Incide
Why would they - are you a judge? From https://www.alcoholhelp.com/alcohol/blacking-out/. From "Depending on how much alcohol the person drank and how impaired other brain functions are, a person in the midst of a blackout could appear incredibly drunk – or barely intoxicated at all."
And you're also introducing a lot of Ifs - if there are no witness statements, if there is no medical reports, If there is no corroborating evidence.
Do you still support that the assertion that if a person cannot remember giving consent that they MUST have not given consent regardless of anything else? That is the only thing I am challenging.
The very scenario discussed on which you quoted me was that the person was so drunk they couldn't remember. Like I said, it isn't the lack of memory that vitiates the capacity to consent. It is the intoxication. So the only thing you are challenging is an argument I never made.
I also haven't introduced any of those ifs you refer to. You have. It is fairly obvious that the trier of fact needs to believe a fact is the truth. I was just showing how in the scenario being discussed, where the person was black out drunk, certain assumptions will be held when that has been established. The defence will then try to establish that regardless the victim was acting normally. Probably a tough gig but not the incorrect strategy.
Thinking about section 36A in more depth after you have brought it up (correctly), it really in essence acts a defence even if it is an element of the offence itself. In reality for a scenario like this, the accused would need to convince the bench or jury belief in consent was reasonable.






