All things "Gray Rape", Date Rape, and Drunk Sex. . .

for the record, the official Algher Scale:

5 - Passed Out
4 - Falling Down Drunk
3 - Drunk (and acting Horny)
2 - Tipsy
1 - One glass of wine
0 - No intoxication

I apologize for sounding condescending. I didn’t know you were yourself a lawyer. I am not a lawyer, so I have a lot harder of a time than you might in finding actual criminal codes. I find lots of lay sites and slightly more authoritative sites which don’t cite their sources.
This University of Chicago site says:

(bolding mine)

And if you click on “consent” link, the resulting page notes:

(again, bolding mine)

HOWEVER, Illinois Legislature website (here) sucks. I can’t find the entire text of the Sexual Assault Act to actually read it myself. I can only find an amendment , which reads in part:

But I can’t find any more explicit definition of “knowing consent”.
In another instance, California Penal Code Section 261 states:

(Bolding, unsurprisingly, mine.)
Nothing in (3) says that the “intoxicating substance” needs to be provided by the rapist, or consumed against her will, nor does it say how much needs to be consumed, and there’s nothing that says the rapist must be sober. I don’t know if this has actually been used to convict anyone or not.

But the important thing, of course, is that rape is not charged or convicted unless the woman who had intercourse presses charges. It’s not like the police are going to knock on your door, lift you off your tipsy wife and charge you with rape. But if she were, for whatever reasons of her own, to march down to the police station and file charges, then, yeah, I think you ought to worry. As I said in the other thread, I’m as shocked by the idea of a woman doing this as a man. I think it’s pretty stupid, especially if both parties are drunk, but I don’t think I’m misunderstanding the law, at least as it’s explained to lay people like me.

You’re taking that slightly out of context. In context, it was an emphasis on people, equality of genders, not only women, which was what the other poster was arguing. The “cannot give consent [to sex]” had been brought up by many posters, and never argued. I followed links, googled and followed more links, all of which seem to agree that drunk people cannot give legal consent. I’m certainly prepared to eat crow if the actual laws don’t say that, but I didn’t make this up. We’ll have a nationwide crow-feast if I’m wrong. :wink:

Okay, what about a story like the one here. (Second story down.)

Basically, a guy and a girl have a date. She shows up plastered after 21 shots, for a romantic dinner.

Thinking of yourself as someone who’s been betrayed because he didn’t have sex with her, despite the fact that she was intiating things is absurd. I honestly think that people like that, who convince themselves that they were taken advantage of, are probably too immature for sex to begin with. While having sex with a passed out person is clearly rape, you don’t get to decide that “yes really meant no” the morning after.

That is my EXACT view of this and the whole rape thing that led to the birth of this thread.

I think if you’re one of those people who believes that drinking alcohol suddenly puts you in a state of mind where you’re incapacitated/can’t consent to anything, then it’s more ambiguous. To a lot of people, that might be more “gray” or ambiguous. To me, it’s pretty clear that if you say yes, you should damn well mean it because having ESP isn’t a prereq for sex.

I think that the emphasis these days is that no=no and that yes might equal no. In one of those college orientation things, we had to attend a date-rape type session and comment on situations that were possibly rape/lack of consent, including one where a couple in a long-term relationship go out, come home and have sex. The woman isn’t really in the mood, but doesn’t mention anything to the guy and they still have sex–this was considered not to be rape, necessarily, but to still rate as slightly nonconsensual on the “spectrum” of lack of consent, despite the fact that she clearly consented (the reasoning given was that one’s partner should probably be able to gauge whether you’re in the mood, based on body lagnauge and the like). The whole trend is really disturbing me because I think it’s pretty clear cut when rape happens.

It may be an irrelevance, but I’m curious about this. I presume the argument that a person who is somewhat drunk, but not actually falling over or unconscious, cannot consent to sex is based on the idea that such a person is not actually responsible for their own actions.

Well, maybe. But get a DUI and damn straight you’ll be assumed to be responsible for your own actions while drunk.

My emphasis would be that if there is the slightest sliver of doubt, keep your pants on.

I am a risk-averse person, and it shows.

that phrase was used last night for the “Sexual Assualt Forum” for the incoming freshman. They did the whole lecture thing saying no means NO! and everythign and ended with: “So, we all know that whena girl says no it means NO! no means no!. And yes sometimes means no. Even if she says yes she might mean no. But no really means no”

and thats how it ended.

This is not entirely true, though it might as well be in many, if not most, instances. The notion of “pressing charges” is a fiction thrust upon the public by television crime dramas and pulp novels. Prosecutorial disrection lies with the DA, not the vicitim. Now as a practical matter, you’re probably right - conviction will be hard to come by without the victim as a cooperating witness. We actually did a thread on this very topic here (see posts 7 and 10).

The distinctions here are more nuanced than your allowing. I think if you review my exchange with Bricker up thread re the Algher Scale, you will see what I mean. So, yes, I think you (and many others in this dialogue) are incorrectly interpretting what it means to be unable to give consent to sex due to voluntary intoxication. I think that you have to be pretty effed up to be " beyond the stage of merely reduced inhibition and [to] a point where the [you] do not understand ‘the nature or consequences of the sexual act’" which is the standard applied in the Molina decision Bricker cited.

Again, it’s fine to be cautious. Don’t sleep with drunk girls is probably good advice. But when you’re discussing things on a message board dedicated to fighting ignorance, perpetuating myths (regardless of the benevolence of your intent) is not good.

Whynot, I believe you are confusing two separate concepts in the Illinois Criminal Code, relevant sections of which are found here:

http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=072000050HArt.+12&ActID=1876&ChapAct=720%26nbsp%3BILCS%26nbsp%3B5%2F&ChapterID=53&ChapterName=CRIMINAL+OFFENSES&SectionID=60636&SeqStart=16500000&SeqEnd=23700000&ActName=Criminal+Code+of+1961.

I have not yet reviewed the U of C cite that you provide, but if you have accuratelysummarized it, I believe that its author is also confused.

Start with Sec. 12-13 (720 ILCS 5/12-13) Criminal Sexual Assault. Leaving aside some situations irrelevant to this discussion, to be guilty of this crime the accused must: (1) commit an act of sexual penetration by the use of force or threat of force; or (2) commit an act of sexual penetration and the accused knew that the victim was unable to understand the nature of the act or was unable to give knowing consent.

Subsection (2) is clearly the key language. First, the obvious part. There is no requirement that there be explicit consent. So what does it mean? In my opinion (and I have not researched case law on this point), it means that the victim must be something more than merely inebriated.

So what does the section 12-17 language that you cite mean? That section deals with defenses that may be raised by the accused. It does not add additional elements to the crime.

Here is what it says:

(emphasis added)

So this defense has application to a 12-13(a)(1) charge, but has no relevance to a 12-13(a)(2)charge.

Whynot, I agree that you have accurately summarized the U of C site. The author of that site in confused, for the reasons I have already stated. The claim that “The absence of an explicit “Yes” is a “No,” according to state law.” is not accurate.

I fear someone is trying to make a social or political point.