Rape fantasy turned bad

[alfred russel]

Any reasonable jury is going to give a guilty verdict. You rape a stranger and your excuse is that an anonymous email account said it was okay? Even if you didn't figure out that it wasn't a game at the time of the act, that is unbelievably reckless.

[Malthus]

If the guy was truly deceived - arguably, he's not guilty. Well, guilty of being an idiot.

I dunno.  The guy had the intent to commit the acts that end up meeting the crime; as to consent, I think his belief will be found to be unreasonable without further verification.

Without more details, can't say. The issue isn't whether he acted reasonably (clearly he acted stupidly, if not criminally) but whether the prosecution can prove beyond a reasonable doubt that he had the mental element necessary for conviction. Obviously if he was being "willfully blind" he's guilty, but if it can be shown with convincing evidence that the nasty ex convinced him that "she" was really into BDSM and was arranging this scenario for herself then how can he be guilty?

Say the email exchanges say "I may struggle and scream, but that's all just part of my fantasy. If it really gets too much, I'll say the "safe word', which is "Googleplex". If I say that, please stop. If I don't, just assume that everything I do is part of the act".

[PDH]

Anyone heard from PDH lately? 

Casper = Wyoming's mullet capital, the home of meth, the promised land.
Laramie = University, cultured (theater, symphony), gay bashing.

Far different places. I have no trouble believing someone from Casper did this...

[ulmont]

He lacks the mens rea

He lacked the specific intent to rape.  He had the general intent to have sexual intercourse, by force if necessary, with the victim.  I believe that general intent is sufficient.

[Barrister]

Without more details, can't say. The issue isn't whether he acted reasonably (clearly he acted stupidly, if not criminally) but whether the prosecution can prove beyond a reasonable doubt that he had the mental element necessary for conviction. Obviously if he was being "willfully blind" he's guilty, but if it can be shown with convincing evidence that the nasty ex convinced him that "she" was really into BDSM and was arranging this scenario for herself then how can he be guilty?

Say the email exchanges say "I may struggle and scream, but that's all just part of my fantasy. If it really gets too much, I'll say the "safe word', which is "Googleplex". If I say that, please stop. If I don't, just assume that everything I do is part of the act".

The test in Canada:

273.2 It is not a defence to a charge under section 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where

(a) the accused's belief arose from the accused's

(i) self-induced intoxication, or

(ii) recklessness or wilful blindness; or

(b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.

Now it's a slightly interestign legal point, because there does exist a defence of 'honest but mistaken belief in consent'.  However under Canadian law the accused would need to show he took 'reasonable steps to ascertain she was consenting'.  I have trouble imagining any trier of fact would think he did.

[Barrister]

He lacks the mens rea

He lacked the specific intent to rape.  He had the general intent to have sexual intercourse, by force if necessary, with the victim.  I believe that general intent is sufficient.

The Crown would have to prove that he intended to touch her for a sexual purpose.  Whether or not she consented (and whether or not he took reasonable steps to ascertain that consent)is part of the actus reus, not the mens rea.

[Ed Anger]

This was an NCIS episode.

[Malthus]

Without more details, can't say. The issue isn't whether he acted reasonably (clearly he acted stupidly, if not criminally) but whether the prosecution can prove beyond a reasonable doubt that he had the mental element necessary for conviction. Obviously if he was being "willfully blind" he's guilty, but if it can be shown with convincing evidence that the nasty ex convinced him that "she" was really into BDSM and was arranging this scenario for herself then how can he be guilty?

Say the email exchanges say "I may struggle and scream, but that's all just part of my fantasy. If it really gets too much, I'll say the "safe word', which is "Googleplex". If I say that, please stop. If I don't, just assume that everything I do is part of the act".

The test in Canada:

273.2 It is not a defence to a charge under section 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where

(a) the accused's belief arose from the accused's

(i) self-induced intoxication, or

(ii) recklessness or wilful blindness; or

(b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.

Now it's a slightly interestign legal point, because there does exist a defence of 'honest but mistaken belief in consent'.  However under Canadian law the accused would need to show he took 'reasonable steps to ascertain she was consenting'.  I have trouble imagining any trier of fact would think he did.

I'm not so sure it's such a slam-dunk. The key here are the "circumstances known to the accused at the time". Here, the circumstances are that of an alleged BDSM encounter arranged through the Internet (which is admittedly already unwise). We have a person *deliberately attempting to impersonate someone elses' identity*, and (presumably) deliberately attempting to fool the accused into believing consent existed. Is it "unreasonable" for a person to fall for someone's deliberate attempt to mislead them? It may be stupid, but I don't think it is obviously unreasonable.

[Barrister]

I'm not so sure it's such a slam-dunk. The key here are the "circumstances known to the accused at the time". Here, the circumstances are that of an alleged BDSM encounter arranged through the Internet (which is admittedly already unwise). We have a person *deliberately attempting to impersonate someone elses' identity*, and (presumably) deliberately attempting to fool the accused into believing consent existed. Is it "unreasonable" for a person to fall for someone's deliberate attempt to mislead them? It may be stupid, but I don't think it is obviously unreasonable.

The thing about the word 'reasonable' is that brings in an objective standard - would the reasonable person think that the steps taken were sufficient.  As I said it's going to be fact specific, but I seriously doubt any jury or judge would think so.

[alfred russel]

Is it "unreasonable" for a person to fall for someone's deliberate attempt to mislead them?

That depends. Is the deliberate attempt in the form of an anonymous email account and craigslist posting? If so, yes.

No way a jury acquits when there is a rape victim in the room.

[Malthus]

The thing about the word 'reasonable' is that brings in an objective standard - would the reasonable person think that the steps taken were sufficient.  As I said it's going to be fact specific, but I seriously doubt any jury or judge would think so.

The objective standard sure, but the objective standard of someone into BDSM. The average person on the chapham bus or whatever probably disapproves of BDSM to begin with, but it ain't illegal.

Way I look at it, the section is designed to eliminate defences which amount to lame post-facto attempts to claim the person didn't know the other did not give consent. They eliminate common situations where a person, through their own acts or willfullness, deliberately overlook a lack of consent (or as good as).

Look for example at 273.2(a)(i). It eliminates self-induced intoxication as a defence. This means that if I spike someone elses' drink without their knowledge, they can use that fact as a defense (assuming they didn't know of it).

These are highly unusual circumstances, where one person is in effect using another, through deception and identity theft, to commit a crime against a third person. The issue is whether the deception was so lame and the attempts of the guy so minimal to see through it as to be "unreasonable", "wilfully blind" or "reckless".

[Barrister]

These are highly unusual circumstances, where one person is in effect using another, through deception and identity theft, to commit a crime against a third person. The issue is whether the deception was so lame and the attempts of the guy so minimal to see through it as to be "unreasonable", "wilfully blind" or "reckless".

No, I think the question is whether any consent given throughly purely electronic means (emails, text messages, etc.) could ever be considered reasonable.

[Malthus]

Is it "unreasonable" for a person to fall for someone's deliberate attempt to mislead them?

That depends. Is the deliberate attempt in the form of an anonymous email account and craigslist posting? If so, yes.

No way a jury acquits when there is a rape victim in the room.

They corresponded. Whether or not that correspondence was convincing or not is a matter of the facts. It is true a jury will not like this guy - his lawyer's task would be to convince the jury he's a dupe and to focus the anger on the real perp - the scheming ex.

[Malthus]

These are highly unusual circumstances, where one person is in effect using another, through deception and identity theft, to commit a crime against a third person. The issue is whether the deception was so lame and the attempts of the guy so minimal to see through it as to be "unreasonable", "wilfully blind" or "reckless".

No, I think the question is whether any consent given throughly purely electronic means (emails, text messages, etc.) could ever be considered reasonable.

It is considerd reasonable to consent through electronic means for all sorts of things these days. There is even legislation on the use of "electronic signatures" for the purpose of signing government documents. The existance of fraud doesn't make relying on such consents unreasonable.

It may of course be the case that sex is a special case, but it isn't immediately obvious as to why.

[Barrister]

It is considerd reasonable to consent through electronic means for all sorts of things these days. There is even legislation on the use of "electronic signatures" for the purpose of signing government documents. The existance of fraud doesn't make relying on such consents unreasonable.

It may of course be the case that sex is a special case, but it isn't immediately obvious as to why.

s. 273.2 is why.  Consent is a defense to a lot of criminal charges.  Assault, theft, fraud, etc, all have an element of lack of consent to them.  It is only charges under s. 271, 272 and 273 (which are sex assault, sex assault with a weapon, and aggravated sex assault respectively) which contain the obligation to take reasonable steps to ascertain consent.