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Woman gets drunk and stoned and has sex with a guy in the restroom; judge asks pressing questions during trial and aquits the man; feminists complain and the decision is reversed and the judge is being investigated and will lose his job

M_Justice

December 1, 2016
131 upvotes
/r/MensRights
http://www.independent.co.uk/news/world/americas/justice-robin-camp-keep-her-knees-together-alleged-rape-victim-court-lose-job-removal-bench-alberta-a7448361.html
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Title Woman gets drunk and stoned and has sex with a guy in the restroom; judge asks pressing questions during trial and aquits the man; feminists complain and the decision is reversed and the judge is being investigated and will lose his job
Author

M_Justice

Upvotes 131
Comments 41
Date December 1, 2016 10:06 AM UTC
(9 years ago)
Subreddit Posted in /r/MensRights
Original Link https://old.reddit.com/r/MensRights/comments/5fvttw/woman_gets_drunk_and_stoned_and_has_sex_with_a/
Archive Link https://theredarchive.com/r/MensRights/woman-gets-drunk-and-stoned-and-has-sex-with-a-guy.936607
https://theredarchive.com/post/936607
Red Pill terms in post
feminist
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Comments

[–]dontpet 18 points19 points20 points 9 years ago (2 children) | Copy Link

I don't know this issue well enough to comment. I wish this same rigour were applied to those many judges that treat men with contempt in the family court.

[–]Daktush 5 points6 points7 points 9 years ago (0 children) | Copy Link

I wouldn't hold my breath

[–]contractor808 4 points5 points6 points 9 years ago (0 children) | Copy Link

Diana Davidson has made a great summary video on the topic.

[–]M_Justice[S] 22 points23 points24 points 9 years ago (7 children) | Copy Link

It's a sad day when our judiciary is no longer independent and male judges are being dismissed for applying their common sense to render fair decisions. Why have judges at all? Perhaps we should just post news articles about "sexual assault" and "domestic violence" victims online and let feminist redditors and beta males determine their guilt without reference to actual facts or testimony.

[–]adoptinglilkits 2 points3 points4 points 9 years ago (0 children) | Copy Link

He was unknowledgeable about Canadian rape laws. And he even referred to the alleged victim, the accuser, as "the accused" (that's a hard thing to justify). It seems to be the basics of being a judge to give impartial rulings, not be using defunct ideas about rape that are contrary to Canadian rape laws, and to be knowledgable.

[+]pretzelzetzel -31 points-30 points-29 points 9 years ago (5 children) | Copy Link

It's a sad day when our judiciary is no longer independent

lol who were the people who recommended the judge's dismissal?

Perhaps we should just post news articles about "sexual assault" and "domestic violence" victims online and let feminist redditors and beta males determine their guilt without reference to actual facts or testimony.

lol replace the baseless pejoratives you used with ones that could be applied to users of this subreddit (spoiler: 'beta males' still works) and let the overwhelming irony discourage you from making idiotic comments like this in the future

[–]boomscooter 8 points9 points10 points 9 years ago (1 child) | Copy Link

Weird that poster has a bunch of upvotes and you are being downvoted into oblivion. Must be everyone else....

[–][deleted] 3 points4 points5 points 9 years ago (0 children) | Copy Link

lol who were the people who recommended the judge's dismissal?

Judges, obviously, but I'd offer up that we're talking a 5 person commission that's got to render a ruling knowing in advance what the public stance is, because they've seen the reaction already. They know, before they even read a line, let alone rule, that if they rule in favour of this judge, there will be a backlash of immense proportions in the public. THEY THEMSELVES will face calls for their own dismissal, and they know it. This is precisely why the bulk of their ruling talks about perception and trust, and how they have to work to rebuild the trust in the judiciary. That's a frightening thought, because it implies that this decision was done for optics, first.

After watching company after company, politician after politician and celebrity after celebrity cave to that kind of social pressure ... do we really think judges are immune to it simply because they are judges? After watching Marie Heinen get raked over the coals for simply doing her job (and doing it well) in the Gomeshi case, can they truly be called neutral, given the pressure?

[–]Mythandros 1 point2 points3 points 9 years ago (0 children) | Copy Link

You make no valid points and resort to insults instead of asking questions and clarifying. Gee... I wonder why you are being down voted. /s

[–]M_Justice[S] 0 points1 point2 points 9 years ago (0 children) | Copy Link

Wow, resorting to insults. 27 down votes.

[–]The_Lone_Fish17 4 points5 points6 points 9 years ago (13 children) | Copy Link

I think its important to read the official report, and not the sensationalized headlines. I was unsure of what to think untill i came across this passage which seems to demonstrate that the judges line of questioning may have been unprofessional. Curius about your opinions on this.

From the judicial committees report:

[153] First, the Judge's questions of the complainant were not about her fear or her cooperation. Rather, they were accusations that she had failed to resist or evade the accused's actions. The Judge did not ask if she opened her legs because she was afraid of the accused or if she raised herself out of the basin to make it easier for him to penetrate her. Rather, he asked why she couldn’t just keep her knees together and why she could not just sink her bottom down into the basin. His questions were framed in an almost rhetorical manner, suggesting that he was not seeking to obtain relevant evidence from the complainant but rather was trying to make a point – either that the complainant was to blame for the assault because of her lack of resistance or that her claim of nonconsensual sex was not plausible because of her lack of effective resistance.

[154] Second, with regard to his question about why she couldn’t just keep her knees together, the Judge already had evidence from the complainant (given in re-direct examination shortly before he asked the question) about why her knees were not together. In response to a question from Crown counsel, the complainant testified that the accused opened her legs with his hands. The question and answer read as follows:

Q All right. And when your pants are still around your ankles during the time that he’s having […] that’s he’s performing oral sex on you, how does he get between your legs?

A He has -- he opens my legs with his hands.

[–]MittenMagick 3 points4 points5 points 9 years ago (0 children) | Copy Link

Well, to respond to 153, "Did you not close your legs because you were afraid?" is a terribly leading question that, while I don't know about Canada, would not be allowed in the US courts.

As far as 154, that explains when he was performing oral on her, not when he was penetrating her, which is the event they were discussing when the question in question was asked.

[–]MagicTampon 2 points3 points4 points 9 years ago* (11 children) | Copy Link

These points are so pedantic, it's frankly embarrassing that someone sitting in a position of authority wrote them.

Of course it's legitimate to ask a woman why she did not keep her legs together. The fact that she did not keep her legs together does not mean she wasn't raped, but it is certainly one of many things to take into account in assessing the credibility of the witness as to her story about what happened, and in determining whether the legal standard of proof beyond a reasonable doubt can be met or exceeded in the case.

Plainly put, there are a few possible explanation for why she did not keep her legs together:

(1) She was in fact cooperating with having sexual intercourse.

(2) She was too lazy to bother to close her legs.

(3) She just didn't give a fuck.

(4) She was threatened.

A couple others.

As for how to assign different levels of certainty to the various possibilities, that would be up to the judge or the jury to decide, of course after hearing her response to the question.

And of course after fucking off with their bigoted chivalrous sentiments which many if not most surely harbor.

Of course, depending on her response, one or more of those possibilities (e.g. being threatened) might or might not be crossed off the list.

[–]derpylord143 0 points1 point2 points 9 years ago* (10 children) | Copy Link

theres another part in it that went exactly like this "THE COURT: Well, she doesn’t have to do any of these things. She doesn’t have to say don’t lock the door. She can take her chances. Foolishly she could do that. If she sees the door being locked, she’s not a complete idiot, she knows what’s coming next.

In our law she doesn’t have to say unlock the door I’m getting out. She can take her chances, perhaps in the hope of getting him into trouble. Who knows what (INDISCERNIBLE) would be in those circumstances. But am I not, as a guide to answering the question in general, not as a final answer, but as part of the answer --

MS. MOGRABEE: That's a different rule. I'm just saying that, you know, it - - it follows that -- that antiquated way of thinking has been set by the wayside, for a reason. It's the same thinking --

THE COURT: I hope you don't live too long, Ms. Mograbee.

MS. MOGRABEE: It's the same line of thinking that would be required to find that because she didn't act a certain way she would have consented. And again, not everybody’s going to act

THE COURT: Some people are terrified, some people aren't assertive, I'll grant you all that.

MS. MOGRABEE: -- she said -- right. And she -- she was much smaller than him, she didn't know him, she said she was afraid.

THE COURT: Is there any -- well is there any evidence that -- that he frightened her. She -- she said she was smaller than him and that she was frightened.

MS. MOGRABEE: She said she was scared. That -- that was her evidence. THE COURT: But did he threaten her at all? Is there any basis for her fear? I don't recall any evidence to that effect?

MS. MOGRABEE: Well, the circumstances -- THE COURT: Any threats?

MS. MOGRABEE: -- I would submit are reasonable, such that --

THE COURT: Why?"

if you think the above line of questioning of the defence is fair you really shouldnt ever enter the legal field, the judge has no right to ask "why she feared" or "why didnt you act", because as has already been demonstrated, people hold irrational fears (but in the circumstances it wasnt particularly irrational) and people who are scared dont necersarily fight... his reasoning for holding the belief that she isnt credible is at its core bias as well as based on discredited stereotypes, and for a judge that should be a sackable offence, they are supposed to be the harbingers of neutrality, representing all that is fair. his line of arguing would have been justified had there been evidence to suggest she wasnt scared etc. or had she been the only "unsavorable charactered" individual, however he accepted both her and the defendant were of equally untrustable, and that there was no evidence eitherway, that means BOTH of their positions was equally strong. it was the mere lack of evidence supporting it (even though there was similarly a lack of evidence discrediting it) that led to him supporting the defendant over the claimant, demonstrating bias, something a judge cannot be, especially on criminal matters, it is not for a judge (im assuming canada - and this case - have juries) to determine matters of fact if they aren't disproven by evidence, it up to the jury.

that is something supported by him asking 3 things that are inexcuable in the way he asks them. to avoid the claim im bias i will post the entire quote again

"Q And the bruise, as I understand it, was in the middle of your back and just above your --

A Yes.

Q -- the tail bone. So you were pressed up against one of the taps on the one side?

A Yeah. The -- the faucet part sticking out of the bowl. So there --

Q Yeah.

A -- so there’s the -- the bowl and then there’s the tap hanging over the bowl. So I’m sitting --

Q So there are two taps --

A -- on the coun--

Q -- but one -- one spout coming out.

A And it’s the one spout.

Q All right. So you were in the middle with your back against the spout.

A Yes.

Q So your buttocks would have been in the basin.

A Yes.

Q All right.

A Yeah.

Q That means your buttocks were lower than your thighs because your bottom was hanging down into the basin.

A Yes.

Q So the lip of the basin would have been between you -- between your vagina and the accused, the accused’s penis.

A Yeah, but he was licking my vagina --

Q All right.

A -- at that point.

Q But when -- when he was using -- when he was trying to insert his penis, your bottom was down in the basin. Or am I wrong?

A My -- my vagina was not in the bowl of the basin when he was having intercourse with me.

Q. All right. Which then leads me to the question: Why not – why didn’t you just sink your bottom into the basin so he couldn’t penetrate you?

A. I was drunk.

Q. And when your ankles were held together by your jeans, your skinny jeans, why couldn’t you just keep your knees together?

A. (NO VERBAL RESPONSE)

Q. You’re shaking your head.

A. I don’t know."

He accepts that he was BIAS... something i and most other lawyers and legal experts say is something NO JUDGE SHOULD EVER BE, as far as is possible.

"the Judge explained that he asked those questions in the course of pressing some legal issues. When Presenting Counsel asked him why he chose the words he used, he responded as follows:

A Because at a visceral level, my thinking was infected. That's the only explanation that I can -- I can offer to myself, and that's more important than the explanation I offer to -- to this forum. That's the only explanation that I can offer to myself, that I -- Ms. Hickey, I'm not an inarticulate man. Why did I use those words if I could have chosen others?

Q That's my question to you, sir.

A And my answer, Ms. Hickey, the best I can give you, indeed, the only one I can give you, is that after prolonged mentoring, guidance, and self -- self-analysis doesn't begin to describe the process that I went through over the months. The way that I phrased the questions was because at some level that I wasn't aware of, I was subject to prejudice and what -- the Afrikaans have an expression, Wat die hart van vol is, loop die mond van oor. What the heart is full of comes out of your mouth. And that is the best explanation I can give you.

Q But what prejudice would lead you to choose those words?

A Oh, the prejudice that all women -- the myth that women all -- all behave the same way, and they should resist."

(its worth noting his responce above may be to try and mitigate the damage he suffers, none the less he does recognise he was being bias). that is to put it simply something that isnt acceptable, its something that at its core a judge should never do.

thats what led to [153] and [154] above, and in the context of the way he is speaking the outcome is not in anyway "pedantic". the judge tried to say (paraphrasing) "i was asking these questions to determine whether or not it was credible that she had fear" or "did she not do x because of fear", yet that doesnt hold up as he was asking them and framing them in a way that said SHE SHOULD have done such, not asking why she did such...

your position is at its core vile.

secondly "Plainly put, there are a few possible explanation for why she did not keep her legs together: (1) She was in fact cooperating with having sexual intercourse. (2) She was too lazy to bother to close her legs. (3) She just didn't give a fuck. (4) She was threatened. A couple others."

as is addressed, in the case and article, he opened her legs, not her opening them... making your position here redundant... however working on the fact as if they supported you, it wouldnt matter, compliance is not consent, if someone fears for their own safety, they may just go along with it due to fear, there is a uk case that exemplifies this, it's "r v olugboja" which states "every consent involves a submission, but it by no means follows that a mere submission involves consent"... the case didnt involve any verbal threat but to quote the law book "what was crucial was that the victim regarded his conduct as threatening; such that she was not truly consenting, even though the defendant did not mean to be threatening". the question then was whether the defendant had mens rea, whether he reasonably should have known that she didnt "truly" consent. now i might not know canadian law, but it seems their law follows similar views to the uk law in this regard.

edited: formating

[–]MagicTampon 1 point2 points3 points 9 years ago* (5 children) | Copy Link

if you think the above line of questioning of the defence is fair you really shouldnt ever enter the legal field, the judge has no right to ask "why she feared" or "why didnt you act", because as has already been demonstrated, people hold irrational fears.

You're speculating that it's possible that the woman was afraid, because some people have irrational fears and she might have had irrational fears as well.

But it's not enough at all to demonstrate that someone might have irrational fears. It's just one part the prosecution proving its case, to prove beyond a reasonable doubt that there were fears, irrational or not.

And by the way, how the alleged victim felt or feels about the incident is irrelevant. Whether or not she presents herself in a manner that would be interpreted as consent at the time that it happens, is all that matters. Feelings don't matter.

For the judge to ask "why" is relevant and completely appropriate, because he is seeking and answer.

If the answer to his question is given, and the answer is convincing, then he might be apt to believe her claim that she felt afraid. If the accuser had responded, "because he beat up another girl and I knew about it," or "because he beat his fist into the door and said he was going to rape me", then maybe the judge would look into those allegations, or believe them.

If she has no response, then the judge is going to accept her claims of being afraid, or not accept those claims.

Repeat. He could accept them, or he may decide that those claims are not proved.

In no circumstances is a judge obliged to simply accept beyond a reasonable doubt that someone was afraid just because they claimed they were.

To do so would be a miscarriage of justice.

You're claiming that she could have been afraid, because it possible that she is like some people who have no reason to be afraid, but are afraid nonetheless. Sorry. Doesn't pass muster.

Q And the bruise, as I understand it, was in the middle of your back and just above your --

A Yes.

Q -- the tail bone. So you were pressed up against one of the taps on the one side?

A Yeah. The -- the faucet part sticking out of the bowl. So there --

Q Yeah.

.. A My -- my vagina was not in the bowl of the basin when he was having intercourse with me.

So she was far back enough on the sink when receiving oral sex to get a bruise on her back from the faucet, but not so far back when she was having intercourse.

Enough said.

This case is rotten. Certainly not believable beyond a reasonable doubt.

Sorry. I don't do chivalry. Male, female -- totally irrelevant. This case does not satisfy burden of proof.

The judge offered the accuser multiple opportunities to provide explanations that might help prove the case, but the circumstances do not permit it. Not provable. End of story.

One supposes that the judge may now regret having given the accuser an opportunity to provide an explanation for her claims, instead of declaring them unprovable and dismissing them without seeking clarification or further inquiry, but I think he's actually quite a decent judge for having given her the chance.

That being said, insufficient.

Because at a visceral level, my thinking was infected. That's the only explanation that I can

He's clearly under duress in defending himself against a bunch of ridiculous accusations from the feminist chivalrist dogshit brigade.

If it were me, I would have offered no such apology for asking appropriate questions of a witness, to insure that an innocent man is not placed in prison unjustly. Sorry, them's the breaks.

[–]derpylord143 1 point2 points3 points 9 years ago* (4 children) | Copy Link

"You're speculating that it's possible that the woman was afraid, because it some people have irrational fears and she might have had irrational fears as well." no im going of what the victim said, she is the only one who has grounds to say how she felt, unless there is solid grounds to suggest otherwise, there was no contrary evidence, thus you have to believe her. it may be true she didn't fight back but as i said "submission is not consent". like you say the judge cant say eitherway, therefore its for the jury to decide, matters of facts are always for the jury.

"But it's not enough at all to demonstrate that someone might have irrational fears. It's just one part the prosecution proving its case, to prove beyond a reasonable doubt that there were fears, irrational or not. And by the way, how the alleged victim felt or feels about the incident is irrelevant. Whether or not she presents herself in a manner that would be interpreted as consent at the time that it happens, is all that matters. Feelings don't matter." not really, as the law stands you have actus reus the "actions" of the crime, and the mens rea "the mental element". what you are talking about relates to the mental element whether it was "reasonable" to believe she consented, not the actus reus. her actions are only relevant to determining if it was reasonable that he thought she consented. her fear is a matter of fact that relates to the actus reus, something that cannot be proven either way, its for the jury to decide whether they consider it satisfies them beyond a reasonable doubt.

"If she has no response, then the judge is going to accept her claims of being afraid, or not accept those claims. Repeat. He could accept them, or he may decide that those claims are not proved. In no circumstances is a judge obliged to simply accept beyond a reasonable doubt that someone was afraid just because they claimed they were." thats true, but to the same extent were they by no means disproved, he has to give reasons for rejecting hers and not accepting his, he himself admit both were untrustworthy, he had no grounds to do that and didnt explain why he did. he himself admitted he did so based on irrelevant factors. not to mention she had grounds for it, considering he locked her in a room without asking for her consent (an offence in its own right, unlawful imprisonment).

"You're claiming that she could have been afraid, because it possible that she is like some people who have no reason to be afraid, but are afraid nonetheless. Sorry. Doesn't pass muster." it doesn't matter why someone is afraid merely that they are, its only relevant how she acted in relation as to how likely the other person was to have known she was afraid therefore unable to give consent.

"So she was far back enough on the sink when receiving oral sex to get a bruise on her back from the faucet, but not so far back when she was having intercourse. Enough said. This case is rotten. Certainly not believable beyond a reasonable doubt. Sorry. I don't do chivalry. Male, female -- totally irrelevant. This case does not satisfy burden of proof." this isnt why he was being fired (for coming to a wrong out come), its because of him breaching certain things (i believe the "judges act" which stipulated that certain things cant be asked, and certain things cant be relied upon, certain things cant occur, such as assuming people would actively fight back. that is whats at issue, not the outcome (it was already overturned in a higher court), but the way he conducted the case.

"One supposes that the judge may now regret having given the accuser an opportunity to provide an explanation for her claims, instead of declaring them unprovable and dismissing them without seeking clarification or further inquiry, but I think he's actually quite a decent judge for having given her the chance." erm no, it doesnt matter that it isn't "provable", factors that are matters of fact are left to the jury (the ENTIRE PURPOSE of a jury), unless there is evidence to prove otherwise, or there is serious credibility issues, both parties weren't credible, he should have dismissed both, or allowed both for it to be evaluated by the jury - judges arent there to make unilateral decisions of fact.

"He's clearly under duress in defending himself against a bunch of ridiculous accusations from the feminist chivalrist dogshit brigade." prove it, for all we know, he may honestly regret it, youre making assumptions here. he accepted that certain views were based on biases that arent allowed or supported in modern thinking and has no place in the court.

[–]MagicTampon 0 points1 point2 points 9 years ago* (3 children) | Copy Link

no im going of what the victim said, she is the only one who has grounds to say how she felt, unless there is solid grounds to suggest otherwise, there was no contrary evidence, thus you have to believe her.

Absolutely not. Just because someone says it, doesn't mean it is proved beyond a reasonable doubt.

An in fact, what the presumed victim feels, what is going inside of their brain, is almost entirely irrelevant. People aren't mind readers. All that matters, is how that person outwardly presented themselves, as either consenting or not.

Feelings don't matter." not really, as the law stands you have actus reus the "actions" of the crime, and the mens rea "the mental element". what you are talking about relates to the mental element whether it was "reasonable" to believe she consented, not the actus reus.

Actus rea does not extend to what is going on in the alleged victim's mind. The act is illegal or illegal based on whether consent is presented to the alleged perpetrator as being present, not based on whether there is something going on in the alleged victim's mind that may or may not be contrary to how she presented herself. So for example, if a woman presents herself as consenting and cooperates / goes through with, or even commits the act, while secretly harboring a desire not to do the act, that does not constitute rape.

Nor would it be if the circumstances were reversed. What the presumed victim is thinking is, in the first order, completely irrelevant. Again what is relevant, is whether the victim presents herself in a way what ordinary people perceive as consenting.

You cannot give all appearances of being consenting to a consensual sex act, then intentionally or otherwise, turn around a day later, and claim that you were only pretending, that at the time, you really didn't want to engage in the act, and therefore, the act constituted a rape. And even if it were true, nobody would be required to believe that's what you were believing just because you said so.

"Mens rea" does not apply to the state of the mind of the alleged victim, only to the alleged perpetrator. So again, the thoughts and feelings of the alleged victim are irrelevant. All that matters, is how the alleged victim presents herself, as either consenting or not.

[–]derpylord143 0 points1 point2 points 9 years ago* (2 children) | Copy Link

"no im going of what the victim said, she is the only one who has grounds to say how she felt, unless there is solid grounds to suggest otherwise, there was no contrary evidence, thus you have to believe her." true, but its a matter for the jury as i stated later, matters of fact are not for judges to decide, unless they can justify their position as to why something isnt admissable.

"The act is illegal or illegal based on whether consent is presented to the alleged perpetrator as being present, not based on whether there is something going on in the presumed victims mind that may or may not be contrary to how she presented herself." no because consent isnt always "genuine" thats the issue, you may say "okay i will have sex with you" etc but not actually want to do it for a plethora of reasons ranging from blackmail to fear...

" So for example, if a woman presents herself as consenting and cooperates / goes through with, or even commits the act, while secretly harboring a desire not to do the act, that does not constitute rape." if they know, or ought to have known the individual wasnt giving genuine consent then they are held to have known she wasnt consenting (note the word ought - should have), oh and this is based on the reasonableness test, if they ignored that fact then it is rape... to put it simply, if an individual is likely going to be scared in a given set of circumstances then that could amount to her consent (if she gave consent, here she didnt even do that, she just went along with what he was doing) not being genuine... the courts say that as "submission is not consent", simply going along with whats happening because you fear to do otherwise is not consenting. it may be foolish, you might have people 5 feet away, but if you are scared you dont act rationally, he should have checked... by not doing so, he never established that he had consent... in the circumstances that was reckless on his part, he ought to have known that there was the possibility of her not being consenting. its all in the circumstances, he locked her in a room... that makes most people nervous at best.

"Nor would it be if the circumstances were reversed. What the presumed victim is thinking is, in the first order, completely irrelevant. Again what is relevant, is whether the victim presents herself in a way what ordinary people perceive as consenting." the law isnt "person a is acting in a way that presents herself as not consenting" its "person a is not consenting and person b is does not reasonably believe she is consenting" atleast in the uk, i havent looked at the law in canada but as far as the case goes it suggests something very similar, whether she consented is of utmost importance, whether someone else is to know that is only relevant under whether it was reasonable for them to have realise, the two issues are handled under different things. consent is a matter of fact, one thats incredibly hard to prove beyond a doubt eitherway, but none the less a matter of fact, which only the victim (unless there is evidence to the contrary) can give a statement to, unless the other person explicitly asked, here they didnt even do that (as far as i know).

"You cannot give all appearances of being consenting to a consensual sex act, then intentionally or otherwise, turn around a day later, and claim that you were only pretending, that at the time, you really didn't want to engage in the act, and therefore, the act constituted a rape. And even if it were true, nobody would be required to believe that's what you were believing just because you said so." you can if you get locked in a room with them without consent and genuinely fear for your own safety, not everyone has the nerve to act against them, they just become passive and hope for it to be over... in those circumstances their consent is not genuine, it is not "consent"...

""Mens rea" does not apply to the state of the mind of the presumed victim, only the presumed perpetrator. So again, the thoughts and feelings of the presumed victim are irrelevant. All that matters, is how the presumed victim presents herself, as either consenting or not." mens rea applies to the defendant, what HE THINKS about her consent is relevant here, whether he believes she is consenting APPLIES here, whether that belief is REASONABLE goes here...

[–]MagicTampon 0 points1 point2 points 9 years ago (1 child) | Copy Link

R. v. Ewanchuk:

"While the complainant's testimony is the only source of direct evidence as to her state of mind, credibility must still be assessed by the trial judge or jury in light of all the evidence."

I'm not familiar enough with the Canadian system of law to know in that system which things are to be determined by judges, and which by juries.

The committee findings against the judge did not mention this as an issue in the case.

In some countries, cases like these would not even be tried in front of a jury, and in other jurisdictions, rape shield advocates are pushing to take juries out of the loop.

[–]derpylord143 0 points1 point2 points 9 years ago* (0 children) | Copy Link

"r v eqanchuk" - same case "The accused, Major explained, must raise a reasonable doubt that there was consent. Consent can be shown in one of two ways. Either where the "complainant in her mind wanted the sexual touching to take place" or, in the case of establishing a mistaken belief of consent, where "the complainant had affirmatively communicated by words or conduct her agreement to engage in sexual activity with the accused."

L'Heureux-Dube held that the defence could not be used unless the accused took sufficient steps to ascertain consent. Here, the accused did not make any attempt to ensure that the accused had consent when he moved from a massage to sexual touching. She also castigated McClung J.'s opinion severely, arguing that it reposed on myths and stereotypes about women and sexual assault." wikipedia states that as a summary of the judges positions.

the issue here is that she didnt in her mind want the touching to take place, nor the penetrating, or being eaten out... so here we are left with "mistaken belief" based solely on the lovely case you provided me with, that requires her conduct to "affirmatively communicate by words or conduct" as far as we can tell that wasnt the case, he had to pull her legs apart, and she was merely passive.

also "While the complainant’s testimony is the only source of direct evidence as to her state of mind, credibility must still be assessed by the trier of fact in light of all the evidence. It is open to the accused to claim that the complainant’s words and actions, before and during the incident, raise a reasonable doubt against her assertion that she, in her mind, did not want the sexual touching to take place. If, however, the trial judge believes the complainant that she did not consent, the Crown has discharged its obligation to prove the absence of consent. The accused’s perception of the complainant’s state of mind is not relevant and only becomes so when a defence of honest but mistaken belief in consent is raised in the mens rea stage of the inquiry." thats the full quote, note how it states "by the trier of fact" in cases involving juries, juries decide matters of fact (atleast in any decent legal system anyway)... judges address matters of law, now whilst the defendants make that claim, the claim isnt supported by the facts that both parties admitted (he admits to having had to pull her legs apart), she was merely passive, she wasnt giving her consent or anything like that, she simply let him do it (you know submitted), its her argument that she did so because she was scared...

the defendant took (as far as i know) absolutely no steps to determine if she consented, and thus this defence wouldnt be open anyway.

[–]M_Justice[S] 2 points3 points4 points 9 years ago (3 children) | Copy Link

You totally lost me. Yup, send people to prison because this woman is an emotional confused person. She participated in this. Not rape. No wonder the judge was so irate. This act of sex is performed every day, millions of times. Send all them men to prison. Great solution.

[–]derpylord143 3 points4 points5 points 9 years ago (2 children) | Copy Link

"participation is not consent" - the mere fact that someone submits doesnt mean they want to do something, fear vitiates consent, even if that fear is unreasonable, if they knew she was scared, or ought to have realised then its rape. the question of the case shouldnt have related to "whether she was genuinely scared" as there was no evidence either way (and both individuals character weren't good), it was a matter for the jury. the questions that the judge should have been asking was if it was reasonable for the defendant to have known she didnt consent - something that is unlikely to have occured.

[–]MagicTampon 0 points1 point2 points 9 years ago (1 child) | Copy Link

This case is a joke.

Her claim that she was afraid is hardly believable, much less provable beyond a reasonable doubt.

[–]derpylord143 0 points1 point2 points 9 years ago (0 children) | Copy Link

quite possibly it is a joke (hell to that extent i agree whole heartedly).

that point would have been arguable quite easily especially in regards to if the defendant was capable of knowing she was "afraid" which would be grounds for saying "he had reasonable grounds for thinking she consented" or the Canadian equivalent, the issue was the judge was excluding one persons evidence for no reason whatsoever whilst there was no other evidence on the issue besides outdated stereotypes not being fulfilled. did he have grounds for doing so? (im not sure how evidence admissibility is handled, but as far as i know the judge can choose some evidence over other evidence, or not allow some if its so incredibly non-credible that there's absolutely no way for a jury to weigh it up, however as you say abovee "her claim that she was afraid is hardly believable" you weighed it up just then right?) so the issue of whether she was afraid realistically should have been put before a jury... issue of evidence going before juries aside (as the committee didnt address it), he was excluding evidence based on bias, outdated notions, and other issues which are generally not allowed... as well as using leading questions...

[–]idiotsonfire -3 points-2 points-1 points 9 years ago (10 children) | Copy Link

Intoxicated means "consent cannot be given." Having sex with someone that's drunk and high means you're having sex with someone that cannot give consent, i.e., rape. This title is as inflammatory and misleading as it gets.

Also, this isn't the only reason this judge has been recommended to lose his job. There is a 100+ page complaint against this judge as to why this judge is losing his job, which includes ignorance of the law which he's required to uphold, contempt of the Crown, and a hell of a lot more than just being an insensitive douchebag. 10 minutes of research would have led to a much different conclusion.

[–]MisterDamage 32 points33 points34 points 9 years ago (2 children) | Copy Link

Intoxicated means "consent cannot be given."

Even someone who buys into "rape culture" doesn't support this argument. There are degrees of intoxication where consent cannot be given and there are degrees of intoxication where consent can be given. The willingness of people such as yourself to define all degrees of intoxication as indistinguishable from effectively passed out on the floor demonstrates how untrustworthy you really are.

From the complaint against the judge that you very kindly provided, I quote the following text:

With respect to Allegation 2(b), Judge’s counsel submitted that Justice Camp was simply “saying that it was possible the complainant and the accused, who were both highly intoxicated, might have agreed to sex despite meeting only recently.” 56 We accept that the Judge was essentially noting that people generally – both men and women – tend to be less inhibited when intoxicated than when not intoxicated. As such, we conclude that, the comments in Allegation 2(b) did not reflect a rape myth or stereotypical thinking about women intending to signal their sexual availability by drinking alcohol.

Clearly, they are not using the word "intoxicated" as a proxy for rape, and as such are in possession of a nuanced understanding of the condition of being intoxicated that you pretend to lack.

[–]bigwillyb123 18 points19 points20 points 9 years ago (1 child) | Copy Link

I always figured if women weren't accountable for their actions while under the influence, I shouldn't be either when I pound a handle and decide to take my car out for a spin.

[–]user1492 5 points6 points7 points 9 years ago (0 children) | Copy Link

Sorry, doesn't work when you're a man.

[–]MagicTampon 25 points26 points27 points 9 years ago* (0 children) | Copy Link

Intoxicated means "consent cannot be given."

Bullshit. When an an adult self-administers drink or drugs, they assume the risk of their subsequent actions while under the influence.

Ethically, morally, this is the way it has always been and always should be.

It's unethical to administer justice based "feels before realz" or "oppression olympics."

There are quite many more legitimate reasons for someone, for example the accused, to deign to lack culpability for their own actions which are far more legitimate than, "I self intoxicated knowing full well that I may subsequently volitionally choose to do things that I may later come to regret."

Things which in many cases are cast upon a person through no fault of their own, for example, when the accused may be bipolar or manic, have a constitutionally high libido. Or, being a counter-party to a sexual activity when the accused may be intoxicated themselves.

Was he also intoxicated and did she also touch his dick, fellate or kiss him? If yes, then according to your deranged hypothesis, they are both sexual batterers. Zero points for having a pussy or crying about it afterwards.

Barring being unconscious or incapacitated state (far beyond simply being drunk or plastered), self intoxication is not and should never be be a consideration in the determination of consent, and people need to be taught that before they cause themselves or anyone else any trouble.

Get the fuck away with your chivalrist fuckola bigoted sexist attitude. It doesn't belong here, or for that matter anywhere.

The defence also argued that A.B. had fabricated the allegations because she was angry that Lance was telling everyone she was a slut and because she thought Mr. Wagar was having sex with Ms. Porter.

Sorry lady. Before any of this ever happened, everybody already thought the guy was a pig and a slut. Now you've had sex with him, so you're a pig too. That's not a "discredited myth or stereotype", nor is it particularly sexist. That's just a fact. No amount of vagina changes it.

[–][deleted] 3 points4 points5 points 9 years ago* (0 children) | Copy Link

Intoxicated means "consent cannot be given."

Just go read the Criminal Code. The specific statute is 273.1, found here.

The standard is "the complainant is incapable of consenting to the activity;" There's no tie to intoxication, drugs or alcohol, or any other inebriant made in that statute, nor any mention of inebriation as a marker for incapacity.

In our case law, actual unconsciousness has been the standard judges have used, not inebriation.

[–]Zero4505 6 points7 points8 points 9 years ago (0 children) | Copy Link

There was a point in history that if you was drunk and committed a crime or did something you was judge harsher. Because you made the choice to get drunk.

[–]rg57 3 points4 points5 points 9 years ago (1 child) | Copy Link

Intoxicated means "consent cannot be given"

Consent is not a thing that is given. That would be "assent".

To consent literally means to not object. It's "not" a thing.

[–]idiotsonfire -4 points-3 points-2 points 9 years ago (0 children) | Copy Link

Tell me when you redefine US law to fit your perfect grammatically correct worldview.

[+]pretzelzetzel -11 points-10 points-9 points 9 years ago (0 children) | Copy Link

This title is as inflammatory and misleading as it gets.

In /r/MensRights?????? SAY IT AIN'T SO

[–]rg57 0 points1 point2 points 9 years ago (0 children) | Copy Link

Welcome to Canada.

[–]M_Justice[S] 0 points1 point2 points 9 years ago (1 child) | Copy Link

Rebuttal to lame feminist comments: your argument that a female cannot consent to oral sex and vaginal penetration in a restroom bathroom sink, while drunk and high: and that act between inebriated individuals justifies the criminal prosecution of a man for "rape" or "sexual assault" is beyond reason.

By that logic, she is also raping and sexually assaulting him, because he similarly cannot consent. The perverse prosecution of these laws needs to stop.

This judge is being punished for probing important facts which go to the heart off the issue. The elicited testimony shows just how insane it would be to send this guy to prison and destroy his life. For God's sakes, they are getting in on in a freaking restroom. Tax payers money should not be spent on this and public mob hysteria has no place in lynching the independent judiciary.

If that is the society you want to live, these prosecutions will come back to you.

[–]adoptinglilkits 0 points1 point2 points 9 years ago (0 children) | Copy Link

Was he probing important facts which go to the heart of the issue relevant to Canadian rape laws, or was he probing for things that would satisfy his own (discredited) ideas about rape? Another user posted a great excerpt from the 100+ page findings from the committee.. He was looking for answers that would satisfy his own views, which are discredited in Canadian Courts.

[–]SacredWeapon 0 points1 point2 points 9 years ago (1 child) | Copy Link

I read the transcript of this and was left wondering why he was asking these questions, as opposed to a defense attorney.

[–]MittenMagick 2 points3 points4 points 9 years ago (0 children) | Copy Link

That's how judges do in Canada.

[–]thrway_1000 0 points1 point2 points 9 years ago (0 children) | Copy Link

https://archive.is/16hAW

[+]pretzelzetzel -9 points-8 points-7 points 9 years ago (0 children) | Copy Link

Committee composed of experts in Canadian judicial ethics: this judge needs to go

Some random fuck on reddit: FEMINISM IS DESTROYING OUR SOCIETY

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