Booze and Rape

[Distruzio]

For morality's sake. You should think about this stuff.

I have. The problem is that makes a good percentage of the population "rapists." As people are having sex while drunk and while high. Making anybody who has had sex while smoking a joint, while drinking a beer, while doing coke a rapist or a victim or possibly both. The fact that you would define a person who has sex with another person, who may be on prescription drugs but fails to disclose that, a rapist is absurd. It really is. How are you to know if anybody -anybody- is truly consenting when they can withhold information like that?

Indeed. That's the point of my comments. To make you think about this and how it will affect your... rendezvous' from now on.

[Electroconvulsive Glee]

There tends to be a great deal of confusion in these discussions regarding alcohol, intoxication, consent, and rape/sexual assault. Discussing ethical concerns and legal rules gets confused. Discussing past law, current law, and future law (whether one is criticizing or supporting any of these) gets confused. These all may be valid ways of looking at the subject matter and they are interrelated, but they do concern distinct matters. Regardless, it might be of some use to have a solid background in the actual existing law on these topics (at least in the United States).

As a matter of law, "drunk sex" does not equal "rape." Sex with someone who is incapable of consent -- such as someone who is unconscious -- may be rape/sexual assault. An individual can be intoxicated to a point that one is mentally incapable of consent, physically incapable of communicating consent, or physically incapable of resisting sex. Sex acts with such a person may be rape or sexual assault. In addition to the state of intoxication of the "victim," the intent, knowledge, and mental capacity of the "perpetrator" may be necessary elements in determining whether rape or sexual assault occurred. Of course, the use of force or other actions that would otherwise constitute rape or sexual assault remain criminal regardless of the victim's state of intoxication. Finally, there is an obvious distinction between voluntary and involuntary intoxication.

To help verify and explain this (and provide additional context), I present the following excerpt from a publication of the National District Attorneys Association: Teresa P. Scalzo, Prosecuting Alcohol-Facilitated Sexual Assault, 5-8, 44-45 (2007) (76p pdf).* Keep in mind this is written for prosecutors by a prosecutor and it reflects the mindset of a prosecutor. To me, this makes it a bit slanted (in more than one way or “direction”) but also uniquely insightful.

To begin, the prosecutor should determine which theory of sexual assault to allege. Three potential charging theories exist for proving sexual assault of a voluntarily intoxicated victim. First, sexual assault can be proven in the traditional way by demonstrating that the defendant had intercourse with a victim without consent by using force or the threat of force. In these cases, the victim is intoxicated but proof of the level of intoxication is not an element of the crime. Intoxication is only relevant to the victim’s credibility and vulnerability. Second, sexual assault can be proven by showing that the victim was unconscious at the time of the rape and therefore could not consent. Third, sexual assault can occur when the victim was too intoxicated to consent. Regarding the latter cases, the victim’s level of intoxication must be proven; however, “rape law essentially dispenses with the force requirement [. . .]” Thus, the issue at trial will generally be whether the victim was incapacitated to the point of not being able to consent.

When possible, the prosecution should proceed under a theory of rape by force as this is more consistent with the stereotype of rape believed by the public, and thus, by potential jurors. Moreover, the victim’s state of intoxication, which can be difficult to prove, need not be proven under this theory. Even if it could be proven, “[t]here is no bright line test that defines precisely how much alcohol or drugs result in a person’s inability to consent to sex.” Moving from an estimated value for the BAC to a correct statement about the degree of intoxication during the crucial period can be challenging.

Even where the measured values are reliable and accurate, substantial variability in tolerances for alcohol, absorption rates, and clearance rates, both among individuals and within the same individual from one situation to another, complicates efforts to deduce the true extent of intoxication at the time of an arrest or accident. “Expert testimony would ordinarily be needed to establish that the party with the measured or inferred BAC was intoxicated during the period in question.”

If no physical force was used but the victim was unconscious, the prosecution should proceed under the theory that the perpetrator raped an unconscious victim. When dealing with a victim who was unconscious, the primary challenge will be showing that the victim actually was unconscious for all or part of the rape. Meeting the element [of sexual intercourse] also will usually be a challenge with an unconscious victim.

If the first two alternatives are not options, the prosecution can proceed under the theory that the victim was too intoxicated to consent. When deciding whether to charge based on the theory that it was rape because the victim was too intoxicated to consent, it is crucial to analyze the elements of the crime being alleged. As in all cases, prosecutors must ensure that they are proceeding under a valid legal theory.

Although intercourse with someone who is too intoxicated to consent always constitutes moral rape, it is only a crime if it meets the legal definition of rape. In the United States, jurisdictions define this crime in various ways, which include the following:

• Either statute or case law specifically outlaws having intercourse with a person who is too intoxicated to consent. In these states, the victim’s intoxication negates the element of consent, thereby showing that the sexual act occurred without consent.
  See, e.g., Arizona: A.R.S. §§ 13-1401 and 13-1406; Illinois: 720 Ill. Comp. Stat. 5/12-13; Kansas: K.S.A. § 21-3502; Maine: 17-A M.R.S. § 109; Missouri: R.S.Mo. §§ 566.040 and 566.061; and Wisconsin: Wis. Stat. § 940.225.
  
  
• Rape occurs when the defendant has sexual intercourse with a person who is “mentally incapacitated,” which is generally defined as being rendered temporarily incapable of appraising his or her conduct due to the influence of a narcotic, anesthetic, or other substance. In these jurisdictions, the prosecution generally must show that the victim was “mentally incapacitated” or “mentally incapable of resisting due to drugs, alcohol, or an anesthetic.”
  See, e.g., Arkansas: A.C.A. §§ 5-14-101 and 5-14-103; Colorado: C.R.S. § 18-3-40; Illinois: 20 IL Comp. Stat. § 51/12-13; Iowa: Iowa Code 709.1l; Montana: M.C.A. §§ 45-2-101 and 45-5-502; Nebraska: R.R.S. Neb. § 28-319; Nevada: N.R.S. 200.366; New Mexico: NM Stat. § 30-9-10; New York: NY CLS Penal § 130.05; South Dakota: S.D. Codified Laws § 22-22-7.2; Virginia: VA Code §§ 18.2-61 and 18.2-67.10; Washington: ARCW § 9A.44.060.
  
  Note that a number of states require that the substance be administered to the person without the person’s consent in order to find that the person was mentally incapacitated. See, e.g., Arkansas: A.C.A. §§ 5-14-101 and 5-14- 103; Hawaii: HRS § 707-731; Kentucky: K.R.S. § 510.050; Maryland: Md. Criminal Law Code Ann. §§ 3-301 and 3-304; Minnesota: Minn. Stat. §§ 609.341 and 609.342
  
  
• Rape occurs when the defendant has intercourse with someone who is “physically helpless.” In these jurisdictions, the prosecution can show that the victim was intoxicated to the point of being physically helpless because [he or] she was unconscious, unaware that the intercourse was occurring, physically powerless, physically incapable of resisting, or physically disabled due to intoxication.
  See, e.g., Alabama: Code of Ala. §§ 13A-6-60 and 13A-6-61; Arkansas: A.C.A. §§ 5-14-101 and 5-14-103; Colorado: C.R.S. §§ 18-3-401 and 18-3-402; Connecticut: Conn. Gen. Stat. 53a-67 and 53a-71; Florida: Fla. Stat. 794.011; Kansas: K.R.S. § 510.040; Maine: 17-A M.R.S. 255-A; Maryland: Md. Criminal Law Code Ann. §§ 3-301 and 3-304; Michigan: MCLS § 750.520a; Minnesota: Minn. Stat. §§ 609.341 and 609.342; Mississippi: Miss. Code §§ 97-3-95 and 97-3-97; Montana: M.C.A. §§ 45-2-101 and 45-5-502; Nebraska: R.R.S. Neb. § 28-319; New Hampshire: R.S.A. 632-A:2; New Jersey: NJ Stat. 2C:14-2; New Mexico: NM Stat. § 30-9-10; Nevada: N.R.S. 200.366; New York: NY CLS Penal § 130.35; North Carolina: N.C. Gen. Stat. 14-27.5; Oklahoma: 21 Okl. St. 1111; Oregon: ORS 163.427; Pennsylvania: 18 Pa.C.S. § 3121; Rhode Island: R.I. Gen. Laws §§ 11-37-1 and 11-37-2; Tennessee: Tenn. Code 39-13-501 and 503; Texas: Tex. Penal Code § 22.011; Utah: Utah Code Ann. §§ 76-5-402 and 66-5-406; Washington: ARCW § 9A.44.060; West Virginia: W. VA. Code §§ 61-8B-1 and 61-8B-4; and Wyoming: Wyo. Stat. § 6-2-302.

In addition to the elements stated above, some jurisdictions require the prosecution to prove that the defendant knew that the victim was intoxicated[, was mentally or physical incapacitated, or both].

A victim can become intoxicated by drugs and/or alcohol in three ways: (1) surreptitious administration by the assailant; (2) mixing of prescription or over-the-counter drugs with alcohol or recreational drugs; or (3) recreational use by the victim. This monograph focuses on the latter two forms of intoxication only. [The first tends to fall under different, specific statutes – although, as noted in the second spoiler above, the first may be required under that theory.]
. . .

The primary challenge in prosecuting rape cases where the victim is voluntarily intoxicated is that society tends to have difficulty distinguishing between drunken sex and rape. Instead of assuming that it was probably rape because the woman was too drunk to consent, people tend to assume that the woman consented because she was intoxicated and simply regretted the sexual encounter later. In these cases, the defense tends to argue: “It’s not rape; it’s regret,” or, “It’s buyer’s remorse.” Prosecutors must overcome the tendency to focus on and blame the victim and re-direct the focus back to the offender’s actions, and thus on the elements of the crime. It is the prosecutor’s job to show jurors why the case before them is a case of sexual assault and not just drunken sex that was later regretted.

Generally, there is not a bright-line test for showing that the victim was too intoxicated to consent, thereby distinguishing sexual assault from drunken sex. In drunk driving cases, the prosecution can show that the driver had a certain BAC; therefore, the driver is guilty. Sexual assault cases involving alcohol are not as clear cut. There is not a universal BAC at which the law or the experts agree that people are no longer capable of consenting to intercourse. Instead, the equation involves an analysis of the totality of the circumstances and numerous factors. The factors discussed herein are divided into two parts: (1) general factors and (2) predatory behavior on the part of the defendant. By analyzing these factors and considering the totality of the circumstances, the prosecutor can determine whether the case is sexual assault or not.

I have not included the long list of factors suggested as they take up four pages of the document. They may be found at pages 9-12 of the document and are followed by several pages of discussion of victim credibility and other evidence assessment. Similarly, I think there is a lot of interesting stuff in the rest of the document, but I have already quoted a lot.

Common perceptions of the issue alcohol-facilitated sexual assault often involve a presumptively male "perpetrator" and female "victim." (Or conversely, a female regretting "drunk sex".) The legal issues of alcohol-facilitated sexual assault are gender-neutral, however. And, although state laws may carry some overt or indirect elements of sexism, states laws regarding rape/sexual assault are generally gender-neutral. The most obvious remaining sexist flaw tends to be in definitions that include penetration (and thereby regard most forms of victimization of males by females to be a lesser form of sexual assault).

The notion of "mutual rape" via intoxication is, at least under current law, a fiction. If one is so intoxicated that one is legally unable to consent to someone having sex with him or her (i.e., is unconscious, physically incapacitated, or unable to understand what is happening), it is very fucking unlikely (if not impossible) for one to commit the physical act of sexual assault. Moreover, if such occurred, it very fucking unlikely (if not impossible) for the "perpetrator" to have sufficient intent, knowledge, or both to be criminally culpable if he or she somehow manages to have sex with another person who is legally unable to consent due to intoxication. I am unaware of any case where "mutual rape by intoxication" has been prosecuted or legally accepted as a defense to a charge of sexual assault. In prior threads, no one has presented an reliable example of such a case or even a statute under which "mutual rape by intoxication" would be possible.

Anyway, here are other sources one may wish to peruse:
Safercampus.org: When “Drunk Sex” Clearly IS Rape, and More Thoughts on Alcohol and Consent (fairly intelligent discussion of the complexity of the issue with little focus on law)
Massachusetts Law About Rape and Sexual Assault (includes specific reference to intoxication cases)
Findlaw: What Is Rape by Intoxication? (pretty vague and leans towards "advice")
Findlaw: links to rape laws by state
Findlaw: links to sexual assault laws by state

------------------
*This publication is a few years old and I have not double-checked the current accuracy of the citations to specific statutes. To the best of my knowledge, it nonetheless generally reflects the state of the law regarding intoxication and sexual assault in the United States. The citations to statutes are moved from the footnotes. I have otherwise made a few minor edits (in brackets), changed some formatting, omitted footnotes, (to one sentence) added bold and underline emphasis, and added some italics to one sentence.

[George Kaplan]

I have. The problem is that makes a good percentage of the population "rapists." As people are having sex while drunk and while high. Making anybody who has had sex while smoking a joint, while drinking a beer, while doing coke a rapist or a victim or possibly both. The fact that you would define a person who has sex with another person, who may be on prescription drugs but fails to disclose that, a rapist is absurd. It really is. How are you to know if anybody -anybody- is truly consenting when they can withhold information like that?

Indeed. That's the point of my comments. To make you think about this and how it will affect your... rendezvous' from now on.

No, what it makes me think is people are overusing the word "rapist" to throw at anybody who looks at a person and has naughty naughty thoughts.

I realize the difference between yes and no, a girl who is drunk and passed out, consensual and not. But some of the comments here are fucking retarded. They really are. Because by these absurdly high standards, we'd all be rapists, unless you're to tell me you or the person(s) you've had sex with were never ever drunk, high or on prescription drugs.

[Distruzio]

It's quite true, especially here in the US.

You have been proven wrong repeatedly, in this thread as well as others.

No one has yet "proven" me wrong in this thread.

My input in other threads is not, here, relevant.

The issue regarding rape and alchohol is, and has always been, if they are sufficiently inebriated as to be unaware of their actions or surroundings. Take as an example New York Penal Code article 130, which offers these definitions:

5. "Mentally disabled" means that a person suffers from a mental
disease or defect which renders him or her incapable of appraising the
nature of his or her conduct.

6. "Mentally incapacitated" means that a person is rendered
temporarily incapable of appraising or controlling his conduct owing to
the influence of a narcotic or intoxicating substance administered to
him without his consent, or to any other act committed upon him without
his consent.

7. "Physically helpless" means that a person is unconscious or for any
other reason is physically unable to communicate unwillingness to an
act.

As we see, incapacity to consent stems from something more than merely being drunk. Being slightly intoxicated doesn't mean you can't legally consent.

I never presented a comment suggesting that incapacity stems from nothing more than inebriation. Other factors were not the subject here. Once more you involve irrelevant commentary. If being slightly intoxicated doesn't mean one cannot legally consent then neither does it absolve you of liability for your actions. Rape is rape. My anecdote suggested this very thing which you seek to present as "proof" that I am incorrect.

It held true when I was a juror on a case involving this very subject. A young man was accused of rape. The accuser claimed that her ability to consent was adversely inhibited by alcohol and drug use. When pressed she revealed that he, too, was both drunk and high. Thus her claim of rape was rendered invalid. This was the decision of the jury and the judge concurred. The legal defense, likewise, affirmed this truth.

She had raped him as much as he had raped her. Both their abilities to consent were adversely inhibited due to the mind altering substances they consumed.

If our decision was incorrect then wouldn't the judge have corrected us? Wouldn't the legal counsel have corrected us? Wouldn't that young man now sit in prison - a rapist?

Your anecdote doesn't contain the relevant information to say what did or did not happen at that trial. However, I will say this: If one person is so intoxicated as to be unable to form or convey informed consent, then that individual is likely too intoxicated to be able to fully appreciate his or her surroundings and is likely not capable of ascertaining the fact that his or her actions are performed absent consent.

Or, in short, if you were too drunk to consent, you were likely too drunk to recognize the other person wasn't consenting. It's incorrect to say that a claim of rape was rendered invalid.

No. It's the exact inverse of that. It is quite correct to say that a claim of rape was rendered invalid, as your protest here suggests.

It's also inaccurate to say that "she had raped him as much as he had raped her" since, if they both were incapacitated, neither would have demonstrated the necessary mens rea.

You aren't, actually, disagreeing with me - although you think you are.

Being merely drunk would make you a rapist though, if you decided to have sex with someone who was incapacitated due to alcohol or drug use.

Indeed. Which is what I've postulated several times throughout this thread.

[Distruzio]

Indeed. That's the point of my comments. To make you think about this and how it will affect your... rendezvous' from now on.

No, what it makes me think is people are overusing the word "rapist" to throw at anybody who looks at a person and has naughty naughty thoughts.

I realize the difference between yes and no, a girl who is drunk and passed out, consensual and not. But some of the comments here are fucking retarded. They really are. Because by these absurdly high standards, we'd all be rapists, unless you're to tell me you or the person(s) you've had sex with were never ever drunk, high or on prescription drugs.

That's what I'm telling you.

[George Kaplan]

No, what it makes me think is people are overusing the word "rapist" to throw at anybody who looks at a person and has naughty naughty thoughts.

I realize the difference between yes and no, a girl who is drunk and passed out, consensual and not. But some of the comments here are fucking retarded. They really are. Because by these absurdly high standards, we'd all be rapists, unless you're to tell me you or the person(s) you've had sex with were never ever drunk, high or on prescription drugs.

That's what I'm telling you.

Er. What?

Why would you be telling me something that I've been saying throughout this thread?

Or are you saying that most of America (and I suppose the world) are rapists?

[Electroconvulsive Glee]

Absolutely untrue, at least when it comes to the US, Canada, Europe, and Australia.

It's quite true, especially here in the US.

It held true when I was a juror on a case involving this very subject. A young man was accused of rape. The accuser claimed that her ability to consent was adversely inhibited by alcohol and drug use. When pressed she revealed that he, too, was both drunk and high. Thus her claim of rape was rendered invalid. This was the decision of the jury and the judge concurred. The legal defense, likewise, affirmed this truth.

She had raped him as much as he had raped her. Both their abilities to consent were adversely inhibited due to the mind altering substances they consumed.

If our decision was incorrect then wouldn't the judge have corrected us? Wouldn't the legal counsel have corrected us? Wouldn't that young man now sit in prison - a rapist?

I call bullshit. It is possible that this occurred, but not quite as you describe it.

Name the state and we can check the statutes and criminal jury instructions. I do not believe you and this jury were instructed by the judge that it was not possible for you to find the defendant guilty if you believed both parties were intoxicated or on drugs. You and other jurors may have mistakenly thought that and rendered a stupid, illegal verdict -- but no one would know the grounds upon which you reached a not guilty verdict were improper. If you did so, you may well have failed to convict a guilty individual and imposed further pain upon a rape victim.

And, although I think you language is just being imprecise, it is the state (through the prosecutor) who accuses someone of rape. The woman in your scenario was a putative victim and witness. She may have been an "accuser" in lay terms, but not legal terms. Similarly, "her claim of rape" could not be rendered "invalid." It could have been legally barred, but then the judge would not have even presented the case to the jury. Might point is that, in addition to making a highly incredible claim, you seem to be trying to use legal language to bolster your claim, when it actually undermines it.

EDIT: Moreover, what you describe is not generally the law in the United States. Even if your anecdote is completely accurate, it is more likely the judge erred than that even the most backwards of states actually has a "mutual rape" statute. In the past, I have found no such statute and no caselaw accepting such a thing. Additionally, the source I cited confirms this was true as of a few years ago.

[Gravlen]

You have been proven wrong repeatedly, in this thread as well as others.

No one has yet "proven" me wrong in this thread.

Woops, just happened again above.

The issue regarding rape and alchohol is, and has always been, if they are sufficiently inebriated as to be unaware of their actions or surroundings. Take as an example New York Penal Code article 130, which offers these definitions:

5. "Mentally disabled" means that a person suffers from a mental
disease or defect which renders him or her incapable of appraising the
nature of his or her conduct.

6. "Mentally incapacitated" means that a person is rendered
temporarily incapable of appraising or controlling his conduct owing to
the influence of a narcotic or intoxicating substance administered to
him without his consent, or to any other act committed upon him without
his consent.

7. "Physically helpless" means that a person is unconscious or for any
other reason is physically unable to communicate unwillingness to an
act.

As we see, incapacity to consent stems from something more than merely being drunk. Being slightly intoxicated doesn't mean you can't legally consent.

I never presented a comment suggesting that incapacity stems from nothing more than inebriation. Other factors were not the subject here. Once more you involve irrelevant commentary. If being slightly intoxicated doesn't mean one cannot legally consent then neither does it absolve you of liability for your actions. Rape is rape. My anecdote suggested this very thing which you seek to present as "proof" that I am incorrect.

It shows you're wrong when you assert that "Drunk sex is rape". You can be drunk without being incapacitated, helpless, or unable to consent.

Your anecdote doesn't contain the relevant information to say what did or did not happen at that trial. However, I will say this: If one person is so intoxicated as to be unable to form or convey informed consent, then that individual is likely too intoxicated to be able to fully appreciate his or her surroundings and is likely not capable of ascertaining the fact that his or her actions are performed absent consent.

Or, in short, if you were too drunk to consent, you were likely too drunk to recognize the other person wasn't consenting. It's incorrect to say that a claim of rape was rendered invalid.

No. It's the exact inverse of that. It is quite correct to say that a claim of rape was rendered invalid, as your protest here suggests.

It's also inaccurate to say that "she had raped him as much as he had raped her" since, if they both were incapacitated, neither would have demonstrated the necessary mens rea.

You aren't, actually, disagreeing with me - although you think you are.

No, you're wrong in your assertion that "Any degree of inhibited capacity for reason - any degree whatsoever - during sexual acts is, in point of fact, rape". That is incorrect.

Being merely drunk would make you a rapist though, if you decided to have sex with someone who was incapacitated due to alcohol or drug use.

Indeed. Which is what I've postulated several times throughout this thread.

Yet in your anecdote the man walked free.

[Distruzio]

No one has yet "proven" me wrong in this thread.

Woops, just happened again above.

.... maybe you misunderstand the difference between proof and assertion. Merely disagreeing with me is not proving anything greater than the existence of a disagreement.

I never presented a comment suggesting that incapacity stems from nothing more than inebriation. Other factors were not the subject here. Once more you involve irrelevant commentary. If being slightly intoxicated doesn't mean one cannot legally consent then neither does it absolve you of liability for your actions. Rape is rape. My anecdote suggested this very thing which you seek to present as "proof" that I am incorrect.

It shows you're wrong when you assert that "Drunk sex is rape". You can be drunk without being incapacitated, helpless, or unable to consent.

And if you engage in sexual activity while drunk you are a victim of rape. Period.

No. It's the exact inverse of that. It is quite correct to say that a claim of rape was rendered invalid, as your protest here suggests.



You aren't, actually, disagreeing with me - although you think you are.

No, you're wrong in your assertion that "Any degree of inhibited capacity for reason - any degree whatsoever - during sexual acts is, in point of fact, rape". That is incorrect.

How?

Indeed. Which is what I've postulated several times throughout this thread.

Yet in your anecdote the man walked free.

Because he was as much a victim as she was.

[Gravlen]

Woops, just happened again above.

.... maybe you misunderstand the difference between proof and assertion. Merely disagreeing with me is not proving anything greater than the existence of a disagreement.

So I take it that you've blocked Electroconvulsive Glee?

No matter. It's already been demonstrated that the law disagrees with you.

It shows you're wrong when you assert that "Drunk sex is rape". You can be drunk without being incapacitated, helpless, or unable to consent.

And if you engage in sexual activity while drunk you are a victim of rape. Period.

If your definition of "drunk" excludes all levels of inebriation prior to becoming incapacitated, then yes.

If not, if you're using "drunk" in it's colloquial sense, you're still wrong.

No, you're wrong in your assertion that "Any degree of inhibited capacity for reason - any degree whatsoever - during sexual acts is, in point of fact, rape". That is incorrect.

How?

Because a slightly "inhibited capacity for reason" yet still being aware of your actions or surroundings doesn't make you unable to render informed consent.

Or, to put it differently:

First, where drugs or alcohol are concerned, it is important to emphasize that, as Burke makes clear, consumption or even intoxication by itself is not the issue. It is a matter of common knowledge that there are many levels of intoxication, and the fact of intoxication, by itself, does not necessarily mean that the individual in question is incapable of deciding whether to assent to a sexual encounter. The question instead is whether, as a result of the complainant's consumption of drugs, alcohol, or both, she was unable to give or refuse consent.

As per note 10: Whatever the factor or factors, the question is the same: Did these factors render the complainant incapable of giving or refusing consent to sexual intercourse? The threshold in Massachusetts being "because of the consumption of drugs or alcohol or for some other reason (for example, sleep, unconsciousness, mental retardation, or helplessness), the complainant was so impaired as to be incapable of consenting".

Yet in your anecdote the man walked free.

Because he was as much a victim as she was.

So he was more than "merely drunk", as opposed to what you postulated.

[Aurora Novus]

Because he was as much a victim as she was.

If that were truly the case, it would make far more logical sense for them to both have been punished. Two wrongs do not cancel one another out. They just add onto a pile of wrongs.

Clearly, whatever rhetoric was used, the judge and others did not view the scenario as a true rape situation.



Also, if any level of inebriation is rape, then every sexual encounter anyone has ever had, is rape. As human beings are creatures in a continual state of change, who we were yesterday, or even 5 minutes ago, is not who we are at this very moment. There is always new information and new experiences that can make us change our views on things, and change our desires. And we are constantly being exposed to these things. This is no different than being slightly intoxicated (other than intoxication being a bit more of a dramatic change).

If any level of inebriation equates to rape, it stands to reason that any sexual interaction an adult human being has, is rape, due to the fact that they are not capable of making a truly 100% informed decision on the matter, considering there is information and experiences they have not accrued, which could alter their decision in that moment.



Alternatively, you can join the rest of the rational world, and recognize there are varying levels of intoxication, and ergo, not all drunk sex is rape.

[The Parkus Empire]

Because he was as much a victim as she was.

That's a pretty good point, and that's exactly why in gang shoot outs and drunk-on-drunk collisions, neither party can be prosecuted.

[Llamalandia]

Because he was as much a victim as she was.

That's a pretty good point, and that's exactly why in gang shoot outs and drunk-on-drunk collisions, neither party can be prosecuted.

Can you provide a source on that neither party in a gang shoot out can be prosecuted or rather clarify what you mean here? If you mean by that that as a matter of law they aren't presecutable I'd definitely like to see some source to back that up please. If you mean neither party is prosecuted caouse they're all gang memebrs and have little reason to cooperate with police/proseutors well ok I could believe that more easily.

That said shouldn't we prosecute both people. I mean just because both parties are at fault in this instance doesn't mean that one party might not later go on to victimize someone more innocent the future. What i mean to say is that if they get drunk and rape someone who is also drunk (and therefore also being one who is raping at the same time) it's evidence that when under the influence of alcohol said individgual may be more likely to have sex with others without regard for consent.

Prosecution and prision is as much as about getting justice for the victim as it is for locking up dangerous persons who may hurt others (based on their past behavior).

[Llamalandia]

Absolutely untrue, at least when it comes to the US, Canada, Europe, and Australia.

It's quite true, especially here in the US.

It held true when I was a juror on a case involving this very subject. A young man was accused of rape. The accuser claimed that her ability to consent was adversely inhibited by alcohol and drug use. When pressed she revealed that he, too, was both drunk and high. Thus her claim of rape was rendered invalid. This was the decision of the jury and the judge concurred. The legal defense, likewise, affirmed this truth.

She had raped him as much as he had raped her. Both their abilities to consent were adversely inhibited due to the mind altering substances they consumed.

If our decision was incorrect then wouldn't the judge have corrected us? Wouldn't the legal counsel have corrected us? Wouldn't that young man now sit in prison - a rapist?

Actually no i don't think a judge can over rule the verdict of properly impaneled jury and change a not guilty to a guilty verdict (though they can set aside a guilty verdict of a jury). I mean thats kinda the whole point of having a jury and having a right to be tried by a jury of one's peers. Even in cases where tamper was proven I don't think they get to retry the case after a verdict is reached (assuming it was in the defendants favor but I'm not a lawyer so take it with a grain of salt).

Additionally there's always the whole jury nullification thing, controversial but I'm sure plenty of judges (well at least some) accept it as valid legal theory.

However my take on the case would be that you have both two victims and two perpetrators, they should have both been on trial. Protect the public from two people who clearly can't control themselves when intoxicated in my opinion (of course iwasn't there and am not privy to the specifics of the trial so yeah not second guessing anyone here necessarily)

[Llamalandia]

Woops, just happened again above.

.... maybe you misunderstand the difference between proof and assertion. Merely disagreeing with me is not proving anything greater than the existence of a disagreement.

It shows you're wrong when you assert that "Drunk sex is rape". You can be drunk without being incapacitated, helpless, or unable to consent.

And if you engage in sexual activity while drunk you are a victim of rape. Period.

No, you're wrong in your assertion that "Any degree of inhibited capacity for reason - any degree whatsoever - during sexual acts is, in point of fact, rape". That is incorrect.

How?

Yet in your anecdote the man walked free.

Because he was as much a victim as she was.

Umm well regardless of whether or not it's rape might I throw this out there. That if you believe that drunk sex is rape then by that logic you should never drink. I mean i personally don't (not that i have a problem with what other people do per se so long as it doesn't affect me in any meaningful negative way) and there is no real reason anyone needs to drink or rather to be drunk. Just don't get drunk and you will never be "drunk raped:" Im guesssing everyone's going to call that victim blaming, but come on if in absolutely every situation (with no exception and if you stated some im sorry i must have glance over them) that sex while drunk == rape then why in God's name should anyone ever be drunk? Or at least ever be drunk outside of a locked home while alone.

[The Parkus Empire]

That's a pretty good point, and that's exactly why in gang shoot outs and drunk-on-drunk collisions, neither party can be prosecuted.

Can you provide a source on that neither party in a gang shoot out can be prosecuted or rather clarify what you mean here? If you mean by that that as a matter of law they aren't presecutable I'd definitely like to see some source to back that up please. If you mean neither party is prosecuted caouse they're all gang memebrs and have little reason to cooperate with police/proseutors well ok I could believe that more easily.

That said shouldn't we prosecute both people. I mean just because both parties are at fault in this instance doesn't mean that one party might not later go on to victimize someone more innocent the future. What i mean to say is that if they get drunk and rape someone who is also drunk (and therefore also being one who is raping at the same time) it's evidence that when under the influence of alcohol said individgual may be more likely to have sex with others without regard for consent.

Prosecution and prision is as much as about getting justice for the victim as it is for locking up dangerous persons who may hurt others (based on their past behavior).

If it were mutual rape, then of course we would prosecute both parties. Mutual rape of course makes about as much sense as being able to sexually assault yourself.

[Tumblr Isles]

If it were mutual rape, then of course we would prosecute both parties.

you would punish the victim?

[Aurora Novus]

If it were mutual rape, then of course we would prosecute both parties.

you would punish the victim?

They may be a victim, but they would also logically b a victimizer.

One does not cancel the other out.


This is the inevitable result of the batshit insane idea of "mutual rape".

[Electroconvulsive Glee]

you would punish the victim?

They may be a victim, but they would also logically b a victimizer.

One does not cancel the other out.

This is the inevitable result of the batshit insane idea of "mutual rape".

Which is just one of the copious reasons why almost no one actually supports any law regarding intoxication that would allow such a thing to be possible. And even fewer (except certain misguided internet personas) would suggest that such a law would be a good idea.

The whole notion is the deluded ranting of those who wish to further muddy the waters of what is and is not rape and those who advocate dogmatic positions without thinking through the logically possible consequence. Neither tend to make policy.

[The Rich Port]

Ya know, people said this thread would have devolved into people saying how awesome rape is.

Well, I say, HA, naysayers!

As it turns out, everyone is really confused about who rapes who when you're drunk!

[Gravlen]

Ya know, people said this thread would have devolved into people saying how awesome rape is.

Well, I say, HA, naysayers!

As it turns out, everyone is really confused about who rapes who when you're drunk!

Not really. I'm not. To me, it's relatively straight forward.

[Soldati Senza Confini]

Really, Rich Port, you HAD to bring this topic up?

Seriously, it is obvious that, as long as you are not mentally impaired by drugs, or alcohol, to give consent to have sex (either verbally or non-verbally) it doesn't constitute rape. It's almost the same standard as with contracts.

This cannot get more simple than that.

[Distruzio]

.... maybe you misunderstand the difference between proof and assertion. Merely disagreeing with me is not proving anything greater than the existence of a disagreement.

So I take it that you've blocked Electroconvulsive Glee?

No, I haven't blocked him. I didn't know he'd responded.

No matter. It's already been demonstrated that the law disagrees with you.

Which is funny because the law seemed to be quite comfortable with my input in the case I mentioned.

How?

Because a slightly "inhibited capacity for reason" yet still being aware of your actions or surroundings doesn't make you unable to render informed consent.

Or, to put it differently:

First, where drugs or alcohol are concerned, it is important to emphasize that, as Burke makes clear, consumption or even intoxication by itself is not the issue. It is a matter of common knowledge that there are many levels of intoxication, and the fact of intoxication, by itself, does not necessarily mean that the individual in question is incapable of deciding whether to assent to a sexual encounter. The question instead is whether, as a result of the complainant's consumption of drugs, alcohol, or both, she was unable to give or refuse consent.

As per note 10: Whatever the factor or factors, the question is the same: Did these factors render the complainant incapable of giving or refusing consent to sexual intercourse? The threshold in Massachusetts being "because of the consumption of drugs or alcohol or for some other reason (for example, sleep, unconsciousness, mental retardation, or helplessness), the complainant was so impaired as to be incapable of consenting".

Ah... so... then why would the verdict we offered in the case not have been, at the very least, critiqued? It was in Georgia if this helps.

Yet in your anecdote the man walked free.

Because he was as much a victim as she was.

So he was more than "merely drunk", as opposed to what you postulated.[/quote]

I didn't postulate his "mere drunkenness." In fact, I said, "When pressed she revealed that he, too, was both drunk and high."

[Distruzio]

It's quite true, especially here in the US.

It held true when I was a juror on a case involving this very subject. A young man was accused of rape. The accuser claimed that her ability to consent was adversely inhibited by alcohol and drug use. When pressed she revealed that he, too, was both drunk and high. Thus her claim of rape was rendered invalid. This was the decision of the jury and the judge concurred. The legal defense, likewise, affirmed this truth.

She had raped him as much as he had raped her. Both their abilities to consent were adversely inhibited due to the mind altering substances they consumed.

If our decision was incorrect then wouldn't the judge have corrected us? Wouldn't the legal counsel have corrected us? Wouldn't that young man now sit in prison - a rapist?

Actually no i don't think a judge can over rule the verdict of properly impaneled jury and change a not guilty to a guilty verdict (though they can set aside a guilty verdict of a jury). I mean thats kinda the whole point of having a jury and having a right to be tried by a jury of one's peers. Even in cases where tamper was proven I don't think they get to retry the case after a verdict is reached (assuming it was in the defendants favor but I'm not a lawyer so take it with a grain of salt).

Additionally there's always the whole jury nullification thing, controversial but I'm sure plenty of judges (well at least some) accept it as valid legal theory.

However my take on the case would be that you have both two victims and two perpetrators, they should have both been on trial. Protect the public from two people who clearly can't control themselves when intoxicated in my opinion (of course iwasn't there and am not privy to the specifics of the trial so yeah not second guessing anyone here necessarily)

Of course. My question is that, if I'm wrong, then why was my advice during the trial accepted? Why did the judge, or legal counsel, or anyone correct me? Why was the case allowed to turn against the plaintiff?

[Distruzio]

.... maybe you misunderstand the difference between proof and assertion. Merely disagreeing with me is not proving anything greater than the existence of a disagreement.




And if you engage in sexual activity while drunk you are a victim of rape. Period.



How?



Because he was as much a victim as she was.

Umm well regardless of whether or not it's rape might I throw this out there. That if you believe that drunk sex is rape then by that logic you should never drink. I mean i personally don't (not that i have a problem with what other people do per se so long as it doesn't affect me in any meaningful negative way) and there is no real reason anyone needs to drink or rather to be drunk. Just don't get drunk and you will never be "drunk raped:" Im guesssing everyone's going to call that victim blaming, but come on if in absolutely every situation (with no exception and if you stated some im sorry i must have glance over them) that sex while drunk == rape then why in God's name should anyone ever be drunk? Or at least ever be drunk outside of a locked home while alone.

That's not quite right. I drink - often. I just don't have sex while drinking. Ever.