egafd.com

I think Beutelwolf summed it up very well in his post on the other thread where he said there was a very big grey area around this whole issue.

I guess we are just bandying around thoughts on this grey area.

If you read the references to her state/evidence in these links







she was staggering around and falling over in the kebab shop even before she met McDonald. McDonald spotted her falling over. In short she was totally out of it and pissed as a fart when she arrived at the hotel.

There was some question that she might have been coked up, not proven because she only went along to the police quite a long time after I think to make a complaint. When they took a blood sample they found coke and hash in her blood though she denied taking either.

In summary, what this was definitely not, was an open and shut case. Both could have been found guilty by another jury or alternatively if that jury followed the logic that McDonald wasn't guilty even though she was totally rat-arsed and falling over before she even met him, then both would have been found not guilty.

There but for the grace of......

This is what i've personally taken from this case after reading some online comments.

All verbal or nonverbal explicit consent is invalidated if the individual is so intoxicated by drink or drugs, he/she is unable to make rational judgements.
ie she can't walk in a straight line or speak without slurring.

Thanks for that, James.

Although you could have saved yourself the time if you'd read this bit:

"I have not seen the evidence or kept tabs on the trial so just going on the bits I know and if I had to guess...."

It was just something off the top of my head. I didn't really know much and admitted it, letting people know in advance to take it with a major pinch of salt.

Interesting.

Well if you are correct, the evidence given about the state she was in in the kebab shop, how she was behaving outside the kebab shop and how she seemed according to the hotel receptionist, then I guess McDonald was lucky to be acquitted.

Porn Baron wrote:

> This is what i've personally taken from this case after reading
> some online comments.
>
> All verbal or nonverbal explicit consent is invalidated if the
> individual is so intoxicated by drink or drugs, he/she is
> unable to make rational judgements.
> ie she can't walk in a straight line or speak without slurring.


This statement has no basis in reality.

The truth is that it's a matter for the jury. There's no hard and fast rule that slurred speech for example invalidates consent.

If someone says yes but their speech is slurred, the jury would have to decide whether it was or was not reasonable for the defendant in that case to believe that consent had been given and whether the defendant did or did not actually believe so.

Any taxi driver will tell you that people with slurred speech sometimes get into taxis and ask to be taken somewhere - are they not consenting to the journey they have requested?

If what Porn Baron posted was correct it's inevitable that McDonald would have been convicted, but of course he wasn't.

There are only 2 circumstances that automatically cause consent to be invalidated.

The circumstances are that -

(a) the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act;

(b) the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known to the complainant.

If neither (a) nor (b) applies then the issue of consent is a matter for the jury to determine.

Not being able to walk in a straight line is not unusual for people who have consumed a generous amount of alcohol. It does not in itself invalidate consent because it does not prove that they aren't aware of what they are doing.

Well this is the summary of the Leave to Appeal against conviction



and the full transcript of the judgment



Since I have no interest in working in the legal profession, I have not read this lot. I will make my excuses and go back to watching the footie.

CHeers

David Johnson wrote:

> I have not read this lot.


The interesting part is the paragraph (quoting the trial judge) which refutes the claim made by Porn Baron.

It is stated that: "A woman clearly does not have the capacity to make a choice if she is completely unconscious through the effects of drink and drugs, but there are various stages of consciousness, from being wide awake to dim awareness of reality. In a state of dim and drunken awareness you may, or may not, be in a condition to make choices."

So as she wasn't unconscious at the time (confirmed by the night porter listening at the door) she may or may not have been in a position to consent and it was a matter for the jury to decide.

The Porn Baron test of not being able to walk in a straight line or speak without slurring wouldn't be binding on the jury.

Thanks for that, James

That is my personal criteria for having sex from now onwards to avoid trouble.
I didn't really take much notice of what the law actually stated until reading about Ched Evans. I found it alarming.

If a person is unconscious or their judgement is impaired by alcohol or drugs, the law states that legally they are unable to give consent. Having non-consensual sex with a person who is intoxicated is rape.

Porn Baron wrote:

> If a person is unconscious or their judgement is impaired by
> alcohol or drugs, the law states that legally they are unable
> to give consent.

Incorrect. The law says no such thing. Read my 2 posts above.

Being under the influence of drink or drugs does not in law mean unable to make a choice.



> Having non-consensual sex with a person who is
> intoxicated is rape.

Incorrect again. Having non-consensual sex is always rape, whether the other person is intoxicated or not.