Drunk sex not rape, Court of Appeal rules

A COURT has scrapped the conviction of a man accused of raping a woman who had passed out drunk because he might have thought she wanted sex

This is despite evidence she had twice rejected his advances before falling unconscious.


The Court of Appeal set aside Tomas Getachew's rape conviction and ordered a fresh trial because jurors were not told to consider that he might have believed he had his alleged victim's consent.

One of the three appeal judges disagreed with the decision, which has stunned the woman.

Prosecutors are considering a High Court appeal.

Getachew, 28, was accused of raping the woman as they shared a mattress at a mutual friend's house in Melbourne in June 2007.

The County Court was told the woman, who was drunk on champagne and bourbon after a night out clubbing, had twice pushed him away before passing out.

She later woke to find him raping her, it was alleged.

Getachew allegedly told the victim he had pressed against her for warmth and later told a friend the woman had "pushed back" into him causing penetration.

The judge jailed Getachew for at least two years and nine months.

But the Court of Appeal has ruled there had been an oversight in the way the jury was told to deliberate.

Technically, a crime of rape can be proved only if the jury agrees that the accused knew the victim had not consented, or might not be consenting.

Justice Peter Buchanan and Justice Bernard Bongiorno said the judge had failed to properly explain this rule to the jury.

This meant the jury had not considered the possibility that Getachew might have thought the woman had been awake and, through her lack of resistance, consenting.

Justice Lasry agreed there had been problems with the instructions given to the jury, but said there had been no miscarriage of justice.

Not only had the victim rejected Getachew's overtures, the accused had declined to testify, which meant his belief in consent could not be established either way, Justice Lasry said.

Those close to the alleged victim, now in her late 20s, say she is upset.

"She is a courageous girl but this has hit her hard," said a friend.

A new trial means the victim would probably have to undergo another gruelling cross-examination.

Centres Against Sexual Assault convenor Carolyn Worth said: "These types of appeals would not encourage women to report rapes.

"Why would someone report when the spirit of the legislation is manipulated in this way?"

Getachew was set free on bail last week.

Source: http://www.dailytelegraph.com.au/news/national/drunk-sex-not-rape-court-of-appeal-rules/story-e6freuzr-1226075251397

---

I find this news article really sad. If a woman says no a few times, whether or not she pushes into the man (cuddling) while asleep, he still knows she said no. THIS IS RAPE--NOT CONSENT. I have friends who have been raped like this. What a bad message the court is sending here... :(

Congressman Weiner admits online affairs

Representative Anthony Weiner on Monday tearfully admitted having a number of inappropriate relationships with women over the Internet, saying he was deeply ashamed but would not resign.

Weiner, a New York Democrat and leading liberal voice in the House of Representatives who was expected to run for mayor of New York City in 2013, admitted to inappropriate Internet and telephone conversations with six women but said none of them developed into a physical relationship.

"I'm deeply regretting what I have done and I'm not resigning," Weiner, who had been seen as a rising star among Democrats, told a news conference while wiping away tears as he apologized for his actions and for lying in the cover-up.

"I tweeted a photograph of myself that I intended as a direct message as part of a joke to a woman in Seattle," he said of an image sent over Twitter of a man in his underpants, which sparked the scandal more than a week ago.

"Once I realized I had posted it to Twitter, I panicked. I took it down and said that I had been hacked. I then continued to stick to that story, which was a hugely regrettable mistake," he said. "The picture was of me, and I sent it."

Calling his actions "very dumb" and "destructive," he stressed he did not have sex with any of the women.

Weiner is married to Huma Abedin, a longtime aide to Secretary of State Hillary Clinton. The couple was married in a ceremony officiated by former President Bill Clinton.

"I love my wife very much and we have no intention of splitting up over this," he said.

Last week, Weiner denied tweeting a photo of a man's bulging boxer briefs to a 21-year-old female student in Washington state, insisting his account had been hacked.

FORGET ABOUT MAYOR?

Weiner said his affairs were conducted over several years on Twitter, Facebook, email and by phone with women he met online, primarily on Facebook. He said he sent the women explicit pictures of himself but broke no law, mostly used his home computer and never used his congressional mobile device.

"Certainly he can forget about mayor," said Doug Muzzio, a professor of public affairs, at Baruch College in New York, adding that while Weiner might weather the storm, he will likely face a tough challenge if he seeks re-election in 2012.

House Democratic Leader Nancy Pelosi called for an ethics probe "to determine whether any official resources were used or any other violation of House rules occurred." Weiner said in a statement, "I welcome and will fully cooperate with an investigation by the House Ethics Committee."

New York State Republican Party Chairman Ed Cox called for his resignation, saying, "His actions are at best despicable and at worst illegal."

"To further a cover-up he stood by while encouraging others, including Congressional employees, to lie, slander and discredit the professional reputations of those who were telling the truth," Cox said. "His inappropriate behavior has irreparably damaged his ability to serve."

Former Senate Republican aide John Ullyot, a communication consultant at Hill & Knowlton in Washington, said Weiner, "lost a big chance to salvage some dignity by resigning promptly."

"Weiner's handling of this situation is an absolute disaster -- a textbook example of how not to act in a matter involving personal scandal," he said.

"By holding a news conference and answering 30 minutes worth of questions, Weiner opened up many more lines of inquiry than he resolved: the possibility of underage victims, use of office phones, questions of whether his wife was aware ..."

Earlier this year, two other members of Congress, both Republicans, stepped down amid scandal. John Ensign resigned from the Senate amid an ethics committee probe into his extramarital affair with a campaign aide. And Representative Chris Lee resigned after he posted a shirtless and flirty photo of himself online.

On Monday, more pictures of Weiner, this time of him from the waist up sitting at his desk naked, surfaced online.

On Monday he characterized his relationships with the women as "a frivolous thing" and admitted that the affairs were conducted both before and since he was married.

Weiner's denials and eventual admission was evocative of President Bill Clinton who in 1998 admitted to an affair with White House intern Monica Lewinsky after vigorous denials.

Unlike Clinton, who was accused of being evasive even after admitting his dalliance, Weiner took many questions from the press on Monday, answering them plainly as he choked back his emotions, pausing to sip water on several occasions.

Unusual revelations by politicians in the New York metro area are nothing new. Former New York Governor Eliot Spitzer resigned after frequenting prostitutes and former New Jersey Governor James McGreevey, who was married, tearfully resigned after it was revealed he had a homosexual affair with an aide.

Still Weiner being undone by his own actions while using social media tools such as Twitter which he was successfully using to bolster his personal political brand is certainly a modern twist.


Source: http://www.chicagotribune.com/news/sns-rt-us-usa-politics-weitre7555ya-20110606,0,6811144.story?track=rss