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.
Claims they're consenting at the time of the incident, I mean. If both parties are heavily intoxicated, and one says yes, then either they were aware enough to know exactly what they were consenting to, or the other party would be expected to be just as unaware, and thus incapable of rendering judgement on whether that consent may be invalid. If your partner is more aware than you are, you can therefore safely take their claims of consent at their word, since if they don't understand the situation, you can't be expected to either.
Heh, I had trouble parsing that sentence myself. I originally put down "more intoxicated", but caught it before I posted.
Claims they're consenting at the time of the incident, I mean. If both parties are heavily intoxicated, and one says yes, then either they were aware enough to know exactly what they were consenting to, or the other party would be expected to be just as unaware, and thus incapable of rendering judgement on whether that consent may be invalid. If your partner is more aware than you are, you can therefore safely take their claims of consent at their word, since if they don't understand the situation, you can't be expected to either.
Heh, I had trouble parsing that sentence myself. I originally put down "more intoxicated", but caught it before I posted.
Man, it still took me a few tries just now to fully understand what you were saying.
But yes. If they're less intoxicated than you are then either they are capable of consent or you are probably unable to properly gauge their ability (or lack thereof) to knowlingly consent. Or at least this should be part of any reasonable standard.
This assumes some manner of consent being given, though. If you are so intoxicated that you are unable to realize that they didn't consent at all, then I'd probably fall on the "intoxication is not a defense" end. Though, assuming the crime was admitted (or proven) it should probably be taken into account regarding punishment.
Though now I'm stuck trying to convince myself of the difference between excusing an inability to discern the ability to knowingly consent due to the accused's intoxication, but not excusing an inability to discern actual incapacitation (beyond ability to consent at all, knowingly or not) due to the accused's intoxication. Either that's not really consistent, or I'm assigning some value to a less-than-knowing consent above a complete absence of consent. At least if the accused is operating under a diminished capacity as well. Maybe I'm comfortable with that? Requires a little more thought on the issue that I'm ready to give right now, but I am at least seeing the issue with that argument.
Claims they're consenting at the time of the incident, I mean. If both parties are heavily intoxicated, and one says yes, then either they were aware enough to know exactly what they were consenting to, or the other party would be expected to be just as unaware, and thus incapable of rendering judgement on whether that consent may be invalid. If your partner is more aware than you are, you can therefore safely take their claims of consent at their word, since if they don't understand the situation, you can't be expected to either.
Heh, I had trouble parsing that sentence myself. I originally put down "more intoxicated", but caught it before I posted.
Man, it still took me a few tries just now to fully understand what you were saying.
But yes. If they're less intoxicated than you are then either they are capable of consent or you are probably unable to properly gauge their ability (or lack thereof) to knowlingly consent. Or at least this should be part of any reasonable standard.
This assumes some manner of consent being given, though. If you are so intoxicated that you are unable to realize that they didn't consent at all, then I'd probably fall on the "intoxication is not a defense" end. Though, assuming the crime was admitted (or proven) it should probably be taken into account regarding punishment.
Though now I'm stuck trying to convince myself of the difference between excusing an inability to discern the ability to knowingly consent due to the accused's intoxication, but not excusing an inability to discern actual incapacitation (beyond ability to consent at all, knowingly or not) due to the accused's intoxication. Either that's not really consistent, or I'm assigning some value to a less-than-knowing consent above a complete absence of consent. At least if the accused is operating under a diminished capacity as well. Maybe I'm comfortable with that? Requires a little more thought on the issue that I'm ready to give right now, but I am at least seeing the issue with that argument.
Understanding that last paragraph requires a little more thought on that issue than I'm ready to give right now.
There really has to be a better way to phrase this stuff.
if the potential victim consents, since the rapist is drunk and can't tell whether the consent is genuine, he's in the clear
if the potential victim does not consent at all, the rapist is not in the clear even if he was too drunk to tell
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.
Well, I can break it down a bit for clarity, and assigning genders to make things easier:
- I implied that I'll excuse a drunk man who initiates sex with a less drunk woman (who is still beyond knowing consent), because logically he's too drunk to realize she's beyond knowing consent.
- At the same time, I implied that I wouldn't excuse a drunk man who initiates sex with an unconscious woman, despite the fact that he's (potentially) too drunk to realize she's beyond any consent...but rather that this would be a mitigating factor if the crime was proven.
- This implies, at least on a cursory examination, that I must be assigning some legal value to a diminished consent, provided the accused was equally diminished. But now we're moving away from defining the act in terms of the knowing, intentional acts of the accused.
I think since this is still all in dealing with the actions of the accused (and state of the accuser) at the time of the act, it's not entirely inconsistent with much of my previous argument. But I feel like there are problems there, if I were to probe more deeply than I care to at the moment. This may also by why I find IL's apparent "knowing consent" standard to be a bit problematic compared to NY's "physically able to consent" rule (despite the latter being a bit...shudder-inducing).
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.
You don't find it problematic that by your system we can have a rapist with no victim and victim with no rapist?
That a person who engage their partner within set limits with no harm is a rapist while a person who has sex with someone who has no awareness of the outside world so long as they believe that their drunken moaning amounts to consent doesn't seem strange to you?Hell, you can't see into the mind of another person so what if they are sleepwalking? Not everyone is a doctor so one could honestly say that they had no idea that their partner was unconscious, since we can't have possible rape, that person isn't a rapist.
Or what about S and M? Someone could bring in a video and say "arrest that woman, that poor man is begging for his life!" since pre-assumed concent is impossible.
So what of our buddy mister she wanted it before she passed out? His conscience is clear.
Let's do a little thought game, because, whilst I'm not really an MRA, this screams like punishing a guy for having testicles.
What if two people agreed to have sex, one man and one woman, both are drunk, the woman does all the actions, reverse cowgirl? The man, for all intents and purposes laid completely still during sex. He provided the living dildo.
In the morning, said women instantly feels regret and claims rape because sexual contact occurred.
Obviously this situation is ridiculous because we probably won't know what went on in the bedroom, but in order for a law to be good, it has to make sense from all angles. Does it make sense to punish anyone in that situation? Just the man? Just the woman? Both?
Clearly the man didn't do much besides get an erection. I'm honestly suspicious this has less to do with what's right and more to do with men shaming.
bowen on
not a doctor, not a lawyer, examples I use may not be fully researched so don't take out of context plz, don't @ me
My favorite part about the this is that people are arguing strict liability between sleeping with someone who has diminished capacity and rape. Whether the rapist is aware of their diminished capacity or not, he could end up a rapist.
We've only talked about alcohol, but what about mental illness. What if you sleep with a woman who is depressed? Or bipolar and in a manic episode? What if you have sex with a sex addict? I mean, surely they can't consent, their whole illness is based around it being compulsive behavior. What if you have sex with a woman who is merely hormonal? PMS has been used as a legal defense against assault before, under the premise of diminished capacity.
You can clearly see this gets absurd really quick.
Either a person is responsible for their actions or not. If they chose to drink, they are still responsible for everything that happens after. Period. End of discussion.
So what of our buddy mister she wanted it before she passed out? His conscience is clear.
Let's do a little thought game, because, whilst I'm not really an MRA, this screams like punishing a guy for having testicles.
What if two people agreed to have sex, one man and one woman, both are drunk, the woman does all the actions, reverse cowgirl? The man, for all intents and purposes laid completely still during sex. He provided the living dildo.
In the morning, said women instantly feels regret and claims rape because sexual contact occurred.
Obviously this situation is ridiculous because we probably won't know what went on in the bedroom, but in order for a law to be good, it has to make sense from all angles. Does it make sense to punish anyone in that situation? Just the man? Just the woman? Both?
Clearly the man didn't do much besides get an erection. I'm honestly suspicious this has less to do with what's right and more to do with men shaming.
For me, that level of "action" would seem to indicate an ability to consent so it wouldn't be rape of the woman. If the man wasnt doing anything because he couldn't then he was getting raped (maybe, depending on who you ask. See last couple of pages).
So the rest of us have been talking about a situation where the roles were reversed (the man could do something he was just being passive and enjoying the sexual encounter) and you have been arguing where the woman was indeed passed out and the man was just having sex with her body?
The woman could still have no recollection of the events even if she was actively participating in them. So one could conclude that sexual activity while drunk is rape. If I got a blow job I raped a woman orally. And she raped me.
not a doctor, not a lawyer, examples I use may not be fully researched so don't take out of context plz, don't @ me
So what of our buddy mister she wanted it before she passed out? His conscience is clear.
Let's do a little thought game, because, whilst I'm not really an MRA, this screams like punishing a guy for having testicles.
What if two people agreed to have sex, one man and one woman, both are drunk, the woman does all the actions, reverse cowgirl? The man, for all intents and purposes laid completely still during sex. He provided the living dildo.
In the morning, said women instantly feels regret and claims rape because sexual contact occurred.
Obviously this situation is ridiculous because we probably won't know what went on in the bedroom, but in order for a law to be good, it has to make sense from all angles. Does it make sense to punish anyone in that situation? Just the man? Just the woman? Both?
Clearly the man didn't do much besides get an erection. I'm honestly suspicious this has less to do with what's right and more to do with men shaming.
I can't tell if this is the unintentionally best or worst phrasing ever.
I think I need more coffee before I can treat this thread with the appropriate gravitas...
So the rest of us have been talking about a situation where the roles were reversed (the man could do something he was just being passive and enjoying the sexual encounter) and you have been arguing where the woman was indeed passed out and the man was just having sex with her body?
The woman could still have no recollection of the events even if she was actively participating in them. So one could conclude that sexual activity while drunk is rape. If I got a blow job I raped a woman orally. And she raped me.
Basically we have been having a discussion about consent and alcohol and have split into three camps.
The MRA camp says that a person is responsible for anything that is done to them when they choose to drink.
The "rape is in the mind of the accused" camp says that anyone who can say that they believed they had consent can be a rapist so the cut off is basically unconsciousness.
The "rape in the mind if the victim" camp says that a person looses the ability to consent as they get drunk the same way as they lose the ability to sign a contract (meeting of the minds, reasonable terms, mutual benefit)
So the rest of us have been talking about a situation where the roles were reversed (the man could do something he was just being passive and enjoying the sexual encounter) and you have been arguing where the woman was indeed passed out and the man was just having sex with her body?
The woman could still have no recollection of the events even if she was actively participating in them. So one could conclude that sexual activity while drunk is rape. If I got a blow job I raped a woman orally. And she raped me.
Basically we have been having a discussion about consent and alcohol and have split into three camps.
The MRA camp says that a person is responsible for anything that is done to them when they choose to drink.
The "rape is in the mind of the accused" camp says that anyone who can say that they believed they had consent can be a rapist so the cut off is basically unconsciousness.
The "rape in the mind if the victim" camp says that a person looses the ability to consent as they get drunk the same way as they lose the ability to sign a contract (meeting of the minds, reasonable terms, mutual benefit)
To be clear, when talking about "the MRA camp" you're not referring to anybody here, right? Because nobody here has argued this. I, and others, have argued that the person is responsible for anything they do when they choose to drink. Not anything done to them. Consenting to sex, even if it's intoxicated consent, is a thing you do, not a thing that is done to you.
EDIT: I could tell some stories about things I've done while blackout drunk that I definitely regretted later. At least assuming I actually did those things, because I do not remember them. But I'd never try to claim that referring to a buddy as "my n----" (yes, he was black) was a thing that was done to me. Luckily I was drunk, and apparently I dropped the "r" as is generally appropriate, so we're still cool.
You don't find it problematic that by your system we can have a rapist with no victim and victim with no rapist?
"Rapist with no victim?" Not a problem, since it'd never be pursued legally and in fact it's not likely anybody would ever actually call him such (not his partner, surely). Also, it's not that there's necessarily no victim. There is a party who had a criminal act perpetrated against them, but decided they were okay with (or hell actively enjoyed). At the time the act was committed, it was still a crime. Ever got in a shoving match with a buddy? Guess what, either or both of you were the victims of a crime. Even though neither of you called the cops, and neither of you would likely say the other "assaulted" you.
Victim with no rapist? You're missing the point, because you don't get to define yourself as a victim. The law does that. You may "feel" like a victim. But no rapist, no rape, no victim.
That's the part you're not allowing yourself to accept. That right now we're too often telling people "you were totally raped!" when what really happened was drunken consent with another (likely intoxicated) party. It's an act that the "victim" took while drunk that they wish they hadn't done when sober. Like so many other acts. News flash: you're not a "victim." You're just a drunk dumbass who did some drunk dumbass shit. Try not to next time. Or drink less, if you find yourself doing it often.
Now, if you were actually unconscious, that's a different story. That's rape, there was a rapist, you are a victim.
If you can't remember? I can't help you. You don't know what happened, I don't know what happened either. A prosecutor and a jury almost certainly won't know what happened. Unless you've got rohypnol or some similar drug in your system, it is what it is.
EDIT: Note that before you swing the MRA bat, I'm not saying you're responsible if something was done to you that you cannot remember. Assuming anything illegal did happen, your attacker is responsible. I'm just saying there's probably not any recourse, because we have no way of knowing what happened. That sucks, but can't really be helped.
The "rape in the mind if the victim" camp says that a person looses the ability to consent as they get drunk the same way as they lose the ability to sign a contract (meeting of the minds, reasonable terms, mutual benefit)
I'd also say it's ridiculous to hold knocking the boots to the same standard as signing a contract. Besides, that notary in the corner totally has me losing wood. You rally can't make the comparison. We obviously fuck people with whom we'd never think to enter any legally binding contract.
I think the larger problem is people feel like they're owed something that was essentially a crimeless thing because they can't remember if it was agreed to or not. They wouldn't normally agree but there they are and they feel like restitution is owed to them because of it.
The problem is there's no way to safely prosecute anyone because you're essentially making whole swaths of the population potential rapists. That's not the solution. You shouldn't be comfortable with doing that either.
not a doctor, not a lawyer, examples I use may not be fully researched so don't take out of context plz, don't @ me
You don't find it problematic that by your system we can have a rapist with no victim and victim with no rapist?
That a person who engage their partner within set limits with no harm is a rapist while a person who has sex with someone who has no awareness of the outside world so long as they believe that their drunken moaning amounts to consent doesn't seem strange to you?Hell, you can't see into the mind of another person so what if they are sleepwalking? Not everyone is a doctor so one could honestly say that they had no idea that their partner was unconscious, since we can't have possible rape, that person isn't a rapist.
You realize that I've been repeatedly reinforcing that I'd rather err on the side of not locking people up than ensure we round up every last person who commits an act that might possibly be construed as rape, right?
So yeah, I'm cool with that. Where "cool with that" again means "prefer to any proposed alternative."
Or what about S and M? Someone could bring in a video and say "arrest that woman, that poor man is begging for his life!" since pre-assumed concent is impossible.
Depends on the video. If there's no evidence during the video that consent was given for the acts performed, or evidence during the video that consent is being legitimately revoked, then yes you could have a prosecutable case. Imagine for a moment an actual violent serial rapist who is female...the video could actually be a video of a violent crime, right?
Though either a history of S&M on the part of the victim, a standing relationship between the two parties, or other context within the video could be enough to meet "reasonable doubt."
Basically making such a video, as the one doing the dominating, is an act of trust with your partner...because you are indeed potentially exposing yourself to liability. Though the risk is low.
I don't see the distinction between the first two. Except "now I'm unconscious and this is rape." I'd argue that even MRAs don't go for that.
Then you Sir have not talk to a lot of MRAs. But wasn't that the point of the whole "she wanted it before she passed out" story someone posted earlier? If I misunderstood I am sorry.
McD, I guess where my problem with your system (other than making blacked out people fair game) is that you aren't protecting anyone. It's not "1000 guilt for 1 innocent" it's " 1000 guilt for 500 guilty."
If we switched to "contract consent" who would be in jail who shouldn't?
A lot of people. Even parties that implicitly were drunk together. Guy would sue girl if girl sues guy. Both end up in jail, both were drunk, both consented while drunk to having sex, which is illegal, both are guilty of rape.
Now, sure, you get more convictions, but are they good or right convictions? Why do we need to protect anyone anymore than we do? We should focus more on education and stop slut shaming, rather than shifting burdens of proof or what constitutes a rape.
not a doctor, not a lawyer, examples I use may not be fully researched so don't take out of context plz, don't @ me
I don't see the distinction between the first two. Except "now I'm unconscious and this is rape." I'd argue that even MRAs don't go for that.
Then you Sir have not talk to a lot of MRAs. But wasn't that the point of the whole "she wanted it before she passed out" story someone posted earlier? If I misunderstood I am sorry.
McD, I guess where my problem with your system (other than making blacked out people fair game) is that you aren't protecting anyone. It's not "1000 guilt for 1 innocent" it's " 1000 guilt for 500 guilty."
Except you and I are defining "guilty" in different manners. You do understand this, right? You are widening the net of guilt with your standard. I'm not letting 500 more guilty go free, I am (for say 400+ of them) defining them as not guilty. I am defining their actions as not rape. I am telling their "victims" that they were not victims. Regardless of how they might have felt about what happened after the fact.
If we switched to "contract consent" who would be in jail who shouldn't?
Anybody who initiated sex while drunk* with somebody who was drunk, if the other party later decided they weren't cool wit dat.
Again, you are criminalizing drunken hookups, then depending on the whim of the parties involved to determine enforcement. Wrong answer.
* - Actually, I'd include "while sober" as well, but I can agree that this is a more controversial position. I don't defend the behavior morally, but I do defend it criminally.
Basically what this has boiled down to is if we allow drunken hookups to be boiled down to sex regret, and then classifying sex regret as rape, but only if you're drunk.
I don't know, it seems like that would mean someone could use that same defense for murdering a family of 5 while being drunk and driving... they didn't know what their actions would've done being not in control of their agency and regret it immensely.
not a doctor, not a lawyer, examples I use may not be fully researched so don't take out of context plz, don't @ me
Also, if by "blacked out" you mean unconscious, not it doesn't. Hard to prosecute, sure, but still not actually legal.
If by "blacked out" you mean "so intoxicated that they are doing things they normally wouldn't, and will not remember tomorrow"....well, yes. Absolutely. I have no problem saying that. You get drunk enough that you are "blacked out" (yet still mobile) and you are damn near guaranteed to do stupid shit that you would not ordinarily do, and may well regret at a later date. So fucking what? Aside from the risk of STDs or pregnancy, I fail to see what makes sex "special" in this regard. And really, STDs and pregnancy don't make it special either (no different than the normal risk of injury that comes from getting blackout-drunk).
You got so drunk you fucked somebody you otherwise wouldn't have. So? Really, explain the problem. Didn't "understand the consequences?" I didn't understand the consequences of a lot of things I've done while blackout-drunk, which is why I make a point to avoid that state...most of the time. So, again, why is sex special here?
I'm really not coming up with any valid answer to that, other than societal hang-ups about sex and general sex-shaming (particularly of women). There's really no other reason that getting so fucked up that you give the nod to a dude you wouldn't normally fuck should be any more momentous than getting so fucked up you decide on an unfortunate tattoo or to shave off your eyebrows. Like, holy shit you could almost say that there's a whole lot of misogyny involved in calling that rape. Which I think is what that quoted article a couple pages back was getting at.
The real answer I'm coming up with is that it makes proving a case of actual* rape (of, say, an unconscious partner) incredibly difficult. But this is not in and of itself justification for criminalization.
* - By my definition, and by the definition of many jurisdictions.
I'm so glad this debate topic didn't devolve into a circle jerk of trying to broaden the definition of rape to include as much sexual behavior as possible. Well, most of you at least.
And to go back to your earlier question, if I got so blackout drunk that I blew a dude (despite being absolutely* heterosexual), same damn thing. If not for a whole lot of societally-reinforced homophobia, why should that be any different than any other regrettable action taken while drunk?
I'm so glad this debate topic didn't devolve into a circle jerk of trying to broaden the definition of rape to include as much sexual behavior as possible. Well, most of you at least.
I've seen it happen.
I'm specifically trying not to get there and get this thread locked. If we can come to a consensus and agreement, awesome, way better than shouting at each other and wiping out our dickwolves and LewieP or Jeffe come in here and knocking us down a peg for being retards and not being able to have nice things.
not a doctor, not a lawyer, examples I use may not be fully researched so don't take out of context plz, don't @ me
And to go back to your earlier question, if I got so blackout drunk that I blew a dude (despite being absolutely* heterosexual), same damn thing. If not for a whole lot of societally-reinforced homophobia, why should that be any different than any other regrettable action taken while drunk?
* - Or, well, apparently not.
The whole point is that the victim (or whatever) would never consent if they knew what they consented to. It was part of the whole mind of the victim discussion.
I feel like I have done a poor job of explaining my position.
When a person signs a contract the fact that they are drunk doesn't make the contract void. For the contract to be valid there has to be a meeting of the minds (the people both understood and agreed to the terms of the contract), it has to be mutually beneficial and it has to be reasonable.
So one can't get a drunk person to sign away their house for free but you could decide on the price of the house if it is reasonable.
Now take that into the realm of sex. If two people are hanging all over one another at a party (especially if they start before they are drunk) and both walk to a room and have sex and then in the morning one of them claims to have been raped because of diminished capabilities we could say that the claim wasn't valid.
A) both parties actively advanced the sex both parties gained something they wanted (at the time)
C) reasonable people have sex at parties
Now let's look at another example. A person sees a person they do not know passed out at a party. The sober person manages to wake the drunk person up enough to
get them to agree to have sex. The sober person carries the drunk person to a room and they have sex.
A) the drunk person did not understand and agree to the terms of the consent only one party got what they wanted
C) reasonable people's first interaction isn't sex.
The whole point is that the victim (or whatever) would never consent if they knew what they consented to. It was part of the whole mind of the victim discussion.
You're arguing that they don't know what they are consenting to. I'm arguing that quite often they know what they are consenting to, but are drunk enough that they are consenting to things they would not consent to sober.
I reject the contract comparison because, unlike a contract, we can't simply "void" the sex. If we could, then yes I'd happily accept your standard. No proper meeting of the minds, you get your sex back. Awesome.
But, unfortunately, this isn't about a contract so we can't go that route. Instead we're talking about incarcerating one party to the "contract." Your argument is something I buy for things like civil liability, or maybe for a misdemeanor. But for a felony? Nope. Do you understand why I make that distinction?
The whole point is that the victim (or whatever) would never consent if they knew what they consented to.
This sentence is confusing. What do you mean by it?
It was a thought experiment a couple pages back about rape being in the mind of the victim or the attacker. If a 100 percent hetero guy who would never have sex with a man has sex due to not understanding the question when asked about sex, would it be rape?
The whole point is that the victim (or whatever) would never consent if they knew what they consented to.
This sentence is confusing. What do you mean by it?
It was a thought experiment a couple pages back about rape being in the mind of the victim or the attacker. If a 100 percent hetero guy who would never have sex with a man has sex due to not understanding the question when asked about sex, would it be rape?
It seems strange to think that a person would have sex as a result of some linguistic confusion.
The whole point is that the victim (or whatever) would never consent if they knew what they consented to. It was part of the whole mind of the victim discussion.
You're arguing that they don't know what they are consenting to. I'm arguing that quite often they know what they are consenting to, but are drunk enough that they are consenting to things they would not consent to sober.
I reject the contract comparison because, unlike a contract, we can't simply "void" the sex. If we could, then yes I'd happily accept your standard. No proper meeting of the minds, you get your sex back. Awesome.
But, unfortunately, this isn't about a contract so we can't go that route. Instead we're talking about incarcerating one party to the "contract." Your argument is something I buy for things like civil liability, or maybe for a misdemeanor. But for a felony? Nope. Do you understand why I make that distinction?
I understand it completely. You are afraid that an innocent person thru a series of reasonable decisions will, without meaning to, become a rapist.
Now let me tell you why I like my system. As far as I know that person doesn't exist.
The whole point is that the victim (or whatever) would never consent if they knew what they consented to. It was part of the whole mind of the victim discussion.
You're arguing that they don't know what they are consenting to. I'm arguing that quite often they know what they are consenting to, but are drunk enough that they are consenting to things they would not consent to sober.
I reject the contract comparison because, unlike a contract, we can't simply "void" the sex. If we could, then yes I'd happily accept your standard. No proper meeting of the minds, you get your sex back. Awesome.
But, unfortunately, this isn't about a contract so we can't go that route. Instead we're talking about incarcerating one party to the "contract." Your argument is something I buy for things like civil liability, or maybe for a misdemeanor. But for a felony? Nope. Do you understand why I make that distinction?
I understand it completely. You are afraid that an innocent person thru a series of reasonable decisions will, without meaning to, become a rapist.
Now let me tell you why I like my system. As far as I know that person doesn't exist.
"If X, Y, and Z happen then an innocent guy may be an unintentional rapist!"
"Well, no innocent guy would ever do X, Y, and Z."
That's...that's not the mentality we use when crafting a system.
I think you can commit any crime without bad intentions, unless that's a prerequisite for the crime
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.
I think you can commit any crime without bad intentions, unless that's a prerequisite for the crime
Just about every felony I can think of requires "bad" intentions as a prerequisite. Or is held to (pardon me if I misuse the terminology) a strict liability standard. You know, like statutory rape where even if that 14-year-old is totally cool with it it's still a crime.
The only exceptions I can come up with off the top of my head are the various degrees of manslaughter, which require extreme negligence or reckless disregard (which arguably could still be "bad intentions" anyway). But at that point the victim is dead. I think it takes some serious societal hang-ups to draw parallels from "regrettable sexual activity" to "death."
You can kill somebody or commit fraud out of ignorance, which is no excuse in the eyes of the law - it's your fault for not thinking your actions through, whether you premeditated harm or not
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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JuliusCaptain of Serenityon my shipRegistered Userregular
The whole point is that the victim (or whatever) would never consent if they knew what they consented to.
This sentence is confusing. What do you mean by it?
It was a thought experiment a couple pages back about rape being in the mind of the victim or the attacker. If a 100 percent hetero guy who would never have sex with a man has sex due to not understanding the question when asked about sex, would it be rape?
It seems strange to think that a person would have sex as a result of some linguistic confusion.
I'm pretty sure they'd still know what sex is when it happens though.
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JuliusCaptain of Serenityon my shipRegistered Userregular
You can kill somebody or commit fraud out of ignorance, which is no excuse in the eyes of the law - it's your fault for not thinking your actions through, whether you premeditated harm or not
You can kill somebody or commit fraud out of ignorance, which is no excuse in the eyes of the law - it's your fault for not thinking your actions through, whether you premeditated harm or not
You can kill somebody through negligence or recklessness, which I mentioned (and then rejected a parallel between death and having a sexual partner you regret).
How the fuck do you commit fraud out of ignorance? Answer: you don't. Every fraud statute in my state at least has "with intent to defraud" or similar right there in it. So....you're wrong?
You can kill somebody or commit fraud out of ignorance, which is no excuse in the eyes of the law - it's your fault for not thinking your actions through, whether you premeditated harm or not
Wait...how do you commit fraud out of ignorance?
You don't. You can't. Silly goose is both silly and a goose.
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Claims they're consenting at the time of the incident, I mean. If both parties are heavily intoxicated, and one says yes, then either they were aware enough to know exactly what they were consenting to, or the other party would be expected to be just as unaware, and thus incapable of rendering judgement on whether that consent may be invalid. If your partner is more aware than you are, you can therefore safely take their claims of consent at their word, since if they don't understand the situation, you can't be expected to either.
Heh, I had trouble parsing that sentence myself. I originally put down "more intoxicated", but caught it before I posted.
Man, it still took me a few tries just now to fully understand what you were saying.
But yes. If they're less intoxicated than you are then either they are capable of consent or you are probably unable to properly gauge their ability (or lack thereof) to knowlingly consent. Or at least this should be part of any reasonable standard.
This assumes some manner of consent being given, though. If you are so intoxicated that you are unable to realize that they didn't consent at all, then I'd probably fall on the "intoxication is not a defense" end. Though, assuming the crime was admitted (or proven) it should probably be taken into account regarding punishment.
Though now I'm stuck trying to convince myself of the difference between excusing an inability to discern the ability to knowingly consent due to the accused's intoxication, but not excusing an inability to discern actual incapacitation (beyond ability to consent at all, knowingly or not) due to the accused's intoxication. Either that's not really consistent, or I'm assigning some value to a less-than-knowing consent above a complete absence of consent. At least if the accused is operating under a diminished capacity as well. Maybe I'm comfortable with that? Requires a little more thought on the issue that I'm ready to give right now, but I am at least seeing the issue with that argument.
Understanding that last paragraph requires a little more thought on that issue than I'm ready to give right now.
There really has to be a better way to phrase this stuff.
if the potential victim consents, since the rapist is drunk and can't tell whether the consent is genuine, he's in the clear
if the potential victim does not consent at all, the rapist is not in the clear even if he was too drunk to tell
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.
- I implied that I'll excuse a drunk man who initiates sex with a less drunk woman (who is still beyond knowing consent), because logically he's too drunk to realize she's beyond knowing consent.
- At the same time, I implied that I wouldn't excuse a drunk man who initiates sex with an unconscious woman, despite the fact that he's (potentially) too drunk to realize she's beyond any consent...but rather that this would be a mitigating factor if the crime was proven.
- This implies, at least on a cursory examination, that I must be assigning some legal value to a diminished consent, provided the accused was equally diminished. But now we're moving away from defining the act in terms of the knowing, intentional acts of the accused.
I think since this is still all in dealing with the actions of the accused (and state of the accuser) at the time of the act, it's not entirely inconsistent with much of my previous argument. But I feel like there are problems there, if I were to probe more deeply than I care to at the moment. This may also by why I find IL's apparent "knowing consent" standard to be a bit problematic compared to NY's "physically able to consent" rule (despite the latter being a bit...shudder-inducing).
You don't find it problematic that by your system we can have a rapist with no victim and victim with no rapist?
That a person who engage their partner within set limits with no harm is a rapist while a person who has sex with someone who has no awareness of the outside world so long as they believe that their drunken moaning amounts to consent doesn't seem strange to you?Hell, you can't see into the mind of another person so what if they are sleepwalking? Not everyone is a doctor so one could honestly say that they had no idea that their partner was unconscious, since we can't have possible rape, that person isn't a rapist.
Or what about S and M? Someone could bring in a video and say "arrest that woman, that poor man is begging for his life!" since pre-assumed concent is impossible.
Let's do a little thought game, because, whilst I'm not really an MRA, this screams like punishing a guy for having testicles.
What if two people agreed to have sex, one man and one woman, both are drunk, the woman does all the actions, reverse cowgirl? The man, for all intents and purposes laid completely still during sex. He provided the living dildo.
In the morning, said women instantly feels regret and claims rape because sexual contact occurred.
Obviously this situation is ridiculous because we probably won't know what went on in the bedroom, but in order for a law to be good, it has to make sense from all angles. Does it make sense to punish anyone in that situation? Just the man? Just the woman? Both?
Clearly the man didn't do much besides get an erection. I'm honestly suspicious this has less to do with what's right and more to do with men shaming.
We've only talked about alcohol, but what about mental illness. What if you sleep with a woman who is depressed? Or bipolar and in a manic episode? What if you have sex with a sex addict? I mean, surely they can't consent, their whole illness is based around it being compulsive behavior. What if you have sex with a woman who is merely hormonal? PMS has been used as a legal defense against assault before, under the premise of diminished capacity.
You can clearly see this gets absurd really quick.
Either a person is responsible for their actions or not. If they chose to drink, they are still responsible for everything that happens after. Period. End of discussion.
For me, that level of "action" would seem to indicate an ability to consent so it wouldn't be rape of the woman. If the man wasnt doing anything because he couldn't then he was getting raped (maybe, depending on who you ask. See last couple of pages).
The woman could still have no recollection of the events even if she was actively participating in them. So one could conclude that sexual activity while drunk is rape. If I got a blow job I raped a woman orally. And she raped me.
I can't tell if this is the unintentionally best or worst phrasing ever.
I think I need more coffee before I can treat this thread with the appropriate gravitas...
Basically we have been having a discussion about consent and alcohol and have split into three camps.
The MRA camp says that a person is responsible for anything that is done to them when they choose to drink.
The "rape is in the mind of the accused" camp says that anyone who can say that they believed they had consent can be a rapist so the cut off is basically unconsciousness.
The "rape in the mind if the victim" camp says that a person looses the ability to consent as they get drunk the same way as they lose the ability to sign a contract (meeting of the minds, reasonable terms, mutual benefit)
To be clear, when talking about "the MRA camp" you're not referring to anybody here, right? Because nobody here has argued this. I, and others, have argued that the person is responsible for anything they do when they choose to drink. Not anything done to them. Consenting to sex, even if it's intoxicated consent, is a thing you do, not a thing that is done to you.
EDIT: I could tell some stories about things I've done while blackout drunk that I definitely regretted later. At least assuming I actually did those things, because I do not remember them. But I'd never try to claim that referring to a buddy as "my n----" (yes, he was black) was a thing that was done to me. Luckily I was drunk, and apparently I dropped the "r" as is generally appropriate, so we're still cool.
"Rapist with no victim?" Not a problem, since it'd never be pursued legally and in fact it's not likely anybody would ever actually call him such (not his partner, surely). Also, it's not that there's necessarily no victim. There is a party who had a criminal act perpetrated against them, but decided they were okay with (or hell actively enjoyed). At the time the act was committed, it was still a crime. Ever got in a shoving match with a buddy? Guess what, either or both of you were the victims of a crime. Even though neither of you called the cops, and neither of you would likely say the other "assaulted" you.
Victim with no rapist? You're missing the point, because you don't get to define yourself as a victim. The law does that. You may "feel" like a victim. But no rapist, no rape, no victim.
That's the part you're not allowing yourself to accept. That right now we're too often telling people "you were totally raped!" when what really happened was drunken consent with another (likely intoxicated) party. It's an act that the "victim" took while drunk that they wish they hadn't done when sober. Like so many other acts. News flash: you're not a "victim." You're just a drunk dumbass who did some drunk dumbass shit. Try not to next time. Or drink less, if you find yourself doing it often.
Now, if you were actually unconscious, that's a different story. That's rape, there was a rapist, you are a victim.
If you can't remember? I can't help you. You don't know what happened, I don't know what happened either. A prosecutor and a jury almost certainly won't know what happened. Unless you've got rohypnol or some similar drug in your system, it is what it is.
EDIT: Note that before you swing the MRA bat, I'm not saying you're responsible if something was done to you that you cannot remember. Assuming anything illegal did happen, your attacker is responsible. I'm just saying there's probably not any recourse, because we have no way of knowing what happened. That sucks, but can't really be helped.
I'd also say it's ridiculous to hold knocking the boots to the same standard as signing a contract. Besides, that notary in the corner totally has me losing wood. You rally can't make the comparison. We obviously fuck people with whom we'd never think to enter any legally binding contract.
The problem is there's no way to safely prosecute anyone because you're essentially making whole swaths of the population potential rapists. That's not the solution. You shouldn't be comfortable with doing that either.
You realize that I've been repeatedly reinforcing that I'd rather err on the side of not locking people up than ensure we round up every last person who commits an act that might possibly be construed as rape, right?
So yeah, I'm cool with that. Where "cool with that" again means "prefer to any proposed alternative."
Depends on the video. If there's no evidence during the video that consent was given for the acts performed, or evidence during the video that consent is being legitimately revoked, then yes you could have a prosecutable case. Imagine for a moment an actual violent serial rapist who is female...the video could actually be a video of a violent crime, right?
Though either a history of S&M on the part of the victim, a standing relationship between the two parties, or other context within the video could be enough to meet "reasonable doubt."
Basically making such a video, as the one doing the dominating, is an act of trust with your partner...because you are indeed potentially exposing yourself to liability. Though the risk is low.
Then you Sir have not talk to a lot of MRAs. But wasn't that the point of the whole "she wanted it before she passed out" story someone posted earlier? If I misunderstood I am sorry.
McD, I guess where my problem with your system (other than making blacked out people fair game) is that you aren't protecting anyone. It's not "1000 guilt for 1 innocent" it's " 1000 guilt for 500 guilty."
If we switched to "contract consent" who would be in jail who shouldn't?
Now, sure, you get more convictions, but are they good or right convictions? Why do we need to protect anyone anymore than we do? We should focus more on education and stop slut shaming, rather than shifting burdens of proof or what constitutes a rape.
Except you and I are defining "guilty" in different manners. You do understand this, right? You are widening the net of guilt with your standard. I'm not letting 500 more guilty go free, I am (for say 400+ of them) defining them as not guilty. I am defining their actions as not rape. I am telling their "victims" that they were not victims. Regardless of how they might have felt about what happened after the fact.
Anybody who initiated sex while drunk* with somebody who was drunk, if the other party later decided they weren't cool wit dat.
Again, you are criminalizing drunken hookups, then depending on the whim of the parties involved to determine enforcement. Wrong answer.
* - Actually, I'd include "while sober" as well, but I can agree that this is a more controversial position. I don't defend the behavior morally, but I do defend it criminally.
I don't know, it seems like that would mean someone could use that same defense for murdering a family of 5 while being drunk and driving... they didn't know what their actions would've done being not in control of their agency and regret it immensely.
Also, if by "blacked out" you mean unconscious, not it doesn't. Hard to prosecute, sure, but still not actually legal.
If by "blacked out" you mean "so intoxicated that they are doing things they normally wouldn't, and will not remember tomorrow"....well, yes. Absolutely. I have no problem saying that. You get drunk enough that you are "blacked out" (yet still mobile) and you are damn near guaranteed to do stupid shit that you would not ordinarily do, and may well regret at a later date. So fucking what? Aside from the risk of STDs or pregnancy, I fail to see what makes sex "special" in this regard. And really, STDs and pregnancy don't make it special either (no different than the normal risk of injury that comes from getting blackout-drunk).
You got so drunk you fucked somebody you otherwise wouldn't have. So? Really, explain the problem. Didn't "understand the consequences?" I didn't understand the consequences of a lot of things I've done while blackout-drunk, which is why I make a point to avoid that state...most of the time. So, again, why is sex special here?
I'm really not coming up with any valid answer to that, other than societal hang-ups about sex and general sex-shaming (particularly of women). There's really no other reason that getting so fucked up that you give the nod to a dude you wouldn't normally fuck should be any more momentous than getting so fucked up you decide on an unfortunate tattoo or to shave off your eyebrows. Like, holy shit you could almost say that there's a whole lot of misogyny involved in calling that rape. Which I think is what that quoted article a couple pages back was getting at.
The real answer I'm coming up with is that it makes proving a case of actual* rape (of, say, an unconscious partner) incredibly difficult. But this is not in and of itself justification for criminalization.
* - By my definition, and by the definition of many jurisdictions.
I've seen it happen.
* - Or, well, apparently not.
I'm specifically trying not to get there and get this thread locked. If we can come to a consensus and agreement, awesome, way better than shouting at each other and wiping out our dickwolves and LewieP or Jeffe come in here and knocking us down a peg for being retards and not being able to have nice things.
I feel like I have done a poor job of explaining my position.
When a person signs a contract the fact that they are drunk doesn't make the contract void. For the contract to be valid there has to be a meeting of the minds (the people both understood and agreed to the terms of the contract), it has to be mutually beneficial and it has to be reasonable.
So one can't get a drunk person to sign away their house for free but you could decide on the price of the house if it is reasonable.
Now take that into the realm of sex. If two people are hanging all over one another at a party (especially if they start before they are drunk) and both walk to a room and have sex and then in the morning one of them claims to have been raped because of diminished capabilities we could say that the claim wasn't valid.
A) both parties actively advanced the sex
C) reasonable people have sex at parties
Now let's look at another example. A person sees a person they do not know passed out at a party. The sober person manages to wake the drunk person up enough to
get them to agree to have sex. The sober person carries the drunk person to a room and they have sex.
A) the drunk person did not understand and agree to the terms of the consent
C) reasonable people's first interaction isn't sex.
You're arguing that they don't know what they are consenting to. I'm arguing that quite often they know what they are consenting to, but are drunk enough that they are consenting to things they would not consent to sober.
I reject the contract comparison because, unlike a contract, we can't simply "void" the sex. If we could, then yes I'd happily accept your standard. No proper meeting of the minds, you get your sex back. Awesome.
But, unfortunately, this isn't about a contract so we can't go that route. Instead we're talking about incarcerating one party to the "contract." Your argument is something I buy for things like civil liability, or maybe for a misdemeanor. But for a felony? Nope. Do you understand why I make that distinction?
This sentence is confusing. What do you mean by it?
It was a thought experiment a couple pages back about rape being in the mind of the victim or the attacker. If a 100 percent hetero guy who would never have sex with a man has sex due to not understanding the question when asked about sex, would it be rape?
It seems strange to think that a person would have sex as a result of some linguistic confusion.
I understand it completely. You are afraid that an innocent person thru a series of reasonable decisions will, without meaning to, become a rapist.
Now let me tell you why I like my system. As far as I know that person doesn't exist.
"If X, Y, and Z happen then an innocent guy may be an unintentional rapist!"
"Well, no innocent guy would ever do X, Y, and Z."
That's...that's not the mentality we use when crafting a system.
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.
It seems to be the case that for rape, intent is a prerequisite.
Just about every felony I can think of requires "bad" intentions as a prerequisite. Or is held to (pardon me if I misuse the terminology) a strict liability standard. You know, like statutory rape where even if that 14-year-old is totally cool with it it's still a crime.
The only exceptions I can come up with off the top of my head are the various degrees of manslaughter, which require extreme negligence or reckless disregard (which arguably could still be "bad intentions" anyway). But at that point the victim is dead. I think it takes some serious societal hang-ups to draw parallels from "regrettable sexual activity" to "death."
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.
I'm pretty sure they'd still know what sex is when it happens though.
You can kill somebody through negligence or recklessness, which I mentioned (and then rejected a parallel between death and having a sexual partner you regret).
How the fuck do you commit fraud out of ignorance? Answer: you don't. Every fraud statute in my state at least has "with intent to defraud" or similar right there in it. So....you're wrong?
You don't. You can't. Silly goose is both silly and a goose.