Two wrongs = suspended sentence for rape

I’m finding it hard to understand the sentencing in this case (leaving aside worries about whether we ought to be imprisoning people at all anyway).

Two men had sex with a 15 year old girl who was “severely intoxicated.” They have received suspended sentences, because “the sex was consensual.” Two other men are yet to stand trial in relation to “having unlawful sexual intercourse with the girl on the same night.” It’s not clear from the news story whether this means that the girl was raped by four men at once, or by two men at one time during the night, and then another two later on in the night. Whatever. The fact is, up to four men (two now convicted of unlawful sexual intercourse, two yet to stand trial) had sex with a drunken girl.

The age of consent (for most purposes) in South Australia is 17. This girl was 15. So whatever else was wrong in what the two men who have been convicted did that night, they were guilty of an offence that carries a potential jail term of up to 10 years (Criminal Law Consolidation Act 1935 – Sect 49).

They got an 18 month good behaviour bond, and 12 month jail sentences, suspended. Why? Because they said sorry, and, wait for it, because the sex was consensual.

But, get this. In the very same section of the Act, there’s this clause:

Consent to sexual intercourse is not a defence to a charge of an offence under this section.

So no matter what, the fact that the girl “consented” doesn’t change the nature of the offence.

Of course, the two men have actually been convicted of the offence, but nevertheless, the girl’s “consent” seems to have been used as a mitigating factor in sentencing.

It gets worse. Under the same act, in the section on rape, it turns out that:

a person is taken not to freely and voluntarily agree to sexual activity if … the activity occurs while the person is intoxicated (whether by alcohol or any other substance or combination of substances) to the point of being incapable of freely and voluntarily agreeing to the activity. (Criminal Law Consolidation Act 1935 – Sect 46)

Somehow, I just can’t get those two sections to gel, to make some sense of the sentences handed down. Surely the fact that the girl was “severely intoxicated” means that leaving aside any issues of underage sex, she couldn’t consent. Full stop. Period. End of story. Yet somehow, instead of making things worse, the fact that the girl was drunk and “consented” to sex, has made things better for the men who committed this crime. And why on earth were the men charged with “unlawful sexual intercourse” and not with rape in the first place. She didn’t consent, and that makes it rape.

I’m struggling to understand how these men got off so lightly for raping a drunk girl. My head keeps on going round and round in circles, trying to understand how two wrongs has added up to leniency in sentencing. Why can’t M’Lud see that the fact that the girl “consented” when she was severely intoxicated makes the offence even worse.

11 responses to “Two wrongs = suspended sentence for rape

  1. Well said. Surely these people must be tried again, since the Judge’s decision is perverse. Someone below the age of consent cannot give consent; that much is obvious. And the law does not allow the excuse of the victim’s intoxication.

    Yet the ABC present the case as if it were a sex romp, involving a silly girl who got drunk and felt bad about it later.

  2. It’s not clear from the story how the girl got drunk. Or whether the men knew she was under age. So we have two plausible stories:

    - Young girl goes to party after band plays, is plied with alcohol and flirting by man, once drunk is raped by man and friend. Rinse and repeat. Eww!

    - young girl goes to party in order to get drunk and have sex. Finds cute man, lies about age and flirts with him in order to get alcohol and sex. Becomes drunk and cocky, says “I can handle both of you” and does. Later, repeats exercise with two more men. Next day feels like an idiot.

    Now, from the report that she feels more like an idiot and less like a rape victim, it seems likely to me that the second story has more chance of being true than the first.

    Personally I’ve always said “if you need to ask for ID, she’s too young” but that was because I wasn’t interested in having sex with girls when I was that young. But given the number of young idiots I’ve known who spent a lot of time and energy getting alcohol and sex when they were legally too young for either, I’m cynical about the politics involved in severe punishment without evidence of intent. The convictions are exactly what is called for, but imprisoning people for being victims of deliberate fraud is not really a useful approach IMO.

  3. This is something I don’t get – if a girl is really really drunk and doesn’t say NO in a positive and clear way it is assumed that she is available for sex i.e the default is; if she is out in mixed company getting blind drunk she is there for sex unless she states otherwise (hopefully with a witness). The onus is on her to prove she didn’t consent.

    I wonder how this would play out if a guy was out getting legless with his footy mates and in the small hours of the morning one of his mates decided to “have sex” with him – cause he didn’t actually state he didn’t want to …

  4. Sorry, Moz, but if the law says men shouldn’t have sex with underage girls, I would have thought that the fact she was drunk (no matter how she got drunk) shouldn’t make a blind bit of difference. They were the grownups.

  5. M-H, that’s why I support the convictions. She was underage.

    BUT putting someone in prison for consensual sex with an underage girl is a bit out of the ordinary. I don’t see anyone being convicted of the equally repugnant offence of alcohol to a minor. Why aren’t you calling for those people to be imprisoned too?

    At this stage there’s nothing to suggest that the sex was not consensual, nor the drinking. The fact that the participants apparently believed it was consensual inclines me to think it probably was. My impression is that in cases like this if there’s any suggestion of rape people are all over it. But that’s absent…

    Honestly, have you never seen an underage person lie about their age in an attempt to get sex or drugs (or rock’n’roll, for that matter)?

  6. Second question: at what point do you try to force a woman to feel like a rape victim when she doesn’t want to? If she says she fees like an idiot, isn’t that enough punishment for her stupidity? Does she really need to be victimised as well?

  7. I wonder whether they judge is applying different reasoning to the two issues of conviction and sentencing? Eg, the men were convicted but the sentence was reduced due to various factors. So consent wasn’t applied as a defence to the charge but it was used as a factor in sentencing.

  8. Um, because she might have been conditioned to believe it’s all her fault… (Tssk, where would a girl in this society get that idea!) and might be reassured that that’s not the case?

  9. Tricky said:
    “I wonder how this would play out if a guy was out getting legless with his footy mates and in the small hours of the morning one of his mates decided to “have sex” with him – cause he didn’t actually state he didn’t want to …”

    A more likely scenario would be that one of his mates mite decide to have a punch up with him, possibly causing emotional and physical harm even death. It’s not so flash on the male end of the spectrum ether, when getting drunk and being a teenager growing up within Anzac culture is concerned.

    What ever the legal technicalities of four men having sex with a fifteen year old girl are, its very yuck, IMO. Regardless of the sentences for these sorts of crimes, it seems the judiciary needs to stop sending out such wishy washy messages for the media to dilute even more. The sort of behavior that led to the court case is unhealthy. Having turns to masturbate in a fifteen year old girl, is not actually very considerate. I don’t know what else to say, yuk.

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  11. Tricky’s comment: “I wonder how this would play out if a guy was out getting legless with his footy mates and in the small hours of the morning one of his mates decided to “have sex” with him – cause he didn’t actually state he didn’t want to …”

    This is exactly the scenario I think about when I hear about football sexual assualts. What if a woman picked up a footballer and assumed that because he was up for sex with her he wouldn’t mind her boyfriend and his best mate also barging into the toilet cubicle and having sex with him? Oh, and filming it on their mobile phones for Internet release. Uh-uh.

    Moz’s comment: “isn’t that enough punishment for her stupidity”

    Interesting to note how quickly your analysis of this situation turned to issues of “punishment” and “stupidity” in relation to the girl’s behaviour.