Interesting bit from the BBC on what amounts to “rape” as (potentially subjective) afterthought. “Ensure consent for sex, men told”:
Men should make certain that a woman has consented to sex to avoid being accused of rape, a new campaign launched by the Home Office is to warn.
The magazine and radio adverts and posters are aimed at reducing the number of sex assaults taking place when a woman is very drunk.
It comes amid low conviction rates for rape cases in England and Wales.
[My emphases]
Just a quick interjection here: but does the idea of adjusting the law to promote convictions on the grounds that too few people are being found guilty of breaking the law strike anyone else as a bit…well, agenda driven…?
A law change has been mooted allowing juries to decide whether a woman was too drunk to give consent.
Mike O’Brien, the solicitor general, told BBC Radio 4’s File on 4 the law “may need some clarification” to allow a jury to decide whether the woman was too drunk to be capable of consenting, and whether she did consent.
Mr O’Brien said if the law were to be redrafted, he expected the number of rape convictions to increase.
A recent study by the Metropolitan Police revealed that more than a third of women who reported being raped had consumed alcohol immediately before the alleged attack.
[…]
A Home Office spokeswoman said the issue of consent was central to the Sexual Offences Act 2003, which stated that a person must agree to sex by choice and that must have the freedom and capacity to make that choice.
“Giving consent is active not passive, and it’s up to everyone to make sure that their partner agrees to sexual activity,” she said.
Amnesty International UK said the campaign was a “step forward” but that it must form part of a wider plan to tackle low conviction rates and “a sexist blame culture”.
“The results of an opinion poll we commissioned last year showed that a disturbingly large proportion of the public blame women themselves for being raped,” director Kate Allen said.
“In the end, a truly comprehensive approach can only come through the government backing an integrated strategy to end all types of violence against women in Britain.”
BBC Home Affairs Correspondent Danny Shaw said the aim of the campaign was “to stop young men taking advantage of drunken women and having sex with them”.
So much to unpack here, I hardly know where to begin.
First, let’s get the obvious out of the way: the criterion for consent is a perfectly reasonable one. But the demand that the consent be redefined as something that can’t be given by just any adult consenter—that is, that women are, by nature of their sex, differentially affected by alcohol in a way that only their offering of consent can be judged after the fact as inauthentic—seems to me reductive to the idea of equality. In fact, it’s downright condescending and (to borrow a quaint formulation) patriarchal.
Second, the demand by Amnesty International that the UK increase its rape convictions is an example of just how alarmingly political are the motives of some of those who claim to be advocating on behalf of a particular identity group. Note their reasoning: only with an increase in convictions can they continue to argue what is, from their ideological perspective, “objectively” true: that Europe is in the throes of a “sexist blame culture.” But the results of the survey cited as evidence don’t define “rape” (for instance, does it include this new idea that drunk women cannot offer consent, as so are therefore victims of “rape”?)—and because of that, the conclusion that it marks a “sexist blame culture” (rather than, say, a culture that believes that both men and women are responsible for their actions equally) is unclear.
What is clear, though, is that Amnesty has labeled the results part of “sexist blame culture,” and will therefore set out to fix a problem that may only exist by way of an ideologically-loaded conclusion.
That is, to prove the premise, they must somehow increase the instances of “rape” by redefining it so that women who were drinking and have next day regrets can’t be “blamed” for their own actions because “consent” given by a women is not really consent unless men (who may be just as drunk, mind) are able to see into the future and divine how the woman giving consent might feel the next day (which precognitive ability is difficult enough to pull off when you are sober).
Note again that the aim of the campaign is “to stop young men taking advantage of drunken women and having sex with them.” And in order to do so, “taking advantage” must necessarily mean that women are incapable of making their own decisions while drinking; whereas men are responsible for making the decisions for both parties. Or, to put it another way, “‘No’ means ‘no.’ And so does ‘yes,’ unless it doesn’t. Flip a coin, guy.”
This is the new equality?
Well then. You’ve come a long way, baby!
****
(h/t Allah)
Heaven forfend women be asked to limit their alcohol consumption, go out with a sober friend, or, you know…keep their knees together.
No, no. Morning regrets are always his fault.
And I would have to ask Amnesty, what does this have to do with Prisoners of Conscience? Have political prisoners disappeared, like Polio, so they need new battles to fight, like the March of Dimes switching to Birth Defects?
Publishing silly turban cartoons is kids stuff compared to where Jeff goes. How one defends an effort to seek more convictions for a complicit act defeats me, but I am not curious enough to risk the ire of those who will–in their usual evasive manner–attempt to do so.
You’re a better man than I.
Sounds like they need Dave Chapelle’s sexual consent form.
Initial here for oral… don’t worry babe, I’ll do you too. Initial here if you don’t want anal. Yeah… thats the standard response.
What’s next? If a woman bears no resposibility for her actions when she gets drunk and screws a guy, how long before she is not responsible when she gets drunk and kills a pedestrian with her car?
Oh, and certainly it is a small leap then to see that soon a bartender will be held liable, perhaps even an accessory to rape, if he sold her the alcohol she ‘willingly’ ordered when she was getting tanked before she had sex wit…I mean, was sexually assaulted by some evil man.
This is of a piece with our “moral betters” demanding, based on the disproportionate number of blacks in prison, that we, as a society, stop arresting, trying, incarcerating black criminals.
Come to think of it, isn’t it Amnesty Int’l. who makes this claim also??
Here’s yet another report of a “gang-rape” that was proven not to be when a videotape turned up:
“Disney rape report untrue”
Does this create an incentive for some guys to secretly tape encounters?
As if I needed any more incentive…
I’m a dirty, dirty boy.
We is Womyn hear us Whine.
She is invincible…. so long as he accepts the blame.
It’s his fault that she hasn’t read the recent collective government study indicating females will easily drop their thongs when drunk as skunks.
I propose a gender equality arrangement on this.
If a quite drunk man and a quite drunk woman have sex and the woman can, on waking with regrets, have the man charged with rape (a variation on the ‘morning after’ pill?), doesn’t it make sense then that a man, upon waking with a woman who is much uglier then she seemed last night, sue her for sex under false pretenses, having used his drunkenness to make herself look prettier?
TW: felt
The Lifetime Channel is scrambling for a producer I’m sure.
Sure. Isn’t that the usual argument for adjusting laws? That there is some behavior we wish to punish/deter, and thus we make the law such that it does punish/deter that?
It is a view of criminal liability that you’re charged with having knowledge of your actions when they’re are done while voluntarily intoxicated. The drunk driver that kills someone cannot say: I didn’t know what I was doing, I was drunk. This responsibility is, I think, in some ways a legal fiction—a necessary one though. The intoxicated person truly does not have the same guilty mind that the sober one does. But we still punish it. Probably because we want to prohibit the underlying behavior.
But we don’t take the same view towards non-criminal behavior, towards behavior we don’t want to criminalize. We don’t want to criminalize charity, or other contractual relationships. So we have the concept of capacity in contracts: intoxication voids contracts if the person was unable to know what they were doing, and the other party had a reason to know of this (ie, the intoxication was apparent).
I’d say consent to sex is more like the latter (contracts) and less like the former (criminal behavior). While having sex without consent is the opposite.
Call me old fashioned, but I always took a woman furiously burying her face into my groin like she were a stoned minx bobbing for the last remnants of the cheetos bag under the cushions of my couch as “consent”.
No actus, it’s similar to the usual argument, but is in reality quite fundamentally different. The point of most laws is not simply to get more people in jail, as though the courts were some sort of jobs program for prison guards.
Focussing on the conviction rate rather then the underlying crime society wishes to control is…how you say…back-asswards? Usually, efforts to improve conviction rates focus on better trained police and prosecutors.
Here, Amnesty International is comfortable putting innocents in jail–which is not the ordinary purpose of passing laws. And it’s supposed to be something Amnesty International stands against.
TW: actually
Jeez, acthole, can’t you even get the point? Jeff says:
Let’s see…we determine that a safe speed on a particular stretch of road is 45 mph, set the speed limit accordingly, and then when very few people are caught breaking the speed limit, lower it to an unreasonable 25 mph so we can convict more people of breaking the law. Assume that studies show that 45 mph results in no abnormal traffic accidents or fatalities.
WTF? Can we then take any law that is being obeyed and change it to make it more difficult to obey simply because there are not enough convictions under the existing (obeyed) law?
Is the only way to measure a law’s effectiveness by the number of convictions that result from its enactment?
“Of course I’ll still respect you, darling!… Sign here.”
SB: hell
other people
Actus
Fine, it is more like the contract scenario than the criminal one, but how can it be anything other than poor legislation?
Your contract scenario points out that if one party entering into the contract is too drunk to be making a reasonable decision and the other party is aware of that drunken state than the contract can be void. But what if the other party is equally inebriated? Too inebriated to reasonably be expected to ascertain whether the first party is or is not too inebriated to be entering the contract…and the first party was fully aware of the second party’s drunken state?
I will be the first to say that, without any exception, ‘no’ means ‘no’. But subsequently and logically, ‘yes’ must mean ‘yes’. No exceptions.
The idea of giving women the power to send a man to jail for years because she decided later that she wished she had not had sex with him is beyond idiotic.
The idea that women won’t take full advantage of that scenario to do a couple of shots, intiate sex with a guy she wants out of the way, (or revenge against) then have him imprisoned afterward, is naive to the extreme.
No, women are not above doing that.
So remember, ladies – since it’s dangerous to drink and fornicate, make sure you bring along a Designated Fornicator for those big nights on the town.
Just make sure she’s not fat and has a nice rack.
Or ‘zero tolerance’ broken windows sort of policy.
The article, in bold, said they want to reduce the number of sex assaults when a woman is very drunk. This quote also appears to be directed at the underlying behavior: “BBC Home Affairs Correspondent Danny Shaw said the aim of the campaign was “to stop young men taking advantage of drunken women and having sex with themâ€Â.”
If we think the new behavior should be criminal, sure. If we think it should be wrong to go faster then 25 mph, then lower the speed limit. Agenda!
That is what I get for breaking my own “Ignore acthole” pledge. Oh, please, Comment God forgive me for I have sinned. I will type out 20 “Hail Goldstein’s” and I promise not to copy and paste.
The point isn’t so complicated. They’re targetting a behavior with a law that doesn’t quite fit that behavior. The proof of the lack of fit is the lack of convictions. If they were getting convictions when going after this behavior, they wouldn’t need to change the law. The argument depends on both points: that the behavior should be punished, and that current law is not doing the job of punishing this.
What they are trying to do is redefine rape so as to include regrettable sex. Nothing else, just that.
I wouldn’t believe it if I hadn’t been watching everything that has come before.
This is wrong on the level of it being bad for a man to stand and pee in Sweden.
C’mon Europe, stop messing around and just outlaw men already.
Do you agree with it actus, the attempt to change the law that is?
1) How is a jury supposed to divine the drunkeness of the woman in question?
2) Is the guys level of drunkeness expected to not interfere with his abilty to determine if the woman truly consented or was too drunk to consent?
3) How in the hell can the guy make sure the woman consented to sex if later on a jury can say the woman was too drunk to give consent?
4) Is this actually aimed at “reducing the number of sex assaults taking place when a woman is very drunk” or reducing the amount of drinking by the citizens?
Or maybe the lack of convictions is due to less of the behavior than they expect. The argument depends on the level of behavior being fixed as a matter of fact and then tweaking the law until the number of convictions “reflects the reality”.
Well, that would be OK.
But the article also said, in bold:
which is an incredibly inane justification for a law, although it could be the reporter, rather than the activists, who came up with that inanity.
Anyway, which quote do you thing Jeff was referring to when he wrote
DG,
The point acthole seems to be tap dancing around, which you apparantly have grasped, is the motivation behind the change in the law. I think we can agree that rape is bad and as such we should have laws that criminalize that bad behavior with punishments sufficient to deter said bad behavior.
No where does it say that the existing law is not sufficient to do just that. No where does it say that the penalties provided for in the existing law are not sufficient.
What “they” are saying is that since there are not enough convictions for rape we believe that we should criminalize another conduct and call it “rape”. That perhaps the existing laws as enacted have been sufficient to change behavior is not given consideration in the drop in convictions.
The underlying motivation for changing the definition of “rape” is the number of convictions. Sort of like saying that since we don’t have very many convictions for underage drinking we should raise the drinking age to….say 30. Ignoring that the existing drinking laws are doing exactly what they were enacted to do – limit underage drinking.
Substantively? I think that there is a level of incapacitation such that it is impossible to give consent to sex. That incapacitation can come from being intoxicated as well as, for example, retardation. Of course I’d thikn this would have to be apparent to a reasonable observer. Lack of consent is an element of the crime, which has to proved beyond a reasonable doubt. It sounds quite reasonable. I have never looked into sex crimes practice to know what the effect of this change is.
If people aren’t actually abusing drunk women, then changing the law to cover the abuse of drunk women won’t affect conviction rates.
If we want to discourage this kind of ‘rape,’ wouldn’t it be better, instead of making the man responsible for subjective judgements in the field, to place restrictions on womens’ public drinking?
That would seem to address the root cause, which is that women are completely irresponsible about drinking and fucking and you can’t trust what they say.
The two quotes go together. We want to target a behavior and current law isn’t getting enough convictions. If neither was there, then the change shouldn’t happen.
The motivation, bolded and not, in the article is to punish people that have sex with women too drunk to consent just like we do rape. I guess you could call this a new crime, with all the elements of rape there, except that lack of consent is shown by showing a lack of capacity to consent, rather than other factors.
Or you could just call it rape, sex w/o consent.
That’s all right, rls, I quite understand. I’ve broken my own “Ignore The acthole” pledge myself. A couple of times.
It is incredibly hard not to respond to such a level of stupidity. This is important to inject a countermeme to his rampant idiocy, if nothing else.
Aw man.
Isn’t that implicit, actus, if they are saying that consent when intoxicated is not consent at all, and making it the man’s job to look after her?
Can they infantilize women any more?
Nope. No adjustment should be made. “Rape” is often entrapment. Consent is given and then it is denied that it was given later on, whether it be for revenge, spite, or just generally to scare the crap out of the guy.
This is the crime that, in the eyes of feminuts, finds that the man is always guilty until proven innocent. Women never lie about rape, and they are always the victim. If a guy is entrapped, he isn’t a victim, he’s just getting what he deserved. Such utter bullshit.
This makes me glad that I’m not a 20-something looking for a wife in today’s society. You’re better off without one if “raped me with his eyes” is now a crime.
I don’t see a responsibility to look after. Just a responsibility to have consent.
We don’t infantilize people when we require capacity to consent to things.
Would this also work for married couples?
Like if I had a fight with Mr. W and had too many drinks later and shtupped him anyway, then woke up regretting it because I really wanted to withhold and punish him?
Dang, this thing is a GOLDMINE for the womyn.
Capacity…and how does he judge that when she’s saying she’s all ready to go?
Does he administer some sort of roadside test?
I see this as watering down the definition of rape rather than protecting women from sexual predators.
I understand what you are saying regarding incapacitation due to inebriation actus, but in this case isn’t it likely to be at least a mutual predation? That is, isn’t it likely that both parties might be to incapacitated to consent, as the legal definition would have it? In that case, would not both parties be equally guilty of rape then?
Another thing, and a really troubling one, is that leaving it up to juries to decide after the fact whether she had the capacity to consent is a very subjective thing. It’s way too much a crapshoot for my tastes, as 2 juries are unlikely to agree on the proper level of non-incapacitation. What level of evidence will be required? How are we to determine who is too drunk, and who is just drunk enough? What exactly, and it must be exact, constitutes consent?
Oh, and ladies night? Kiss it goodbye.
I’m glad I am already married, and I am doubly glad that I do not live in England.
But if a MAN consents to sex while intoxicated with a non-intoxicated woman and has regrets the next day, does he have a legitmate claim under this new law?
Actually, I’m looking forward to the day that condoms must be stored in a secured cabinet that’s only opened with a breathalyzer. Make that TWO breathalyzers.
TW: Complete nonsense.
I would like to see a nookie field sobriety test, actus. I really would.
I think I know what she would blow on, but what about him?
The same way a jury would. You really have never seen someone so drunk that you think they can’t be trusted and aren’t making good decisions?
We leave all sorts of things to juries.
As far as lack of consent is concerned it would seem so. I’m sure there are other elements of the crime that have to be shown.
I don’t see what’s watered down. What you now consider rape is still there.
I have never seen a consent law that treated capacity different in the case of men vs. women. There’s no indication here that this law would.
What if both are drunk and the guy can’t get it up and the woman goes down on him and voila they then get it on. Could that be rape too?
Too ridiculous?
I’m reminded of a scene from The Philadelphia Story. The morning after a wild bender, Jimmy Stewart is explaining that all he did with the drunk and cooing Katherine Hepburn was deposit her on her bed and leave. Hepburn, feeling slighted, asks was she so forbidding, so unattractive, etc, to which he replies (quoting from memory), “No, you were just a bit the worse–or better–for drink, and there are rules about that sort of thing.”
I’m not sure what laws there ought to be about it, but there should definitely be rules about situations like that. If it smacks of necrophilia, she’s too goddamn drunk and only a total sleaze bag would take advantage of the situation.
I agree. Where I disagree is when they are both too drunk to notice that the other is too drunk, and both give consent at the time of the act. I also disagree that this is rape. Regret cannot be folded into the definition of rape.
From the end of the BBC story –
“BBC Home Affairs Correspondent Danny Shaw said the aim of the campaign was “to stop young men taking advantage of drunken women and having sex with them”.
He said many cases failed to reach the courts because victim could not remember all the details due to having been drunk.
And in some circumstances judges have stopped trials because it has become clear that the woman was very inebriated at the time of the alleged attack.
‘Unreliable’ evidence
One woman told File on 4 she was raped by a man she knew after sharing a taxi back to her flat after a party.
From the moment of sitting on the couch to the moment of waking up I don’t remember anything
Alleged rape victim
She said the man invited himself in, she remembers sitting down on the sofa, having had a lot to drink, and the next thing she knew he was raping her.
The case went to trial but the man was acquitted on the orders of the judge, who said her evidence was “unreliable” because she could not recall details of the alleged attack.
She said: “I wanted to absolutely tell the truth so if there was anything I was in any doubt about I would say, ‘Well, I’m not sure,’ or, ‘I can’t remember’.
“And the judge stopped me and said, ‘So, it’s possible you were actually making advances to the defendant during this period?’ and I said ‘All I’ve told you is from the moment of sitting on the couch to the moment of waking up I don’t remember anything.’”
So this is really about changing the law to get convictions when there is no evidence regarding the parties’ conduct.
And when the man is jailed even though no one knows what happened, he can console himself with the thought, “Well, this isn’t so bad. I mean, it’s really just like having a contract voided.”
One way to avoid it is to not mess around until you’re married.
Just sayin’. Saves a lot of grief.
Puts me in mind of the morning-after episode on Moonlighting, oh so long ago, when Maddy claims she never intended to sleep with – what was Bruce Willis’s character name, David? – and David says, “OK, I’ll give you that… the first time. What about the second? And the third?”
“There was a third?” Maddy interjects.
“You did seem kinda quiet,” David muses (having delivered the line right on top of hers as was the show’s trademark).
In the even more distant past I was “taken advantage of” (though not to the ultimate degree, so to speak) while drunk for the first time, by a fellow a couple of years and a lot of benders more experienced than I was. The next day, I remembered most of what had happened, and boy did I regret it. I stopped drinking at that point and didn’t drink again until I was legal, and even then only a glass of wine with a girlfriend in celebration of being able to show my ID with pride. It wasn’t until I was in my middle 20s that I again put myself into a position where, in the wrong company, I could’ve had regrets, and then I was very, very careful of the company I kept.
Why should a woman (or a man) be allowed to abrogate responsibility for her (or his) actions by consensually intoxicating her(him)self? Obviously the situation is entirely different if one slips the other a mickey – but when (as is usual) the process of ordering or pouring a drink is a consensual act, how can a person then fairly fail to bear its consequences?
WhackDaddy, what we’ll need is a chastity girdle, to be worn by both sexes, that only opens via two Breathalyzers. And a little fingerprint or DNA comparator thingy to make sure that the two Breathalyzers are from different people, and a second little fingerprint or DNA comparator thingy to ensure that the people engaging in the dirty deed are the same two who opened the girdles, or else the girdles slam shut again. All of which is a LOT more deleterious to the joyful spontaneity that is the common goal of the happy coitants than putting on a condom.
TW: part. Surely I could do something with it, but why?
We were actually discussing this sort of thing in Criminal Law a few weeks back.
Some states actually have ‘strict-liability’ rape laws(Mass., I think?). What that means is the only mental state that matters is the one of the ‘victim’. It doesn’t matter if the defendant thought she consented. Irrelevant. It only matters if she actually did. And who’s to say if she did? This is pretty much like the proposed English law, except it isn’t limited to just alchohol intoxication situations. Kinda scary.
I fail to see the big deal here. All this change in the law would appear to do is require the jury to answer two questions:
(1) Would a reasonable person in the defendant’s circumstances have thought that she consented?; and
(2) Would a reasonable person in the defendant’s circumstances have thought she had the capacity to consent?
If the answer to either question is no, then it’s rape. There is no basis for the idea that somehow this will make makes regretted sex into rape.
Bill, I think you’re thinking of statutory rape.
Really? So this doesn’t allow for a woman who regrets a drunken trist to accuse the man of rape and rely on the jury to nullify her consent?
Witnesses don’t “rely” on juries. Juries find facts. The prosecution will have to prove that she was too obviously drunk for a reasonable person to conclude that she had the capacity to consent and the defense will have the opportunity to show that she was not, just as with any other issue in any other case that is tried before a jury.
In south dakota, it wouldn’t help, she’d still have to carry the child.
But yes, this does allow that. She has to convince a jury beyond a reasonable doubt. I’d say if she was incapable of consent, that’s not really a question of regretting the consent.
What other aspects of legal/social competency should women forfeit when they’re drunk?
Maybe we should just legally prohibit women from drinking alcohol in the first place. One needn’t think about this much before realizing the potential scope of such a precedent and it’s impact on women’s civil liberties.
God, England is turning into a real civil rights suckhole.
Good point. Because the law never presumes that you’re less competent to make decisions when your drunk. Those blood-alcohol limits are more like rough guidelines.
Nope. I’m thinking of ‘strict-liability’ rape. In statutory rape, the mens rea(mental state) of the ‘victim’ becomes irrelevant.(If she’s underage it doesn’t matter if she wants to have sex.) My understanding is that usually the mental state of the defendant is also irrelevant.(Doesn’t matter if he thought she was of age.) Although I’m not totally sure of that.
However, what I’m talking about is different. In ‘strict-liability’ rape, the mens rea of the ‘victim’ very much matters. Her consent is the only difference between criminal and non-criminal behavior. The problem is that it doesn’t matter if the man had very good reasons for believing she consented. He’s not allowed to introduce that as a defense. The only thing that matters is whether or not she consented. And if she changes the mind after the fact and decides she’d like herself a lot better if in fact she hadn’t consented? Well, it’s her word against the guy as to what her mental state was- who do you think wins that?
Josh, the government doesn’t let someone off the hook for drunk driving if they can prove they were too drunk to consent to driving themselves, right?
Your point moots itself.
Then, Bill, wouldn’t that definition make this act more of a statutory rape?
Why did they not feel it relevent to allow the state of the alleged perp?
Jamie, I agree. The consent to take responsibility for the behavior one engages in when drunk is given when one consents to drinking. It is the sober person we expect to act rationally, not the drunk.
Not really, because we treat criminal liability different than we hold the ability to consent to non-criminal acts. If you get drunk and sign a contract to sell your house for a dollar, that won’t stick. But if you kill someone with your car, it will.
A difference here (and the point that I infered from MayBee’s post) is that whether an act is criminal or not depends on the ability to consent, ie if the jury determines the woman was unable to consent (or did not consent) the act is then criminal and the man’s ability to defend himself has been undermined by trying to argue that she was able to consent (or did consent).
actus- is it illegal to sign a contract with someone when you know the other person might have been drinking? Am I a car thief if we both drunkenly sign a contract saying you’ll sell me your car for $1?
No. It isn’t my fault you were drunk when you gave your consent, so I’m not going to be held legally responsible for your choice. Luckilly, the contract can be undone (whereas sex, once peformed, really can’t be).
About the drunk driving example. You are breaking a law and will be held responsible if you drive drunk, whether or not you kill someone. If you get pulled over for suspected drunken driving, you can NOT use the excuse that you were too drunk to make an informed decision to drive.
Similarly, a woman should not be able to say I was too drunk to make an informed decision to have sex. Especially if that option is not available to her partner.
heh- yes.
I don’t think so. It
And you don’t get to keep the car. But I do have to give you your dollar back. We’re not held responsible for what we did—but that’s because what we did wasn’t a crime. You can’t avoid criminal responsibility by being drunk. That’s different than other forms of responsibility. Its because we treat crime different than other things.
Drunk driving is a crime. Drunk consent isn’t.
The law does not recognize self-induced intoxication as a defense against criminal liability. It does, however, allow evidence of intoxication to show that one could not have physically committed the act. Hence, I think that a woman could argue that she was too drunk to give consent, and a man could not argue that he was too drunk to know better than to go ahead without consent.
It’s not just a he said/she said thing though. The woman has to have some evidence to prove that she was passed out or on the verge of passing out. We’re not talking about impaired judgment, as in the relaxed inhibitions inspired by a couple of drinks. We’re talking about physical and mental incapacity.
It’s not that thin of a line. If the guy is having to do all the work, she’s too drunk. Those cases do happen, and they are rape.
The act of signing a contract proves that the person wasn’t entirely incapacitated. I think a better example would be if you woke up after a bender and discovered a few hundred dollars gone from your wallet. The police find the guy with the money, and he says you said he could have it. If he took the money while you were either passed out or on the verge of passing out, then it was theft. Yes, he was drunk too, but he wasn’t too drunk to take your money and leave. He was impaired, but he was not incapacitated.
Rolling drunks is still a crime, right?
But screwing them isn’t?
TW: Ch-ch-ch-changes…
I don’t think we are talking about a man proceeding without consent and then arguing he was too drunk to know better.
The article linked to mentions a proposal to “allow a jury to decide whether the woman was too drunk to be capable of consenting, and whether she did consent”. The case example involves a woman who didn’t remember anything about the act (the article actually contradicts the quote from the woman so I’m not sure about the details).
This seems to allow for a case where a two people in equivalent states of drunkeness consent to and have sex, one party claims it was rape, and if the jury determines she was “too drunk to be capable of consenting”, the act is then considered criminal, and as has been noted, the man’s drunkeness is not a valid defense.
I see your point here, I’m just not sure how this would be anything other than a he said/she said situation (this is assuming there are no other witnesses). Also, I’m not sure that it is strictly a matter of her being passed out or on the verge of passing out. It is not unheard of for people to function in a drunken state and have no memory of their actions.
Thats a big if. What if you actually did give him the money but don’t remember it?
it seems that a significant part of the problem is that it seems this law neither says (a) a woman is responsible for her actions through and through…and when drinking one cannot claim that the actions they engage in while drunk is now out of their responsibiltiy or (b) that, once reaching a certain objective level of intoxication, a woman *cannot* consent to sexual activity (I don’t think we can really expand this to general consent…the law regularly distinguishes between what is consented to)…
Rather, the law leaves the possibility gray. Perhaps one women can consent after 10 shots Jager while another is unable to after a can of high life. It could be body mass, tolerance, or genetics. Maybe Ms. Hot Stuff who usually has a burger before partying didn’t eat this time and now her normal alcoholic consumption will put her in the “cannot consent” category.
Part of a good law, one would hope, is that a citizen can be expected to reasonably follow it- how can someone, in the normal course of drinking, flirting, and screwing, be expected to make the above determination? Hech, leave out the further possibility that the observer is also drunk- it’s still not as if every situation is going to come down to the woman being passed out or barfing all over the floor of your car.
Of course screwing drunks isn’t a crime. Raping drunks is a crime.
heh and Some Guy said what I would say.
actus:Drunk driving is a crime. Drunk consent isn’t.
Exactly. I’m not seeing where we are disagreeing here. I actually think we are not. I’m not saying a man who rapes a woman when he is drunk (or when she is drunk) is not liable. He is.
I’m saying that if a woman is drunk and later claims she doesn’t remember giving consent, that doesn’t make HIM a rapist.
Her drunkeness is not what makes sex rape, although that’s the idea this law would enshrine. Are you disagreeing with that?
I still very much like Kate Fillion’s formulation in “Lip Service”:
“Unwanted sex isn’t rape; unavoidable sex is.”
Women must be drunk most of the time then.
I keed.
Bill, no US jurisdictions make “regular rape” as opposed to statutory rape, a strict liability crime. Also, the key thing about strict liability is that it imposes liability regardless of the defendant’s mental state. i.e. even if he thought she was over the age of consent.
Maybee, your comment makes no sense. I was simply pointing out, in response to Peter’s apparent argument that allowing someone to “forfeit” their rights through drunkenness is some kind of civil liberties nightmare, that you do in fact forfeit your right or privilege to drive by getting drunk.
Her inability to give consent, apparent to a reasonable observer, is what makes it rape. That can come from drunkenness or other things.
In other words: if she’s drunk and says yes, it’s pretty much the same as being sober and saying no. Just because she said ‘yes’ doesn’t make it consent, since she’s too drunk to know what she’s saying.
Oh well, I wouldn’t want to fuck a drunk woman anyway.
Pretty much in the sense that there was no consent. Its not just being drunk, its being drunk to the point of incapacity to consent.
Actus,
I guess the question is more or less along the lines of what constitutes consent in this case. I think most of the negative reaction that people have expressed has to do with someone being drunk enough as to make a bad choice (e.g. sleep with someone ugly), but still capable of giving consent. What I think I am reading in your posts is something along the line of someone who is so drunk that they can’t give consent at all (e.g. blacked out).
Am I reading the commentary correctly?
BRD
Essentially, though I think it could be a tad short of being completly blacked out. For instance, if she was fading in and out, and in moments of semi-consciousness did something that could conceivably be contrued as consent, such as kissing back or momentarily touching the guy’s leg or something. The evidence will probably overlap significantly, as evidence that tends to support clear consent will also tend to support the capacity to consent.
Looking on the bright side, this may encourage women on the prowl to act incapacitated as a means of hedging their bets – which may yield the bonus of revealing which men are so reprehensible that they’d still go for it, as well as cutting down on all the shallow, empty fornication that contributes to the hatred the Islamic world feels toward the West.
TW: I’m just a square at heart, I guess.
You’re right on here. But remember, they can do math like a sonuvabitch.
well i agree this does frustrate men alot and im against it in that aspect that women can have an extra reason to allogate men into jail.
what if-hypothetical-it was 2 women both drunk-neither can ‘consent’but say go as far as making out and groping, but the next day have an extremety of regret. can either accuse the other of secual assault. wht if one was more drunk than the other? should that they have not drunken so much? what if one was on medication? isnt it their responsibility to no drink as much or at all? or is the other guilty for taking advantage of a more drugged person? but what if they didnt know that took medication til after, are they supposed to guess that that person has medication in them? who is to blame when accusations fly at each other at every direction? what if one was straight-does that mean she is the guilty one who has taken advantage of the lesbian? or is it that the other way around, is it that the lesbian uses the straight female to go against her sexuality? what if the straight one had a boyfriend and thought it was ok to make out with other females? is she cheating on her boyfriend with just a female pash? …so many questions, some things need more clarification and answers to make an alleged point, rule or even law!
I hate to say it but the bottom line is if a man has sex with a drunk woman it is rape and that is a fact. Men should not have sex with drunk woman the fact that they are doing that shows they are truly scum. And it is not illegal for a woman to get drunk and then get raped. It IS illegal for a man to rape a woman. I would like to know what does having alcohol in your body have to do with who you are attracted to.
If a woman is drunk and groping you than push her off tell her to get away because you dont want to go to Jail for rape. If I get drunk and grope some guy I would feel better knowing he pushed me off than knowing he raped me. If a woman wants to have sex with you she will tell you when she’s sober. Only rapists have sex with drunk women anyways.