Apparently, "Rape" is not Rape.

[Teh Donut]

Okay...here's a disturbing little case your all of you:

Drunken sex 'technical rape' says judge

A JUDGE has suggested a man who continued to perform sex acts upon a drunken woman after she passed out is only guilty of "technical rape" and not deserving of prison.

District Court Judge David Smith yesterday refused to sentence Matthew James Sloan – who pleaded guilty to one count of rape – as scheduled, saying he was "troubled" by the case.

He questioned the fairness of convicting Sloan for the offence, saying it would "mark him for the rest of his days" as a rapist.

"Rape is a horrible offence . . . I suggest that this is a technical rape," he said yesterday.

"This is not a situation where an offender perpetrated a sex act on an unconscious victim, which she would not have consented to had she been conscious.

"To mark this man with the grave offence of rape for the rest of his days will stop him travelling to some countries and prevent him getting jobs."

Sloan, 29, pleaded guilty to raping a woman in the Adelaide's east parklands in 2008.

During sentencing submissions a fortnight ago, the court heard he met his victim at a pub near the city's east parklands and drank with her while having a conversation.

Laura Finnegan, for Sloan, told the court the woman "willingly" went into the parklands with her client. "After a few minutes they started touching each other sexually," she said.

"The victim took her pants down and Sloan (performed a sex act).

"At some point while that was occurring, Sloan has noticed that the victim has appeared to pass out or fallen asleep – she had been consuming alcohol earlier, he believed she was somewhat intoxicated.

"When she appeared to have fallen asleep or passed out, Sloan continued to (perform the sex act)."

During that same hearing, prosecutor Lucy Boord tendered a statement of agreed facts to the court – a document, signed by prosecution and defence – that outlined the facts of the case. She also formally withdrew the victim's own statement from the court file.

Asked by Judge Smith if that meant the Crown agreed "there was some sexual activity before the victim fell asleep", she said that was the case. She also agreed that sexual activity was as Ms Finnegan had described.

Ms Boord said Sloan's actions were serious enough to warrant an immediate jail term, but conceded it would not be an "error of law" were he to receive a suspended sentence.

Sloan was due to be sentenced at yesterday's hearing. Judge Smith, however, declined to do so.

He said he was concerned the statement of agreed facts did not totally reflect the earlier submissions made by Ms Finnegan. The court heard she has since taken up a position with the Crown.

"I would put this offence at the lower end of the scale because the (sex act) began as a consensual one before the victim passed out and became incapable of consenting," Judge Smith said. "There is an inference that she might have consented (to more sex) had she been awake. The issue I have to resolve is whether I should even impose a suspended sentence here, that's my problem."

He declined to sentence Sloan, saying he needed more time to consider the matter.

"I'm troubled by this," he said.

"I've got you to consider, Mr Sloan, but also the victim and the public's perception."

He remanded Sloan on continuing bail until next week

Original story: Here

So, apparently, what I garner from this is...if you consent to sex with someone, and somehow fall unconscious or asleep (he apparently wasn't that good), then he/she could do whatever he/she liked to you in the course of having sex with you while you were passed out, and even though you were unable to consent to such acts due to being passed out, it's still "technically" okay because they "technically" assume you'd go along with such things because you "technically" agreed to have the initial sex?

I fail to see where "technical" rape is different from "rape" rape. As one person said, "unless they had a very specific conversation about how it was okay for him to f*** her after she passed out, I'm not seeing how what she was willing to do while awake has any bearing on what she was willing to have done to her unconscious body."

But hey, it's Australia. if it's possible to ban alcohol, anything's possible.

[zandyne]

I personally think both parties are idiots and this poor judge who's trying to do his job has to figure out the loopholes in consent and non-consent. I think the problem stems from "should people be held accountable when they're piss-blind drunk"?

Actually how did the case originate? How did she even figure out she was "raped" if she consented for sex, passed out and somehow knew "someone had round two!"

I think this man is being an idiot for what he did, yes what he did was certainly stupid and yes, technically wrong, but he didn't do enough to be the full-fledged, hard-core "I put roofies in your drink har har" or "DARK ALLEY TIME!" The situation he was in could have been dealt with better but somehow he has managed a "grand theft auto" vs "small burglary" scheme in sexual crime.

However this woman is not exempt from her own idiocy, she's old enough to legally get drunk and go off with strange men to indulge in baser activities, consent to her own perverse desires then fall asleep because she couldn't gauge her own alcohol limits and THEN decides to get legal action over it? If she happens to be suing she ought to not get a single cent. If she's pressing the case just to defame him then she's just as petty for wanting money. If she's trying to get some twisted revenge for not enjoying her half-romp or whatever then she is certainly barking up the wrong tree and being dramatic.

I think the best (and most likely coldest) way I can address this is that if you go in for surgery and begin the operation yet you are unconscious for part of it, does that make it "non consensual"? Yes she DID fall asleep however the fact remains that the fine line of where one intercourse ends and begins is wholly up to the contributor. (That and the "following" not being "dragged against her will" does not hold up that sex is NOT what she wanted. 8|)

Also the woman was clearly piss-drunk. The whole thing is a "he said she said" battle, unless they have done the rape-test kit on her and it has shown positive for that particular circumstance she shouldn't be permitted to waste the good court's time just because they were being a pair of horny drunken idiots. **also this is a fine example of why strangers shouldn't bump uglies. ._.

[EJP]

Whoa... didn't know Zandyne was into law... but if Zandyne is into law you need to study more in my opinion. Your "should people be held accountable when they're piss-blind drunk" falls under the category of negligents and negligents is not forgivable or excusable under the law. As for how the woman found out, I'm going to guess there was some "evidence" left behind that she wasn't happy about. As for your last statment, it is wrong in many ways but I shall some up into two words, Human Nature.

Well its Australia law and for all I know you can legally punt babies. That being said, I only know about the laws in the United States of America and only the state laws of California. So while I could comment on this, I can only comment as far as my knowledge of California state law when it comes to the issues of rape.

Warning: The following is a legal definition of rape and may contain language and imagery unsuitable for Children, the immature, the perverse, the ultra religious, and Ninmast (JOKING! As long as Ninmast doesn't follow into any of the other categories already stated).

Rape is legally defined as the penis entering the vagina without consent. For every time the penis enters the vagina (Basically, for every thrust) without consent, it is one count of rape. If a person is unable to give consent at any time, regardless of marital status, it is rape. All other sexual activities not regarding the penis entering the vagina are not rape but can be a crime similar to rape but referred to as rape.

That is what the definition of rape that I was taught. However I feel I should note that it is possible for a woman to rape a man, despite what people with a lesser sexual knowledge think.

In my opinion, the man was at fault even though the woman was drunk off her ass. But like I said, its Australia law which may be different than the law I know and follow.

[Teh Donut]

First of all, it seems rather evident that you've never had to go in for magor surgery before, elsewise you would know that plethora of "consent to treatment" paperwork that must be done, you're agreeing to the goings-on while you're unconscious. You have, in fact, already consented to whatever might transpire while unconscious.

This isn't a case of "he said, she said"; both their versions of events matched, and he even plead guilty to the charges she made. The real issue here isn't about the idiocy of two wasted strangers bumping uglies, how he should what he should/not have done, or how difficult this position is in which the judge finds himself. Really, there's no doubt in anyone's mind that this situation is absolutely ridiculous, but the fact remains that it happens all the time. I don't even care that the guy will get off scot-free.

The real and only issue here is the reason the judge gave for not sentencing the man. Look at it. Look at it long and hard...any judge that doesn't know that passing out or falling asleep is withdrawing consent to a sexual act doesn't deserve to sit on the bench. Seriously, it's a known fact in law that the moment someone is no longer in a position to willingly withdraw consent of their own free will (i.e. passed out), then the consent is automatically withdrawn. It's one thing to release the man without punishment based upon the absurdity of the "crime" and the man's own proffessed guilt (I, personally, would also have sent both of them to get some mandatory alcohol counseling), but to make the absolutely idiotic assumption that "oh, she consented while she was awake, so she would have consented to whatever took place after she passed out" is not only a logical falacy, but directly goes against what the law prescribes.

Slap the man on the wrist and let him go. Tell the woman to get off it and get help. But, by God, don't give such a stupid excuse as that...

[zandyne]

DIGGING A DEEPER GRAVE YAAAAY

EJP nope, not a practitioner of the law, nor do I plan to pursue it. I'm not good with technicalities, my commentary was based on a highly selfish and self-prescribed philosophy of "be responsible."

@teh Donut, I'm not perfect with words. I apologize for not reading it logically and for furthering how unperceptive I am of the finer points of the matter. However if what your reply said is true isn't that the same logic and actions as the judge but with different phrasing? You said yourself you don't care about what his punishment will be and suggest something other than the "typical sentence" yet you are caring about the phrasing (and the implication of how it is dealt with?). Technical rape is still rape and he'll still be punished, but most likely under slightly different terms (ie: not prison).

Which reason? Don't get drunk and go out with strangers or the rape-kit thing? Even I don't know why I listed the latter if that is what you're referring to.

Ah yes and one last thing:

"I would put this offence at the lower end of the scale because the (sex act) began as a consensual one before the victim passed out and became incapable of consenting," Judge Smith said. "There is an inference that she might have consented (to more sex) had she been awake. The issue I have to resolve is whether I should even impose a suspended sentence here, that's my problem."

I'm possibly reading it odd, but I think what the judge was trying to say was the possibility of her saying "don't stop" (or some other equal) whilst being conscious and then promptly going unconscious. Is that not something akin to consenting further despite being unconscious (just like in my horrible surgery analogy)? Yes sex and operations are different but "don't stop" (from my skewed perspective) seems like a "further" consent. But again, this is merely what a simple-minded person thinks of the matter (given how skimp the information is), feel free to correct me on it.

[Ninmast]

I agree with Zandyne. The judge is an idiot, but so are the man and woman.

[Silva]

I believe there's a Chapelle's Show skit that answers this issue of consent pretty well. I can't find a link to it though.

[Teh Donut]

Yeah zandyne, there's another issue...there's so little detail given in the article (almost none, really) as to what she said or did. Maybe she did tell him to not stop. Maybe he didn't. really, I wish more detail had been given on the entire affair.

No, what I said was, that I don't care what the punishment is. As a matter of fact, were I the judge, I have no idea how I would call the case. what I do know is that I wouldn't give some absolutely illogical reasoning as he gave.

[zandyne]

Ah alright then. That pesky report and the lack of details.