I find it fascinating that you think a drunk person isn't responsible for fraud they commit while drunk. If we were talking about any other possible scenario where a drunk person committed fraud, you'd hold them criminally liable. But if we talk about sex, oh, no, they were too drunk to commit fraud.
No they are still responsible for fraud until they don't know it's fraud (because fraud requires malice) but your whole premise is flawed. A person who is too drunk to consent, even under the strictest definition, is going to lose the physical ability to con a person. If a person can walk and talk well enough to fool a person then they aren't drunk enough for their consent to be invalid.
I suppose you could make the point that this is possible if we draw some line where we say like 1.5 bac is too drunk to consent and the person says "well they said they only had enough for 1.4 bac" but again I don't think anyone has proposed something like that.
So why do you insist on strict liability for the "rapist", who unbeknownst to him slept with a drunk person, but not strict liability for the "victim" who was too drunk to give consent, and in theory, committed fraud by pretending they could.
Your at will application of strict liability does a lot to expose your bias.
Again, your idea is flawed.
A person can not be so drunk they can't consent and yet be somber enough to intentionally fool another person. You are saying "what of a person who couldn't run one mile ran a marathon."
But let's run it thru the different camps and see what it spits out.
MRA: nobody got hurt, so no rape.
Mind of the accused: one person intentionally had sex with another by fraud so drunk person raped the sober even if the sober person liked it.
Mind of victim:
A) meeting of the minds: both people understood and agreed to terms. Pass mutual benefit: both people got what they wanted. Passed
C) reasonableness: you didn't say so it would have to be so unreasonable that it overrode the other two, so unlikely,
No rape.
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VanguardBut now the dream is over. And the insect is awake.Registered User, __BANNED USERSregular
edited April 2012
If only drunk people would be held responsible for their actions in regards to rape. I present to you one of the most infuriating cases about cops and rape: a cop assaults a school teacher in the street and rapes her at gunpoint. There are several witnesses, one of whom directly confronted the guy.
Guess what? The jurors didn't convict him of rape because she couldn't remember the color of the cars parked nearby. Direct quote:
More information has leaked out about the holdout jurors: the Daily News reports that at least one juror didn't believe the victim because she could not recall the color of a car parked by the courtyard where she was attacked: “If she doesn’t remember these details, how does she know she was penetrated,” one juror said, according to their sources.
The presumption of innocence almost always favors men in rape cases, especially when it involves cops.
I think that more leans toward the "if a jury of your peers is fucking insane, you're screwed" conclusion than anything else.
EDIT:
OK, less insane, more corrupt.
Prosecutors are reportedly looking into possible perjury charges against Constantine for failing to reveal he knew Manhattan DA Cyrus Vance socially, worked with former Gov. Elliot Spitzer, and was a former law partner with Richard Aborn (who had once run against Vance)—all of which would have likely gotten him removed from the jury
Phoenix-D on
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VanguardBut now the dream is over. And the insect is awake.Registered User, __BANNED USERSregular
I know there are a lot of problems in that case, but there was another high profile case last year where cops falsified 911 calls so they could rape this one girl in the East Village. No rape conviction there, either.
Going off that wallet tangent, is it okay for a sober person to steal a drunk person's car keys because they have an intent to drive while drunk? Why or why not?
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
Going off that wallet tangent, is it okay for a sober person to steal a drunk person's car keys because they have an intent to drive while drunk? Why or why not?
So you are having sex with someone against their will for their own good?
Going off that wallet tangent, is it okay for a sober person to steal a drunk person's car keys because they have an intent to drive while drunk? Why or why not?
So you are having sex with someone against their will for their own good?
How can you know they're legally intoxicated?
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
Going off that wallet tangent, is it okay for a sober person to steal a drunk person's car keys because they have an intent to drive while drunk? Why or why not?
So you are having sex with someone against their will for their own good?
How can you know they're legally intoxicated?
I must be misunderstanding here. You are asking someone to have sex, they say no and then you are Forcing them to have sex because they are too drunk to not have sex?
No, we're not talking about "they said no and you raped them!" and haven't been for a while.
"I said yes, but after a moment of reflection and some hangover regret, I change my decision to no."
No one has sufficiently explained how this can work or why it's tangible, and it keeps getting turned back into "but if someone says no then you forced yourself on them, then it's rape." No shit it's rape, that's not what we're talking about. Or at least that's not what I'm talking about.
If I gave someone my wallet because I was drunk, that's different than if I was drunk and someone took my wallet.
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
No, we're not talking about "they said no and you raped them!" and haven't been for a while.
"I said yes, but after a moment of reflection and some hangover regret, I change my decision to no."
No one has sufficiently explained how this can work or why it's tangible, and it keeps getting turned back into "but if someone says no then you forced yourself on them, then it's rape." No shit it's rape, that's not what we're talking about. Or at least that's not what I'm talking about.
If I gave someone my wallet because I was drunk, that's different than if I was drunk and someone took my wallet.
But you were stealing someone's keys...
Anyway, the whole argument, drunk wise, is if a drunk person cant consent. So run it thru.
MRA: if you didn't fight for your wallet it wasn't stolen.
Mind of accused: if you say to a person too drunk to stand "I'm taking your wallet" and they say "whatever" you didn't steal.
Upon sober reflection I think I get what you are trying to say.
Why would rape be strict liability when theft isn't?
Couple of reasons right off the top of my head. First, a person who is the victim of am unintentional theft is easy to make whole. Here is your wallet back, all better. But rape (or whatever) isn't something you can give back. It's more like killing someone in that once it's out of the bottle you can not put it back in.
Second, why do we have laws in the first place and don't just use civil court for everything? I would say that part of it is that we want people's actions to have consequences so they have a reason to be carefull of their actions. You cant just say "who put this tv here in best buy? Oh well, someone will ask for it back if it is their's." same with rape. We, as a society, (well most of us) want the number of people raped (or whatever) as low as possible if for no other reason than the effect that It has on the people who go thru it.
Upon sober reflection I think I get what you are trying to say.
Why would rape be strict liability when theft isn't?
Couple of reasons right off the top of my head. First, a person who is the victim of am unintentional theft is easy to make whole. Here is your wallet back, all better. But rape (or whatever) isn't something you can give back. It's more like killing someone in that once it's out of the bottle you can not put it back in.
Second, why do we have laws in the first place and don't just use civil court for everything? I would say that part of it is that we want people's actions to have consequences so they have a reason to be carefull of their actions. You cant just say "who put this tv here in best buy? Oh well, someone will ask for it back if it is their's." same with rape. We, as a society, (well most of us) want the number of people raped (or whatever) as low as possible if for no other reason than the effect that It has on the people who go thru it.
Why should this distinction matter? It wasn't a forced assault, it was a consensual act. Why should being whole again have any merit? If I asked for $20 from my buddy while he was drunk, should he be able to sue me for $20? I'd say no, he shouldn't.
We have laws for criminality. Rape is a criminal thing because it's an assault. Contract law? Unless there was intent to cause fraud (which is a felony) then it would be handled in civil court. I can be the most careful person in the world and still be charged with rape in these situations. Increasing the number of people incarcerated for contract reneging won't change shit other than a few more guilty people going to jail, a substantially larger portion of innocent people going to jail because of this new shift of burdens, and rape still happening.
Did the drug war stop people from doing drugs because they'd end up in jail? The correct solution, which no one has really yet changed my mind on, is greater education of people and no more slut shaming. However, with this should come anonymity of the accused and the accuser, and, as such, if names are divulged before a guilty verdict is reached, defamation lawsuits should be a tangible thing.
We need to protect everyone involved more or less because even with an innocent verdict (and even in the cases where no rape takes place) people lose their lives, jobs, family, and friends over accusations (I've actually seen more fake rape accusations than real ones) and quite honestly, I think if it's determined to be a false rape claim, the person involved should get reprimanded in a criminal court for fraud.
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
Upon sober reflection I think I get what you are trying to say.
Why would rape be strict liability when theft isn't?
Couple of reasons right off the top of my head. First, a person who is the victim of am unintentional theft is easy to make whole. Here is your wallet back, all better. But rape (or whatever) isn't something you can give back. It's more like killing someone in that once it's out of the bottle you can not put it back in.
Second, why do we have laws in the first place and don't just use civil court for everything? I would say that part of it is that we want people's actions to have consequences so they have a reason to be carefull of their actions. You cant just say "who put this tv here in best buy? Oh well, someone will ask for it back if it is their's." same with rape. We, as a society, (well most of us) want the number of people raped (or whatever) as low as possible if for no other reason than the effect that It has on the people who go thru it.
Why should this distinction matter? It wasn't a forced assault, it was a consensual act. Why should being whole again have any merit? If I asked for $20 from my buddy while he was drunk, should he be able to sue me for $20? I'd say no, he shouldn't.
We have laws for criminality. Rape is a criminal thing because it's an assault. Contract law? Unless there was intent to cause fraud (which is a felony) then it would be handled in civil court. I can be the most careful person in the world and still be charged with rape in these situations. Increasing the number of people incarcerated for contract reneging won't change shit other than a few more guilty people going to jail, a substantially larger portion of innocent people going to jail because of this new shift of burdens, and rape still happening.
Did the drug war stop people from doing drugs because they'd end up in jail? The correct solution, which no one has really yet changed my mind on, is greater education of people and no more slut shaming. However, with this should come anonymity of the accused and the accuser, and, as such, if names are divulged before a guilty verdict is reached, defamation lawsuits should be a tangible thing.
We need to protect everyone involved more or less because even with an innocent verdict (and even in the cases where no rape takes place) people lose their lives, jobs, family, and friends over accusations (I've actually seen more fake rape accusations than real ones) and quite honestly, I think if it's determined to be a false rape claim, the person involved should get reprimanded in a criminal court for fraud.
Clarification? Are we talking about rape being strict liability or people being drunk enough to not be able to consent? Two different concepts.
Part of the confusion seems to be over how drunk is too drunk. If your buddy was able to comprehend that you wanted $20 and then reach into his wallet and gave it to you, I'm not sure that qualifies. Clearly he was able to understand what you wanted and acted in a manner consistent with consenting to you having his property. If you had asked for $20 and he reached into his wallet and gave you his bus pass, we might be approaching the point where consent is no longer valid.
Part of the confusion seems to be over how drunk is too drunk. If your buddy was able to comprehend that you wanted $20 and then reach into his wallet and gave it to you, I'm not sure that qualifies. Clearly he was able to understand what you wanted and acted in a manner consistent with consenting to you having his property. If you had asked for $20 and he reached into his wallet and gave you his bus pass, we might be approaching the point where consent is no longer valid.
Which is, arguably, a good measure of cognition. But going back to my example of the guy being the submissive party in the sexual encounter, what if the opposite partner reneged on the sexual consent, even though they agreed and took the part of the aggressor?
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
Part of the confusion seems to be over how drunk is too drunk. If your buddy was able to comprehend that you wanted $20 and then reach into his wallet and gave it to you, I'm not sure that qualifies. Clearly he was able to understand what you wanted and acted in a manner consistent with consenting to you having his property. If you had asked for $20 and he reached into his wallet and gave you his bus pass, we might be approaching the point where consent is no longer valid.
Which is, arguably, a good measure of cognition. But going back to my example of the guy being the submissive party in the sexual encounter, what if the opposite partner reneged on the sexual consent, even though they agreed and took the part of the aggressor?
In relation to being able to render consent? I'm not sure that example is applicable either. I would argue that if I'm coherent enough to take the lead in sexual activities then I'm clearly coherent enough for my consent to be valid.
Part of the confusion seems to be over how drunk is too drunk. If your buddy was able to comprehend that you wanted $20 and then reach into his wallet and gave it to you, I'm not sure that qualifies. Clearly he was able to understand what you wanted and acted in a manner consistent with consenting to you having his property. If you had asked for $20 and he reached into his wallet and gave you his bus pass, we might be approaching the point where consent is no longer valid.
Which is, arguably, a good measure of cognition. But going back to my example of the guy being the submissive party in the sexual encounter, what if the opposite partner reneged on the sexual consent, even though they agreed and took the part of the aggressor?
I would say that in most cases them knowing that their money was in their wallet and getting it out would get you reasonable doubt.
You seem confused about what I am saying. Consent can never be taken away. Either a person is too drunk to give it so they never did or they are sober enough to give it and can't take it way (well they can during but not after). I personally think it can be given after the fact because a victimless rape doesn't work but that's not really important to what we are talking about.
Consent, in this thought exercise, was "taken away" because it was never given, or rather, someone judged that the person wasn't in sound mind to give consent that they did give.
I guess feel free to get all semantic about wording again. God knows we need another one of those arguments.
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
Why should this distinction matter? It wasn't a forced assault, it was a consensual act. Why should being whole again have any merit? If I asked for $20 from my buddy while he was drunk, should he be able to sue me for $20? I'd say no, he shouldn't.
From the very little I know about civil law, you probably could, and if you press it hard enough you'd probably get some but not all of it back.
Thinking about civil liability and rape together is a scary thing, though. Imagine how people would react the first time a jury tells someone that they're, say, 20% responsible for being raped.
Why should this distinction matter? It wasn't a forced assault, it was a consensual act. Why should being whole again have any merit? If I asked for $20 from my buddy while he was drunk, should he be able to sue me for $20? I'd say no, he shouldn't.
From the very little I know about civil law, you probably could, and if you press it hard enough you'd probably get some but not all of it back.
Thinking about civil liability and rape together is a scary thing, though. Imagine how people would react the first time a jury tells someone that they're, say, 20% responsible for being raped.
If it came down to a non-criminal rape situation, like these "I'm so wasted!" examples I'm not sure I would care. I'm hesitant to go looking for evidence on the actual numbers of drunken regret rape claims.
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
Consent, in this thought exercise, was "taken away" because it was never given, or rather, someone judged that the person wasn't in sound mind to give consent that they did give.
I guess feel free to get all semantic about wording again. God knows we need another one of those arguments.
Not really semantic because it's the entire thing we are talking about.
But anyway it would be helpfull to me if you could just state your positions on what we are talking about.
Should rape be strict liabilty?
Can you be too drunk to consent?
And just to be sure should we return to the "meaningful resistance" standard for rape?
Thinking about civil liability and rape together is a scary thing, though. Imagine how people would react the first time a jury tells someone that they're, say, 20% responsible for being raped.
well it's not like we would move the whole thing to civil. You would still be guilty or not guilty and still have to prove guilt beyond a reasonable doubt.
I'm fairly skeptical that you can interact with someone who is unable to give consent and not be aware of their condition, which renders any such hypothetical situations moot.
I'm fairly skeptical that you can interact with someone who is unable to give consent and not be aware of their condition, which renders any such hypothetical situations moot.
It's not that difficult, you just need to be even drunker than they are.
I'm fairly skeptical that you can interact with someone who is unable to give consent and not be aware of their condition, which renders any such hypothetical situations moot.
It's not that difficult, you just need to be even drunker than they are.
Ok, if you want to define interact with as "slur incoherently at each other while falling over shit." You certainly aren't going to be having sex with each other because neither of you are in a physical state to initiate sex.
I'm fairly skeptical that you can interact with someone who is unable to give consent and not be aware of their condition, which renders any such hypothetical situations moot.
It's not that difficult, you just need to be even drunker than they are.
If you're drunker than they are you're passed out. At least if we keep inability to consent at the level of "unable to perform actions without mechanical guidance" and lower.
The fact that every discussion of rape and consent I have ever seen on these boards seems to stray either into extremely elaborately contrived scenarios or into variations of arguments along the theme of "how drunk is too drunk" says something pretty terrible about how we approach consent.
Also I never understand the point of either line of argument.
Is the idea to establish some level where "it wasn't really rape because X"?
If not, what exactly are you all trying to accomplish? What point are you trying to prove? That there are times when someone claims they were raped, but they really gave consent, but they were too drunk to remember?
I would like you to refer back to this paragraph in the OP
For some reason, we don't see consent to sex in the same way. When we expect the prosecution in a rape case to prove a lack of consent, what we are saying is that the default position is one of consent.That strikes me as very weird and wrong. In order to keep things consistent, we should take the same approach to the right to sexual agency and bodily sovereignty as we do to the right to ownership and exclusionary control of property. We ought to presume that people default to a state of control and exclusion unless they give some indication to the contrary.
Do we all accept this statement? If yes, then is the thrust of the arguments for the last few pages "when can we trust that someone has given up their state of control?"
It seems to me that a lot of people treat sexual interactions (from some of the arguments here) differently in regards to this point than they would other interactions. That is, generally we accept that if someone's mental facilities have been compromised, any contract, verbal or otherwise, can be rendered null and void...except when it comes to sex. Because many people seem to be very uncomfortable with the idea that someone could regret their actions while drunk, and that this can have legal consequences.
To put it simply, there is an easier way to deal with this fear than trying to establish some sort of threshold wherein one must be held to their word, even under potentially extenuating circumstances.
Don't fuck drunk chicks if you are concerned about the potential consequences.
To make this less one-sided, in spite of the thread being otherwise, don't initiate sexual behavior with someone if you are concerned that the person may not be able to relinquish their right to body exclusivity.
The end.
If, on reading this, your first thought is to say "But what if she was drunk and said yes but then said no and I was drunk and didn't think about it an-"
I want you to stop. And think about what you are implying. What you are implying is that the net sum of both of those actions regardless of any other factor automatically relinquishes a person's right to body exclusivity. That is, there are actions one can take that automatically remove their right to their own body.
And that, my friends, is wrong. And more to the point, it is indicative of that phrase we argued ad nasuem back and forth in the last rape thread.
That is all.
Please continue your ridiculously contrived scenario-building.
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JuliusCaptain of Serenityon my shipRegistered Userregular
I think it's interesting that we can have interesting and theoretical debates about law, politics, religion and basically any subject but it is only the subject of rape that any position that doesn't agree with the main feminist line gets you accused of trying to get out from under the consequences of your evil actions.
The fact that every discussion of rape and consent I have ever seen on these boards seems to stray either into extremely elaborately contrived scenarios or into variations of arguments along the theme of "how drunk is too drunk" says something pretty terrible about how we approach consent.
Also I never understand the point of either line of argument.
Is the idea to establish some level where "it wasn't really rape because X"?
If not, what exactly are you all trying to accomplish? What point are you trying to prove? That there are times when someone claims they were raped, but they really gave consent, but they were too drunk to remember?
I would like you to refer back to this paragraph in the OP
For some reason, we don't see consent to sex in the same way. When we expect the prosecution in a rape case to prove a lack of consent, what we are saying is that the default position is one of consent.That strikes me as very weird and wrong. In order to keep things consistent, we should take the same approach to the right to sexual agency and bodily sovereignty as we do to the right to ownership and exclusionary control of property. We ought to presume that people default to a state of control and exclusion unless they give some indication to the contrary.
Do we all accept this statement? If yes, then is the thrust of the arguments for the last few pages "when can we trust that someone has given up their state of control?"
It seems to me that a lot of people treat sexual interactions (from some of the arguments here) differently in regards to this point than they would other interactions. That is, generally we accept that if someone's mental facilities have been compromised, any contract, verbal or otherwise, can be rendered null and void...except when it comes to sex. Because many people seem to be very uncomfortable with the idea that someone could regret their actions while drunk, and that this can have legal consequences.
To put it simply, there is an easier way to deal with this fear than trying to establish some sort of threshold wherein one must be held to their word, even under potentially extenuating circumstances.
Don't fuck drunk chicks if you are concerned about the potential consequences.
To make this less one-sided, in spite of the thread being otherwise, don't initiate sexual behavior with someone if you are concerned that the person may not be able to relinquish their right to body exclusivity.
The end.
If, on reading this, your first thought is to say "But what if she was drunk and said yes but then said no and I was drunk and didn't think about it an-"
I want you to stop. And think about what you are implying. What you are implying is that the net sum of both of those actions regardless of any other factor automatically relinquishes a person's right to body exclusivity. That is, there are actions one can take that automatically remove their right to their own body.
And that, my friends, is wrong. And more to the point, it is indicative of that phrase we argued ad nasuem back and forth in the last rape thread.
That is all.
Please continue your ridiculously contrived scenario-building.
I don't think anyone here takes the side they do because they want to rape people (or whatever). We are talking about legal concepts. My personal morals tell me that I would never have sex with someone who had been drinking unless I had explicit consent before they even started but I don't presume to force that on other people.
How do you want us to argue? Where do you fall on the issues? Debate, discuss.
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.
Hm. First I am accused of attempting to silence debate that doesn't agree with the "main feminist line", and then I am apparently misinterpreted to be arguing that those contriving scenarios about drunkenness and rape are arguing thusly because they want to rape people.
I don't think I was unclear, but perhaps I was. Let me restate my argument more concisely.
I presented a question, and three points.
Firstly, I am curious as to what the end goal, or main point, of all this scenario building is. I legitimately want an answer.
Then, I presented three points that can be argued for or against. I will present them, and I hope that this will also make my position more clear.
1. I argue, as does the OP, that the default state should be one of body exclusivity, and that the preponderance of evidence should towards proving that exclusivity was intentionally relinquished.
2. There exists no implicit action one can take that can be treated as a de facto absolvement of body exclusivity. That is, there is no "line" of drunkenness, for example, where someone can be treated as having relinquished that right without their explicit approval.
3. In the event of situation wherein someone "decides" they didn't want to have given consent to sex, we refer both to point 1 and 2. That is, if someone's mental faculties are impaired, then it can be assumed that the default state applies, and that the default state is one of exclusivity. This functions similarly during acts of coercion.
I also make a fourth point implicitly, and perhaps this was the "main feminist line", that the default state of consent that people tend to adopt (and not one of exclusivity) is a symptom of "rape culture".
I would like to offer a few disclaimers. I don't personally think the scenario I described in point 3 is common, and I also think it is convoluted to the point of uselessness. I also hope that people will not get hung up on the semantics of the phrase I used in my previous paragraph, and I forward a warning that anyone who does is a very silly goose indeed.
I think it's interesting that we can have interesting and theoretical debates about law, politics, religion and basically any subject but it is only the subject of rape that any position that doesn't agree with the main feminist line gets you accused of trying to get out from under the consequences of your evil actions.
Probably because the issue is always framed as "MRA vs feminists, go!"
also, whilst it's not really my thing, I will continue to vehemently defend the right to fuck (willing) drunk chicks.
I think it's interesting that we can have interesting and theoretical debates about law, politics, religion and basically any subject but it is only the subject of rape that any position that doesn't agree with the main feminist line gets you accused of trying to get out from under the consequences of your evil actions.
Probably because the issue is always framed as "MRA vs feminists, go!"
also, whilst it's not really my thing, I will continue to vehemently defend the right to fuck (willing) drunk chicks.
Arch, keep in mind that 95% of the subject is incredibly clear cut and there is nothing to discuss. You won't find anyone arguing that "man jumps out of bushes and forcibly has sex with a woman" isn't rape. Just like every D&D thread, it always narrows down to the point where disagreement or confusion occurs. "I interpret X to mean Y, and you interpret it to mean Z therefore, blah blah blah."
From a personal conduct perspective, none of it matters because you shouldn't be trying to "get" sex from your partner. It's a shared experience, and if your partner isn't enthusiastically participating then you should be seriously evaluating what the fuck you are doing wrong.
From a legal perspective, it very much matters "how drunk is too drunk to render consent" and all other manner of minutiae that only come up because shitheads exist in this world and we have to deal with the things they do. No one is arguing that after a certain point of drunkenness your body becomes fair game, but at least a couple people seem to be worried about getting into a situation where they have sex with someone they think is consenting but in actuality isn't/can't be. I don't think this is actually possible because of the way I interpret "unable to give consent." Such a state to me is a) incredibly obvious, and b) means the other person isn't capable of meaningful communication without which I can't possibly have received any sort of consent.
It is important to note that I am arguing in very black and white, what is much more of a grey issue.
That is, there are of course situations where you can "fuck a drunk chick" and not have violated body exclusivity. Hell, I have had sex with my partner when we were both intoxicated. Did I rape my partner? No, of course not, because we established consent wayy before we were far too intoxicated to do so.
I am extremely skeptical that there are a preponderance of occurrences of "post drunk sex rape charges" that can be conclusively demonstrated to be of the form "had sex, one party later regretted it, accused other party of rape."
I also postulate that those presenting arguments of this kind are being extremely dishonest, or at least have no real goal.
No one is arguing that after a certain point of drunkenness your body becomes fair game, but at least a couple people seem to be worried about getting into a situation where they have sex with someone they think is consenting but in actuality isn't/can't be. I don't think this is actually possible because of the way I interpret "unable to give consent." Such a state to me is a) incredibly obvious, and b) means the other person isn't capable of meaningful communication without which I can't possibly have received any sort of consent.
I agree with you 100%, hence why my advice to those worrying about this situation is "don't put yourself into it you goddam silly goose."
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.
3. In the event of situation wherein someone "decides" they didn't want to have given consent to sex, we refer both to point 1 and 2. That is, if someone's mental faculties are impaired, then it can be assumed that the default state applies, and that the default state is one of exclusivity. This functions similarly during acts of coercion.
Sure, cool.
Why would we bother with needing mental faculties to be impaired? I may be misunderstanding you, but it seems like I can now say that the sex I had this weekend was rape because I had a few drinks? Why couldn't I then claim that it's also rape when I'm sober because girls have this effect on guys where I'd do the dumbest of things?
Hm. First I am accused of attempting to silence debate that doesn't agree with the "main feminist line", and then I am apparently misinterpreted to be arguing that those contriving scenarios about drunkenness and rape are arguing thusly because they want to rape people.
I don't think I was unclear, but perhaps I was. Let me restate my argument more concisely.
I presented a question, and three points.
Firstly, I am curious as to what the end goal, or main point, of all this scenario building is. I legitimately want an answer.
Then, I presented three points that can be argued for or against. I will present them, and I hope that this will also make my position more clear.
1. I argue, as does the OP, that the default state should be one of body exclusivity, and that the preponderance of evidence should towards proving that exclusivity was intentionally relinquished.
2. There exists no implicit action one can take that can be treated as a de facto absolvement of body exclusivity. That is, there is no "line" of drunkenness, for example, where someone can be treated as having relinquished that right without their explicit approval.
3. In the event of situation wherein someone "decides" they didn't want to have given consent to sex, we refer both to point 1 and 2. That is, if someone's mental faculties are impaired, then it can be assumed that the default state applies, and that the default state is one of exclusivity. This functions similarly during acts of coercion.
I also make a fourth point implicitly, and perhaps this was the "main feminist line", that the default state of consent that people tend to adopt (and not one of exclusivity) is a symptom of "rape culture".
I would like to offer a few disclaimers. I don't personally think the scenario I described in point 3 is common, and I also think it is convoluted to the point of uselessness. I also hope that people will not get hung up on the semantics of the phrase I used in my previous paragraph, and I forward a warning that anyone who does is a very silly goose indeed.
As to one, I can answer pretty clearly. We contrive Situations to test our own ideas and others to see if they are internally consistent and lead to a desired result.
Example: Two people get drunk at a party. In the morning one decides they didn't consent to sex and goes to the cops.
How do the cops react?
What if the other person decides they didn't consent upon learning that the other went to the cops?
How does the trial or trials proceed? Who has to prove what? And to what level?
Posts
Again, your idea is flawed.
A person can not be so drunk they can't consent and yet be somber enough to intentionally fool another person. You are saying "what of a person who couldn't run one mile ran a marathon."
But let's run it thru the different camps and see what it spits out.
MRA: nobody got hurt, so no rape.
Mind of the accused: one person intentionally had sex with another by fraud so drunk person raped the sober even if the sober person liked it.
Mind of victim:
A) meeting of the minds: both people understood and agreed to terms. Pass
C) reasonableness: you didn't say so it would have to be so unreasonable that it overrode the other two, so unlikely,
No rape.
Guess what? The jurors didn't convict him of rape because she couldn't remember the color of the cars parked nearby. Direct quote:
The presumption of innocence almost always favors men in rape cases, especially when it involves cops.
http://gothamist.com/2012/03/30/the_most_outrageous_thing_said_by_a.php
I think that more leans toward the "if a jury of your peers is fucking insane, you're screwed" conclusion than anything else.
EDIT:
OK, less insane, more corrupt.
So you are having sex with someone against their will for their own good?
How can you know they're legally intoxicated?
I must be misunderstanding here. You are asking someone to have sex, they say no and then you are Forcing them to have sex because they are too drunk to not have sex?
"I said yes, but after a moment of reflection and some hangover regret, I change my decision to no."
No one has sufficiently explained how this can work or why it's tangible, and it keeps getting turned back into "but if someone says no then you forced yourself on them, then it's rape." No shit it's rape, that's not what we're talking about. Or at least that's not what I'm talking about.
If I gave someone my wallet because I was drunk, that's different than if I was drunk and someone took my wallet.
But you were stealing someone's keys...
Anyway, the whole argument, drunk wise, is if a drunk person cant consent. So run it thru.
MRA: if you didn't fight for your wallet it wasn't stolen.
Mind of accused: if you say to a person too drunk to stand "I'm taking your wallet" and they say "whatever" you didn't steal.
Mind of victim:
Meeting of the minds: debatable
Mutual benefit: no
Reasonable: no
Why would rape be strict liability when theft isn't?
Couple of reasons right off the top of my head. First, a person who is the victim of am unintentional theft is easy to make whole. Here is your wallet back, all better. But rape (or whatever) isn't something you can give back. It's more like killing someone in that once it's out of the bottle you can not put it back in.
Second, why do we have laws in the first place and don't just use civil court for everything? I would say that part of it is that we want people's actions to have consequences so they have a reason to be carefull of their actions. You cant just say "who put this tv here in best buy? Oh well, someone will ask for it back if it is their's." same with rape. We, as a society, (well most of us) want the number of people raped (or whatever) as low as possible if for no other reason than the effect that It has on the people who go thru it.
Why should this distinction matter? It wasn't a forced assault, it was a consensual act. Why should being whole again have any merit? If I asked for $20 from my buddy while he was drunk, should he be able to sue me for $20? I'd say no, he shouldn't.
We have laws for criminality. Rape is a criminal thing because it's an assault. Contract law? Unless there was intent to cause fraud (which is a felony) then it would be handled in civil court. I can be the most careful person in the world and still be charged with rape in these situations. Increasing the number of people incarcerated for contract reneging won't change shit other than a few more guilty people going to jail, a substantially larger portion of innocent people going to jail because of this new shift of burdens, and rape still happening.
Did the drug war stop people from doing drugs because they'd end up in jail? The correct solution, which no one has really yet changed my mind on, is greater education of people and no more slut shaming. However, with this should come anonymity of the accused and the accuser, and, as such, if names are divulged before a guilty verdict is reached, defamation lawsuits should be a tangible thing.
We need to protect everyone involved more or less because even with an innocent verdict (and even in the cases where no rape takes place) people lose their lives, jobs, family, and friends over accusations (I've actually seen more fake rape accusations than real ones) and quite honestly, I think if it's determined to be a false rape claim, the person involved should get reprimanded in a criminal court for fraud.
Clarification? Are we talking about rape being strict liability or people being drunk enough to not be able to consent? Two different concepts.
Which is, arguably, a good measure of cognition. But going back to my example of the guy being the submissive party in the sexual encounter, what if the opposite partner reneged on the sexual consent, even though they agreed and took the part of the aggressor?
In relation to being able to render consent? I'm not sure that example is applicable either. I would argue that if I'm coherent enough to take the lead in sexual activities then I'm clearly coherent enough for my consent to be valid.
You seem confused about what I am saying. Consent can never be taken away. Either a person is too drunk to give it so they never did or they are sober enough to give it and can't take it way (well they can during but not after). I personally think it can be given after the fact because a victimless rape doesn't work but that's not really important to what we are talking about.
I guess feel free to get all semantic about wording again. God knows we need another one of those arguments.
From the very little I know about civil law, you probably could, and if you press it hard enough you'd probably get some but not all of it back.
Thinking about civil liability and rape together is a scary thing, though. Imagine how people would react the first time a jury tells someone that they're, say, 20% responsible for being raped.
If it came down to a non-criminal rape situation, like these "I'm so wasted!" examples I'm not sure I would care. I'm hesitant to go looking for evidence on the actual numbers of drunken regret rape claims.
But anyway it would be helpfull to me if you could just state your positions on what we are talking about.
Should rape be strict liabilty?
Can you be too drunk to consent?
And just to be sure should we return to the "meaningful resistance" standard for rape? well it's not like we would move the whole thing to civil. You would still be guilty or not guilty and still have to prove guilt beyond a reasonable doubt.
It's not that difficult, you just need to be even drunker than they are.
Ok, if you want to define interact with as "slur incoherently at each other while falling over shit." You certainly aren't going to be having sex with each other because neither of you are in a physical state to initiate sex.
If you're drunker than they are you're passed out. At least if we keep inability to consent at the level of "unable to perform actions without mechanical guidance" and lower.
Also I never understand the point of either line of argument.
Is the idea to establish some level where "it wasn't really rape because X"?
If not, what exactly are you all trying to accomplish? What point are you trying to prove? That there are times when someone claims they were raped, but they really gave consent, but they were too drunk to remember?
I would like you to refer back to this paragraph in the OP
Do we all accept this statement? If yes, then is the thrust of the arguments for the last few pages "when can we trust that someone has given up their state of control?"
It seems to me that a lot of people treat sexual interactions (from some of the arguments here) differently in regards to this point than they would other interactions. That is, generally we accept that if someone's mental facilities have been compromised, any contract, verbal or otherwise, can be rendered null and void...except when it comes to sex. Because many people seem to be very uncomfortable with the idea that someone could regret their actions while drunk, and that this can have legal consequences.
To put it simply, there is an easier way to deal with this fear than trying to establish some sort of threshold wherein one must be held to their word, even under potentially extenuating circumstances.
Don't fuck drunk chicks if you are concerned about the potential consequences.
To make this less one-sided, in spite of the thread being otherwise, don't initiate sexual behavior with someone if you are concerned that the person may not be able to relinquish their right to body exclusivity.
The end.
If, on reading this, your first thought is to say "But what if she was drunk and said yes but then said no and I was drunk and didn't think about it an-"
I want you to stop. And think about what you are implying. What you are implying is that the net sum of both of those actions regardless of any other factor automatically relinquishes a person's right to body exclusivity. That is, there are actions one can take that automatically remove their right to their own body.
And that, my friends, is wrong. And more to the point, it is indicative of that phrase we argued ad nasuem back and forth in the last rape thread.
That is all.
Please continue your ridiculously contrived scenario-building.
I don't think anyone here takes the side they do because they want to rape people (or whatever). We are talking about legal concepts. My personal morals tell me that I would never have sex with someone who had been drinking unless I had explicit consent before they even started but I don't presume to force that on other people.
How do you want us to argue? Where do you fall on the issues? Debate, discuss.
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 don't think I was unclear, but perhaps I was. Let me restate my argument more concisely.
I presented a question, and three points.
Firstly, I am curious as to what the end goal, or main point, of all this scenario building is. I legitimately want an answer.
Then, I presented three points that can be argued for or against. I will present them, and I hope that this will also make my position more clear.
1. I argue, as does the OP, that the default state should be one of body exclusivity, and that the preponderance of evidence should towards proving that exclusivity was intentionally relinquished.
2. There exists no implicit action one can take that can be treated as a de facto absolvement of body exclusivity. That is, there is no "line" of drunkenness, for example, where someone can be treated as having relinquished that right without their explicit approval.
3. In the event of situation wherein someone "decides" they didn't want to have given consent to sex, we refer both to point 1 and 2. That is, if someone's mental faculties are impaired, then it can be assumed that the default state applies, and that the default state is one of exclusivity. This functions similarly during acts of coercion.
I also make a fourth point implicitly, and perhaps this was the "main feminist line", that the default state of consent that people tend to adopt (and not one of exclusivity) is a symptom of "rape culture".
I would like to offer a few disclaimers. I don't personally think the scenario I described in point 3 is common, and I also think it is convoluted to the point of uselessness. I also hope that people will not get hung up on the semantics of the phrase I used in my previous paragraph, and I forward a warning that anyone who does is a very silly goose indeed.
Probably because the issue is always framed as "MRA vs feminists, go!"
also, whilst it's not really my thing, I will continue to vehemently defend the right to fuck (willing) drunk chicks.
Probably because the issue is always framed as "MRA vs feminists, go!"
also, whilst it's not really my thing, I will continue to vehemently defend the right to fuck (willing) drunk chicks.
bless this post
From a personal conduct perspective, none of it matters because you shouldn't be trying to "get" sex from your partner. It's a shared experience, and if your partner isn't enthusiastically participating then you should be seriously evaluating what the fuck you are doing wrong.
From a legal perspective, it very much matters "how drunk is too drunk to render consent" and all other manner of minutiae that only come up because shitheads exist in this world and we have to deal with the things they do. No one is arguing that after a certain point of drunkenness your body becomes fair game, but at least a couple people seem to be worried about getting into a situation where they have sex with someone they think is consenting but in actuality isn't/can't be. I don't think this is actually possible because of the way I interpret "unable to give consent." Such a state to me is a) incredibly obvious, and b) means the other person isn't capable of meaningful communication without which I can't possibly have received any sort of consent.
That is, there are of course situations where you can "fuck a drunk chick" and not have violated body exclusivity. Hell, I have had sex with my partner when we were both intoxicated. Did I rape my partner? No, of course not, because we established consent wayy before we were far too intoxicated to do so.
I am extremely skeptical that there are a preponderance of occurrences of "post drunk sex rape charges" that can be conclusively demonstrated to be of the form "had sex, one party later regretted it, accused other party of rape."
I also postulate that those presenting arguments of this kind are being extremely dishonest, or at least have no real goal.
Prove me wrong.
I agree with you 100%, hence why my advice to those worrying about this situation is "don't put yourself into it you goddam silly goose."
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 is illegal to bad things."
Sure, cool.
Why would we bother with needing mental faculties to be impaired? I may be misunderstanding you, but it seems like I can now say that the sex I had this weekend was rape because I had a few drinks? Why couldn't I then claim that it's also rape when I'm sober because girls have this effect on guys where I'd do the dumbest of things?
As to one, I can answer pretty clearly. We contrive Situations to test our own ideas and others to see if they are internally consistent and lead to a desired result.
Example: Two people get drunk at a party. In the morning one decides they didn't consent to sex and goes to the cops.
How do the cops react?
What if the other person decides they didn't consent upon learning that the other went to the cops?
How does the trial or trials proceed? Who has to prove what? And to what level?