagine society saying to a rape victim, "actually the rape you endured was less serious than other rapes because the poor divil that did it was drunk" - That would be insane, and wrong.

 

[misanthropic_clown]

Imagine society saying to a rape victim, "actually the rape you endured was less serious than other rapes because the poor divil that did it was drunk" - That would be insane, and wrong.

Are you implying we consider a predatory rapist and someone who makes a drunken error of judgment equally bad? That would be insane in my view.

 

[sandandfoam]

Are you implying we consider a predatory rapist and someone who makes a drunken error of judgment equally bad? That would be insane in my view.

I'm saying the crime of predatory rape and drunken rape are equally abhorrent. Any artificial distinction between the two would result in injustice to the victim. Rape is rape is rape. Murder is murder. Grading a crime from the perpetrators perspective would be wrong. The rights of victims should be superior to those of the perpetrators of crime.

 

[misanthropic_clown]

I'm saying the crime of predatory rape and drunken rape are equally abhorrent. Any artificial distinction between the two would result in injustice to the victim. Rape is rape is rape. Murder is murder. Grading a crime from the perpetrators perspective would be wrong. The rights of victims should be superior to those of the perpetrators of crime.

So assumably, you are against the entire concept of diminished capacity as a defense to any crime, simply because the victim might be upset that the crime committed against them is less serious than the crime committed against someone else?

I'm sorry to say that I find that notion absurd.

 

[Storm]

I agree with Stephen.

OTOH, if the perpetrator is a one-time offender, and displays remorse, I would expect restraint in sentencing. That, however, is the judge's role, not the jury's.

 

[Storm]

So assumably, you are against the entire concept of diminished capacity as a defense to any crime, simply because the victim might be upset that the crime committed against them is less serious than the crime committed against someone else?

I'm sorry to say that I find that notion absurd.

No means no, and rape is rape.

 

[misanthropic_clown]

I agree with Stephen.

OTOH, if the perpetrator is a one-time offender, and displays remorse, I would expect restraint in sentencing. That, however, is the judge's role, not the jury's.

I agree with the sentiment, but the big problem as far as rape goes is that not enough cases are even getting to the point where the judge considers mitigating or aggravating factors. The jury are throwing them out, and I believe this is because lumping all rape offences together creates confusion that could be alleviated by distinguishing between degrees of intent.

 

[sandandfoam]

I'm sorry to say that I find that notion absurd.

As I find the notion that rape could be a 'drunken mistake'.
Looks like we'll have to agree to differ.

 

[misanthropic_clown]

No means no, and rape is rape.

And taking a life is always as serious as first degree murder?

 

[Storm]

Let's back this up. What would a revised system look like?

 

[McBell]

Alcohol, rape and diminished capacity: Would the introduction of a specific intent and basic intent distinction in rape cases improve conviction rates?

Just to define a few terms given that the members here come from a variety of places which have laws different to England.

The use of being under the influence of alcohol as a diminished capacity defence is not widely accepted as being drunk is considered to be a voluntary action, which you undertook in the knowledge that you might behave in an inappropriate way. This led to the concept of specific and basic intent crimes as a way to recognise the diminished ability for a drunk person to control their actions, without letting drunkenness become an all encompassing defence

Specific intent crimes are offences that require the prosecution to prove that the defendant intended to commit the crime, or an action which foreseeably led to the crime occurring. Crimes of basic intent are offences that only require the prosecution to prove that the defendant committed a crime. Thus if someone were drunk, they would usually only be convicted of a basic intent crime as opposed to a specific intent crime had they been sober.

With this in mind, being drunk is not a defence to rape cases as rape is considered to be a crime of basic intent – the prosecution only has to prove the rape occurred, not that the rape was committed whilst the defendant was in full control of his or her mental faculties.

Thus at first glance, there can be seen to be no problem as far as conviction rates go. Surely if the rape charge is all encompassing, there should be no need to change things around? I suggest otherwise. Not strictly from a legal standpoint, but from a jury standpoint.

Distinguishing between types of rape may be key in helping clarify to a jury what exactly constitutes a rape. Whilst being drunk is not considered a valid legal defence, to a jury it must surely confuse the matter when considering the crime if they have preconceptions of rape only being rape if committed in a sober and predatory fashion. If these notions were separated out, I imagine it would help prevent jury confusion.

Let’s use murder as a model. You have a wide ranging set of offences that essentially say the defendant killed a person with varying levels of seriousness depending on the circumstances. First degree murder is a specific intent charge as it implies premeditation. Perhaps having something like first degree rape would help distinguish between violent predatory rapists and people who make a drunken mistake, not only legally but also in the eyes of jurors who are evidently confused if reported conviction rates are anything to go by.

Discuss!

Under what circumstances can you justify rape?
I cannot think of a single one.

 

[misanthropic_clown]

Under what circumstances can you justify rape?
I cannot think of a single one.

I'm not talking at all about justifying any sort of rape, merely trying to establish that perhaps a system that has a set of charges with a seriousness gradient akin to the system used for other physical crimes such as assault and murder, could assist in greater clarity in the law, tackling jury misconceptions and therefore resulting in a greater number of convictions.

Lets say, for example, Mr X and his short term girlfriend decide to experiment with certain drugs. Under the influence of these drugs, they begin to get intimate. The girlfriend seeks to end this, but because he is out of his head due to said drugs, Mr X continues to have sex with her.

Contrast this with Mr Y stalking a woman, dragging her screaming into an alley before having his way with her.

I'm not saying either of these should be legal, but there should be distinction between the two.

As to how these would flesh out, I imagine it would somewhat pattern akin to howassault/battery/ABH/GBH works for physical attacks.

For Mr Y, he would be taken to the most serious rape charge (lets call it first degree rape) given his act was premeditated and intentional.

For Mr X, he would be given a lesser rape charge given his act was not premeditated, and he lacked the capacity to perform the crime intentionally.

I'm not suggesting anyone get away with it, just that treating all rape incidents as one monolithic block evidently is not working in terms of securing decent conviction rates. Another factor is that if there are different rape charges, a defendant may be more willing to plead guilty if he knows the conviction he carries does not imply he was acting like Mr Y.

 

[kadzbiz]

I abhor drunkeness, so I don't believe in the crime being diminished. Alcohol abuse has got a lot to answer for.

 

[McBell]

I abhor drunkeness, so I don't believe in the crime being diminished. Alcohol abuse has got a lot to answer for.

In MY opinion claiming to be drunk or under the influence of some drug should make the punishment worse, not less.

Whats next, several 'degrees' of drunk driving?

 

[McBell]

I'm not talking at all about justifying any sort of rape, merely trying to establish that perhaps a system that has a set of charges with a seriousness gradient akin to the system used for other physical crimes such as assault and murder, could assist in greater clarity in the law, tackling jury misconceptions and therefore resulting in a greater number of convictions.

Lets say, for example, Mr X and his short term girlfriend decide to experiment with certain drugs. Under the influence of these drugs, they begin to get intimate. The girlfriend seeks to end this, but because he is out of his head due to said drugs, Mr X continues to have sex with her.

Contrast this with Mr Y stalking a woman, dragging her screaming into an alley before having his way with her.

I'm not saying either of these should be legal, but there should be distinction between the two.

As to how these would flesh out, I imagine it would somewhat pattern akin to howassault/battery/ABH/GBH works for physical attacks.

For Mr Y, he would be taken to the most serious rape charge (lets call it first degree rape) given his act was premeditated and intentional.

For Mr X, he would be given a lesser rape charge given his act was not premeditated, and he lacked the capacity to perform the crime intentionally.

I'm not suggesting anyone get away with it, just that treating all rape incidents as one monolithic block evidently is not working in terms of securing decent conviction rates. Another factor is that if there are different rape charges, a defendant may be more willing to plead guilty if he knows the conviction he carries does not imply he was acting like Mr Y.

Except that under your proposed system, Mr. Y claims intoxication, either alcohol or whatever drug of his choice, and then the system says, "So sorry Mr. Y, your being intoxicated means you get the much lesser charge..."

And you justify this by claiming that it might lead to more convictions?

 

[rageoftyrael]

You know, i've noticed something, you all act like he wants people to get away with rape. He doesn't. He has clearly stated that his theory is based towards getting more rapists in jail, not less. He's not defending them.

Of course, i do believe in varying degrees of rape. Not in a general sense, but in a more extraneous sense. Also, to address atotalstrangers comment that mr y can claim intoxication to alleviate his sentence. One, he's in court, he's got to prove that is the case, two, there is STILL a difference because intoxicated or not, he chose to grab a random chick and rape her.

Based on misanthropicclown's theory, this would probably be another level, higher than mr x's. Of course, in an intelligent law system, this one would be hard to get, because it would be pretty hard to prove, also, the punishment would almost certainly have to be very little difference between the two.

Heck, i would take it to a whole new level and make a rape that is allowable.(i dont condone rape, but this makes a warped kind of sense). Here is an example, if you are having sex with a chick(intoxicated or not) and you are like three thrusts away from orgasm, the chick suddenly decides she will have none of this. Now TECHNICALLY, if you dont stop right then,and pull out immediately you have committed rape. But then again, women always say that men think more with their penises than with their heads. The idea being, that even if you were completely sober, you aren't in your right mind exactly at the moment, just before ejaculation. In fact, you aren't even in your right mind when aroused! Basically, our inhibitions are lowered when we are aroused. I'm not condoning rape, im just saying that in mr x's situation, it could be understandable, to some degree. Hence, different levels of rape!

Don't hate me or think im a rapist, just saying my piece.

 

[kadzbiz]

..... just saying my piece.

Say it by all means, but I disagree with you. Taking advantage of women (or men) when they are affected by alcohol or drugs is reprehensible. There is no such thing as different degrees of rape. The act is the same, just the level of assault varies, and this is what can determine your punishment. And as far as men thinking with their penises, that's just dumb and a completely selfish act on the part of the man.

 

[zenzero]

Friends,
Just a question:
Why is it that only women get raped.
Can a man ever prove being RAPED?

Love & rgds

 

[kadzbiz]

Friends,
Just a question:
Why is it that only women get raped.
Can a man ever prove being RAPED?

Love & rgds

If you will see, my friend, I mentioned men as well. Men can definitely get raped, and do.