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... :(