Absence of consent is rape, and not technical rape, and is not an excuse for victim blaming

By | July 26, 2009

Judge raises ‘technical rape’ problem

A judge in Australia has decided that a rape case has “technical rape” because of a victim blaming mentality where the possibly unconscious victim didn’t consent or reject, and because it took three criminal acts to get to a rejection, somehow this was all the woman’s fault for not rebuffing the attacker sooner.

Suffice to say, this is utterly unacceptable, and a despicable attempt to convert a clear cut assault into something other than a clear cut assault. By the judge no less. Not the defence counsel who is charged with defending at all costs their client’s proclaimed innocence. The juddge who’s supposed to be the embodiment of the law.

.Let’s  start with some background information from the newspaper article.

Some time after attending to her about midnight when she was sick from drinking, Prasad got into bed with his victim, waking her but she made no objection, pretending to be asleep, he said….[description of the attack removed for potential triggering risk]… Justice Crawford said, in the law’s eyes, Prasad did not have consent to do that.

He then had intercourse briefly with her before changing positions to continue having sex with her.

“Once again, the girl made no objection but continued to pretend to be asleep,” Justice Crawford said. [Editorial Note:

Justice Crawford said that legally a person does not consent to an act unless they say or do something to communicate consent.

Shortly after, Prasad rolled her onto her back and got on top of her.

This time, she made it clear that she was not consenting by striking him in the face and saying: “Don’t”.

At no point did the attacker have actual consent. Implicit non-consent and actual non-consent.  Nothing in the attacker’s statements indicated that there was actual consent, given willingly or freely.  So, a very drunk female who had been sufficiently drunk to have recently vomited failed to make any form of consent.  Clear cut?

Yes.  Very clear cut if you’re a decent human. If you’re a rape apologist or believe in the rape culture tenet that the absence of active consent is implied consent, despite having clearly state as a matter of law that you need active consent for consent, you’ll find an excuse.

The reason why she did not object earlier to what he was doing was not explained to the court,” Justice Crawford said. “I find the sentencing task a difficult one because of circumstances that are unusual so far as the issue of consent is concerned….

I don’t find it an unusual issue of consent. I find it it a clear cut. You said “legally a person does not consent to an act unless they say or do something to communicate consent” Absence of consent is not consent. No active consent given to any part of the process, and the final part involved active rejection.   Failure to actively rebuff isn’t active consent. What more do you need here Chief Justice?

To cap it off, the attacker is granted clemency on the grounds that the victim failed to adequately deter the attacker when the victim was demonstrably in a situation of incapacity.

Justice Crawford noted that had the victim objected to the two illegal acts that led to a definite rebuff, that was observed, then the man would not have committed those crimes.”

Given the circumstances, the attacker’s claim that the victim was “pretending to sleep” versus the possibility of the victim actually being passed out and incapable of providing active rejection or consent, the benefit of the doubt should go to the victim.  Namely, the lack of consent is not consent (Note: should you find yourself being bashed with a house brick in your sleep, it’s unlikely prosecution will have to indicate that because you were asleep (or feigning sleep) when the bashing began, you were consenting to being hit with a brick until you complained).

There was another way the man could have avoided those crimes – by not committing them.  He didn’t need to get into the victim’s bed, he didn’t need to attack the victim, and he didn’t need to engage in criminal acts against a semi-conscious person who he was aware was sufficiently intoxicated to the point of vomiting.  He is capable of owning his own actions, and his actions are not the responsibility of the victim.  He made a deliberate set of choices in his behaviour, and should take the consequences of those choices.

The Chief Justice, however, elected to blame the victim for the assaults by pointing to the timing of the rejection. The legal system attacked the victim for not actively stopping the first assault (when it’s the attacker’s word that she was feigning sleep, and not actually unconscious). Rather than putting the responsibility for the attack on the attacker, the Chief Justice decides to blame the victim for failing to assert a sufficiently robust denial.  Despite having stated as a matter of legal opinion that the attacker needed to have secured actual consent audible consent for real consent to exist, and that continuing in the absence of actual consent was an assault.

Despite that, the judge decides that the woman is at fault for the attack continuing to a third round of illegal assault.

You want to know why women don’t want to press rape charges? Because the system is stacked against them.  The judge looked for a mitigating factor to reduce the sentence, and settled on the failure of the victim to deter the attacker rather than focus on the attacker’s ownership of their actions.

Unacceptable judicial failure.