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Rape, Consent, and the Presumption of Innocence

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  • CalixtusCalixtus Registered User regular
    edited March 2012
    Namrok wrote: »
    Even legal contracts you sign when drunk are considered legally binding.
    Is that actually true under whatever legal standard you live under?

    Because it does not automatically hold over here. The argument roughly translates somewhere close to "temporary insanity". edit: And less roughly, "diminished capacity".

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  • rockrngerrockrnger Registered User regular
    mcdermott wrote: »
    rockrnger wrote: »
    Namrok wrote: »
    I would like to submit this article to the jury.

    Article in spoilers for mindspork
    Whacked out, drunken-ass consent is still consent; otherwise we have to reexamine a woman’s right to drink.

    Editor's Note: Today's opinon article by Roland Hulme has some very controversial opinions on rape and consent with which not everyone will agree and others may find upsetting. We recognize this is a volatile topic and can be disturbing for some. For an alternative point of view, please visit the National Coalition for Sexual Freedom's site for their campaign, Consent Counts.

    I’ve spotted a worrying trend in the media recently: Accusations of “date rape” in headlines discussing drunken celebrities and sex.

    The first was in a comments section discussing Edith Zimmerman’s seat-of-her-pants interview with Captain America star Chris Evans.

    The “interview” was different to the norm. It saw attractive, single journalist Edith pounding beers rather than questions with Evans - and then joining him on a drunken night out.
    “Since we're both single and roughly the same age, it was hard for me not to treat our interview as a sort of date,” she wrote. “We both drank too much and said too much. I never opened the notebook of questions I had brought with me.” The night ended the following morning, and Zimmerman admits: “I don't really remember any of it. After the club, he and his friends and I went back to his house - not that I have any recollection.”

    Chris Evans, she wrote, “put me in a guest bedroom to sleep it all off, and told me he'd drive me home in the morning. In the span of ten hours, we'd fast-forwarded from complete strangers to people who let each other pass out in their houses.”

    The immediate buzz on the ‘net, of course, was whether or not Edith and Evans had hooked up – which even Edith admits was a possibility. This led to one commenter writing: “After reading the article, you’d hope not, because it would have been an obvious date rape - one would think Evans isn't that stupid.”

    It was the words “obvious date rape” that really concerned me; because even if they’re “so-drunk-they-don’t-remember-it-the-next-morning” drunk, surely that doesn’t eliminate somebody’s ability to consent.

    After all, while Edith doesn’t remember any of that night, she later learned she took part in a “jump over the pool table contest” and “at some point decided to crawl out a window and wander off into the night.” Edith Zimmerman might have been so drunk her memory stopped recording events; but she was still conscious and cognitive during her blackout.

    And that means she was still capable of making decisions; including whether or not to have sex.

    Now this is where people claim it gets murky, but it really doesn’t. There are some who might claim that because Edith was clearly intoxicated, she was incapable of giving consent to have sex.

    I don’t buy that; and neither should anybody else.

    If you’re blacked-out drunk, but still capable of talking, walking and doing things, you’re still responsible for your actions and your decisions.

    If instead of climbing out of a window, Edith Zimmerman had clambered behind the wheel, the cops wouldn’t have let her off a DUI simply because she was “too drunk” to make the decision whether to drive or not.

    Similarly if you’re blacked-out drunk and trash a theater facade – like Broadway wannabee Jimmy Whittemore did last month — the police are still going to bust your ass for it.

    Even legal contracts you sign when drunk are considered legally binding.

    In fact, in almost every aspect of life, being blacked-out, stumbling drunk does not relieve you of responsibility for the actions you take or the decisions you make; except in this ridiculous double standard of sexual consent.

    The other celebrity example is Bristol Palin, the teen-mum who scuppered Sarah Palin’s shot at the vice presidency.

    In her recent biography, Bristol claims she only lost her virginity to boyfriend Levi because he got her drunk on wine coolers. In some accounts she passed out and he had sex with her (clearly rape, as she was unable to consent.) In others, though, she drunkenly consented to sex that she wouldn’t have done if sober.

    Only one is rape. The other is just a shitty personal decision.

    The distinction is an important one; and needs to be addressed. There is something deeply troubling and hypocritical about a society that assumes an intoxicated woman isn’t responsible for sexual choices she makes while intoxicated.

    If we’re honestly moving towards the theory that a drunken girl can’t consent to sex, we should at least make that rule consistent. If a woman drinks so much she experiences a black out, she should be legally absolved of all responsibility for every decision she makes during that drunken misadventure — not just the sexual ones.

    Get behind the wheel of a car and kill somebody? Not your fault, dear — you were drunk.

    Public urination? While a man goes on the sex offender’s register for taking a leak in public, a girl shouldn’t because “she was drunk.”

    The inevitable result of this absurd double standard is simple: Women shouldn’t be allowed to drink.

    If women aren’t to be held responsible for decisions they make while drunk, then they shouldn’t be allowed to reach that level of diminished responsibility in the first place. That’s an absolutely ridiculous notion — but one that highlights the double standard we have regarding women, alcohol and personal responsibility.

    So-called feminists might think they’re being highly enlightened by accusing men who have sex with consenting-but-intoxicated women as “rapists” but what it actually does is perpetuate the stereotype that women are can’t be trusted to be responsible for their own sexuality — much less their drinking.

    When it comes down to it, there is never a grey area when it comes to rape. A man who has sex with a woman who doesn’t consent is raping her (‘yes’ means ‘yes,’ rather than ‘no’ means ‘no’ – because not saying anything also means ‘no.’)

    But when a woman does say ‘yes’ — even if she’s so drunk she doesn’t remember it the next morning — it is still ‘yes.’

    Like every other ill-considered word or action we make while drunk — from drinking and driving to that scary tattoo — consensual sex is a consequence drinkers have to take responsibility for. Even women.

    Ew, that's disgusting.

    Date rape has nothing to do with the victims actions. Date rape is about actions done to the victim.

    The entire drunk driving analogy is flawed. Take that standard and apply it to statutory rape. A 14 year old can get life in prison but can't consent to sex. Why? Because statutory rape is something done to the 14 year old not by the 14 year old.


    Except it wasn't done to the victim. It was done WITH the victim. That's the point....the argument that intoxication can diminish capacity beyond ability to consent to otherwise lawful activities. It's ridiculous, and that's precisely why so many states reject the idea, legally (and instead require only physical ability to consent).

    Saying it was done TO the victim removes their agency due to mere intoxication.

    Rape is having sex without consent.

    It is completly something that is done to a person. The argument you could make here is that drinking never removes the ability to consent. So, as long as a person can nod, even if they have literally no idea what they are agreeing to, their consent is valid. I personally think that a person has to have an understanding of what they are agreeing to before it is consent.

    On a practical level, it makes any rape where the victim is drunk completely impossible to prosecute. One could have sex with a person who was completely passed out and claim that they consented but didn't remember.



  • PaladinPaladin Registered User regular
    solution: don't drink and sex

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  • NamrokNamrok Registered User regular
    Paladin wrote: »
    solution: don't drink and sex

    Certainly good advice. But at the same time, it's clearly not fair to so harshly penalize people who do that. It is a vast part of the population after all.

  • mcdermottmcdermott Registered User regular
    Rape is having sex without consent.

    It is completly something that is done to a person. The argument you could make here is that drinking never removes the ability to consent. So, as long as a person can nod, even if they have literally no idea what they are agreeing to, their consent is valid. I personally think that a person has to have an understanding of what they are agreeing to before it is consent.

    On a practical level, it makes any rape where the victim is drunk completely impossible to prosecute. One could have sex with a person who was completely passed out and claim that they consented but didn't remember.

    First, it's already on the prosecution to prove that the person was passed out. At least in many states. And yes, it does make rape ridiculously hard to prosecute....haven't we covered this?

    And my to/with comparison was intended to show that no, it isn't rape. They were drunk, but they consented. Otherwise, like I said, you are removing a person's agency just because they're drunk.

    Besides which, I can't be the only one who has done plenty of shit that I seemed to understand I was doing, only to not remember it in the morning. And to have seen friends do the same.

  • rockrngerrockrnger Registered User regular
    Namrok wrote: »
    Paladin wrote: »
    solution: don't drink and sex

    Certainly good advice. But at the same time, it's clearly not fair to so harshly penalize people who do that. It is a vast part of the population after all.

    That's why I go with the idea of consent after the fact. If two people get blackout drunk and dont mind when they wake up then it wasn't rape.

    As to the loss agency, it's not. It's a loss of ability. After a person can no longer judge their action they can no longer consent.

    Could anyone say that they wouldn't feel violated if they got drunk and someone took advantage? (if you are hetero male who can not think of not wanting sex imagine a large male)

  • PaladinPaladin Registered User regular
    well then it would be perfectly possible for two people to rape eachother

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    Doc: That's right, twenty five years into the future. I've always dreamed on seeing the future, looking beyond my years, seeing the progress of mankind. I'll also be able to see who wins the next twenty-five world series.
  • DelphinidaesDelphinidaes FFXIV: Delphi Kisaragi Registered User regular
    edited March 2012
    bowen wrote: »
    rockrnger wrote: »
    Ew, that's disgusting.

    Date rape has nothing to do with the victims actions. Date rape is about actions done to the victim.

    The entire drunk driving analogy is flawed. Take that standard and apply it to statutory rape. A 14 year old can get life in prison but can't consent to sex. Why? Because statutory rape is something done to the 14 year old not by the 14 year old.

    The problem being that the person consented while drunk, much like making the decision to drive the car. What if the guy is passive in this sexual encounter?

    This made me take pause as I was firmly on the "If she's drunk she can't consent" side of the fence. I don't know in that situation what way I would call it. If she is drunk and is the one making the moves in the situation I don't think I would call it rape, but that bothers me.

    I think the safe call in that situation would simply to be the more responsible party and be the one saying no if your partner is clearly intoxicated.

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  • mcdermottmcdermott Registered User regular
    edited March 2012
    This made me take pause as I was firmly on the "If she's drunk she can't consent" side of the fence. I don't know in that situation what way I would call it. If she is drunk and is the one making the moves in the situation I don't think I would call it rape, but that bothers me.

    I think the safe call in that situation would simply to be the more responsible party and be the one saying no if your partner is clearly intoxicated.

    But why? Because silly girls* can't be trusted to make decisions about when to drink, how much to drink, or what to do when they're drunk? That really does seem just a little patronizing.

    * - Guys too, though we usually aren't talking in that context.
    That's why I go with the idea of consent after the fact. If two people get blackout drunk and dont mind when they wake up then it wasn't rape.

    And if one person minds? If both mind?

    And have you really thought through the idea that this makes it literally impossible for the accused to have determined whether their actions were criminal at the time they took those actions? Even given a lawyer present, law books handy, etc.? Because you are leaving it entirely up to the decision of the other party made at a later date whether they feel it was a crime?

    Nothing about that seems...problematic to you?

    mcdermott on
  • rockrngerrockrnger Registered User regular
    mcdermott wrote: »
    This made me take pause as I was firmly on the "If she's drunk she can't consent" side of the fence. I don't know in that situation what way I would call it. If she is drunk and is the one making the moves in the situation I don't think I would call it rape, but that bothers me.

    I think the safe call in that situation would simply to be the more responsible party and be the one saying no if your partner is clearly intoxicated.

    But why? Because silly girls* can't be trusted to make decisions about when to drink, how much to drink, or what to do when they're drunk? That really does seem just a little patronizing.

    * - Guys too, though we usually aren't talking in that context.
    That's why I go with the idea of consent after the fact. If two people get blackout drunk and dont mind when they wake up then it wasn't rape.

    And if one person minds? If both mind?

    And have you really thought through the idea that this makes it literally impossible for the accused to have determined whether their actions were criminal at the time they took those actions? Even given a lawyer present, law books handy, etc.? Because you are leaving it entirely up to the decision of the other party made at a later date whether they feel it was a crime?

    Nothing about that seems...problematic to you?

    Not really.

    When you have sex with someone who is drunk you are taking your chances. Remember, we are talking about someone drunk enough to completely change their mind from when they have sex until when they are sober. So if you know the person well (married maybe) you can be 100 percent certain that when they wake up they will not consider it rape. If it is a random? Like I said, you take your chances and it is possible sex vs possible rape.

    Thought experiment: two men are drinking. One is gay and the other is 100 percent Hetero. As in would never, ever sleep with a man. The Hetero guy Gets ahead of his friend and is drunk on the couch and while awake has no idea what is going on. His friend asks him if he would like to have sex and he doesn't understand the question but nods anyway.

    1) does the hetero guy feel raped?
    2) was the hetero guy raped?

  • PaladinPaladin Registered User regular
    rockrnger wrote: »
    mcdermott wrote: »
    This made me take pause as I was firmly on the "If she's drunk she can't consent" side of the fence. I don't know in that situation what way I would call it. If she is drunk and is the one making the moves in the situation I don't think I would call it rape, but that bothers me.

    I think the safe call in that situation would simply to be the more responsible party and be the one saying no if your partner is clearly intoxicated.

    But why? Because silly girls* can't be trusted to make decisions about when to drink, how much to drink, or what to do when they're drunk? That really does seem just a little patronizing.

    * - Guys too, though we usually aren't talking in that context.
    That's why I go with the idea of consent after the fact. If two people get blackout drunk and dont mind when they wake up then it wasn't rape.

    And if one person minds? If both mind?

    And have you really thought through the idea that this makes it literally impossible for the accused to have determined whether their actions were criminal at the time they took those actions? Even given a lawyer present, law books handy, etc.? Because you are leaving it entirely up to the decision of the other party made at a later date whether they feel it was a crime?

    Nothing about that seems...problematic to you?

    Not really.

    When you have sex with someone who is drunk you are taking your chances. Remember, we are talking about someone drunk enough to completely change their mind from when they have sex until when they are sober. So if you know the person well (married maybe) you can be 100 percent certain that when they wake up they will not consider it rape. If it is a random? Like I said, you take your chances and it is possible sex vs possible rape.

    Thought experiment: two men are drinking. One is gay and the other is 100 percent Hetero. As in would never, ever sleep with a man. The Hetero guy Gets ahead of his friend and is drunk on the couch and while awake has no idea what is going on. His friend asks him if he would like to have sex and he doesn't understand the question but nods anyway.

    1) does the hetero guy feel raped?
    2) was the hetero guy raped?

    did the homo guy know the hetero guy was drunk? How drunk did he know the hetero guy was?

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  • mcdermottmcdermott Registered User regular
    (1) Probably.
    (2) In many states, no.

    And I agree with (2). Just because you feel raped does not mean you were raped.

    I also reject the idea of a law where there is literally no way to know whether you are breaking it at the time you commit the act. Where, even given the ability to pause time and fully research the law, you could not possibly know whether your action is criminal. Not until later, not until somebody else arbitrarily decides it was. Bullshit. Only the silliest of geese would suggest such a thing.

  • mcdermottmcdermott Registered User regular
    edited March 2012
    By the way, that was obviously in response to this:
    When you have sex with someone who is drunk you are taking your chances. Remember, we are talking about someone drunk enough to completely change their mind from when they have sex until when they are sober. So if you know the person well (married maybe) you can be 100 percent certain that when they wake up they will not consider it rape. If it is a random? Like I said, you take your chances and it is possible sex vs possible rape.

    Also, even if you are married to the person and know them as well as it's possible to know somebody, you can't know whether they'll consider it rape. You can be many, many nines worth of confident that they won't press charges (and a few more nines confident that you'd never be convicted) but you cannot know that they'll be cool with what happened in the morning. 100% is a pretty big number.

    But the "you take your chances" and "possible rape" thing? Ridiculous. If a criminal cannot, even given the ability to theoretically stop time and research the law (maybe consult some lawyers, maybe even bring in a judge), tell at the time of the act that their action is criminal, that is a ludicrous law.

    EDIT: Just because rape and regret both start with "R" doesn't make them interchangeable.

    EDIT: And yes, I'd feel the same way if I found out I'd gotten drunk enough to (willingly) do a dude. One night in Bangkok makes a hard man humble.

    mcdermott on
  • PaladinPaladin Registered User regular
    Namrok wrote: »
    Paladin wrote: »
    solution: don't drink and sex

    Certainly good advice. But at the same time, it's clearly not fair to so harshly penalize people who do that. It is a vast part of the population after all.

    in light of the recent responses, make drunk sex a criminal offense (FUI) and retract the partners' sex licenses and have them do mandatory defensive sex education

    Marty: The future, it's where you're going?
    Doc: That's right, twenty five years into the future. I've always dreamed on seeing the future, looking beyond my years, seeing the progress of mankind. I'll also be able to see who wins the next twenty-five world series.
  • mcdermottmcdermott Registered User regular
    I honestly can't even come up with another crime where criminality depends on "how the victim feels" at some arbitrarily later time. Every crime I can think of either hinges on the intent of the criminal, or some sort of strict liability (where the feeling of the victim is irrelevant). The idea of "possible rape" (where it is literally not defined at the time of the sex) is...I mean, anybody have another example of such a crime?

  • Psycho Internet HawkPsycho Internet Hawk Registered User regular
    mcdermott wrote: »
    I honestly can't even come up with another crime where criminality depends on "how the victim feels" at some arbitrarily later time. Every crime I can think of either hinges on the intent of the criminal, or some sort of strict liability (where the feeling of the victim is irrelevant). The idea of "possible rape" (where it is literally not defined at the time of the sex) is...I mean, anybody have another example of such a crime?

    Not really, because there aren't many other crimes where the wrongful action can be entirely fine in other circumstances.

    This is part of why rape is unusual and why trying to apply the same exact standards that we typically use for crimes don't always work for rape. Shooting someone? Always attempted murder, or just murder. Taking something that is someone else's property? Always theft. Having sex? Can be a meaningful expression of love, fun for a night, a million other things, or rape. Since it's also typically a very private act, it's not something you typically get eyewitnesses or outside testimony for either.

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  • Death of RatsDeath of Rats Registered User regular
    So, hypothetical here. Lets say I'm courting a girl, we're going to parties together every once in a while, and generally when the night starts to wind down we end up making out. However, one night, we both get ridiculously plastered, one thing leads to the other, and we end up having sex, both willingly at the time, even though we're both near passing out.

    The next day she thinks it was a mistake, and takes it so far as to call it rape.

    Are people really arguing that in this situation it not only should be morally considered rape, but also legally? That getting drunk and fucking like bunnies isn't something that should ever happen between two unmarried (or married) people? Seriously?

    No I don't.
  • mcdermottmcdermott Registered User regular
    edited March 2012
    mcdermott wrote: »
    I honestly can't even come up with another crime where criminality depends on "how the victim feels" at some arbitrarily later time. Every crime I can think of either hinges on the intent of the criminal, or some sort of strict liability (where the feeling of the victim is irrelevant). The idea of "possible rape" (where it is literally not defined at the time of the sex) is...I mean, anybody have another example of such a crime?

    Not really, because there aren't many other crimes where the wrongful action can be entirely fine in other circumstances.

    This is part of why rape is unusual and why trying to apply the same exact standards that we typically use for crimes don't always work for rape. Shooting someone? Always attempted murder, or just murder.

    Wrong. It can be 100% justifiable homicide. And the definition of that is, to my knowledge, causal; it does not depend on some future input to define, it is determined entirely by the circumstances and your state of mind at the time of the act.

    Though later actions are often used as evidence of the same.

    EDIT: Also, taking somebody else's property is not always theft, either. It depends on your intent at the time of the act as well.

    mcdermott on
  • kimekime Queen of Blades Registered User regular
    Borrowing things vs stealing things. It entirely depends on the willingness of the owner of the item. Yes?

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  • mcdermottmcdermott Registered User regular
    edited March 2012
    Yes, Death of Rats. Seriously.

    kime wrote: »
    Borrowing things vs stealing things. It entirely depends on the willingness of the owner of the item. Yes?

    Legally? No.

    mcdermott on
  • mcdermottmcdermott Registered User regular
    edited March 2012
    In fact, I'd have to do some research but I'd be unsurprised to find that that an act can be theft regardless of the willingness of the owner, provided the intent was criminal (which is to say the accused was also unaware of the willingness).

    EDIT: Note that I'm not claiming that this is the case, but rather that the intent of the accused is critical to the crime and thus it may well be. But perhaps not, and obviously you'd be insane to pursue charges in such a case.

    mcdermott on
  • NamrokNamrok Registered User regular
    edited March 2012
    FYI, yes, it stands as absurd to the N'th degree this nonsense about "It's only rape if the woman feels like it was once she sobers up, and the shame and the judgement set it. And maybe she realizes that guy wasn't as attractive, nor funny and charming as he seemed at the time."

    Now granted, I avoid drunk sex, one night stands, the bar scene, etc, and would advice any offspring to do the same. Not because I think its wrong, but because people like you do, and you're behind the wheel of our justice system at the moment.

    Namrok on
  • rockrngerrockrnger Registered User regular
    mcdermott wrote: »
    I honestly can't even come up with another crime where criminality depends on "how the victim feels" at some arbitrarily later time. Every crime I can think of either hinges on the intent of the criminal, or some sort of strict liability (where the feeling of the victim is irrelevant). The idea of "possible rape" (where it is literally not defined at the time of the sex) is...I mean, anybody have another example of such a crime?

    We have already been over this once I think. Harassment, threats and fair housing violations.

  • _J__J_ Pedant Registered User, __BANNED USERS regular
    Paladin wrote: »
    solution: don't drink and sex
    I think the safe call in that situation would simply to be the more responsible party and be the one saying no if your partner is clearly intoxicated.

    Maybe it's helpful to point out that "Avoid this situation" isn't an answer to what we do when the situation occurs.

    Otherwise, the thread would just be ended with "don't rape people". But rape happens, and we're trying to suss out just what that is.

    rockrnger wrote: »
    mcdermott wrote: »
    This made me take pause as I was firmly on the "If she's drunk she can't consent" side of the fence. I don't know in that situation what way I would call it. If she is drunk and is the one making the moves in the situation I don't think I would call it rape, but that bothers me.

    I think the safe call in that situation would simply to be the more responsible party and be the one saying no if your partner is clearly intoxicated.

    But why? Because silly girls* can't be trusted to make decisions about when to drink, how much to drink, or what to do when they're drunk? That really does seem just a little patronizing.

    * - Guys too, though we usually aren't talking in that context.
    That's why I go with the idea of consent after the fact. If two people get blackout drunk and dont mind when they wake up then it wasn't rape.

    And if one person minds? If both mind?

    And have you really thought through the idea that this makes it literally impossible for the accused to have determined whether their actions were criminal at the time they took those actions? Even given a lawyer present, law books handy, etc.? Because you are leaving it entirely up to the decision of the other party made at a later date whether they feel it was a crime?

    Nothing about that seems...problematic to you?

    Not really.

    When you have sex with someone who is drunk you are taking your chances. Remember, we are talking about someone drunk enough to completely change their mind from when they have sex until when they are sober. So if you know the person well (married maybe) you can be 100 percent certain that when they wake up they will not consider it rape. If it is a random? Like I said, you take your chances and it is possible sex vs possible rape.

    This is just plain not going to work.

    It can't be the case that X was Y when X occurred, but afterwards X became ~Y. One can revoke consent during the act. One can't revoke consent after the act.
    So, hypothetical here. Lets say I'm courting a girl, we're going to parties together every once in a while, and generally when the night starts to wind down we end up making out. However, one night, we both get ridiculously plastered, one thing leads to the other, and we end up having sex, both willingly at the time, even though we're both near passing out.

    The next day she thinks it was a mistake, and takes it so far as to call it rape.

    Are people really arguing that in this situation it not only should be morally considered rape, but also legally? That getting drunk and fucking like bunnies isn't something that should ever happen between two unmarried (or married) people? Seriously?

    Sane people aren't arguing that.

    One cannot consent to X at T1, and later revoke the consent to X at T1.

    Arguing otherwise is the height of silly goosery.

  • mcdermottmcdermott Registered User regular
    rockrnger wrote: »
    mcdermott wrote: »
    I honestly can't even come up with another crime where criminality depends on "how the victim feels" at some arbitrarily later time. Every crime I can think of either hinges on the intent of the criminal, or some sort of strict liability (where the feeling of the victim is irrelevant). The idea of "possible rape" (where it is literally not defined at the time of the sex) is...I mean, anybody have another example of such a crime?

    We have already been over this once I think. Harassment, threats and fair housing violations.

    Um, if we went over this once you were unconvincing.

    Please link me to a criminal code in the United States in which an individual can be convicted for harassment, threats, or fair housing violations based on the feeling of the victim after the fact, rather than the criminal intent at the time of the act.

    Also, this should not be a strict liability crime (which is to say it cannot be a crime even if the victim does not feel harmed, such as statutory rape).

    I'll be amazed if you can even find a misdemeanor. Felony? Good luck.

  • mcdermottmcdermott Registered User regular
    edited March 2012
    Looks like, at least in Washington, stalking comes close. Requires an intentional act of repeatedly following, but not the actual intent to harass and/or intimidate. Does require knowledge (or that you should reasonably know) that the victim is harassed and intimidated, though. Also, requires that the victim be intimidated (and that you either know or intend it) at the time you intentionally commit the act, not that they retroactively decide later that they were intimidated. So still falls short.

    Also only a misdemeanor.

    mcdermott on
  • rockrngerrockrnger Registered User regular
    edited March 2012
    mcdermott wrote: »
    Looks like, at least in Washington, stalking comes close. Requires an intentional act of repeatedly following, but not the actual intent to harass and/or intimidate. Does require knowledge (or that you should reasonably know) that the victim is harassed and intimidated, though. Also, requires that the victim be intimidated (and that you either know or intend it) at the time you intentionally commit the act, not that they retroactively decide later that they were intimidated. So still falls short.

    Also only a misdemeanor.

    After my own jaunt into the law I have found that

    A) I would make a poor lawyer.

    B) disorderly conduct says knowingly but was explained to me by my lawyer as being in the mind of the victim. I dont known if he was talking in practice or case law or what so take it with as many grains of salt as you want.

    C) In Illinois all I could find (and it was on the state police site) was that "sometimes" people can't consent because they are drunk. So that would seem to put the law on the side of drunk sex being rape. Personally I still like retroactive consent.

    Edit: do any of the law school guys have a good site for case law?

    rockrnger on
  • mcdermottmcdermott Registered User regular
    edited March 2012
    rockrnger wrote: »
    mcdermott wrote: »
    Looks like, at least in Washington, stalking comes close. Requires an intentional act of repeatedly following, but not the actual intent to harass and/or intimidate. Does require knowledge (or that you should reasonably know) that the victim is harassed and intimidated, though. Also, requires that the victim be intimidated (and that you either know or intend it) at the time you intentionally commit the act, not that they retroactively decide later that they were intimidated. So still falls short.

    Also only a misdemeanor.

    After my own jaunt into the law I have found that

    A) I would make a poor lawyer.

    B) disorderly conduct says knowingly but was explained to me by my lawyer as being in the mind of the victim. I dont known if he was talking in practice or case law or what so take it with as many grains of salt as you want.

    C) In Illinois all I could find (and it was on the state police site) was that "sometimes" people can't consent because they are drunk. So that would seem to put the law on the side of drunk sex being rape. Personally I still like retroactive consent.

    Edit: do any of the law school guys have a good site for case law?

    Can't speak for case law, but looking at the actual statute (rather than the State Police website, which I trust about as much as a university website when it comes to not implying criminality where there may be none), we get this:

    (a) A person commits criminal sexual assault if that person commits an act of sexual penetration and:
    (1) uses force or threat of force;
    (2) knows that the victim is unable to understand the nature of the act or is unable to give knowing consent;
    [...]

    Looks like the crime still hinges on the accused's knowledge of the alleged victim's incapacitation due to intoxication. So even in a state that requires some semblance of sobriety to recognize consent, it hinges on the intent of the criminal at the time of the act...not some later arbitrary decision of the victim. It's not a matter of "maybe it's rape, maybe it's not, I guess we'll find out later!" It was, at the time, or it wasn't.

    EDIT: While not directly applicable, we actually have an entire clause of the Constitution based on the principle that one should at least be theoretically able to know that one's actions are criminal (or not) at the time they are taken. It's, like, super-important.

    mcdermott on
  • mcdermottmcdermott Registered User regular
    Also, from what I can tell that statute requires that the victim at the time be unable to understand the nature of the act. So basically one step removed from (say) New York's "as long as they are physically able to nod" standard, but that's about it. It does not mean "would make the same decision if sober," "will totally remember this in the morning," or "are no more intoxicated than you are."

    Does this mean it would be incredibly hard to prosecute, absent admission (intentional or not) on the part of the accused? Yup.

    Which is as it should be.


    Note that I obviously am not familiar with the relevant case law.

  • rockrngerrockrnger Registered User regular
    edited March 2012
    mcdermott wrote: »
    rockrnger wrote: »
    mcdermott wrote: »
    Looks like, at least in Washington, stalking comes close. Requires an intentional act of repeatedly following, but not the actual intent to harass and/or intimidate. Does require knowledge (or that you should reasonably know) that the victim is harassed and intimidated, though. Also, requires that the victim be intimidated (and that you either know or intend it) at the time you intentionally commit the act, not that they retroactively decide later that they were intimidated. So still falls short.

    Also only a misdemeanor.

    After my own jaunt into the law I have found that

    A) I would make a poor lawyer.

    B) disorderly conduct says knowingly but was explained to me by my lawyer as being in the mind of the victim. I dont known if he was talking in practice or case law or what so take it with as many grains of salt as you want.

    C) In Illinois all I could find (and it was on the state police site) was that "sometimes" people can't consent because they are drunk. So that would seem to put the law on the side of drunk sex being rape. Personally I still like retroactive consent.

    Edit: do any of the law school guys have a good site for case law?

    Can't speak for case law, but looking at the actual statute (rather than the State Police website, which I trust about as much as a university website when it comes to not implying criminality where there may be none), we get this:

    (a) A person commits criminal sexual assault if that person commits an act of sexual penetration and:
    (1) uses force or threat of force;
    (2) knows that the victim is unable to understand the nature of the act or is unable to give knowing consent;
    [...]

    Looks like the crime still hinges on the accused's knowledge of the alleged victim's incapacitation due to intoxication. So even in a state that requires some semblance of sobriety to recognize consent, it hinges on the intent of the criminal at the time of the act...not some later arbitrary decision of the victim. It's not a matter of "maybe it's rape, maybe it's not, I guess we'll find out later!" It was, at the time, or it wasn't.

    EDIT: While not directly applicable, we actually have an entire clause of the Constitution based on the principle that one should at least be theoretically able to know that one's actions are criminal (or not) at the time they are taken. It's, like, super-important.

    So what of our buddy mister she wanted it before she passed out? His conscience is clear.

    rockrnger on
  • mcdermottmcdermott Registered User regular
    edited March 2012
    rockrnger wrote: »
    mcdermott wrote: »
    rockrnger wrote: »
    mcdermott wrote: »
    Looks like, at least in Washington, stalking comes close. Requires an intentional act of repeatedly following, but not the actual intent to harass and/or intimidate. Does require knowledge (or that you should reasonably know) that the victim is harassed and intimidated, though. Also, requires that the victim be intimidated (and that you either know or intend it) at the time you intentionally commit the act, not that they retroactively decide later that they were intimidated. So still falls short.

    Also only a misdemeanor.

    After my own jaunt into the law I have found that

    A) I would make a poor lawyer.

    B) disorderly conduct says knowingly but was explained to me by my lawyer as being in the mind of the victim. I dont known if he was talking in practice or case law or what so take it with as many grains of salt as you want.

    C) In Illinois all I could find (and it was on the state police site) was that "sometimes" people can't consent because they are drunk. So that would seem to put the law on the side of drunk sex being rape. Personally I still like retroactive consent.

    Edit: do any of the law school guys have a good site for case law?

    Can't speak for case law, but looking at the actual statute (rather than the State Police website, which I trust about as much as a university website when it comes to not implying criminality where there may be none), we get this:

    (a) A person commits criminal sexual assault if that person commits an act of sexual penetration and:
    (1) uses force or threat of force;
    (2) knows that the victim is unable to understand the nature of the act or is unable to give knowing consent;
    [...]

    Looks like the crime still hinges on the accused's knowledge of the alleged victim's incapacitation due to intoxication. So even in a state that requires some semblance of sobriety to recognize consent, it hinges on the intent of the criminal at the time of the act...not some later arbitrary decision of the victim. It's not a matter of "maybe it's rape, maybe it's not, I guess we'll find out later!" It was, at the time, or it wasn't.

    EDIT: While not directly applicable, we actually have an entire clause of the Constitution based on the principle that one should at least be theoretically able to know that one's actions are criminal (or not) at the time they are taken. It's, like, super-important.

    So what of our buddy mister she wanted it before she passed out? His conscience is clear.

    How so? At the time of penetration, he knows that the victim is unable to understand the nature of the act or give knowing consent. Note the tense.

    EDIT: Honestly, do you just not want to change your mind? At this point I almost have to think you're being willfully irrational. Or did you think I meant "intent" as "intent do act against her previous wishes," rather than "intent to knowingly have sex with somebody who was at present incapacitated?"

    mcdermott on
  • rockrngerrockrnger Registered User regular
    mcdermott wrote: »
    rockrnger wrote: »
    mcdermott wrote: »
    rockrnger wrote: »
    mcdermott wrote: »
    Looks like, at least in Washington, stalking comes close. Requires an intentional act of repeatedly following, but not the actual intent to harass and/or intimidate. Does require knowledge (or that you should reasonably know) that the victim is harassed and intimidated, though. Also, requires that the victim be intimidated (and that you either know or intend it) at the time you intentionally commit the act, not that they retroactively decide later that they were intimidated. So still falls short.

    Also only a misdemeanor.

    After my own jaunt into the law I have found that

    A) I would make a poor lawyer.

    B) disorderly conduct says knowingly but was explained to me by my lawyer as being in the mind of the victim. I dont known if he was talking in practice or case law or what so take it with as many grains of salt as you want.

    C) In Illinois all I could find (and it was on the state police site) was that "sometimes" people can't consent because they are drunk. So that would seem to put the law on the side of drunk sex being rape. Personally I still like retroactive consent.

    Edit: do any of the law school guys have a good site for case law?

    Can't speak for case law, but looking at the actual statute (rather than the State Police website, which I trust about as much as a university website when it comes to not implying criminality where there may be none), we get this:

    (a) A person commits criminal sexual assault if that person commits an act of sexual penetration and:
    (1) uses force or threat of force;
    (2) knows that the victim is unable to understand the nature of the act or is unable to give knowing consent;
    [...]

    Looks like the crime still hinges on the accused's knowledge of the alleged victim's incapacitation due to intoxication. So even in a state that requires some semblance of sobriety to recognize consent, it hinges on the intent of the criminal at the time of the act...not some later arbitrary decision of the victim. It's not a matter of "maybe it's rape, maybe it's not, I guess we'll find out later!" It was, at the time, or it wasn't.

    EDIT: While not directly applicable, we actually have an entire clause of the Constitution based on the principle that one should at least be theoretically able to know that one's actions are criminal (or not) at the time they are taken. It's, like, super-important.

    So what of our buddy mister she wanted it before she passed out? His conscience is clear.

    How so? At the time of penetration, he knows that the victim is unable to understand the nature of the act or give knowing consent.

    But to him, he is just following thru with her previous wishes. Consent was already give. In his mind he hasn't raped anyone so he didn't.

  • HounHoun Registered User regular
    rockrnger wrote: »
    mcdermott wrote: »
    rockrnger wrote: »
    mcdermott wrote: »
    rockrnger wrote: »
    mcdermott wrote: »
    Looks like, at least in Washington, stalking comes close. Requires an intentional act of repeatedly following, but not the actual intent to harass and/or intimidate. Does require knowledge (or that you should reasonably know) that the victim is harassed and intimidated, though. Also, requires that the victim be intimidated (and that you either know or intend it) at the time you intentionally commit the act, not that they retroactively decide later that they were intimidated. So still falls short.

    Also only a misdemeanor.

    After my own jaunt into the law I have found that

    A) I would make a poor lawyer.

    B) disorderly conduct says knowingly but was explained to me by my lawyer as being in the mind of the victim. I dont known if he was talking in practice or case law or what so take it with as many grains of salt as you want.

    C) In Illinois all I could find (and it was on the state police site) was that "sometimes" people can't consent because they are drunk. So that would seem to put the law on the side of drunk sex being rape. Personally I still like retroactive consent.

    Edit: do any of the law school guys have a good site for case law?

    Can't speak for case law, but looking at the actual statute (rather than the State Police website, which I trust about as much as a university website when it comes to not implying criminality where there may be none), we get this:

    (a) A person commits criminal sexual assault if that person commits an act of sexual penetration and:
    (1) uses force or threat of force;
    (2) knows that the victim is unable to understand the nature of the act or is unable to give knowing consent;
    [...]

    Looks like the crime still hinges on the accused's knowledge of the alleged victim's incapacitation due to intoxication. So even in a state that requires some semblance of sobriety to recognize consent, it hinges on the intent of the criminal at the time of the act...not some later arbitrary decision of the victim. It's not a matter of "maybe it's rape, maybe it's not, I guess we'll find out later!" It was, at the time, or it wasn't.

    EDIT: While not directly applicable, we actually have an entire clause of the Constitution based on the principle that one should at least be theoretically able to know that one's actions are criminal (or not) at the time they are taken. It's, like, super-important.

    So what of our buddy mister she wanted it before she passed out? His conscience is clear.

    How so? At the time of penetration, he knows that the victim is unable to understand the nature of the act or give knowing consent.

    But to him, he is just following thru with her previous wishes. Consent was already give. In his mind he hasn't raped anyone so he didn't.

    I think it's reasonable to legally set that if consent is given prior to passing out, consent is automatically rescinded.

  • mcdermottmcdermott Registered User regular
    edited March 2012
    rockrnger wrote: »
    mcdermott wrote: »
    rockrnger wrote: »
    So what of our buddy mister she wanted it before she passed out? His conscience is clear.

    How so? At the time of penetration, he knows that the victim is unable to understand the nature of the act or give knowing consent.

    But to him, he is just following thru with her previous wishes. Consent was already give. In his mind he hasn't raped anyone so he didn't.

    Consent was never given to sex. It doesn't matter if "in his mind" he has raped anybody (by his understanding of the term). It matters if in his mind he committed an act defined (by the state, not in his mind) as rape by the law...like I said, I'm willing to accept a strict liability standard in place of a standard requiring malice. But he still, if we accept the definition laid out in Illinois, must knowingly and intentionally penetrate absent his partner's current ability to understand the nature of whatever consent she may be giving. And we're assuming for a moment she was in any way mobile, and not simply unconscious.

    The point, which seems to be flying way over your head, is that whether or not he actually knows that the action he is taking is criminal, any just system must require that this at the very fucking least be knowable. At that moment.

    His intent is not "intent to rape." It is "intent do have sex with somebody unable to understand at the moment of penetration they are consenting, and thus meet the definition his state may have set out for rape." It still hinges on his intent that night, not the reaction the next morning. If, for instance, he can provide a hypothetical video showing a vaguely clear elocution of acceptance of penetration, then even if she didn't remember it the next morning and wishes it had not happened this should not be rape. It was clear that not only did his partner say "yes," but that his partner indicated understanding that this was "yes to sex," and not (say) "yes I like cookies" or "uh huh I'm soooo drunk right now."

    mcdermott on
  • mcdermottmcdermott Registered User regular
    edited March 2012
    But to him, he is just following thru with her previous wishes. Consent was already give. In his mind he hasn't raped anyone so he didn't.

    I think it's reasonable to legally set that if consent is given prior to passing out, consent is automatically rescinded.

    Irrelevant to the case we're referring to, of course, since consent to sex was never given anyway. But yes, capacity (however we choose to define it) at moment of penetration (at the least) should be an assumption.

    mcdermott on
  • rockrngerrockrnger Registered User regular
    mcdermott wrote: »
    rockrnger wrote: »
    mcdermott wrote: »
    rockrnger wrote: »
    So what of our buddy mister she wanted it before she passed out? His conscience is clear.

    How so? At the time of penetration, he knows that the victim is unable to understand the nature of the act or give knowing consent.

    But to him, he is just following thru with her previous wishes. Consent was already give. In his mind he hasn't raped anyone so he didn't.

    Consent was never given to sex. It doesn't matter if "in his mind" he has raped anybody (by his understanding of the term). It matters if in his mind he committed an act defined as rape by the law...like I said, I'm willing to accept a strict liability standard in place of a standard requiring malice. But he still, if we accept the definition laid out in Illinois, must knowingly and intentionally penetrate absent his partner's current ability to understand the nature of whatever consent she may be giving. And we're assuming for a moment she was in any way mobile, and not simply unconscious.

    The point, which seems to be flying way over your head, is that whether or not he actually knows that the action he is taking is criminal, any just system must require that this at the very fucking least be knowable. At that moment.

    His intent is not "intent to rape." It is "intent do have sex with somebody unable to understand at the moment of penetration they are consenting, and thus meet the definition his state may have set out for rape." It still hinges on his intent that night, not the reaction the next morning. If, for instance, he can provide a hypothetical video showing a vaguely clear elocution of acceptance of penetration, then even if she didn't remember it the next morning and wishes it had not happened this should not be rape. It was clear that not only did his partner say "yes," but that his partner indicated understanding that this was "yes to sex," and not (say) "yes I like cookies" or "uh huh I'm soooo drunk right now."

    So, just to be clear, if she wakes up in the morning and thinks everything is fine it's still rape?

    And extrapolating that to the fan favorite of a husband and wife agreeing to have sex when one of them is unconscious that is also rape?

  • jothkijothki Registered User regular
    mcdermott wrote: »
    (a) A person commits criminal sexual assault if that person commits an act of sexual penetration and:
    (1) uses force or threat of force;
    (2) knows that the victim is unable to understand the nature of the act or is unable to give knowing consent;
    [...]

    Looks like the crime still hinges on the accused's knowledge of the alleged victim's incapacitation due to intoxication. So even in a state that requires some semblance of sobriety to recognize consent, it hinges on the intent of the criminal at the time of the act...not some later arbitrary decision of the victim. It's not a matter of "maybe it's rape, maybe it's not, I guess we'll find out later!" It was, at the time, or it wasn't.

    EDIT: While not directly applicable, we actually have an entire clause of the Constitution based on the principle that one should at least be theoretically able to know that one's actions are criminal (or not) at the time they are taken. It's, like, super-important.

    So then this requires that the accuser not being capable of understanding the nature of the act at the time, while the accused is capable enough at the time to understand that the accuser is not capable of understanding the nature of the act at the time. Which is obviously at least as difficult.

    That would then mean that absent other extenuating circumstances, it's impossible to sexually assault someone who claims consent and is less intoxicated than you?

  • mcdermottmcdermott Registered User regular
    rockrnger wrote: »
    So, just to be clear, if she wakes up in the morning and thinks everything is fine it's still rape?

    If sex was initiated absent the legally defined ability to given consent, yes. It was still rape. You just have a victim choosing not to pursue action.

    We are talking about a passed-out partner, right? Or a partner unable (to the knowledge of the initiator) to understand what they are consenting to. I'm assuming so.
    And extrapolating that to the fan favorite of a husband and wife agreeing to have sex when one of them is unconscious that is also rape?

    Meh. I don't see how it's a "fan favorite." But whatevs. I'm comfortable defining any sex initiated while the partner is unconscious as rape, then depending on the victim's whim of whether or not to report it to the police to cover any such hypothetical agreements.

    I'm not willing to apply the same to one too many martinis, no. Maybe you are. But I, as somebody who requires that my criminal codes be rational, demand that any such "line" you draw for when consent can be given be consistent, and clearly defined. If you're willing to criminalize drunken hookups, and depend on the whim of the participants for enforcement, then cool. But there should never be any such thing as "possibly rape" in the criminal code.

  • mcdermottmcdermott Registered User regular
    edited March 2012
    jothki wrote: »
    So then this requires that the accuser not being capable of understanding the nature of the act at the time, while the accused is capable enough at the time to understand that the accuser is not capable of understanding the nature of the act at the time. Which is obviously at least as difficult.

    That would then mean that absent other extenuating circumstances, it's impossible to sexually assault someone who claims consent and is less intoxicated than you?

    Your second sentence isn't parsing well for me. I assume you mean "be sexually assaulted by," since the victim wouldn't "claim consent?"

    Assuming this, then...yes and no? It'd certainly be possible to sexually assault somebody by claiming [edit: falsely] consent if they were more intoxicated than you. It'd also be nearly impossible to prove that it was sexual assault. We've...already established this? I feel like you are trying to trap me into an answer, but that it's a statement I've already given quite willingly?

    Yes, I am more comfortable with "date rape" being nearly impossible to prosecute (absent extenuating circumstances) than with criminalizing drunken sex and depending on the whims of the partners after the fact for enforcement. Or, in other words, I am comfortable with the status quo. Which brings us back to the OP?

    EDIT: By "comfortable with" I merely mean "prefer to the alternatives presented," just to be clear. It's not like I love the idea.

    mcdermott on
  • PaladinPaladin Registered User regular
    It just occurred to me that we go about sex as if it was an illegal activity already. No paperwork, euphemisms and deniable code words, nocturnal private exchanges of goods and implicit vows of secrecy - like an episode of Breaking Bad or Insert Crime Drama.

    Marty: The future, it's where you're going?
    Doc: That's right, twenty five years into the future. I've always dreamed on seeing the future, looking beyond my years, seeing the progress of mankind. I'll also be able to see who wins the next twenty-five world series.
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