Booze and Rape

[Electroconvulsive Glee]

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

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

But, even though you know now that I did, you still are ignoring the content of my posts and not responding to them.

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.

Already answered (in several ways). Even assuming an anecdote could be persuasive, your anecdote does not support your opinion.

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.

I will check Georgia law, but, in the meantime, you are making a conclusion based on a false premise.

You assume "your" jury's verdict would have been rejected or "critiqued" if it was wrong. How? Did your verdict -- contrary to common practice -- specific the jury's reasoning? Did you find the defendant "not guilty" or did you find "both individuals in the sexual encounter had consumed alcohol, therefore, there was 'mutual rape' and the charge against the defendant is invalid"? Unless the latter, it would be impossible for anyone to reject or critique the verdict.

Moreover, judges almost never have the power to reject (or even comment on) a verdict of not guilty. Prosecutors have even less power to criticize or appeal a not guilty verdict. And, obviously, defense counsel has no reason to criticize or appeal a not guilty verdict.

So, assuming everything else about your anecdote is true & that it would otherwise be persuasive, it proves nothing whatsoever. You are drawing the wrong conclusion from the circumstances.

[Electroconvulsive Glee]

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?

You have received several correct responses to this nonsense already.

But now you are adding additional "facts." I'll address them, but I also ask for clarification as to what you mean by "[your] advice during the trial [was] accepted"? What advice? How, when, and to whom was this "advice" expressed? Who "accepted" it and how did they communicate this?

I cannot imagine a scenario where a juror even has the opportunity to give "advice" or otherwise comment on the law in a court case -- except within the secret confines of the jury deliberations (in which case the judge & the attorneys would not know it existed). I have not practiced in Georgia courts, but I doubt this happened as it is contrary to basic, ubiquitous rules of procedure.

Adding to my skepticism is that (in addition to and despite my correct of your earlier incorrect language) you refer to the female putative victim as the "plaintiff." She was no such thing. There is no plaintiff in a criminal case. The closest thing is the prosecution -- which does not represent the victim.

Your anecdote remains unpersuasive on its face for the many reasons already given by myself and others. Moreover, again taking it a face value, it is an anomaly contrary to the established law across the United States. We can add to that the accuracy or credibility of the asserted anecdote is increasingly doubtful.

[Distruzio]

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?

You have received several correct responses to this nonsense already.

But now you are adding additional "facts." I'll address them, but I also ask for clarification as to what you mean by "[your] advice during the trial [was] accepted"? What advice? How, when, and to whom was this "advice" expressed? Who "accepted" it and how did they communicate this?

I cannot imagine a scenario where a juror even has the opportunity to give "advice" or otherwise comment on the law in a court case -- except within the secret confines of the jury deliberations (in which case the judge & the attorneys would not know it existed). I have not practiced in Georgia courts, but I doubt this happened as it is contrary to basic, ubiquitous rules of procedure.

Adding to my skepticism is that (in addition to and despite my correct of your earlier incorrect language) you refer to the female putative victim as the "plaintiff." She was no such thing. There is no plaintiff in a criminal case. The closest thing is the prosecution -- which does not represent the victim.

Your anecdote remains unpersuasive on its face for the many reasons already given by myself and others. Moreover, again taking it a face value, it is an anomaly contrary to the established law across the United States. We can add to that the accuracy or credibility of the asserted anecdote is increasingly doubtful.

In deliberation the other jurors asked my reasoning on not guilty. I explained myself based upon the opinions I've put forth in this thread. No one disagreed. The verdict was unanimous - not guilty.

Forgive if my statement implied that I advised the court. I meant that I advised the other jurors of my opinion (I was the first to come to a decision during deliberation) and they, universally, agreed that the young man did not deserve a guilty verdict.

They may have disagreed with my reasoning, but no one contested it.

[Distruzio]

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

But, even though you know now that I did, you still are ignoring the content of my posts and not responding to them.

Perhaps other things attracted my attention? This may be a blow to your ego but, since I've already implied (with the question, "How?" presented to Gravlen) that I was considering my opinions in this thread undermined and was willing to listen to further critique, I didn't see a point in responding to you - he had, as you acknowledge, already pointed it out to me.

What's the point of responding to a post I was unaware of when the person I'm currently engaged with cites it and expands upon it?

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

Already answered (in several ways). Even assuming an anecdote could be persuasive, your anecdote does not support your opinion.

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.

I will check Georgia law, but, in the meantime, you are making a conclusion based on a false premise.

You assume "your" jury's verdict would have been rejected or "critiqued" if it was wrong. How? Did your verdict -- contrary to common practice -- specific the jury's reasoning? Did you find the defendant "not guilty" or did you find "both individuals in the sexual encounter had consumed alcohol, therefore, there was 'mutual rape' and the charge against the defendant is invalid"? Unless the latter, it would be impossible for anyone to reject or critique the verdict.

Moreover, judges almost never have the power to reject (or even comment on) a verdict of not guilty. Prosecutors have even less power to criticize or appeal a not guilty verdict. And, obviously, defense counsel has no reason to criticize or appeal a not guilty verdict.

So, assuming everything else about your anecdote is true & that it would otherwise be persuasive, it proves nothing whatsoever. You are drawing the wrong conclusion from the circumstances.

That, I now see, is likely the issue at hand. Although we decided "both individuals in the sexual encounter had consumed alcohol, therefore, there was 'mutual rape' and the charge against the defendant is invalid" as the basis for our not guilty verdict.

I only ask why there were no critiques because we were allowed to ask questions prior to hearing the case.

[The Parkus Empire]

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.

I see. So what you're saying is that people who have sex while drunk choose to be victims?

[Distruzio]

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

I see. So what you're saying is that people who have sex while drunk choose to be victims?

No. I've made it quite clear what I'm saying. Time and again. And you know that is NOT what I've said at all.

[The Parkus Empire]

I see. So what you're saying is that people who have sex while drunk choose to be victims?

No. I've made it quite clear what I'm saying. Time and again. And you know that is NOT what I've said at all.

Yeah, it's actually exactly what you're saying. You choose not to be raped when you're drunk.

[Distruzio]

No. I've made it quite clear what I'm saying. Time and again. And you know that is NOT what I've said at all.

Yeah, it's actually exactly what you're saying. You choose not to be raped when you're drunk.

Sure.

[Tahar Joblis]

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?

You have received several correct responses to this nonsense already.

But now you are adding additional "facts." I'll address them, but I also ask for clarification as to what you mean by "[your] advice during the trial [was] accepted"? What advice? How, when, and to whom was this "advice" expressed? Who "accepted" it and how did they communicate this?

I cannot imagine a scenario where a juror even has the opportunity to give "advice" or otherwise comment on the law in a court case -- except within the secret confines of the jury deliberations (in which case the judge & the attorneys would not know it existed). I have not practiced in Georgia courts, but I doubt this happened as it is contrary to basic, ubiquitous rules of procedure.

Adding to my skepticism is that (in addition to and despite my correct of your earlier incorrect language) you refer to the female putative victim as the "plaintiff." She was no such thing. There is no plaintiff in a criminal case. The closest thing is the prosecution -- which does not represent the victim.

Your anecdote remains unpersuasive on its face for the many reasons already given by myself and others. Moreover, again taking it a face value, it is an anomaly contrary to the established law across the United States. We can add to that the accuracy or credibility of the asserted anecdote is increasingly doubtful.

On occasion, law is not applied consistently or correctly in some courtrooms. And when there has been a litany of claims along the simplistic line that drunk sex is rape, as there has been for decades now, from authority figures (e.g., the CSU-Fullerton page I linked to) and in very public discussions of the issue (e.g., Dr. Phil getting a ton of flak) it's going to eventually filter down to juries and judges.

I find Distruzio's anecdote convincing as a demonstration not that this is how the law is currently being considered by most DAs in choosing to prosecute, judges in instructing juries, lawyers in constructing courtroom arguments, juries in making decisions, but that there is a real hazard that some cases will be put forth and decided on that basis (and some guilty pleas offered on that understanding, etc on down with greater frequency as we move down to cases involving less scrutiny and fewer decision-makers, in particular universities applying sanctions to those accused of rape on the basis of preponderance of evidence and potentially their own definition of rape); and with future changes to law and policy.

I have generally trusted you to be correct in saying that criminal law itself in the majority of the US is not so asininely written as to insure that being merely intoxicated to the point of making stupid decisions is defined as rape; but I think you are short-sighted not to see the danger posed by the propagation of the simplistic rhetoric that drunk sex is rape, and projecting in an unwarranted fashion to think that people who say "drunk sex is rape" really are referring to outright incapacity rather than simple inebriation.

[Gravlen]

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.

And that's the downside of the jury system. You don't get corrected if you get it wrong, because all the outside world will hear is "guilty" or "not guilty". After the judge has given the jury its instructions, there really isn't any persons in the court capable of protesting, objecting, correcting or critique what you as a juror will say or think during deliberation.

It's a weakness in the system, but one it's difficult to do anything about as long as you don't want to abolish the jury system as it is today.

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.

Probably because relatively minor criminal trials seldom are, in part because juries are expected to understand the facts of the case better than people who weren't present in court, and didn't take part in the deliberations. We leave it to the juries to decide, and since we won't know for sure how they ended up with the conclusions they did, we can't really critique the outcome in most cases. (When we do regardless, the critique is mostly based on educated guesses.)

[Llamalandia]

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.

No but if many people do (and many do mix alcohol and sex) and it turns even a small subset of these into alcohol fueled rapists why whould we want alcohiol to remain legal ?

[Llamalandia]

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

I see. So what you're saying is that people who have sex while drunk choose to be victims?

Possibly. To be honest I'm not entirely sure here it's difficult to formulate an argument that won't just be dismissed as "victim blaming". But yes I suppose in some sense that if (drunk sex == rape) then yes anyone who has chosen to get drunk (and I know there's been debate about level of intoxication), and engage in sex at the same time may have chosen to be victims (or if both parties are drunk then mutually victims/perpetrators).

[Llamalandia]

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?

You have received several correct responses to this nonsense already.

But now you are adding additional "facts." I'll address them, but I also ask for clarification as to what you mean by "[your] advice during the trial [was] accepted"? What advice? How, when, and to whom was this "advice" expressed? Who "accepted" it and how did they communicate this?

I cannot imagine a scenario where a juror even has the opportunity to give "advice" or otherwise comment on the law in a court case -- except within the secret confines of the jury deliberations (in which case the judge & the attorneys would not know it existed). I have not practiced in Georgia courts, but I doubt this happened as it is contrary to basic, ubiquitous rules of procedure.

Adding to my skepticism is that (in addition to and despite my correct of your earlier incorrect language) you refer to the female putative victim as the "plaintiff." She was no such thing. There is no plaintiff in a criminal case. The closest thing is the prosecution -- which does not represent the victim.

Your anecdote remains unpersuasive on its face for the many reasons already given by myself and others. Moreover, again taking it a face value, it is an anomaly contrary to the established law across the United States. We can add to that the accuracy or credibility of the asserted anecdote is increasingly doubtful.

If im not mistaken some states allow jurors to ask questions (Jodi arias in where was it arizona comes to mind) of the judge on matters of the law and facts and even in some places of witness etc. So yeah it's not like a court case is just here's the law, here's the evidence, the jury can dialogue to a very limited extent with the judge and/or others in the case and I would imagine if they brought up the mattter in the case and were especially far "off base" that the judge would have corrected them but I could be wrong.

[Electroconvulsive Glee]

You have received several correct responses to this nonsense already.

But now you are adding additional "facts." I'll address them, but I also ask for clarification as to what you mean by "[your] advice during the trial [was] accepted"? What advice? How, when, and to whom was this "advice" expressed? Who "accepted" it and how did they communicate this?

I cannot imagine a scenario where a juror even has the opportunity to give "advice" or otherwise comment on the law in a court case -- except within the secret confines of the jury deliberations (in which case the judge & the attorneys would not know it existed). I have not practiced in Georgia courts, but I doubt this happened as it is contrary to basic, ubiquitous rules of procedure.

Adding to my skepticism is that (in addition to and despite my correct of your earlier incorrect language) you refer to the female putative victim as the "plaintiff." She was no such thing. There is no plaintiff in a criminal case. The closest thing is the prosecution -- which does not represent the victim.

Your anecdote remains unpersuasive on its face for the many reasons already given by myself and others. Moreover, again taking it a face value, it is an anomaly contrary to the established law across the United States. We can add to that the accuracy or credibility of the asserted anecdote is increasingly doubtful.

In deliberation the other jurors asked my reasoning on not guilty. I explained myself based upon the opinions I've put forth in this thread. No one disagreed. The verdict was unanimous - not guilty.

Forgive if my statement implied that I advised the court. I meant that I advised the other jurors of my opinion (I was the first to come to a decision during deliberation) and they, universally, agreed that the young man did not deserve a guilty verdict.

They may have disagreed with my reasoning, but no one contested it.

But, even though you know now that I did, you still are ignoring the content of my posts and not responding to them.

Perhaps other things attracted my attention? This may be a blow to your ego but, since

I've already implied (with the question, "How?" presented to Gravlen) that I was considering my opinions in this thread undermined and was willing to listen to further critique

, I didn't see a point in responding to you - he had, as you acknowledge, already pointed it out to me.

What's the point of responding to a post I was unaware of when the person I'm currently engaged with cites it and expands upon it?

Already answered (in several ways). Even assuming an anecdote could be persuasive, your anecdote does not support your opinion.


I will check Georgia law, but, in the meantime, you are making a conclusion based on a false premise.

You assume "your" jury's verdict would have been rejected or "critiqued" if it was wrong. How? Did your verdict -- contrary to common practice -- specific the jury's reasoning? Did you find the defendant "not guilty" or did you find "both individuals in the sexual encounter had consumed alcohol, therefore, there was 'mutual rape' and the charge against the defendant is invalid"? Unless the latter, it would be impossible for anyone to reject or critique the verdict.

Moreover, judges almost never have the power to reject (or even comment on) a verdict of not guilty. Prosecutors have even less power to criticize or appeal a not guilty verdict. And, obviously, defense counsel has no reason to criticize or appeal a not guilty verdict.

So, assuming everything else about your anecdote is true & that it would otherwise be persuasive, it proves nothing whatsoever. You are drawing the wrong conclusion from the circumstances.

That, I now see, is likely the issue at hand. Although we decided "both individuals in the sexual encounter had consumed alcohol, therefore, there was 'mutual rape' and the charge against the defendant is invalid" as the basis for our not guilty verdict.

I only ask why there were no critiques because we were allowed to ask questions prior to hearing the case.

As you are well aware, my posts can be pretty aggressive and I apologize for speculating about bad faith when there was a simple misunderstanding.

I also appreciate that you are willing to reconsider your overall view and your thoughtful rethinking of your anecdote.

As to the latter, I think we have cleared up the confusion. Jury verdicts in most U.S. criminal cases are usually a "black box" into which evidence and legal instructions are put in and a verdict comes out without no one outside the jury knowing the basis for the verdict. A guilty verdict can be challenged by the defendant -- both on legal grounds and for sufficiency of the evidence -- but the latter is a deferential review of whether enough evidence was presented that a jury could have found a particular element of a crime existed. Not-guilty verdicts can almost never be challenged -- even for legal error.

I did check the relevant Georgia law (but not exhaustively) and I'll try to briefly simplify it. The actual Georgia statutes on rape, sexual assault, and sexual violence are mostly archaic (and even offensive regarding gender, etc.) in wording, but the Georgia courts have clarified and modernized the actual working law. The basic rule is that sex with someone who "is physically or mentally unable to give consent to the act" because the are intoxicated, drugged, or unconscious is rape. Thus, intoxication or being under the influence of drugs only makes sex into rape when it is severe enough to physically or mentally incapacitate a party. There is no such thing as mutual rape. Georgia's blanket rule is that voluntary intoxication is not a defense to a crime, but evidence that a defendant was intoxicated or drugged may well raise reasonable doubt as to an element of rape. For example, a defendant is not guilty of rape if there is reasonable doubt as to whether she or he was passed out due to drinking at the time an alleged rape occurred.

Of course, the detail of the law of any jurisdiction can get complicated, the letter of the law does not always control an outcome of the criminal justice system, and public perception is often (if not usually) different than the law.

[Electroconvulsive Glee]

*snip* On occasion, law is not applied consistently or correctly in some courtrooms. And when there has been a litany of claims along the simplistic line that drunk sex is rape, as there has been for decades now, from authority figures (e.g., the CSU-Fullerton page I linked to) and in very public discussions of the issue (e.g., Dr. Phil getting a ton of flak) it's going to eventually filter down to juries and judges.

I find Distruzio's anecdote convincing as a demonstration not that this is how the law is currently being considered by most DAs in choosing to prosecute, judges in instructing juries, lawyers in constructing courtroom arguments, juries in making decisions, but that there is a real hazard that some cases will be put forth and decided on that basis (and some guilty pleas offered on that understanding, etc on down with greater frequency as we move down to cases involving less scrutiny and fewer decision-makers, in particular universities applying sanctions to those accused of rape on the basis of preponderance of evidence and potentially their own definition of rape); and with future changes to law and policy.

I have generally trusted you to be correct in saying that criminal law itself in the majority of the US is not so asininely written as to insure that being merely intoxicated to the point of making stupid decisions is defined as rape; but I think you are short-sighted not to see the danger posed by the propagation of the simplistic rhetoric that drunk sex is rape, and projecting in an unwarranted fashion to think that people who say "drunk sex is rape" really are referring to outright incapacity rather than simple inebriation.

I am not surprised that you find "convincing" any bit of information -- no matter how erroneous or tangential -- that you believe supports your preconceived notions and your repeated talking points. Nonetheless, I wish to turn from disputing minor inaccuracies and misinformation and focus on the heart of the matter . . .

I understand and agree that people widely misunderstand the relationship between rape/sexual assault laws, intoxication, incapacitation, and consent. I agree people need to be educated about the subject and misunderstandings (misstatements, propaganda, etc.) need to be corrected for many reasons, including stopping the false characterization of some behavior as criminal, preventing actually criminal behavior, and guiding sensible policy and actions in the future.

Some use language on this subject without thinking about the meaning of "drunk," "has consumed alcohol," and "incapacitated." Some confuse mere intoxication with being too drunk to consent. Some simply think "sex after drinking = rape." Some of these people think not only the law is, but also should be, either of these. Some of these people think either of this is the law and object at length to this imaginary law. And other people grossly obfuscate what the law is by talking about things like "mutual rape" as if such a thing were both possible and actually prosecuted under existing law.

The answer to all such nonsense is to point out what the law actually is. I already pointed out in my earlier post that (obviously) the law is not the endpoint or even main focus of discussions about this topic. It is, however, a good starting point. Those who that say "sex with a drunk person is rape" (even from an ethical or policy view) often think they are making a statement of fact about the law or are oversimplifying important, distinct concepts. So, it should be pointed out that people are making false assumptions about the law or making misleading oversimplifications.

Regardless, it is not helpful to argue against the idea that people should seek or consider information about the subject of a discussion. It is not helpful to argue against the relevance of fundamental, baseline "data" about what the law actually is. That the only purpose of such objections is to facilitate and foment confusion and fear is so fucking obvious it really should not need to be said. How about we not do that?

Similarly, I am all too aware that outcomes of the criminal justice system do not always conform to the "law" (regardless of whether one looks to statutes, court decisions, or common law). But it is irresponsible and reprehensible to make assertions about alleged common practices that are completely contrary to established law without a shred of evidence (let alone solid "data") proving the actual existence such practices exist (let alone are common). This is particularly true when such assertions are contrary to actual evidence presented of common practices. Similarly, it is disingenuous and disgusting to assert that there are some nebulous but significant "threat" of actual case outcomes that defy the law without any basis for making such an assertion. Again, the purpose of such allegations are not to search for truth or seek justice. The purpose is to sow confusion and fear.

On a lesser note, your "slippery slope"-like assertions regarding university sanctions are particularly clear fear-mongering. People face penalties, liability, sanctions, etc., everyday based on the preponderance of evidence in civil or administrative proceedings. Some may be life-altering, involve enormous amounts of money, etc. This is particularly true regarding employment, enrollment at a university, or other situations where one voluntarily subjects oneself to certain rules and procedures.

When discussing legal questions, we should consider what the law is. When discussing ethical questions, public opinion, future policy, etc., related to the law or legal concepts, we should consider what the law is. This is not short-sighted. It is pretty fucking basic common sense.

[Llamalandia]

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

I see. So what you're saying is that people who have sex while drunk choose to be victims?

Look like I said, its hard to put forward this line of reasoning without a simplistic charge of victim blaming being leveled against, but basically I'll say that at some point personal responsibility does come into play for both parties in these types of drunk interactions. IF you get drunk you have in fact made yourself vulnerable to all sorts of bad things happening to you (or even being perpetrated by you). The fact is you made a conscience decisions to get drunk (without getting into issues of alcoholism/addiction and responsibility) you should understand and be willing to accept and live with the consequences thereof at some point.

This doesn't we shouldn't prosecute potential offenders here, but does it certainly complicate the entirety of any proceeding of this nature. I mean even in clear cut cases of rape it can be difficult to convict just given the nature of the crime being so easily recuced to he said she said at trial. When it starts getting into such a cloudy gray area with alcohol etc (barring the obvious exceptions like GHB + alcohol combinations) then proving something "beyond a reasonable doubt" becomes virtually impoosible.

[Tahar Joblis]

I am not surprised that you find "convincing" any bit of information -- no matter how erroneous or tangential -- that you believe supports your preconceived notions and your repeated talking points. Nonetheless, I wish to turn from disputing minor inaccuracies and misinformation and focus on the heart of the matter . . .

I understand and agree that people widely misunderstand the relationship between rape/sexual assault laws, intoxication, incapacitation, and consent. I agree people need to be educated about the subject and misunderstandings (misstatements, propaganda, etc.) need to be corrected for many reasons, including stopping the false characterization of some behavior as criminal, preventing actually criminal behavior, and guiding sensible policy and actions in the future.

Some use language on this subject without thinking about the meaning of "drunk," "has consumed alcohol," and "incapacitated." Some confuse mere intoxication with being too drunk to consent. Some simply think "sex after drinking = rape." Some of these people think not only the law is, but also should be, either of these. Some of these people think either of this is the law and object at length to this imaginary law. And other people grossly obfuscate what the law is by talking about things like "mutual rape" as if such a thing were both possible and actually prosecuted under existing law.

The answer to all such nonsense is to point out what the law actually is. I already pointed out in my earlier post that (obviously) the law is not the endpoint or even main focus of discussions about this topic. It is, however, a good starting point. Those who that say "sex with a drunk person is rape" (even from an ethical or policy view) often think they are making a statement of fact about the law or are oversimplifying important, distinct concepts. So, it should be pointed out that people are making false assumptions about the law or making misleading oversimplifications.

Regardless, it is not helpful to argue against the idea that people should seek or consider information about the subject of a discussion. It is not helpful to argue against the relevance of fundamental, baseline "data" about what the law actually is. That the only purpose of such objections is to facilitate and foment confusion and fear is so fucking obvious it really should not need to be said. How about we not do that?

You are saying that when people advance defining rape as "sex while drunk," that I should not object to them doing so by pointing out that this leads to the absurdity of mutual rape?

I am not standing up and speaking in a vacuum here. I am pronouncing the absurd consequences of what others have and continue to assert. And every time I have brought up mutual rape, it is to point out the serious flaws in a definition for rape which someone else has claimed, proposed, or defended. The idea that mutual rape exists is absurd. This is precisely why "drunk sex = rape" is absurd.

Distruzio happens to think that "mutual rape" really happens. This means that Distruzio is wrong and defining rape badly. The question of an act being "mutual rape" is generally brought up to show that there is something seriously wrong with the definition of rape at hand. I have made this argument regarding the "drunk sex = rape" standard; and for the necessity of "close in age" exemptions to statutory rape laws; and it is my experience that reductio ad absurdum is the usual argument being offered by someone discussing "mutual rape."

Similarly, I am all too aware that outcomes of the criminal justice system do not always conform to the "law" (regardless of whether one looks to statutes, court decisions, or common law). But it is irresponsible and reprehensible to make assertions about alleged common practices that are completely contrary to established law without a shred of evidence (let alone solid "data") proving the actual existence such practices exist (let alone are common). This is particularly true when such assertions are contrary to actual evidence presented of common practices. Similarly, it is disingenuous and disgusting to assert that there are some nebulous but significant "threat" of actual case outcomes that defy the law without any basis for making such an assertion. Again, the purpose of such allegations are not to search for truth or seek justice. The purpose is to sow confusion and fear.

When I say that the norms for what is counted as "rape" outside of the courtroom will have an influence inside the courtroom - possibly resulting in some "incorrect" legal decisions - I am no more and no less alarmist than when I say that racist norms of who and what counts as threatening have an influence inside the courtroom. Whether or not you are inclined to agree with me that this is a problem, it is the same kind of problem.

Our court system is human. We try to remove a great deal of the subjectivity involved with human evaluation of guilt, but in the end, if the norms of our larger society are wrong, it will distort outcomes in the courts. That the law itself may be written well does not mean that the perversion of social norms is harmless.

We cannot afford to ignore sexism and racism, even when that sexism and racism is not codified in law.

On a lesser note, your "slippery slope"-like assertions regarding university sanctions are particularly clear fear-mongering. People face penalties, liability, sanctions, etc., everyday based on the preponderance of evidence in civil or administrative proceedings. Some may be life-altering, involve enormous amounts of money, etc. This is particularly true regarding employment, enrollment at a university, or other situations where one voluntarily subjects oneself to certain rules and procedures.

It's not a slippery slope assertion. It is highlighting an area in which the problematic definition is particularly threatening.

A university does not necessarily use the law to define rape; and those policies are much more vulnerable to unwise changes than state law itself. The propagation of a "drunk sex = rape [of a woman]" standard among those pronouncing standards has gone quite far on university campuses. I linked you already to CSU-Fullerton's website.

San Francisco State University defines people as raped if they are unable to give consent when incapacitated ... or simply "under the influence." It also says that someone blacked out is unable to consent. Which, as I have pointed out before, is not necessarily a condition that others are aware of; and it is even possible for someone who is presently blacked out to commit rape.

When discussing legal questions, we should consider what the law is. When discussing ethical questions, public opinion, future policy, etc., related to the law or legal concepts, we should consider what the law is. This is not short-sighted. It is pretty fucking basic common sense.

It is short-sighted to ignore the question of what the law should be; and short-sighted to ignore the fact that people are trying to change the law.

It is important and welcome to know what the law actually is. However, while this needs to be present at the start of the conversation, it cannot and should not be the end of the conversation.

[Distruzio]

In deliberation the other jurors asked my reasoning on not guilty. I explained myself based upon the opinions I've put forth in this thread. No one disagreed. The verdict was unanimous - not guilty.

Forgive if my statement implied that I advised the court. I meant that I advised the other jurors of my opinion (I was the first to come to a decision during deliberation) and they, universally, agreed that the young man did not deserve a guilty verdict.

They may have disagreed with my reasoning, but no one contested it.

Perhaps other things attracted my attention? This may be a blow to your ego but, since

I've already implied (with the question, "How?" presented to Gravlen) that I was considering my opinions in this thread undermined and was willing to listen to further critique

, I didn't see a point in responding to you - he had, as you acknowledge, already pointed it out to me.

What's the point of responding to a post I was unaware of when the person I'm currently engaged with cites it and expands upon it?

That, I now see, is likely the issue at hand. Although we decided "both individuals in the sexual encounter had consumed alcohol, therefore, there was 'mutual rape' and the charge against the defendant is invalid" as the basis for our not guilty verdict.

I only ask why there were no critiques because we were allowed to ask questions prior to hearing the case.

As you are well aware, my posts can be pretty aggressive and I apologize for speculating about bad faith when there was a simple misunderstanding.

I also appreciate that you are willing to reconsider your overall view and your thoughtful rethinking of your anecdote.

We've had enough encounters over the years for you (I'd hope) to recognize that I'm far from one to take offense at correction.

When I'm wrong, I'm wrong. I've no shame in admitting that. I'm not on the site to be correct. I'm on the site for conversation. In order to facilitate and perpetuate conversation, one must be willing to acknowledge the breadth of knowledge and wisdom of others.

Our other exchanges on a certain topic notwithstanding, I've no reason to dismiss your commentary out of hand. Your opinions (even where you are incorrect ) are a great insight for me. So, please... you needn't fret the little things. An aggressive tone is one thing. Being a dick is another. You are hardly a dick.

As to the latter, I think we have cleared up the confusion. Jury verdicts in most U.S. criminal cases are usually a "black box" into which evidence and legal instructions are put in and a verdict comes out without no one outside the jury knowing the basis for the verdict. A guilty verdict can be challenged by the defendant -- both on legal grounds and for sufficiency of the evidence -- but the latter is a deferential review of whether enough evidence was presented that a jury could have found a particular element of a crime existed. Not-guilty verdicts can almost never be challenged -- even for legal error.

I did check the relevant Georgia law (but not exhaustively) and I'll try to briefly simplify it. The actual Georgia statutes on rape, sexual assault, and sexual violence are mostly archaic (and even offensive regarding gender, etc.) in wording, but the Georgia courts have clarified and modernized the actual working law. The basic rule is that sex with someone who "is physically or mentally unable to give consent to the act" because the are intoxicated, drugged, or unconscious is rape. Thus, intoxication or being under the influence of drugs only makes sex into rape when it is severe enough to physically or mentally incapacitate a party. There is no such thing as mutual rape. Georgia's blanket rule is that voluntary intoxication is not a defense to a crime, but evidence that a defendant was intoxicated or drugged may well raise reasonable doubt as to an element of rape. For example, a defendant is not guilty of rape if there is reasonable doubt as to whether she or he was passed out due to drinking at the time an alleged rape occurred.

Of course, the detail of the law of any jurisdiction can get complicated, the letter of the law does not always control an outcome of the criminal justice system, and public perception is often (if not usually) different than the law.

Ah... so my definition of rape (regarding the particularities of this subject) was incorrect. That raises interesting (personal) questions for me: why am I so uncomfortable with inebriated sex then? Why do I feel like I'm raping someone if I do (and I have, in the past) explore sensuality under the influence? etc etc. These are relevant to the topic of the OP but not, necessarily, the topic of our discussion.

*shrug*

I've been wrong before. It'll happen again. You, Parkus, Gravlen, and others will be there to slap me back into reality. That's not something I fear. I'll fight tooth and nail to defend my opinions (incorrect or not) but where there are contentions made, I pay attention.

Thanks.

[Des-Bal]

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

Do you do things? Like do you exist near people sometimes? "Party" is latin for "get drunk and fuck."

[Distruzio]

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

Do you do things? Like do you exist near people sometimes? "Party" is latin for "get drunk and fuck."

Hah! Yeah... I don't go to parties because of that.

[Des-Bal]

Hah! Yeah... I don't go to parties because of that.

Then your issue is with society. Society doth decree that social events alcohol and sex are all intertwined. According to you people actively pursue their own rape.

[Distruzio]

Hah! Yeah... I don't go to parties because of that.

Then your issue is with society. Society doth decree that social events alcohol and sex are all intertwined. According to you people actively pursue their own rape.

And I'm wrong about that.

[The Parkus Empire]

deleted

[Dyakovo]

Society doth decree that social events alcohol and sex are all intertwined.

Not in my experience...

[George Kaplan]

Society doth decree that social events alcohol and sex are all intertwined.

Not in my experience...

Yeah, but you=/= society, which is probably why he/she said society, not Dyakovo.