Does a crime victim have to believe they were a victim of a crime?

Question

For a crime to have taken place, does the victim have to consider themselves a victim?

Bob and Sue are colleagues. They both get very drunk at the Xmas office party and have sex in a shop doorway on the way home. They're spotted by a passing police car and arrested for indecent exposure. The both admit their crime and expect a slap-on-the-wrist when it comes to court. They continue in a professional relationship with no ill-will on either side.

Six months later the case is due to come up. Sue realises her name will be published, her husband will find out, her professional reputation will be harmed and she'll likely lose her job. She slightly changes her statement - 'I was drunk, therefore I couldn't give consent, therefore it must have been rape, therefore I have the legal right to anonymity' - this will prevent her name from being published and give her the anonymity she wants

Her original statement hasn't really changed "I got very drunk at the office party, I made a mistake, I had sex with Bob" But by pointing out that she was so drunk she couldn't consent she's upped the charge against Bob to rape.

Sue doesn't actually believe Bob raped her, as far as she's concerned it was mutual mistake. Sue just wants anonymity. Has Sue committed a crime by admitting she was too drunk to consent?

Answer 1

england-and-wales

There's no single answer. It depends on the crime.

Example where the victim does have to believe they were a victim

Assault is intentionally or recklessly causing another to apprehend immediate and unlawful violence. By definition it's not possible for an assault to be committed if the victim doesn't believe they were about to be subjected to violence.

Example where the victim doesn't have to believe they were a victim

A rape can take place while a person is unconscious. They can wake up the next day and carry on with their life completely unaware of what happened. It's still rape.

Example where there is no victim in the first place

It's a crime to drive over the speed limit. There's no person capable of "believing" that they were a victim of this crime.

Answer 2

canada

There is no requirement for the victim to believe they are a victim. For some offences, this is normal: attempted fraud, murder, manslaughter. Some offences don't even have an identifiable victim as such: dangerous driving; leaving an ice-fishing hole uncovered. For other offences, it may be rare and difficult to obtain a conviction with no assistance from the victim. But even for those offences, a conviction may be obtained on the basis of overwhelming other evidence; there may be admissions from the defendant; there may be a guilty plea.

Certainly, if a matter were to go to trial, for offences based in lack of consent, it may be difficult (although not impossible) to prove a victim/complainant did not subjectively consent unless they testified to that.

For situations where intoxication may have removed the capacity to consent, that would generally, but not necessarily, require testimonial evidence from the victim/complainant as to the factors relating to capacity to consent. But they can't testify to the legal conclusion that they were too drunk to consent. They can only state the facts.

It is not the case that any degree of intoxication precludes consent. See R. v. G.F., 2021 SCC 20, para. 84.

There are also other ways one can lack the capacity to consent that are much less obvious to the victim/complainant: exploitation of a young person by a person in a position of influence; certain advanced mental impairments — these people may have truly believed they consented, but in law may be deemed to have not consented.

You ask:

Sue doesn't actually believe Bob raped her, as far as she's concerned it was mutual mistake. Sue just wants anonymity. Has Sue committed a crime by admitting she was too drunk to consent?

Believing whether Bob has committed an offence depends on an understanding of the law and jurisprudence. It is not an offence to be mistaken about the law. Sue can say how much she drank and how drunk she felt. The police and prosecution can take that for what it is worth. It isn't within Sue's testimonial capacity to make the conclusion that her level of drunkenness was "too drunk to consent." That conclusion itself would depend on a multi-factor legal test. I explain the law at this other answer.

Answer 3

germany

Offenses are divided into those which can only be prosecuted if the victim requests that (Antragsdelikt) and those which must be prosecuted by the authorities regardless of the wishes of the victim (Offizialdelikt). In between are bedingte Antragsdelikte which may be prosecuted if either the prosecution finds a special public interest in prosecuting the case, or the victim requests a prosecution.

The list of absolute Antragsdelikte mostly includes different sorts of theft against family members of the perpetrator (theft, fraud, violation of postal secrecy, ...). It does not include sexual offenses.

Answer 4

Does a crime victim have to believe they were a victim of a crime?

Internal beliefs are more questions of conscience and less about legality since they cannot be known outside of a person's testimony about an event. Sue may or may not believe herself to have been a victim, but that is irrelevant to her case against Bob. If she chooses to file a police report charging Bob with rape the jury will decide for or against Bob based on the testimonial evidence. If Bob chooses to pursue Sue for raising a false accusation the jury will similarly decide for or against Sue on the basis of evidence. Private thoughts are just that, private thoughts. It's not inherently illegal to believe anything in private.

She slightly changes her statement - "I was drunk, therefore I couldn't give consent, therefore it must have been rape, therefore I have the legal right to anonymity" - this will prevent her name from being published and give her the anonymity she wants.

It doesn't work like that. Sue doesn't get to just suggest she must have been raped due to a chain of logic, then shrug her shoulders and walk away with her secret intact while Bob goes to prison and does hard time. She will have to fill out a police report formally stating that she was raped by Bob. There will be a trial, Bob will have a right to face his accuser in court, and Sue can expect to be cross examined.

Her strategy may ultimately backfire because it is illegal to falsely accuse someone, and Bob's attorney will certainly challenge her motives for bringing a charge 6 months later. The defense strategy may even include allegations of Sue's confiding in Bob about dissatisfaction with her marriage as a motive for their doorway fling. (Victim privacy laws vary by jurisdiction and are likely intended to keep a person's name from the public, but I could envision a scenario where Sue's husband is subpoenaed as a witness for the defense, blowing up her whole plan.)

Has Sue committed a crime by admitting she was too drunk to consent?

What crime? There is nothing illegal about admitting you were drunk, or drinking and having sex. There is nothing illegal about stating an opinion about your level of intoxication, and pondering whether or not you may have been above a level that would preclude giving consent. Nor is there anything illegal about stating a fact about the actual level of intoxication if it was measured at the time. It is only illegal to falsely accuse someone of a crime they didn't commit.

Answer 5

france

For a crime to have taken place, does the victim have to consider themselves a victim?

In general, no, a crime victim does not have to believe they were a victim of a crime for that crime to be a crime. If anything, the state of mind and beliefs of the perpetrator are much more relevant. There are nuances and exceptions but in general, “there is no crime without intent to commit one” (Code pénal, article 121-3).

Regarding rape specifically, there is actually an ongoing debate in France about changing the law to introduce the notion of consent (and, therefore, the victim's view about what happened). Currently, it is entirely absent from the definition in article 222-23 of the Code pénal. Instead, what constitutes rape (“viol“) is the use of “violence, constraint, threat, or surprise”.