I’m in agreement with the OP - and while I don’t imagine anyone in the US gets off with a lighter sentence in a criminal trial as a result of intoxication, the consent issue presented is something that concerns me.
If you willingly ingest a judgment-impairing substance, you have, in my mind, accepted the consequences of that impaired judgment. Now, if someone doses you, obviously, they’re at fault. But if you get hammered and give something away - your stake in a Fortune 500 company, precious family heirlooms, sexual favors, whatever - you shouldn’t be able to say ‘Do-over! Foul!’.
I guess part of it is the mindset that men want sex no matter what, even drunk, so it of course can’t be rape.
And while I’m not about blaming the victim, if you go into Mike Tyson’s room late at night, you might possibly have done something to get what’s coming to you. Same with getting drunk around morally questionable men.
I disgree. While I’m responsible for my own actions, drunk or sober, everyone else is equally responsible for their own actions. If I haven’t consented to sex/theft/murder, the rapist/thief/murderer shouldn’t get a pass just because I’m drunk.
CandidGamera, I agree that I should accept the responsibility of my actions when I’m drunk, but I shouldn’t also have to accept the consequences of your actions when I’m drunk.
Allow me to clarify - I don’t think we’re in disagreement.
If a lady gets drunk of her own volition, and in that inebriated state chooses to have sex with a guy, she should not be able to accuse the fellow of rape.
If she gets drunk, and she’s still saying no, and he forces himself on her, it’s still rape.
If I want to have someone sign a contract of some kind, I shouldn’t have to administer a Blood Alcohol Test to determine if the person is sober, just to protect my interests. He was of sound mind when he chugged the bottle of vodka before our meeting… relatively speaking… and should legally be considered of sound mind while he’s fumbling for the pen to sign with.
I’m not saying “Abuse the drunks!” - I’m saying that willful inebriation should not legally remove a person’s right to consent.
Sorry, we are in disagreement. Willful inebriation legally removes my ability to consent because, in most cases, it factually removes my ability to consent. (I’m not talking about the two-martinis-after-work-and-I-can’t-drive type of inebriation, I’m talking about drunk drunk.)
It’s also an interesting question of proof – in a rape case, the prosecution has to prove lack of consent. They can do so by showing that the woman was blotto. Under your scenario, the defense would simply have to say, she got drunk voluntarily and the word “okay” came out of her mouth. As it stands right now (defense lawyers or prosecutors, correct me), if he can show a mistake of fact on his part (I did not know she did not consent), that’s a defense. Mistake of fact isn’t available, however, if the reason he made the mistake is his own voluntary intoxication.
Yours is an interesting perspective, but I don’t share it.
How drunk is too drunk to consent, then? Is there some sort of objective standard we can apply, like we do with drunk driving statutes, that gives us a one-size-fits-all answer? And when you say factually, you must mean legally. As long as I’m conscious, I can agree or disagree with something.
Or, how about this. The government installs a little monitor chip in everybody’s arm. If their Blood Alcohol Content goes above a certain level, a team is immediately dispatched to quarantine that person until their BAC is reduced to “sober enough” levels, so they can’t interact with any other human beings. That way, everybody’s protected from making poor decisions they might have to live with.
There are plenty of people who are “conscious,” who appear to agree or disagree with something, but a reasonable person can tell they lack the capacity to consent. Someone who has been brain injured, for example. Drunk is no different. If you’re a man and you get drunk and therefore lose the ability to tell when someone else can consent to sex, live with the consequences.
I know you’re being sarcastic, but I laughed out loud when I read this. Little teams of “sober enough” scouring the nation. Do you know how hard they would have to work in Isla Vista alone?
Seriously, though, I think that with the exception of certain outliers, the system we have is working out just fine, thank you. But if they ever do get those teams together, can they have capes, too?
Being drunk is not an excuse, but it can often be a reason. When drunk people do not act as they might otherwise act. So though drunkness excuses nothing, if you got to a place where drunkness might be expected, you should expect and accept some level of drunken behaviour from others.
I don’t believe that anyone actually accepts being drunk as an excuse for anything. At least not anything serious. It is a person’s responsibility to know the limits of how much they can drink and stay in control.
For minor social foibles (like being an asshole or hooking up with someone you shouldn’t) it can be used as somewhat of an excuse because we have all been in a situation where we drank a little too much and couldn’t hear that voice in our head that says “I wouldn’t do that shit”.
Obviously some women use drunkenness as an excuse to evade responsibility for making a decision to have sex. "Sure, I went to his apartment and did it with him–but he got me drunk, the asshole … "
Voluntary intoxication can be a defense to specific intent crimes if the intoxication prevents the individual from forming the requisite intent; involuntary intoxication can be a defense to both specific and general intent crimes.
No kidding. If men should “live with the consequences” when alcohol takes away their ability to judge others’ consent, then women should also “live with the consequences” when alcohol takes away their ability to say no to guys they wouldn’t sleep with if they were sober. In both cases, they got drunk willingly, knowing that the decisions they make later might be affected by their intoxication.
Dangerous territory here. MY getting drunk does not make it all right for YOU to do something to me. I agree that it’s not a smart thing for a women to get drunk around a bunch of strange men (for example) but that doesn’t mean that she is saying “I understand I may get assaulted and that’s OK”.
OTOH, if two people get sloppy drunk at a party and launch themselves at each other, I don’t see that either one has much recourse beyond hideous embarrassment the next morning.
In-between lies the extraordinarily fuzzy gray zone.
Of course. I’m not talking about assault, I’m talking about drunken consent.
If you’re passed out or saying “no”, that’s one thing, but if you’re saying “yes” because alcohol has lowered your inhibitions, that’s something else - you knew before you started drinking that alcohol might make you more likely to agree to such things.
Why is a drunk man accountable for his actions when a woman is not? If being drunk is grounds for someone to not be able to consent, then that utter lack of ability to have a choice in the matter must apply to all people, no?
Your question was answered by pravnik, but I’ll expand.
Voluntary intoxication is not a defense to general intent crimes at common law, and rape is a general intent crime. A general intent crime is one in which a specific mental state is not required – in this case, only conduct is required. If you engage in the conduct, it is irrelevant what your mental state is. Rape is penetration plus lack of consent – whether the rapist intended to “rape” is irrelevant, only whether he intended to penetrate and she did not consent. Note, too, that rape is rape whether the victim is drunk or sober – all that matters is whether or not she consented and he penetrated.
You can contrast rape, a general intent crime, with murder, for example, which generally requires the specific intent to cause death. Manslaughter, by contrast, is a general intent crime (you intended to do the acts that led to death but did not intend the death). We generally punish manslaughter more lightly than murder precisely because of the difference in intents. Arson and assault are also general intent, and there is a move afoot to make stalking a general intent crime. If you’re interested, I can pull together other general intent or specific intent crimes for you to consider.
This is merely a legal perspective, not a moral perspective or “I wish life were fairer” perspective. If you do not like the law, how would you change it? I’m interested in precisely how the criminal law should hold a woman “accountable” for getting drunk and raped. If a person gets drunk, does that mean that she can be raped, he can be rolled for his wallet, etc.? In other words, would you take the position that voluntary intoxication of one’s victim is a complete defense to rape? To other crimes?
Incidentally, in law school, the section on rape was probably the most difficult for many students, precisely because of the emotional sense of unfairness that both genders held on the topic. So I understand your anger. But what’s the solution?
Thanks for the elucidation. No offense to pravnik, but his post meant nothing to me (not having heard the terms specific/general intent crimes before).
And, I’m not angry, just trying to make sense of something that at least to me is a confusing and complicated issue.
Oh, and with regards to everything that is to follow, when I’m talking about rape, I am only talking about rape based on the fact that a person was not able to give consent, not a situation in which a person intentionally rapes someone (could rape be a general or specific intent crime depending on circumstance?), if that makes sense. I guess the real issue I have/am not convinced of is that being drunk removes one’s ability to consent.
So, there are still pieces missing for me. Is it illegal for any man to have sex with any woman if she is drunk? How about the converse? Your definition of rape was penetration and lack of consent. How does this apply to men as victims? Also, in cases where both parties are drunk, assuming we have a working model for male-victim rape, and neither party was able to give consent to the other, how do we deal with that situation?
No. Rape is a general intent crime at common law (each jurisdiction will have its own laws but I’m not about to do a 50 state survey). Brace yourself: attempted rape is a specfic intent crime. Remember that general intent means you intend to do the acts – you intend to move your arm, or drive your car, etc. You may not be thinking about the result of those actions, but you do intend to do those actions. (Incidentally, that’s why involuntary intoxication is a defense to a general intent crime – someone else got you loaded, so that you didn’t have control over your physical actions.)
Specific intent requires a specific mental state. For attempted rape, you have to intend to rape. For murder, you have to intend to cause death. This all is pretty irrelevant to the discussion, but it lays the legal framework we’re working in.
I think we’re on the same page. It’s all in the definitions. Being “drunk” does not necessarily remove your ability to consent. Lack of consent means that you are too intoxicated to consent (or refuse, for that matter), or that you are passed out. From my personal perspective, if I’ve had two drinks, I may not be able to drive, but I can still carry on a relatively coherent (to me, at least) conversation, and can consent or refuse. It’s when my intoxication is so severe that I can’t refuse or consent that this becomes an issue. We’re talking truly blotto here.
Based on what you’ve said, I don’t think you have an issue with that – if a woman is so drunk that she can’t speak, or has passed out, no rational person would think that she wants to have sex at that point, right?
I’m going to substitute the word “intoxicated” for “drunk” in your post above, because I think that may help. Drunk is the colloquial term that we use, and I want to substitute intoxicated to connote the legal issue (can’t refuse or is passed out).
Yes, it is illegal for almost any man to have sex with any woman if she is intoxicated. Exceptions may be for marital sex and some other weird situation I can’t think of.
Rape is generally defined as penetration plus lack of consent. Honestly, I don’t know the criminal law well enough to know what the laws are regarding men. I would assume that there is a sodomy law, or sexual assualt, or some other terminology, to address the issue. Let’s assume it’s sodomy plus lack of consent. Again, if he is so intoxicated that he can’t refuse, or is passed out, then she has committed a crime.
I was thinking earlier about the intoxicated man plus intoxicated woman problem. I don’t have the answer from a legal perspective (other than to say he’s committed rape and she’s committed unlawful sodomy, or whatever the statute is). But from a practical perspective, I suspect the man would take the rap on that one.