NSW Bar Association does not understand the meaning of “rape”

by Cara on November 9, 2007

in assholes, Australia, International, misogyny, patriarchy, politics, rape and sexual assault, social conservatives, violence against women and girls

Just when you think you’ve read every stupid thing that someone could possibly say about rape, your husband goes and sends you this: NSW, Australia, is working on a law that states rape when a rapist is drunk is still rape, and rape when the victim is drunk is still rape. Which is, of course, excellent. What’s not so excellent is the reaction to it. And no, I’m not talking about the reaction at Fark (Trigger warning: please, don’t read that Fark thread unless you have the world’s largest stomach for misogyny and rape apologism. Just . . . don’t.). I’m talking about the reaction by the NSW Bar Association. Get those rape apologist bingo cards ready, cause the squares are gonna get called fast.

The NSW Bar Associations reckons the “No means no” law goes too far and will lobby Upper House members to vote against it when it is up for debate next week.

The law will define the meaning of consent for the first time, making it clear that being drunk or under the influence of drugs does not mean consent has been given.

It will also introduce an “objective fault test”, meaning a man can no longer use the defence that he thought he had consent if the circumstances appear unreasonable.

“It will turn our sons into criminals,” new Bar Association president Anna Katzmann SC said yesterday.

“For years women have been insisting ‘No’ means ‘No’. What troubles us about this new legislation is that it introduces a new regime where ‘Yes’ may mean ‘No’.”

Ms Katzmann gave the example of a woman on a first date who might not want to have sex but after both she and the man had drunk too much said “Yes”.

The next day she feels guilty and tells her mother, who goes to the police.

“That would be rape under the new laws,” Ms Katzmann said. “The fact that he was drunk cannot be taken into account. The fact that she was drunk is no excuse for him.”

Chair of the Bar Association’s criminal law committee Stephen Odgers SC said the law made sexual assault a crime of negligence.

“The stupid, the negligent, the intoxicated, the crazy will be treated as if they are the same as the true rapist, who knows there is no consent to sexual intercourse,” Mr Odgers said.

. . .

So, Ms. Katzmann. I really don’t know how to break this to you gently, but it must be said: if this law turns your son into a rapist, your son is already a fucking rapist. And his ass deserves to be in jail, and you are an utterly irresponsible person, not to mention an utterly irresponsible lawyer, to suggest otherwise. And when I use the word “irresponsible,” it’s because I’m really biting my tongue.

To be clear, the situation that Ms. Katzmann outlines would not be rape under the new laws, at least not as she describes it. Two drunk people having sex is not rape. The situations she describes would be rape, if, say, the man kept feeding the woman drinks when she said “no” until she said “yes.” Or, if the man kept pestering the drunk woman and harassing her until she said yes under duress. Or, if the woman was slipping in and out of consciousness and didn’t know what she was saying “yes” to, or if the woman simply failed to say “no” because she was so drunk, that would be rape. But what Ms. Katzmann outlines certainly would not. Two drunk people having consensual sex and one regretting it the next day is not rape, nor has it ever been rape, nor would it be rape under these new laws, nor has anyone ever suggested that it might be considered rape — except for the rape apologists who use it as a scare tactic.

As for “The fact that he was drunk cannot be taken into account. The fact that she was drunk is no excuse for him.”: well Halle-fucking-lujah! It only took us how many millenniums to get that one down? And now there are still some asshats fighting it?

The fact of the matter is that this law A. says that being drunk is not an excuse to rape and B. “well, she didn’t say no” is no longer a legally acceptable defense. Basically, it is requiring affirmative consent to sex — which should have always been the standard, but almost universally still is not.

As for Mr. “The stupid, the negligent, the intoxicated, the crazy will be treated as if they are the same as the true rapist, who knows there is no consent to sexual intercourse” Odgers . . . I am a person who believes in non-violence, but in reality has a short fuse. I don’t exactly make a habit of hitting people, but let me just say that Mr. Odgers is pretty fucking lucky that he’s not standing next to me right now.

But for those who still don’t get it, let me spell it out: the stupid, the negligent, the intoxicated, and (in very many cases, but certainly not always) the crazy are the true rapists. In fact, they are most rapists. Of course, we have to take into account that what Mr. Odgers is implying is “negligent” is very different from what sane people would call “negligent.” Personally, I would not define “failing to make sure you have obtained consent before you fuck somebody” as “negligence.” But I’m about 99.9% sure that Mr. Odgers would. If he doesn’t, I have absolutely no clue what else he could possibly mean.

Has anyone else noticed that we still convict murderers when they are drunk at the time of killing? As we well should. But, wait, that’s right — rape is different. Rape is just about claiming forced sexual access to a woman’s body. No harm done, right? We wouldn’t want to lock up “our sons” for something as trivial as that, now would we?

Let me just say that, no, I don’t have a son. If I did, and he was a rapist, I would certainly hope that I’d want him in jail. I do have two brothers, and I’m protective of them both. But if one of them raped someone and it’s up to me, it’s goodbye, off to prison for them, and don’t expect a fucking visit. Same with my husband, or my father, or any other male I know or have ever met.

What, exactly, is wrong with people?

Thank god, though, that all people (and for that matter, it’s important to note, not all men) are so incredibly fucked in the head:

Opposition attorney general, former Crown prosecutor Greg Smith, said the Attorney-General John Hatzistergos needed to spell out the law better.

Mr Hatzistergos said the introduction of an objective fault test was canvassed during the State Government’s exhaustive consultation process and had wide support, including police and the Rape Crisis Centre.

“Although Mr Odgers might like to draw a distinction between the stupid or drunk rapist and normal rapists, for rape victims they’re categories that don’t matter,” he said.

“If a person is drunk it does not automatically mean that consent can’t be given. What it means is that the onus is on the other person, usually a man, to show he had reasonable grounds to believe the woman had consented.

“It’s difficult to take the Bar Association seriously on this matter when, in their own submission, they concluded that just because a woman was asleep or unconscious (it) doesn’t negate consent.”

Mr. Hatzistergos sure as hell seems incredibly reasonable, highly pragmatic and certainly not on a rampage to lock up innocent “sons.” Thank you for that, Mr. Hatzistergos. Really, you shouldn’t have to thank someone for having integrity and a conscience — but apparently, you do.

For the record, I lived in Sydney, which is in NSW, for three years. My husband lived there most of his life. We both have a lot of happiness and pride that the legislature would put forth a bill like this. And we’re both incredibly horrified and ashamed that this kind of reaction would exist.

I will try to keep abreast of this story, and when there are updates, I will definitely blog about them.

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{ 24 comments }

1 brandann November 9, 2007 at 2:05 pm

wow…just wow.
this is great legislation…seriously…much needed…it just shows the privilege of some people when they want to oppose something that makes sense…ugh!

2 Jenee November 9, 2007 at 2:49 pm

Hooray! After everything that happened with that rape apologist judge in Philadelphia, it’s nice to see that someone, somewhere has the capacity to think reasonably about rape issues. Let’s hope that others will take up the example.

3 Mary Tracy9 November 9, 2007 at 5:11 pm

Well done for bringing up the fact that murderers are still convicted even when they were drunk.

Being the radical feminist I am, I don’t think this law goes far enough. I would charge all men of sexual assault, whenever evidence of physical abuse exists. Whether a woman consented or not, I don’t really care. The problem is that it is assumed that no one would consent to being killed, but some people would consent to being abused. Utter BOLLOCKS!

4 Jenee November 9, 2007 at 6:07 pm

When I mentioned this to my boyfriend, he made a good point. If you sign a legal document while shitfaced, that document is no longer legally binding because you cannot legally consent while being drunk. Isn’t this just the logical extension of that?

5 Ran November 9, 2007 at 6:35 pm

Jenee: Not exactly, because if two people are drunk and have sex, we don’t say that neither gave consent so they obviously raped each other; rather, depending what exactly happened, either the sex was consensual-despite-drunkenness, or one raped the other. As far as I can tell, the new law is simply enshrining this (rather obvious) doctrine.

6 roses November 9, 2007 at 7:03 pm

As a glass is half full type, I’m more thrilled about this law than dismayed over the responses. (Although, they are frustrating… especially since if you read the comments, people are reading this and believing him when he says: “Drunk sex would be considered rape.” Don’t journalists have a responsibility to correct blatantly false statements?)

7 Jenee November 9, 2007 at 7:25 pm

Good point, Ran. So often analogies are good, but not perfect.

8 Michelle November 9, 2007 at 11:26 pm

“the woman simply failed to say “no” because she was so drunk”

What happens if both parties are so drunk that with their inhibitions lowered they don’t say no – you just said drunk consensual sex isn’t rape but then seem to say that if a person is drunk and doesn’t say “no” for any reason she is raped

9 kissmypineapple November 10, 2007 at 3:31 am

Drunk sex that is a result of lowered inhibitions on the part of both parties isn’t rape. If both parties are too drunk to consent, then sex doesn’t occur. And to quote you: “You just said that drunk consensual sex isn’t rape…” Did you miss the “consensual” in your own statement? And it’s not if a person doesn’t say no for any reason. If they don’t say no b/c they said yes or were enthusiastically consenting somehow, that’s not rape…clearly. Any other reason they didn’t say no, is rape. The only time an absence of no works for consent is when consent actually occurs in the absence of a no. This is not that hard.

10 Loey November 10, 2007 at 9:01 am

I think that distinction is the point that Ms Katzman has missed in all of this – that drunk consensual sex is not the same as drunken rape.

The bill, as I read it, doesn’t say that if you have consensual sex and regret it the next day then it is rape. What it does say is that if we want to have sex, then we should make damn sure its consensual beforehand. Well. Duh.

11 cziffra November 14, 2007 at 8:49 pm

quote: “I would charge all men of sexual assault, whenever evidence of physical abuse exists. Whether a woman consented or not, I don’t really care.”

What!? You think this is more reasonable than what Hatzistergos is suggesting? charging someone for a crime without evidence? completely ignoring consent and simply charging ‘all men?’ and you think Hatzistergos doesn’t have a point?

quote: “I think that distinction is the point that Ms Katzman has missed in all of this – that drunk consensual sex is not the same as drunken rape.”

the distinction you all seem to have missed is that these laws allow there to be no difference between the two, by allowing consent to be redefined by either member after their intoxication has passed. it says that if you’re drunk (and i’d like to legally how that’s defined- one beer? five? six and a half?) you are unable to consent, and any sexual activity you have can be legally construed to be rape.

“The bill, as I read it, doesn’t say that if you have consensual sex and regret it the next day then it is rape. What it does say is that if we want to have sex, then we should make damn sure its consensual beforehand.”

a) you’re right, it doesn’t SAY that if you regret drunken sex, it IS rape, it does however allow the authorities to act on your regret as a now legal definition of rape. b) make sure its consensual? of course, but these laws say anyone under the influence of alchohol is unable to do so- so the only safe option is not to ever have sex with anyone who has drunk anything that day. otherwise consent is impossible. so when you say you want people to “make damn sure its consensual beforehand. Well. Duh” how do you expect them to do that if that consent can legally be redefined later once the person has sobered up?

12 Cara November 14, 2007 at 9:10 pm

cziffra, that is not at all what the law says, and if you read the post or the article, you would know that. Not a single word of your comment is accurate. Please stop spreading inflammatory, rape-apologist lies on my blog (and preferably, everywhere else, too). Thanks.

13 cziffra November 16, 2007 at 7:41 am

Well we appear to have if not a contradiction, then at least ambiguity. the first quote says:

“The law will define the meaning of consent for the first time, making it clear that being drunk or under the influence of drugs does not mean consent has been given.”

The second says:

““If a person is drunk it does not automatically mean that consent can’t be given. What it means is that the onus is on the other person, usually a man, to show he had reasonable grounds to believe the woman had consented.”

So does being drunk negate consent or not?

Because if being drunk negates consent, how can anyone show reasonable grounds that anyone else has consented? If i have misinterpreted this law, then i’ve wasted your time.
I haven’t read the actual law (although i doubt anyone else on this board has) but it seems to contradict itself.

And again, it’s an extremely important point to know what “drunk” actually means. If it means bordering on unconscious opr unable to speak, then we have no issue at all her. Nobody should be having sex with someone that intoxicated, consent in that case would be a ridiculous idea. But if this law considers drunk to be,for example, under the legal limit to drive, how can a person legally allowed to drive also be considered unable to decide what sexual activity they want to have?

And i’m not apologising for rape, i would never for example agree with mr odgers and his “distinctions,” a rapist is a rapist no matter how stupid or crazy he is (and what exactly does he mean by negligent? failed to not rape someone?) and how the bar association can decide that being unconscious doesn’t negate consent is preposterous. that’s all rubbish.

14 Cara November 16, 2007 at 9:55 am

cziffra, this is very simple. The first quote does NOT say that.

“The law will define the meaning of consent for the first time, making it clear that being drunk or under the influence of drugs does not mean consent has been given.”

This IN NO WAY says that one cannot consent under the influence. It says that being under the influence dose not AUTOMATICALLY MEAN THAT CONSENT HAS BEEN GIVEN. It means that in a court of law, defendants can no longer use “well, she was drunk” as an excuse for raping her. Which, outrageously, they can now and is done on a regular basis. Juries take “she was drunk” as shorthand for “she must have wanted it” or “only sluts get drunk and then go into a guy’s bedroom” or, as you have “she probably just regretted it in the morning.” It also means that if she was intoxicated to the point where she cannot move or is slipping in and out of consciousness, that does not mean consent, simply because she doesn’t say no. The new law establishes not that a victim has to say “no,” in order for it to be rape, but that a victim has to fail to say “yes” in some way (enthusiastic consent, active participation) or say no.

being drunk or under the influence of drugs does not mean consent has been given.

See how that doesn’t say “being drunk or under the influence of drugs does not mean that consent CANNOT BE given?” It doesn’t. It’s really just the same as saying that “wearing a short skirt does not mean that consent has been given.” You CAN give consent while wearing a short skirt, but wearing that skirt does not make you in an automatic state of consent.

So you are misreading. Badly. And that is an incredibly dangerous thing to do when it involves something as serious as rape and you’re going around making comments like this one.

15 rich November 16, 2007 at 4:16 pm

Actually Cara I had to read the article over a couple of times to understand the exact changes being implemented. At first, I didn’t understand the drug/alcohol equals consent deal, because I did not realize that Australia’s law as it had currently existed automatically assigned consent to those under the influence of anything. Could just mean I’m a shitty reader (don’t agree with that).

I think what also threw me was Ms. Katzmann’s example which, when I read it against the changes being implemented, made no sense on any level. Obviously what she’s saying is incorrect, but on first reading it threw me off. She’s a nutjob.

I only wish there was greater detail on the “objective fault test” to which they refer to. It almost sounds like a checklist and quite formulaic; I truly hope it is effective in determining as accurately as possible the grounds under which consent was or was not given, and not something like “was she being flirtatious,” etc.

16 Cara November 16, 2007 at 4:24 pm

I did not realize that Australia’s law as it had currently existed automatically assigned consent to those under the influence of anything.

I don’t think that it automatically does, either, but it can be used as a defense. Right now the law says that in order for a rape to exist, the victim must have said “no.” In many cases, victims do not actually say “no” because they are so drunk/high that they are passed out or don’t understand what’s going on. Under current law (in the U.S. as well as Australia), these cases are often dismissed based off of both the “she was drunk (so she doesn’t remember, must have wanted it, just regretted it in the morning)” defense or the “she didn’t say no” defense.

And I will agree that the article could be written better. It is kind of confusing. And I would never call it anything other than dangerously misleading journalism, because Katzman’s statements are provably incorrect and yet they were printed without any clarification. But I also think that Hatzistergos does properly explain the law in the article, and that I have done a decent job of explaining it clearly here. That’s just my opinion.

17 cziffra November 17, 2007 at 2:13 am

quote:”I think what also threw me was Ms. Katzmann’s example which, when I read it against the changes being implemented, made no sense on any level. Obviously what she’s saying is incorrect, but on first reading it threw me off. She’s a nutjob.”

She threw me as well. Unfortunately I assumed she was correct (given that she’s the president of the bar association). You’re explantion is convincing Cara, and i’d like to believe that’s what the law means, since it’s surprising such simple, logical measures haven’t been in place already. I must admit i was not aware that it was possible to argue that “they didn’t say no, (they were too drunk)” as a defence.

If you are correct, then this law is long overdue. (I hope you’ll forgive me for not simply assuming you are correct- such assumptions seem to be fraught with peril, as i already discovered.)

I can only ask why ms Katzmann is the president of the bar association if she is capable of such a misreading?

18 Cara November 17, 2007 at 11:18 am

I can only ask why ms Katzmann is the president of the bar association if she is capable of such a misreading?

Obviously they don’t care. Personally, I think that it’s a purposeful misreadig. As the article states, this the same group that says unconsciousness does not negate consent. Obviously rape is not their biggest concern.

And you don’t have to take my word for it. Take the law’s word for it. That’s a good, comprehensive outline with text from the actual bill highlighted, and the full text of the bill is linked to it.

19 cziffra November 17, 2007 at 9:16 pm

I read the bill, and I can only conclude that either I’m not cut out for interpreting laws, or its too vague.

the user Natrap (from viv.id.au/blog/?p=1126) spends quite a few paragraphs analysing the section on intoxication, which seems to be the only part of the law causing any confusion. They point out that

“Section 61HA(6) does appear to allow a jury to find that a person did not consent due to being substantially intoxicated by a drug or alcohol, even if it does not find under section 61HA (4) that the person lacked the capacity (i.e. remained able to choose) or opportunity to consent.”

This seems a little foolish to me. Why use a description like “substantially intoxicated” if that doesn’t negate “capacity to consent?” Isn’t part of the reason for this law to protect those who are unable to consent because of their situation, whether they’re asleep, unconscious, blind drunk, off their face on drugs etc?

According to natrap, a jury can find that someone who is “substantially intoxicated” still has the powers of consent, even though the law states a person can be deemed not to have consented if they are “substantially intoxicated.” So even if you consent, the law can decide that you didn’t.
So if natrap is right and it is possible for the law to decide that you did not consent even if it decides you weren’t unable to, what’s there to stop people who regret the sex they’ve had from deciding they didn’t consent even though they weren’t unable to?

This simply isn’t clear enough. If i was on a jury i’d have no idea what to do with this law.

20 Cara November 17, 2007 at 10:31 pm

So if natrap is right and it is possible for the law to decide that you did not consent even if it decides you weren’t unable to, what’s there to stop people who regret the sex they’ve had from deciding they didn’t consent even though they weren’t unable to?

Other than the fact that women don’t do that? Only about 2% of rape accusations are false, and those are usually under vastly different circumstances. It could come up under the law but not anymore than it comes up now, which is very, very rarely.

And the situation that you’re suggesting would be laughed out of court regardless. A woman is not going to go into court and say “I said yes, but I was drunk” and expect to get a rape conviction. No prosecutor would actually take that to trial. But they should take “I didn’t say no, but it was because I was drunk and couldn’t” or just “I didn’t say no, but I never consented, either” and they don’t. This law will fix that.

Also, the way that I read that section of the law is like this: a woman is able to consent, but she didn’t. And the fact that she was drunk doesn’t negate the fact that she didn’t consent. The law does not actually say that a woman who did consent couldn’t consent because of intoxication. I imagine that this is a provision for types of men who ask a woman to sleep with them, she says no, he keeps feeding her drinks, she says no, he feeds her more drinks, she says yes. In my book, no, that is not consent. Just like saying “yes” under duress doesn’t count as consent, either.

Any law regarding criminality has the potential to be abused. And there are a hell of a lot more laws that are actually putting innocent people in jail, or people who committed a “crime” that shouldn’t actually be a crime in jail than this. To focus on this one little provision that may or may not be able to be abused, and even if it could probably never would be, is quite ridiculous with all of the other laws on the books that are specifically designed to lock up the poor and people of color. What, as soon as a law might — MIGHT but probably won’t — lock up asshole white guys who try to pester drunk women into sleeping with them, we’re concerned? Sorry, I’m not. Especially because the chances of anyone being wrongfully locked up are very slim to none.

21 cziffra November 18, 2007 at 2:04 am

I might be being picky, but i certainly hope law makers aren’t as relaxed about the consequences of their laws as you are. “oh well, it will probably only affect asshole white guys, who cares?” If you do not appreciate men assuming a woman is at fault for a sexual assault, why are you content to assume that a man being charged with assault is automatically an asshole? and why are you making racist comments? Who said anything about white guys? Would you be upset if the men were black?

“Only about 2% of rape accusations are false”

Not according to

http://home.earthlink.net/~jamiranda/whyLieNew.htm

“According to a nine-year study conducted by former Purdue sociologist Eugene J. Kanin, in over 40 percent of the cases reviewed, the complainants eventually admitted that no rape had occurred (Archives of Sexual Behavior, Vol. 23, No. 1, 1994). Kanin also studied rape allegations in two large Midwestern universities and found that 50 percent of the allegations were recanted by the accuser.

(Kanin was once well known and lauded by the feminist movement for his groundbreaking research on male sexual aggression.)

Kanin’s findings are hardly unique. In 1985 the Air Force conducted a study of 556 rape accusations. Over one quarter of the accusers admitted, either just before they took a lie detector test of after they had failed it, that no rape occurred. A further investigation by independent reviewers found that 60 percent of the original rape allegations were false.

A Washington Post investigation of rape reports in seven Virginia and Maryland counties in 1990 and 1991 found that nearly one in four were unfounded.

Linda Fairstein, who heads the New York County District Attorney’s Sex Crimes Unit. Fairstein, the author of Sexual Violence: Our War Against Rape, says, “there are about 4,000 reports of rape each year in Manhattan. Of these, about half simply did not happen.

A 1997 Columbia Journalism Review analysis of rape statistics noted that the 2% statistic is often falsely attributed to the Federal Bureau of Investigation, and has no clear and credible study to support it. The FBI’s statistic for “unfounded” rape accusations is 9%.”

Your assessment of this being extremely rare, almost irrelevant, is incorrect and dangerous. Your claim that “women don’t do that” is farcical- You have asked every woman in the world whether they have ever done that and they all said no? women are genetically incapable of it? this is meaningless- i may as well say something like “but men don’t rape.” It’s nonsense

quote: “But they should take “I didn’t say no, but it was because I was drunk and couldn’t” or just “I didn’t say no, but I never consented, either” and they don’t. This law will fix that.”

I certainly hope so, and I would never argue against that. Why is it not possible for it to do that WITHOUT opening up a new legal loophole that will hurt innocent people?

Or do you really, truly not care about innocent people so long as they are white males?

22 Cara November 18, 2007 at 11:14 am

No, seriously, get off my blog. I’ve given you the benefit of the doubt for way too long, no I’m not going to take the time to explain why everything you’ve said doesn’t make sense and why the stats are false, and why talking about “white guys” does not equal racism. You’re clearly not listening, I have no idea whether or not you’re genuine, and even if you are it is not my job to educate you. I’m in a bad mood, I don’t tolerate people calling rape victims liars on my blog, go away or I will ban you.

23 kissmypineapple November 18, 2007 at 2:32 pm

Recanting a rape accusation does not mean you lied originally. It could mean that under intense pressure from other people, police, the accused, your family, or seeing how other women are treated once a rape goes to trial, you decided that you didn’t want to put yourself through anymore torture. So you recanted. That doesn’t make you a liar.

24 Zaine August 3, 2009 at 7:22 am

Thankyou so much for posting this, I am really starting to enjoy this blog!

there are too many dickheads in sydney ne?

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