While states may have similar case law on what constitutes sufficiency of proof and the Jury Instruction on a case of rape when the victim claims she was intoxicated etc., there is case law at every state level on what actual consent is, implied or express, etc.
Legislatures simply codify “elements” of a crime, the Courts are the one assigned by the seperation of powers to DEFINE that element is a far greater degree.
The USSC has ruled “every element” of a CRIME has to be proven beyond a reasonable doubt.
The ultimate decision rests with the trier of fact, be it judge or jury.
So, would you like to have a drink sometime?
I keed. I keed.
Seriously, this is one of those areas of law that are in flux. Feminists want stronger laws, but for the reasons mentioned in this thread, a DUI level of intoxication would put millions in jail for rape.
But at the same time, you can’t just have your way with someone who is absolutely passed out.
Courts are everywhere on this, and just hope that you aren’t accused. There are really no guidelines to go by. ETA: Or what isaiahrobinson said.
Right. In case what I meant wasn’t clear, I was using that as an example of how important the actual reporting is in getting criminal prosecution. Having sex with someone who is intoxicated may be illegal, but it is only going to get you put in jail if someone reports it as a crime.
Can you guys say how the issue is handled in some Northeastern or MidAtlantic states?
If any alcohol renders someone under 21 incapable of offering consent, would it be advisable to monitor a potential partner for the day to ensure that no alcohol is consumed?
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If any alcohol renders someone under 21 incapable of offering consent, would it be advisable to monitor a potential partner for the day to ensure that no alcohol is consumed?
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Just to expand on why I think that Sexual Assault response teacher will be wrong: The question is whether the victim still has the “capacity” to choose to engage in the sexual act or whether they’ve become so intoxicated that they’ve lost that capacity. It doesn’t matter how they became intoxicated - whether it’s legal drinking, underage drinking or illegal drugs. (If they’re below the age of consent they’re deemed too young to ever have the capacity to give consent). Admittedly this is English law and not the law of your state, but I’d be stunned if it’s different in that respect.
There are sometimes different criteria- in New York,
“So drunk you pass out” is covered by “physically helpless”, but if you get someone drunk or otherwise intoxicated without without their consent ( spiking the punch, or drugging a Coke) the fact that they are temporarily incapable of appraising or controlling their conduct makes them incapable of consent.
In many ( if not all ) jurisdictions , certain people who are ordinarily capable of consent, are legally incapable of consenting to sex with a person playing a specific role. For example, inmates are often not legally capable of consenting to prison/jail employees. There is a small possibility that the Sexual Assault teacher may be almost correct - I seem to remember that there is a state in which a person under drinking age is legally incapable of consenting to the person who provided the alcohol - and only that person , but I don’t remember which state.
More likely, either the instructor or the student got confused about which is the law, which is the policy and what’s just a good idea
A similar case occurred in NYC in May 2011, all the more sensational because the defendants were two NYC police officers. Widespread coverage can be found by Googling. The officers were acquitted.
A cop I know is close to these two policeman, and has a more “balanced” account than what was presented to the jury…
So if one doesn’t administer or encourage another to drink, and the other person drinks some but isn’t vomiting falling down drunk, can that other person legally consent? Or is the ability to consent lost before things proceed to the falling down phase?
And if what the women’s resource teacher says is true, what’s the best route to ensure that the potential partner does not consume any alcohol, if monitoring is a crime?
When I say monitor I don’t mean espy from afar, but to tag along for legitimate reasons (like eating then just hanging out).
And again, what about the issue of whether consent is continuing? What’s a practical way to make sure that a partner’s consent is initially given willingly and continuing without directly asking and risking seeming un-fun?
And also, organizations such as schools may have institutional discipline policies that are more specific than the applicable criminal law. For example, at some universities, you can be hauled in front of the honor court or Dean for acts that are not illegal per applicable criminal law. It could be the case that an instructor mixed up school policy (e.g. “No unmarried sex in dorms or you get kicked out of on-campus housing.”) with sex crime law.
As I said, I searched my state laws (Oregon, by the way) and could not find a cite that supported what the *women’s resource advocate *was telling the class. But the information in my post was exactly what she was telling the class, of about 50 instructors, counselors, etc.
These advocates are somewhat agenda driven and that is a separate issue I don’t wish to discuss. We were clearly told that any alcohol at all consumed by an under drinking age person, removed their ability to legally consent to sexual activity. There was no level of imparement that needed to be met.
Is their agenda targeted at a separate issue unrelated to sex and consent or is the fact that they have an agenda the separate issue?
Anyone know whether any of the Northeastern or MidAtlantic states have policies similar to Oregon’s regarding minute traces rendering underaged drinkers incapable of giving consent?
And again, if yes, outside of abstaining from sex, how does one stay legally safe and ensure that one’s partner has not had any alcohol earlier in the day? Is the partner’s word reliable? I’ve read that, with statutory sex offenses, it is not a defense that the alleged offender was told or had reason to believe that the other person was older than the legal age. Does his also apply to sex while alcohol is in the partner’s system?
Also keep in mind that in every jurisdiction I know, sexual assault/rape is a mens rea crime. That this that you must not only have performed the actus reus (sexual contact with someone who does not consent) but also that you must have done so in a way that was intentional or reckless or wilfully blind.
so my observation that someone has had a few drinks but is not falling down drunk is not enough to prove recklessness or willful blindness if I proceed, after having obtained affirmative consent, despite that observation?
And how does one go about obtaining affirmative consent and ensuring that the consent is continuing without appearing as a worrywart?
Note that I’m a lawyer but not your lawyer. I am not familiar with the laws of your state.
I don’t think it would be enough to show recklessness or wilful blindness.
I don’t think you even have to obtain affirmative consent in the way you likely think. Over here, in Canada, you have to believe that the complainant, through words or conduct, communicated consent to the sexual contact in question. That belief cannot be based on the accused’s intoxication, recklessness, wilful blindness and you have to have taken reasonable steps to ascertain consent*.
So if you believe the other person has communicated through words or conduct that she consents and that belief is not based on you being self intoxicated, reckless or wilfully blind, go ahead. If the person withdraws consent but never does anything to let you know about it and you continue, I do not see how that could be construed as intentional, reckless or wilfully blind.
I don’t think a judge or jury would convict someone for failing to ask “do you still consent?” “how about now?” “now?” “now do you consent?”.
If the other person engages in sexual contact with you during sexual activity, you can honestly (without recklessness or wilful blindness) believe that she communicates consent through conduct. If the other person is not touching you or doing anything that shows they want to, I’m not sure if that would be enough to prove you were reckless or wilfully blind.
In any case, if you find yourself engaging in sexual activity with someone who is doing nothing, just laying there not touching you, you might want to pause the action for a moment and ask them about it, even if the law doesn’t obligate you to do it. At worst, you’ll avoid women whose favorite position is the starfish.
The case law seems to say that the requirement to take reasonable steps only kicks in if a reasonable person would have taken further steps to ascertain consent. The letter of the law seems to say that you must always take reasonable steps to ascertain consent whether or not a reasonable person would have taken steps, which seems an unrealistic and overly harsh standard.
You’re overthinking this. The bottom line is if your partner clearly seems keen and is actively participating, then that’s consent, no matter how drunk she is. If she’s so intoxicated that you can’t actually tell whether she’s keen (ie. she can’t speak, or she’s not participating, or it’s obvious she barely understands what’s happening), then you’d need to think again, but common sense says that you should be having concerns in that situation regardless of any potential legal consequences.
