I can't be awake.

[morgaine_x]

Apparently, people get cautioned for rape?

Do they get cautioned for murder too?

http://news.bbc.co.uk/1/hi/uk/4894726.stm

How the fuck can this happen?

Comments

[f4f3.livejournal.com]

I hear this on R4 this morning, and was convinced I'd misheard, and then almost swallowed my toothbrush when I realised I hadn't. WTF?

[morgaine-x.livejournal.com]

I am simply gobsmacked.

Even after reading the story, and seeing that there are two possible situations in which this might be - well, if not correct, potentially justifiable, I am not convinced. I can't help thinking of the Jamie Bulger case, and feeling that anyone old enough to rape is old enough to go to trial for it. Going to trial does not preclude their receiving treatment for mental disorders, and it would offer some possibility of closure for the victims. The situation with very old cases which have no extant evidence; where it would come down to one person's word against another's, maybe a caution is a pragmatic resolution.

[pashazade.livejournal.com]

I saw an article on the Times's site. It appears that most of those cautioned were boys under the age of eighteen which leads me to believe that they were probably guilty of sex with a girl under sixteen, which is legally rape. (I think.)

[hano.livejournal.com]

That was certainly my understanding - If a boy of sixteen has intercourse with a girl of fifteen then technically he is guilty of rape regardless of whether both parties were consenting. Hence it is considered against the best interests of justice to lock up said 16 yr old boy for a number of years.
That said, R4 were saying that a number of cases were where the male admitted rape, but the victim refused to cooperate with the investigation which worried me somewhat.

[morgaine-x.livejournal.com]

I agree that ths statutory rape question is a very difficult issue, especially where consent is clear but not legally available. (Personally I believe the age of consent is too high, considering the age at which most lose their virginity is rather lower.) But the stories suggest there are cases so far outside this very specific area. The "cultural issues" one I referred to below (from the Times article) most particularly.

[f4f3.livejournal.com]

The two conditions I heard (on a gobsmacked follow up) were if both parties had learning dificulties, and where the victim did not want to co-operate in a trial but the perpetrator was admitting it - both potentially complex, but do they account for all 37 cautions issued?

Just to muddy the waters, I realised a few years back that I could have been charged, successfully, for rape, on at least two cases while I was at University and both parties were pissed out of our heads - while we were both ludicrously keen to get it on (come on we were 19!), neither of us was in a condition to properly consent to the act (since drunken consent is not adequate in law). I must admit, this really spooked me. Well, it really spooked my late thirties self anyway.

[hano.livejournal.com]

just to muddy the waters even further, what about when both parties have dropped large quantities of Ecstasy?
And no, I'm not talking from personal experience, just that of people close to me.

[f4f3.livejournal.com]

We're getting into areas I can't judge on - but if you can't consent, then consent can't be assumed.

[morgaine-x.livejournal.com]

If you're intoxicated, on whatever substance, you cannot give consent. Retrospective consent, of course - it's like the drunken student thing - I am not convinced that the absence of explicit consent necessarily implies rape. Of coruse, the presence of explicit consent goes a long way towards obviating the question.

[morgaine-x.livejournal.com]

From the Times: "Examples include a case in which the complaint was about an incident 40 years previously, family cases arising out of wider domestic violence investigations and cases involving youngsters
One academic who has studied rape cases suggested that cautions might be used if a defendant were mentally disordered or where there are particular cultural issues."

The mental capabilities of the defendant might need to be taken into account, as sad as that seems, and I am reminded horribly of an episode of "Law & Order" where this was at issue. But "cultural issues"? That is scary. So is the domestic violence issue.

The drunken university student thing worries me - I know I may have regretted a few mornings-after, but to me, they simply would not have been rape. Consent is very difficult to define, especially at that time of your life. That is a very muddy area indeed.

[f4f3.livejournal.com]

Muddy enough that I feel uncomfortable exploring it - don't know if that's political correctness, personal cowardice or over-developed sensitivity.