[News] Patrick Kane being investigated for rape. UPD: DA announces no charges

[zamler]

Originally Posted by Mike F

I'm going to give you the benefit of the doubt and assume this was a legitimate question, because it actually is a good one.

Why would I ask such a thing in jest? I'm going to assume that people who think it is a joke or make sarcastic comments toward it are ignorant of the issues surrounding consent

[Makarov]

Originally Posted by CliffFletcher

Of course there is. Do you think every time consensual sex happens in the world one of the parties says "should we have sex now?", and the other replies "yes."

Consent is a state of mind, not a set of magic words. Generally speaking, if someone is an active participant in the sexual activity, he or she is consenting. Difficulty or confusion can only arise where one person is reacting passively or ambivalently to the sexual activity. A passive or ambivalent reaction to sexual activity might be the result of intoxication, sleep, or fear. In these rare cases, the issue is whether or not the accused had an honest but mistaken belief that the complainant was consenting to the sexual activity. However, in Canada, the accused person has a duty to take reasonable steps in the circumstances to confirm whether or not the complainant was in fact consenting.

For the record, there is no such thing as implied consent (to sexual touching) in Canada. Indeed, I don't think that the fact that someone has attended another person's hotel room could ever be relevant even to the issue of reasonable steps (let alone actual consent).

[Makarov]

Originally Posted by thefoss1957

I am NOT a lawyer...however, there seem to be circumstances where consent is IMPLIED...this would be one of them, a girl who voluntarily accompanies a guy to a hotel room, at a time when for the vast majority of people would be asleep...

The truth is, in this circumstance, impossible to tell, verbal consent may or may not have been given, and if one party has "buyer's remorse" and withdraws consent, it is difficult to say that WHEN that consent was withdrawn. Legally, it comes down to one party's word against another, whether this withdrawal was clear at the time, or if it was withdrawn after intercourse was in progress, or even completed. Reading accounts of Tyson's trial, it seemed to boil down to his word/her word...

Unfair as it may be to a potential "victim", I don't feel that this disputation should be sufficient evidence to convict. And unless there was, say, vaginal bruising (which occurs normally with intercourse) that would indicate forcible entry, as opposed to consensual entry (the bruising patterns, apparently, are different), a verbal account, alone, should NOT be sufficient evidence for conviction.

Of course, I don't have these details of either Tyson or Kane's case...

Just to be clear, none of this remotely describes the state of the law in Canada.

[GreenLantern2814]

Originally Posted by thefoss1957

N-E-B...would you invite a person of the opposite sex to your hotel room, late at night (or early in the morning), if you DIDN'T plan to have sex? And IF a person did invite YOU so, what would be your expectations of their intent?

Expectations are irrelevant. If I invite a woman up to my room and she accepts, then huzzah, it's first and goal from the 1. However, the defence can still make a goal line stand, and the phrase 'punch it in' isn't meant to be taken literally.

If I fail to score in that situation, I'm pretty sure it's because my game was weak and dried out her vagina. She has arrived at this place of her own free will. I haven't dragged her by the hair (yet). She is strongly considering having sex with me. But I'm flat out uncool. There is a better than 60% chance I will screw this up. All I have to do is make sure she's comfortable enough to let me into the literal place where babies come from.

Who among us hasn't said the absolute wrong thing at the moment of truth? When my brain gets to say to my dick 'this is for all the times you made us jerk off when we could've been studying'. Women, it seems, are weirdly sensitive. Especially right before they let strangers inside them.

Finally, pro tip for the psychos. How to tell when a woman wants to have sex with you.

She is having sex with you.

Now there's two types of people. People who understand what I'm saying, and rapists.

[schteve_d]

Originally Posted by zamler

Snarky post aside, do you realize that consent has become a very complex issue?

I suppose while we sit around the computer that may be true, but let me suggest this: If you ever find yourself in a position with another person that you are about to have intimate relations with, and you need to debate with yourself or someone else whether or not you have consent, or the level of that consent, that you back the eff off and re-evaluate what you are doing or what you are about to do. If you don't do that, then you just may be a very scummy person.

I would hope this is common sense for anyone of either sex.

If you are not sure, then you had better assume that you don't have consent and if you proceed, then I have no sympathy for your repercussions.

[thefoss1957]

Originally Posted by Makarov

Just to be clear, none of this remotely describes the state of the law in Canada.

US law applies (or applied) to these...burden of proof is supposed to be on the procecution, ANY doubt, and the defense should win. This is why I didn't like the Tyson verdict. To quote a witness and the defense summary':

Fuller: "The accuser had ample opportunity to leave when Tyson began making his advances, First she joined him in his limousine, where he tried to kiss her. It insults your intelligence to be led to believe that a young woman with this woman's intelligence and sophistication would be kissed on the mouth and not leave the car forthwith,"


Defense Summary: "they talked and engaged in foreplay and in consensual sex. But then she gets offended. ... He rolls over and wants to get some sleep. Suddenly she realizes she has been treated like a one-night stand and her dignity is offended. ... She becomes embarrassed and humiliated by her own conduct."

That she followed him to the hotel and bedroom was not in dispute, the prosecution portrayed here as a: a naive and star-struck young woman who was fooled by "a wolf in sheep's clothing."

But the facts are, she DID go to her own room, then left it to go to see Tyson, in her own room, in pajama bottoms, at 1:36am.

I would, in the absence of bruising that would indicate force or restraint, have, as we in the US say, have "reasonable doubt", due to the he said/she said nature of this trial.

In a post verdict interview, a juror was asked:

Q: Was there a compelling piece of evidence or testimony?
Juror: I don't think there was one compelling piece. As we said, we watched the testimony from the first day and it wasn't an easy verdict to come to.

My feeling is that if there is "No compelling evidence or testimony", then a Guilty verdict is a miscarriage of justice.

As far as bax's point...yes, what you say is true, and I am NOT into victim blaming, IF it isn't a case of "entrapment", or simply post coital regret.

[Makarov]

Originally Posted by thefoss1957

US law applies (or applied) to these...burden of proof is supposed to be on the procecution, ANY doubt, and the defense should win. This is why I didn't like the Tyson verdict. To quote a witness and the defense summary':

Fuller: "The accuser had ample opportunity to leave when Tyson began making his advances, First she joined him in his limousine, where he tried to kiss her. It insults your intelligence to be led to believe that a young woman with this woman's intelligence and sophistication would be kissed on the mouth and not leave the car forthwith,"


Defense Summary: "they talked and engaged in foreplay and in consensual sex. But then she gets offended. ... He rolls over and wants to get some sleep. Suddenly she realizes she has been treated like a one-night stand and her dignity is offended. ... She becomes embarrassed and humiliated by her own conduct."

That she followed him to the hotel and bedroom was not in dispute, the prosecution portrayed here as a: a naive and star-struck young woman who was fooled by "a wolf in sheep's clothing."

But the facts are, she DID go to her own room, then left it to go to see Tyson, in her own room, in pajama bottoms, at 1:36am.

I would, in the absence of bruising that would indicate force or restraint, have, as we in the US say, have "reasonable doubt", due to the he said/she said nature of this trial.

In a post verdict interview, a juror was asked:

Q: Was there a compelling piece of evidence or testimony?
Juror: I don't think there was one compelling piece. As we said, we watched the testimony from the first day and it wasn't an easy verdict to come to.

My feeling is that if there is "No compelling evidence or testimony", then a Guilty verdict is a miscarriage of justice.

As far as bax's point...yes, what you say is true, and I am NOT into victim blaming, IF it isn't a case of "entrapment", or simply post coital regret.

The onus and standard of proof in criminal matters is the same in Canada and the United States: the prosecution (in Canada, the Crown) must prove all elements of the defence beyond a reasonable doubt (incidentally, not the same as "any doubt").

In the Tyson trial, evidently the jury accepted the complainant's evidence and rejected Tyson's evidence.

Your suggestion that physical evidence of resistance should be required to prove non-consent in every case is, frankly, absurd. The Tyson case provides an excellent example. Ask yourself this: if Mike Tyson, former heavy weight champion of the world, threatened you and demanded to have intercourse with you, would it be possible that you might simply lie there and let him get it over worth in order to save your life?

[GreenLantern2814]

Originally Posted by thefoss1957

US law applies (or applied) to these...burden of proof is supposed to be on the procecution, ANY doubt, and the defense should win. This is why I didn't like the Tyson verdict. To quote a witness and the defense summary':

Fuller: "The accuser had ample opportunity to leave when Tyson began making his advances, First she joined him in his limousine, where he tried to kiss her. It insults your intelligence to be led to believe that a young woman with this woman's intelligence and sophistication would be kissed on the mouth and not leave the car forthwith,"


Defense Summary: "they talked and engaged in foreplay and in consensual sex. But then she gets offended. ... He rolls over and wants to get some sleep. Suddenly she realizes she has been treated like a one-night stand and her dignity is offended. ... She becomes embarrassed and humiliated by her own conduct."

That she followed him to the hotel and bedroom was not in dispute, the prosecution portrayed here as a: a naive and star-struck young woman who was fooled by "a wolf in sheep's clothing."

But the facts are, she DID go to her own room, then left it to go to see Tyson, in her own room, in pajama bottoms, at 1:36am.

I would, in the absence of bruising that would indicate force or restraint, have, as we in the US say, have "reasonable doubt", due to the he said/she said nature of this trial.

In a post verdict interview, a juror was asked:

Q: Was there a compelling piece of evidence or testimony?
Juror: I don't think there was one compelling piece. As we said, we watched the testimony from the first day and it wasn't an easy verdict to come to.

My feeling is that if there is "No compelling evidence or testimony", then a Guilty verdict is a miscarriage of justice.

As far as bax's point...yes, what you say is true, and I am NOT into victim blaming, IF it isn't a case of "entrapment", or simply post coital regret.

The Mike Tyson verdict probably has more to do with race and Tyson's personal behavior during the trial, which Tyson himself admitted was deliberately confrontational.

[T@T]

Originally Posted by GreenLantern2814

The Mike Tyson verdict probably has more to do with race and Tyson's personal behavior during the trial, which Tyson himself admitted was deliberately confrontational.

You could add that Mike Tyson has the intelligence of a watermelon to the mix as well.

[calgaryblood]

I really feel it's unfair to be labelling this woman a gold-digger at this point. When the facts come out and it is known who is the liar, then we can throw around the labels, but as of right now I think this is very damaging to any woman or man out there who has or will suffer sexual abuse at some point or another. Imagine this was your sister, daughter, mother who was actually raped. How do you think she would feel reading posts that automatically assume she's lying or looking for attention or money? It's already a problem with sexual abuse victims not reporting their abuse, I think we need to do a better job supporting the victims and not assume they are lying because an athlete is being accused.

It doesn't matter where your back round is from or how rich you are. Abusers come in all shapes and sizes. Whoever is telling the truth will get their time to tell their story and the liar will hopefully serve time in jail whether its the woman or Patrick Kane.

[GreenLantern2814]

Originally Posted by T@T

You could add that Mike Tyson has the intelligence of a watermelon to the mix as well.

Or a less racially charged fruit. Like a clementine. Those things are stupid as ####.

[calgaryblood]

Originally Posted by FlamesAddiction

Yep. I know I can't be the only guy that had those nights where it seemed like intimacy was a sure thing and then she pulls the plug at the last minute. It sucks and sexual frustration can certainly be intense. Then you just watch a movie, drive her home and bust out some knuckle kids after and everything is fine.

I have no respect for guys that think consent is implied by being present.

Very frustrating but sometimes the chemistry just dies off when you actually meet the person and nervousness kicks in and you or she has a change of heart. Just cause she shows up thinking there is the possibility sex might happen doesn't mean she can't change her mind.

[MBates]

Originally Posted by schteve_d

I suppose while we sit around the computer that may be true, but let me suggest this: If you ever find yourself in a position with another person that you are about to have intimate relations with, and you need to debate with yourself or someone else whether or not you have consent, or the level of that consent, that you back the eff off and re-evaluate what you are doing or what you are about to do. If you don't do that, then you just may be a very scummy person.

I would hope this is common sense for anyone of either sex.

If you are not sure, then you had better assume that you don't have consent and if you proceed, then I have no sympathy for your repercussions.

In my opinion, the criminal law of sexual assault in Canada is very poorly suited to ensuring just outcomes. There have been very positive developments in dispelling so-called 'rape myths' and in protecting victims being unduly 'attacked' in court, but the fact remains for all parties that a great many real-life situations may...or may not...be seen as criminal offences when assessed after the fact in the artificial arena of the courtroom. If it is not clear in court what the boundaries are it is not hard to see how it can be unclear in the heat of the moment.

Kissing your sleeping spouse to wake them up in the morning can technically be a criminal sexual assault in Canada...since the fact he or she is sleeping means they cannot consent.

However, a person being subjected to prolonged unwanted sexual intercourse does not automatically mean a crime is committed at all because an honest but mistaken belief in consent is a complete defence.

(That's right, BOTH the accuser and the accused can be telling the truth...and there be BOTH no consent to sexual acts AND no criminal monster).

Only 4 years ago the Supreme Court of Canada was divided on whether a man committed any crime (6 said guilty 3 said not) when engaging in sexual asphyxiation with his long-time common law partner. The Ontario Court of Appeal was also not unanimous in deciding whether the trial judge got it right. So, there was complete disagreement among 13 highly respected legally trained judges - none of whom were out to victimize women or cheer on rapists.

http://scc-csc.lexum.com/scc-csc/scc.../7942/index.do

The over-generalizations in this thread are both shocking and in my view part of an ongoing problem - not a solution.

Statistics about how often a woman makes a false claim or how often a pro athlete refuses to take "no" for an answer are completely meaningless to the actual human beings at the centre of this incident.

How ironic that the very unfair historical attack on a woman's prior reputation that used to be ordinary in a sexual assault defence has somehow now become appropriate in the minds of some to apply to a presumed innocent person who as of yet is not even accused of a crime by authorities.

For those who doubt false allegations happen, I have personally defended a client who was subjected to one by a stepdaughter. It destroyed him and his family. And he was innocent (not just because of the legal standard of proof but because HE DIDN'T DO ANYTHING).

In June of this year the Alberta Court of Appeal issued a judgment denying the accused costs from the Crown in a case where the trial judge found "the three complainants and their mother had made false complaints to the police and lied to the court" and that the Crown had run a "critically weak" case relying on the "utterly suspect" evidence of a "vindictive liar".

http://www.canlii.org/en/ab/abca/doc...&resultIndex=1

Unless any of you were there, you know absolutely nothing about what Kane or the complainant did or didn't do. No speculation masquerading as inherent morality can change that fact.

And to attempt to turn the thread back to a discussion actually related to anything about the Kane story, none of the discussion of Canadian sex assault law matters (including my own above).

A quick search of New York State sexual assault law reveals massive differences including that implied consent is a defence to some charges, and corroborating evidence other than the evidence of the complainant is required before a conviction can result in situations where lack of consent is alleged due to mental incapacity such as from drugs or alcohol.

http://ypdcrime.com/penal.law/article130.htm#p130.10

http://codes.lp.findlaw.com/nycode/P...E/H/130/130.16

There really is nothing to talk about here until some facts are reported...and even then...again speaking from experience...the "facts" don't exist until the verdict is rendered by a judge or jury (a.k.a. the trier of fact).

[thefoss1957]

Originally Posted by Makarov

In the Tyson trial, evidently the jury accepted the complainant's evidence and rejected Tyson's evidence.

Again, in the interview with the juror,

Q: Was any witness more convincing than another?
Foreman: I think that the accusing witness made for a very good case and a very credible testimony.

The jury foreman simply believed the woman's version of events...taking the "she said" side...NOT evidence from a medical person, who would substantiate injuries, NOT evidence from police, about other forensic evidence. Just her story, and mind you, she was a beauty pageant contestant playing to a majority male and white jury. This just seems a little thin for a conviction.

[EldrickOnIce]

Not that it may apply here, but it's not even just chemistry or anything like that... she might be down for a lot, but not 'that'.
So 'that' is rape.

[Nage Waza]

Originally Posted by zamler

Why would I ask such a thing in jest? I'm going to assume that people who think it is a joke or make sarcastic comments toward it are ignorant of the issues surrounding consent

Ignore them, they really don't know what they are mad about.

As you have alluded to, some states have formal verbal consent as a requirement, and of course, that in itself has been controversial.

I believe, and some experts here may know more, but in Alberta (I think Canada) being intoxicated removes the ability to provide consent.

[calgaryblood]

Originally Posted by Nage Waza

I believe, and some experts here may know more, but in Alberta (I think Canada) being intoxicated removes the ability to provide consent.

This is true in Alberta. You can not give consent if you are intoxicated by any drug or alcohol.

[T@T]

Originally Posted by calgaryblood

This is true in Alberta. You can not give consent if you are intoxicated by any drug or alcohol.

I wonder how many people my age are guilty of rape? I know one thing, if that's the law I could be considered a repeat offender.

[CliffFletcher]

Originally Posted by calgaryblood

This is true in Alberta. You can not give consent if you are intoxicated by any drug or alcohol.

So if a married couple have sex when one or both are intoxicated...?

[Makarov]

Originally Posted by calgaryblood

This is true in Alberta. You can not give consent if you are intoxicated by any drug or alcohol.

What on earth are you talking about? This is simply untrue (and would be completely absurd.) Frankly, I don't understand how anyone could even find such a proposition plausible.

Obviously, people consent to sexual activity while intoxicated. A person only loses the ability to consent to sexual activity when they are so intoxicated that they have essentially lost consciousness due to alcohol or drug use.