# All things "Gray Rape", Date Rape, and Drunk Sex. . . **URL:** \ **Category:** Great Debates\ **Created:** [August 31, 2007, 6:54pm UTC](https://boards.straightdope.com/t/all-things-gray-rape-date-rape-and-drunk-sex/417651 "2007-08-31T18:54:46Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Superfreaknduper](https://avatars.discourse-cdn.com/v4/letter/s/6de8d8/32.png) [@Superfreaknduper](https://boards.straightdope.com/u/Superfreaknduper)\ **Post date:** [August 31, 2007, 6:54pm UTC](https://boards.straightdope.com/t/all-things-gray-rape-date-rape-and-drunk-sex/417651/1 "2007-08-31T18:54:46Z")
Well, this is just what the title says, stemming from [this thread](http://boards.straightdope.com/sdmb/showthread.php?t=434494&page=1&pp=50) that continually changed from the OP. So, I figured i’d start a nice new debate about it, because it is debatable. ---
**Author:** ![Chez\_Guevara](https://avatars.discourse-cdn.com/v4/letter/c/aeb1de/32.png) [@Chez\_Guevara](https://boards.straightdope.com/u/Chez_Guevara)\ **Post date:** [August 31, 2007, 7:03pm UTC](https://boards.straightdope.com/t/all-things-gray-rape-date-rape-and-drunk-sex/417651/2 "2007-08-31T19:03:25Z")
Great idea. What’s your opinion? ---
**Author:** ![whole\_bean](https://avatars.discourse-cdn.com/v4/letter/w/96bed5/32.png) [@whole\_bean](https://boards.straightdope.com/u/whole_bean)\ **Post date:** [August 31, 2007, 7:06pm UTC](https://boards.straightdope.com/t/all-things-gray-rape-date-rape-and-drunk-sex/417651/3 "2007-08-31T19:06:19Z")
from the other thread: [QUOTE=WhyNot] No, I don’t agree, and neither does the law, at least in my state. Drunk PEOPLE (not women, PEOPLE) cannot give consent. That means she can’t give him consent and he can’t give her consent. If you’d like to change that, write your congressperson, not me. Frankly, as I said before, I think that morally we’ve got the equivalent of two children fucking here. Neither one can legally give consent to the other, so it’s sort of a wash. But while the law says a drunk person cannot give consent, it does not say a drunk person cannot rape. Legally and logically, they are both raping each other, although I agree that sounds really, really stupid. And yes, in reality, I’d whack them both with a trout and tell them to grow up, so I agree with you. But I am not a judge. And, once again, we return you to your regularly scheduled thread. Which is not about drunken sex. [/QUOTE] Cite? And dont give me some contractual capacity cite. I am talking about a criminal statute that says it is illegal to have sex with a person drunk at their own volition. Am I raping my wife if we have drunk sex? If you’re correct about the law, I am – IFshe’s drunk, and I’m having sex with her, by your understanding of the law, I’m raping her. I think you’re probably wrong. ---
**Author:** ![Superfreaknduper](https://avatars.discourse-cdn.com/v4/letter/s/6de8d8/32.png) [@Superfreaknduper](https://boards.straightdope.com/u/Superfreaknduper)\ **Post date:** [August 31, 2007, 7:39pm UTC](https://boards.straightdope.com/t/all-things-gray-rape-date-rape-and-drunk-sex/417651/4 "2007-08-31T19:39:19Z")
[QUOTE=whole bean] Cite? And dont give me some contractual capacity cite. I am talking about a criminal statute that says it is illegal to have sex with a person drunk at their own volition. Am I raping my wife if we have drunk sex? If you’re correct about the law, I am – IFshe’s drunk, and I’m having sex with her, by your understanding of the law, I’m raping her. I think you’re probably wrong. [/QUOTE] [It isnt a perfect cite,](http://www.vu.union.edu/~safespace/statelaw.html) but i think it can suffice. It is easy to claim “mental incapacity” due to drunkenness. Rather than just say i was drunk you say “i wasnt in a mental capacity to consent due to inebriation” (i just tried to make it sound formal there) as for my opinion: I think its a crock that rape can be “retro-actively” decided. i.e. if i and a woman, who has consented she could be screaming “yes, give it to me!” during the act…wakes up and decides “crap i was drunk, i shouldnt have done that” and can then press rap charges. now if she is passed out/unconscious because of said drunkenness thats a different story. ---
**Author:** ![whole\_bean](https://avatars.discourse-cdn.com/v4/letter/w/96bed5/32.png) [@whole\_bean](https://boards.straightdope.com/u/whole_bean)\ **Post date:** [August 31, 2007, 7:42pm UTC](https://boards.straightdope.com/t/all-things-gray-rape-date-rape-and-drunk-sex/417651/5 "2007-08-31T19:42:26Z")
[QUOTE=Superfreaknduper] [It isnt a perfect cite,](http://www.vu.union.edu/~safespace/statelaw.html) but i think it can suffice. It is easy to claim “mental incapacity” due to drunkenness. Rather than just say i was drunk you say “i wasnt in a mental capacity to consent due to inebriation” (i just tried to make it sound formal there) as for my opinion: I think its a crock that rape can be “retro-actively” decided. i.e. if i and a woman, who has consented she could be screaming “yes, give it to me!” during the act…wakes up and decides “crap i was drunk, i shouldnt have done that” and can then press rap charges. now if she is passed out/unconscious because of said drunkenness thats a different story. [/QUOTE] keep reading: > [@](#): > > “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. emphasis mine. this is not referring to voluntary intoxication. ---
**Author:** ![Superfreaknduper](https://avatars.discourse-cdn.com/v4/letter/s/6de8d8/32.png) [@Superfreaknduper](https://boards.straightdope.com/u/Superfreaknduper)\ **Post date:** [August 31, 2007, 7:51pm UTC](https://boards.straightdope.com/t/all-things-gray-rape-date-rape-and-drunk-sex/417651/6 "2007-08-31T19:51:22Z")
[QUOTE=whole bean] keep reading: emphasis mine. this is not referring to voluntary intoxication. [/QUOTE] > [@](#): > > IT IS AGAINST THE LAW… > > \ > > # for someone to have intercourse with you or touch you when you are drunk, drugged or unconscious That is from the first few lines of that article, emphasis is theirs, I thought it said it pretty clearly… I don’t know how that affects ‘spousal rape’ which has its own set of laws/circumstances ---
**Author:** ![whole\_bean](https://avatars.discourse-cdn.com/v4/letter/w/96bed5/32.png) [@whole\_bean](https://boards.straightdope.com/u/whole_bean)\ **Post date:** [August 31, 2007, 8:02pm UTC](https://boards.straightdope.com/t/all-things-gray-rape-date-rape-and-drunk-sex/417651/7 "2007-08-31T20:02:36Z")
[QUOTE=Superfreaknduper] That is from the first few lines of that article, emphasis is theirs, I thought it said it pretty clearly… I don’t know how that affects ‘spousal rape’ which has its own set of laws/circumstances [/QUOTE] Do you judges and DA’s cite articles on the internet or the law. The stauutes quoted in the article is clear – “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. It does not mean voluntarily drunk. I asked for a cite (the standing implication being “credible”) that says having sex with a voluntarily drunk person is illegal. Your cite ain’t it. In fact, to the extent that it acurately reproduces New York law, it says the contrary. ---
**Author:** ![whole\_bean](https://avatars.discourse-cdn.com/v4/letter/w/96bed5/32.png) [@whole\_bean](https://boards.straightdope.com/u/whole_bean)\ **Post date:** [August 31, 2007, 8:09pm UTC](https://boards.straightdope.com/t/all-things-gray-rape-date-rape-and-drunk-sex/417651/8 "2007-08-31T20:09:51Z")
"do you think judges . . . " not "do you judges . . . " missed the edit window ---
**Author:** ![Algher](https://avatars.discourse-cdn.com/v4/letter/a/3d9bf3/32.png) [@Algher](https://boards.straightdope.com/u/Algher)\ **Post date:** [August 31, 2007, 8:15pm UTC](https://boards.straightdope.com/t/all-things-gray-rape-date-rape-and-drunk-sex/417651/9 "2007-08-31T20:15:33Z")
California Rape: > [@](#): > > - Act of sexual intercourse (with person not spouse) under any of the following circumstances: > - Person is incapable, because of mental disorder or developmental or physical disability, of giving legal consent and this is known or reasonable should be known to person committing act > - Accomplished against person’s will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury > - Person prevented from resisting by intoxicating or anesthetic substance > - Person unconscious of nature of the act and this is known to accused and > [@](#): > > (3) Where a person is prevented from resisting by any intoxicating > or anesthetic substance, or any controlled substance, and this > condition was known, or reasonably should have been known by the > accused. [http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=261-269](http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=261-269) The question then being what does it mean to be prevented from resisting by intoxicating substance? I think we all agree that having sex with a woman who is passed out is rape, however… Passed Out - Rape Falling Down Drunk - Rape Drunk (and acting Horny) - ??? Tipsy - ??? One glass of wine - ??? I made up this scale. Way back when I was in college this was being discussed, and there were some stating that if a woman had ONE drink, she no longer was giving consent and that made interourse = rape. ---
**Author:** ![WhyNot](https://avatars.discourse-cdn.com/v4/letter/w/c77e96/32.png) [@WhyNot](https://boards.straightdope.com/u/WhyNot)\ **Post date:** [August 31, 2007, 8:21pm UTC](https://boards.straightdope.com/t/all-things-gray-rape-date-rape-and-drunk-sex/417651/10 "2007-08-31T20:21:17Z")
I’m not going to look up the rape laws of every state for you **whole bean**. I suggest you start your own investigation at a simple layperson’s page like [this](http://incestabuse.about.com/cs/daterape/a/consent.htm), which states: > [@](#): > > Because it’s the central issue, the law has carefully defined consent. It’s important to check with a crisis center advocate or attorney in your state or country to understand the law where you live. According to the Minnesota Criminal Code, consent does not mean that the complaintant failed to resist. > > The existence of a current or prior social or sexual relationship does not automatically translate to consent. Consent is not implied if there is a relationship. And a person who is incapacitated (drunk, sick, on drugs, unconscious) can not give consent. > > And without consent, any sexual act is rape. or [this](http://incestabuse.about.com/cs/domesticabuse/a/sexguidelines.htm) , which says: > [@](#): > > “Consent” does not mean the existence of a prior or current social relationship between the actor and the complaintant or that the complaintant failed to resist a particular sexual act. > > ``` > * A prior or current social relationship: You're boyfriend and girlfriend? Doesn't matter. Former boyfriend and girlfriend? Doesn't matter. In my county, a husband was arrested for having nonconsensual sex with his wife. > * Or that the complaintaint failed to resist: Consent is active, and very easy to recognize. Consent is not the absence of "no." Consent is "Yes! Yes! Yes!" > > ``` > > A person who is mentally incapacitated or physically helpless cannot consent to a sexual act. > > ``` > * If she's drunk, or drugged, or passed out, she can not give consent. This brings to mind the case of Andrew Luster, the Max Factor heir who has been in the news lately. He drugged women and raped them, and said that it was consensual. He figured that any woman that came into his room was consenting to sex. Obviously, this guy just didn't get the whole concept of consent. Now he's in prison, hoping that his cellmate is more enlightened than he was. > > ``` If you want specific answers about your state or your relationship, contact a lawyer in your state, please. ---
**Author:** ![whole\_bean](https://avatars.discourse-cdn.com/v4/letter/w/96bed5/32.png) [@whole\_bean](https://boards.straightdope.com/u/whole_bean)\ **Post date:** [August 31, 2007, 8:29pm UTC](https://boards.straightdope.com/t/all-things-gray-rape-date-rape-and-drunk-sex/417651/11 "2007-08-31T20:29:24Z")
[QUOTE=WhyNot] I’m not going to look up the rape laws of every state for you **whole bean**. . . . If you want specific answers about your state or your relationship, contact a lawyer in your state, please. [/QUOTE] I am a lawyer in my state, and I don’t want you to look up the rape laws of every state and never said I did. I wanted one statute that said having sex with a voluntarily intoxicated person is rape. To the extent that the person is intoxicated to the point of unconciousness or stupor, **Algher** ’s cite works. However, you have cited nothing that conclusivley supports your blanket contention that “Drunk PEOPLE (not women, PEOPLE) cannot give consent [to sex].” Given the many shades of “drunk,” you’ve simply yet to provide a satisfactory cite. [About.com](http://About.com) is not an enforceable statute. Back to you. ---
**Author:** ![Superfreaknduper](https://avatars.discourse-cdn.com/v4/letter/s/6de8d8/32.png) [@Superfreaknduper](https://boards.straightdope.com/u/Superfreaknduper)\ **Post date:** [August 31, 2007, 8:43pm UTC](https://boards.straightdope.com/t/all-things-gray-rape-date-rape-and-drunk-sex/417651/12 "2007-08-31T20:43:27Z")
I think we can work off of Alghers cite/question… at what point is some one unable to resist from an intoxicating substance? He laid out a nice little chart complete with ??? to be nice and filled in 🙂 ---
**Author:** ![whole\_bean](https://avatars.discourse-cdn.com/v4/letter/w/96bed5/32.png) [@whole\_bean](https://boards.straightdope.com/u/whole_bean)\ **Post date:** [August 31, 2007, 8:49pm UTC](https://boards.straightdope.com/t/all-things-gray-rape-date-rape-and-drunk-sex/417651/13 "2007-08-31T20:49:05Z")
[QUOTE=Superfreaknduper] I think we can work off of Alghers cite/question… at what point is some one unable to resist from an intoxicating substance? He laid out a nice little chart complete with ??? to be nice and filled in 🙂 [/QUOTE] assuming voluntary intoxication of someone legally allowed to consume alcohol drunk and acting horny - no rape tipsy - no rape one glass of wine - no rape ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 31, 2007, 8:54pm UTC](https://boards.straightdope.com/t/all-things-gray-rape-date-rape-and-drunk-sex/417651/14 "2007-08-31T20:54:10Z")
[QUOTE=whole bean] I am a lawyer in my state, and I don’t want you to look up the rape laws of every state and never said I did. I wanted one statute that said having sex with a voluntarily intoxicated person is rape. To the extent that the person is intoxicated to the point of unconciousness or stupor, **Algher** ’s cite works. However, you have cited nothing that conclusivley supports your blanket contention that “Drunk PEOPLE (not women, PEOPLE) cannot give consent [to sex].” Given the many shades of “drunk,” you’ve simply yet to provide a satisfactory cite. [About.com](http://About.com) is not an enforceable statute. Back to you. [/QUOTE] In Virginia, the law defines rape as: > [@](#): > > … sexual intercourse with a complaining witness … (i) against the complaining witness’s will, by force, threat or intimidation of or against the complaining witness or another person; or (ii) through the use of the complaining witness’s mental incapacity or physical helplessness; or (iii) with a child under age 13 as the victim Voluntary intoxication as it pertains to mental incapacity was discussed in _Molina v. Commonwealth_, which set for the rule for Virginia as follows: > [@](#): > > We hold that the term “mental incapacity” may extend to a transitory circumstance such as intoxication if the nature and degree of the intoxication has > gone beyond the stage of merely reduced inhibition and has reached a point where the victim does not understand “the nature or consequences of the sexual act.” They go on to mention how other states have resolved the issue with this discussion: > [@](#): > > Other states that have considered the issue, understandably, focus upon the inability to give consent to the act itself. The cause of the victim’s lack of ability to give consent is not dispositive. See State v. Farnum, 554 N.W.2d 716, 721 (Iowa Ct. App. 1996) (recognizing that although incapacity “is generally applied in cases of retarded or low-functioning victims,” it may be applied to a seriously intoxicated victim); State v. Al-Hamdani, 36 P.3d 1103, 1107 (Wash. Ct. App. 2001) (“It is important to distinguish between a person’s general ability to understand the nature and consequences of sexual intercourse and that person’s ability to understand the nature and consequences at a given time and in a given situation.” (emphasis added)), review denied, 60 P.3d 1211 (Wash. 2003); see also State v. McDowell, 427 So. 2d 1346, 1350 (La. Ct. App. 1983) (in rape cases, the fundamental question is whether or not the mental condition of the victim is so impaired that legal consent cannot be exercised or given.) So, in general, no – having sex with a voluntarily intoxicated person is not _per se_ rape – but if the intoxication in question is serious enough to destroy the ability to understand the nature or consequences of the sexual act, it may be rape, and that’s a question of fact for a jury to reach. ---
**Author:** ![Superfreaknduper](https://avatars.discourse-cdn.com/v4/letter/s/6de8d8/32.png) [@Superfreaknduper](https://boards.straightdope.com/u/Superfreaknduper)\ **Post date:** [August 31, 2007, 8:55pm UTC](https://boards.straightdope.com/t/all-things-gray-rape-date-rape-and-drunk-sex/417651/15 "2007-08-31T20:55:19Z")
What about those who aren’t of legal age to consume alcohol… seeing as this type of thing is mostly occurring at colleges, where most people probably aren’t of legal age. ---
**Author:** ![whole\_bean](https://avatars.discourse-cdn.com/v4/letter/w/96bed5/32.png) [@whole\_bean](https://boards.straightdope.com/u/whole_bean)\ **Post date:** [August 31, 2007, 8:59pm UTC](https://boards.straightdope.com/t/all-things-gray-rape-date-rape-and-drunk-sex/417651/16 "2007-08-31T20:59:32Z")
[QUOTE=Bricker] In Virginia, the law defines rape as: Voluntary intoxication as it pertains to mental incapacity was discussed in _Molina v. Commonwealth_, which set for the rule for Virginia as follows: They go on to mention how other states have resolved the issue with this discussion: [/QUOTE] Thanks. Would you not agree then that nothing you’ve cited supports WhyNot’s blanket statement: “Drunk PEOPLE (not women, PEOPLE) cannot give consent [to sex]” given the many shades of intoxication? Two beers and I am too “drunk” to drive according to the state of Georgia, but perfectly capable of making decisions and understanding consequences (e.g. deciding not to drive). WhyNot seems to operate under the concept that any degree of intoxication is enough to strip a peson of her ablity to consent. I think she is wrong, and I have seen nothing that has changed my mind. I think you might have edited to answer my question as I was typing my post. You must have the ESPN. 😉 ---
**Author:** ![whole\_bean](https://avatars.discourse-cdn.com/v4/letter/w/96bed5/32.png) [@whole\_bean](https://boards.straightdope.com/u/whole_bean)\ **Post date:** [August 31, 2007, 9:02pm UTC](https://boards.straightdope.com/t/all-things-gray-rape-date-rape-and-drunk-sex/417651/17 "2007-08-31T21:02:08Z")
[QUOTE=Superfreaknduper] What about those who aren’t of legal age to consume alcohol… seeing as this type of thing is mostly occurring at colleges, where most people probably aren’t of legal age. [/QUOTE] poses more of a problem in my mind. ---
**Author:** ![whole\_bean](https://avatars.discourse-cdn.com/v4/letter/w/96bed5/32.png) [@whole\_bean](https://boards.straightdope.com/u/whole_bean)\ **Post date:** [August 31, 2007, 9:09pm UTC](https://boards.straightdope.com/t/all-things-gray-rape-date-rape-and-drunk-sex/417651/18 "2007-08-31T21:09:12Z")
**Bricker** , the \*Molina \* decision you cite gives" beyond the stage of merely reduced inhibition and has reached a point where the victim does not understand ‘the nature or consequences of the sexual act’" as the threshold. That’s seems pretty effing drunk to me. How has it played out practically? Apply it to **Algher** ’s scale, if you don’t mind. ---
**Author:** ![Algher](https://avatars.discourse-cdn.com/v4/letter/a/3d9bf3/32.png) [@Algher](https://boards.straightdope.com/u/Algher)\ **Post date:** [August 31, 2007, 9:36pm UTC](https://boards.straightdope.com/t/all-things-gray-rape-date-rape-and-drunk-sex/417651/19 "2007-08-31T21:36:44Z")
[QUOTE=whole bean] Apply it to **Algher** ’s scale, if you don’t mind. [/QUOTE] The Algher Scale? Will this become a new form of measurement (where 0 is no intoxicant in the system and 5 is Passed Out…) “There I was, a total 3 on the Algher scale, working on hitting a 4 when in walks in this hottie…” ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 31, 2007, 9:49pm UTC](https://boards.straightdope.com/t/all-things-gray-rape-date-rape-and-drunk-sex/417651/20 "2007-08-31T21:49:31Z")
[QUOTE=whole bean] **Bricker** , the \*Molina \* decision you cite gives" beyond the stage of merely reduced inhibition and has reached a point where the victim does not understand ‘the nature or consequences of the sexual act’" as the threshold. That’s seems pretty effing drunk to me. How has it played out practically? Apply it to **Algher** ’s scale, if you don’t mind. [/QUOTE] The only cases I’ve seen have involved an Algher 5, but I would be confident in the prosecution’s ability convict an Algher 4. 3? Not so much. 2 and below? Forget it. [Next page](https://boards.straightdope.com/t/all-things-gray-rape-date-rape-and-drunk-sex/417651.md?page=2)