WA Evidence - Is It Worth Pursuing This r**e Case?

Discussion in 'Criminal Law Forum' started by purplemarshmallow, 6 November 2018.

  1. purplemarshmallow

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    I was raped by a friend a couple of years ago, whilst I was high (and he was not). There's no physical evidence, but I read that evidence of 'change' and impact on the victim could be used. I have messages between me and friends, and him, questioning whether it was r**e (with him saying things like 'you were more vulnerable high', 'I stayed sober so I could make a decision' etc).

    I kept a diary and a few video diaries detailing how I was pushing him away and he kept holding my arm down, I have Tafe attendance records, I am currently seeking trauma therapy at SARC.

    My best friends at the time were initially on my side calling it r**e and helped me through my PTSD but then ended up ditching me for him, so I probably don't have many character witnesses now except for one of my housemates and my boyfriend.

    Is it worth pursuing this in court with what little I have? I know things like this are like 100% proof or nothing, and he still denies it was r**e, all I have is evidence of how I processed it, my PTSD and depression, how my attendance dropped, and how I've been affected by things like sex and intimacy afterwards (I was a virgin before the r**e). I have read that a civil lawsuit is a better option for things that are a little wishy-washy with evidence, but they seem like they're only for getting money.
     
  2. Anics

    Anics Member

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    I'm not a lawyer or have any law experience at all this is just an opinion..

    But firstly what is considered as r**e? Did you explicitly not give your consent or, where you unconscious at the time? Also, you say this was a couple of years ago I'm not sure about Australia specifically but usually there are time limits on reporting crimes so that is also something you should look into. As far as I'm aware the statute of limitations in protecting defendants in minor crimes is one year and major crimes five years.

    Any video diary or similar documentation of events is your word against his. Text messages are great but what exactly are they saying? Is it something you believe to be of value to prosecute? I would imagine that if there were an investigation into this matter the police would most definitely want to speak to your old group of friends. What do you think they would say?

    Definitely seek a lawyer's advice but keep some things in mind that it if things do not work out in your favour and he is cleared of any wrong doing, he may be able to take you to civil court. *Do not quote me on that, I'm not 100% on Australian law specifically but that is usually an option*
     
  3. Scruff

    Scruff Well-Known Member

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    There is generally no "statute of limitations" when it comes to an indictable offence, however there is for civil cases.

    What you have described is a serious criminal offence that is best dealt with by the Police - especially if you have text messages where the perpetrator incriminates himself. By that, I mean text messages that acknowledge that a sexual act took place and that at the time of the act, he was aware of or reckless to the fact that there was no consent. It sounds to me like you may have this. If you do, then you should forget civil action and report it to the Police.
     
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  4. purplemarshmallow

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    @Anics; I never said a word at the time, but I was high (and drifting in and out of consciousness), and I kept pushing him away but he would hold my arm down. The messages with my friends are mostly me going over the things that happened and the things he said after and them occasionally saying it was r**e, or just scummy etc. Because I was in denial at the time, I call it consensual sex but say that 'from his point of view it seems like r**e'. My friends now believe it wasn't r**e (I have two friends from that time who still believe it was r**e), as after I distanced myself from the group it seems they all came back together and 'forgot'.

    @Scruff; the main incriminating messages from the perpetrator are ones where he acknowledges that I was high, that he only wanted to have sex with me high because I was more vulnerable and was cold to his responses sober, and his admission that "I wanted to make sure I was in the right frame of mind to decide if anything was going to happen between us" (which implies that he knew I wasn't in the right frame of mind to make a decision). But he never outright admits to it being r**e or me not giving consent, so I don't know if that implication is enough. It's also difficult because of the messages with me calling it consensual sex and I feel like denial wouldn't be taken as seriously.
     
  5. Scruff

    Scruff Well-Known Member

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    Okay. Here's some personal thoughts that I hope you will find helpful. This is more about things to think about if you go ahead and take action. You've already mentioned SARC, so I'll assume at this point that you have access to a counselor who is familiar with your circumstances.

    So at this point, I think you should speak with your counselor about possible emotional and psychological impacts of pursuing the matter. This will help you to determine if you think you're in the right place emotionally to go through with it. Also, if you haven't told your family yet, your counselor can help in that area too. If you go ahead, family will be very important because you will need a strong support base.

    The next thing would be to speak to a lawyer to find out exactly what your options are, what to expect in regard to dealing with the Police and how the court process will work. Again, your counselor may be able to refer you to someone with experience in the right areas. Once you've done that, you should then be able to decide how you want to proceed.

    One important thing to know right now is that you don't need to rush. Counselor -> Family -> Lawyer -> Decision. The decision to act or not and what any action will be, is ultimately yours and you need to be comfortable with it - whatever it is. So again, don't rush.

    If you do act remember to always stay positive, but at the same time, prepare for a worst case scenario. There will be good days and bad days and as with anything, there is always the possibility that the outcome of all of this won't go your way. It is extremely important that you not only realise this, but accept it before you even start. You need to have belief in yourself that you will be able to cope with the bad days and also with a loss if that should eventuate. So the message here is "prepare" for the worst, but "stay" positive. A good way to look at it is "I know I am doing the right thing by pursuing this, so no matter what happens, I have no regrets."

    Along the same lines, it would be beneficial to you if you commit now to having as much faith in the system as you can muster. Like having belief in yourself, having belief in the system and committing to accepting whatever the outcome is, will definately help you to take back control of your life and move on once this is all over. So similar to above, this is about "once it's over, it's over - and I'm not going to look back." This is not an easy thing to commit to, but if you can do it on some level, then it is going to help in a big way win or lose.

    There's also a few things to note about your particular case...

    In years gone by, the legal system was inclined to give benefit of the doubt to the accused when it came to the victim being impaired (drunk, high, etc). Nowadays however, the system has reversed this line of thinking which significantly strengthens your case. The general principle now, is that a person is not capable of free will if they are incapacitated, therefore they are not capable of giving consent.

    How the states word their legislation however is very different. Each state has a bunch of different offences with each one having it's own criteria. In WA, there is an offence called "Incapable person, sexual offences against", which states
    So impairment by alcohol or drugs could fall under (a), (b) or both and I have no doubt that "drifting in and out of consciousness" would render you an "incapable person" under this definition. His actions therefore would consitute an offence under this section (s330 WA Criminal Code Compilation Act.)

    (NSW deals with intoxication differently. Instead of there being a seperate offence, it is dealt with in the section that actually defines "consent". It basically states that "substantially intoxicated by alcohol or any drug" is "grounds on which it may be established that a person does not consent". This means that intoxication can be a factor in any offence where consent is a factor. So the principle is the same, but how WA and NSW implement the principle in regard to how the legislation is worded is very different.)

    This is an admission that he was well aware of your incapacity and also shows the possibility of premeditation. Speaking of which...

    If I am reading this one in the correct context, in that this is a direct quote of one of the text messages, then this refers to his state of mind and him making a decision. If that's the case, then this could be evidence of premeditation - in which case he's in even more trouble and would likely result in a much harsher penalty.

    Don't be too concerned about this. What matters is what took place at the time of the incident. Just make sure that you don't try to hide this from the lawyers or Police when the time comes. Tell them everything so that they don't get ambushed later on. They'll know how to deal with it - that's their job.
    Also don't forget that in your emotional state, you may have been influenced or even manipulated by others, particularly in the early days and particularly in regard to keeping it quiet. The more people you speak to, the more your behaviour and statements can be influenced when you are so distressed. There is also the denial factor that you already mentioned.
    So don't worry too much - the lawyers, prosecutors etc will know how to deal with all of that.

    This can all be used as evidence. Don't hold anything back.

    All up, I think your case is a lot stronger than you think, so I recommend Counselor -> Family -> Lawyer -> Decision, and I sincerely hope the rest of the equation will look something along the lines of Police -> Court -> Conviction.

    Sorry for the long post - I know it's a lot to take in, but I hope it helps in some small way. You have a lot to think about, so take your time and consider everything you do from here on very carefully - one step at a time.

    Ultimately, this all leads to you making one massive decision - and you being comfortable with that decision, is the most important thing of all. You come first - everything else is secondary.
     
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  6. purplemarshmallow

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    Thanks, this does give me a little more confidence to seek out a lawyer and see what I can do. I have been held back by the denial part, as I believed at the time that it was consensual because I was interested in having sex with him. He flirted with me a lot after we moved in together and even messaged me stuff like ‘the plan is to sleep with you because you’re so desperate’ and my response is ‘eww, you’re rapey’ but he claims that those messages were part of my ‘consent’. I was also a virgin and it took being with other partners to realize that what happened wasn’t really sex. I felt pressured on the night when he was just touching me but as I knew he was sober and was aware that I had never been touched by another person, I trusted him to not go too far.

    I still think the evidence I have is a bit wishy-washy, but I do now think those messages from him are strong enough evidence to show that he was aware of my state of mind and took advantage specifically because of it (he at first said it didn’t happen just because I was high and it was a long time coming, but then said ‘we’ only allowed it to happen because I was high). He also has bipolar and some people have warned me that he could use that as a defense (though at the time I thought I had schizoid personality disorder, now more likely to be aspergers, and he said that he had researched it and that they don’t get emotionally attached so that was another reason he ‘chose’ me).

    Anyway, I will discuss it with my counselor next time I see them, possibly seek out a lawyer and see where it goes from there. Thanks for taking the time to write such a detailed response!
     
  7. raped at Bond university

    raped at Bond university Active Member

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    Leche Cafe, Yamba - Restaurant Reviews, Phone Number & Photos - TripAdvisor

    His admissions sound very damning. He premeditated it and groomed you which would make for a harsher penalty.
    Conviction rates are low for r**e. I'm not a lawyer and your statement that it was consensual would work against you, but his own statements and the fact you were mostly unconscious would work in your favour.
    Try for a criminal charge first. You have nothing to lose. Prepare in advance for their tactics to blacken your character. I would worry about your old friends, they sound like jerks.

    You should try for civil compensation too if you can, you deserve the money. Call it restitution or compensation if you have problems, due to damaged esteem, receiving the money you absolutely deserve.

    If it happened within the last twelve months in some states you can sue for sex discrimination and there are no legal or court fees. In Qld you may get an extension. And there's no limit on maximum compensation in Qld.
    Criminal charges - the evidence that came out would help your civil case. The most important thing about a civil case is that time limit on filing it. Call a no win no fee lawyer for free advice. They want to know if the rapist has money to pay the claim. You have to prove it by it being at least 51% likely it occurred in civil court or discrimination tribunal ie on the balance of probabilities which is a much much easier thing to prove than a criminal charge.
    It sounds to me that you want to pursue all your rights as a way of getting closure. He may be a serial rapist so it is a public service if you do have the courage to attempt to have the courts enforce your rights. This is my non legal opinion and I'm not a lawyer.

    I would ignore the typical responses of people who minimise your ordeal. You were manipulated and this predator waited until your were chemically restrained and could not resist his attack. It's an aggravated violation.

    A lot of men, especially boomers believe they're entitled to r**e, so you'll get responses blaming you or telling you to let it go.
     
  8. Sammy12

    Sammy12 Active Member

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    Your word is enough evidence, maybe this guy has done this before, have you checked his criminal record it if he has one, anyone who gets raped needs to report it, unless you want him to do this to someone else
     
  9. Reag

    Reag Well-Known Member

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    WA has reformed r**e laws to that of strict liability so intention to r**e need not be proved to be guilty.
     
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