When rape isn’t actually rape – outrage at Australian judge’s sex assault excuses

A Judge has questioned if a man who had sex with a drunken woman after she passed out should be “marked for the rest of his days as a rapist”, describing it as a “technical rape”.

Sexual assault experts and victims groups said the judge should be censured while NSW Rape Crisis Centre manager Karen Willis said there was no such thing as a “technical rape”.

In the South Australian District Court yesterday, Judge David Smith said he was “troubled” by the case of Matthew James Sloan.

“Rape is a horrible offence . . . I suggest that this is a technical rape,” he said.

“This is not a situation where an offender perpetrated a sex act on an unconscious victim which she would not have consented to, had she been conscious.

“To mark this man with the grave offence of rape for the rest of his days will stop him travelling to some countries and prevent him getting jobs.”

Sloan, 29, of the Adelaide suburb of Highbury, pleaded guilty to raping the woman in the city’s east parklands in June 2008.

The court had heard Sloan met his victim at the PJ O’Brien’s pub and suggested they have sex across the road.

She agreed and the two began to have sex but she fell asleep during foreplay – which Sloan continued despite her being unconscious. Both were drunk at the time, with the woman being “heavily intoxicated”.

Sloan was due to be sentenced yesterday. Prosecutors had asked he receive at least a suspended jail term for his crime. However, Judge Smith said that might not be an appropriate penalty.

“I would put this offence at the lower end of the scale because the (sex act) began as a consensual one before the victim passed out and became incapable of consenting,” Judge Smith said.

He declined to pass sentence, saying he needed more time to consider his ruling.

He remanded Sloan on continuing bail until next week.

Anne Cossins, from the NSW Government’s Sexual Assault Task Force, branded the judge’s comments “typical”.

“Judges have become scared to voice what they think but this is what they think,” she said.

“It is the sort of thing judges should be censured for.”

Ms Willis said that the law was clear: Having sex with someone who was unconscious was against the law.

http://www.dailytelegraph.com.au/news/when-rape-isnt-actually-rape-outrage-at-judges-sex-assault-excuses/story-e6freuy9-1225753449620

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