ATAR Notes: Forum
Uni Stuff => Faculties => Law => Topic started by: Dejan on September 17, 2013, 06:38:09 pm
-
Hey guys, I am having trouble understanding the comment made in the R v Kitchener case "reckless indifference to consent in sexual assault cases was held to encompass situations where an accused failed to consider at all the possibility that the complainant did not consent to the act of sexual intercourse. In this case, the trial judge directed the jury that deemed knowledge from recklessness in a sexual assault could be proved by the accused foreseeing the possibility that the victim is not consenting but going ahead with the act regardless, or failing to even advert at all to the question of whether she was consenting. So is the person guilty of rape or not guilty and if so why/why not?. Thank you
-
From what is provided - it looks like the judge is just setting out what level of care and consent is required to determine what constitutes "rape". Its like donogjue v stevenson in respect to defining what is "duty of care". Im not sure that the ruling was specified from what you have provided. Id just google the case and have a look at the facts.
Disclaimer: not a lawyer or study "actual" law myself - so a law student may have a better answer.
-
Hey guys, I am having trouble understanding the comment made in the R v Kitchener case "reckless indifference to consent in sexual assault cases was held to encompass situations where an accused failed to consider at all the possibility that the complainant did not consent to the act of sexual intercourse. In this case, the trial judge directed the jury that deemed knowledge from recklessness in a sexual assault could be proved by the accused foreseeing the possibility that the victim is not consenting but going ahead with the act regardless, or failing to even advert at all to the question of whether she was consenting. So is the person guilty of rape or not guilty and if so why/why not?. Thank you
It's basically saying that if you don't even bother to consider whether s/he might not be consenting then you are guilty of sexual assault. It's just another level of culpability - think of it as a halfway point between "victim clearly said yes" and "victim clearly said no but accused went ahead regardless".
Simplest example I can think of, girl is obviously drunk (slurring words, passing out), guy must have at least known that there is a possibility she's not consenting but goes ahead and has sex with her anyway, or does it without even thinking "hey she's drunk she's probably not actually into it".
-
Draw an analogy with contract law: silence is never acceptance.
-
Thank you all for your replies :)