Eonwe: this article, which I posted earlier, is an example of what I’m talking about. In this trial, three young men were tried for the videotaped rape of a young woman. Part of their defense was that she was voluntarily intoxicated and had consented to the sex. The woman testifed that she did not consent (in fact that she had no idea what they had done to her until she saw the tape). While the jury apparently did not find the woman credible in all of her testimony, they did find the videotape compelling. Because the jury found that she had not consented, they convicted the defendants for rape.
Do you suppose we could treat rape the same as we treat other serious crimes? If I hit . . . picking random person’s name . . . Anna Kournikova over the head, tie her up, toss her in the backseat of my car, and drive to Methuen, that’s kidnapping. If I get Anna drunk and take her to Methuen after she said, “Shur, Mefooun, sounds like fun . . . hic,” it’s not, even if she swears up and down she’d never dream of going there sober.
But the rest of us aren’t really talking about what the current legal position is. We’re all aware of it. We’re talking about the explicit double-standard being endorsed by the current legal position.
The bolded portion of your statement is either a strawman (we’re not talking about someone having sex with a woman against her will, drunken though it be) or circular reasoning (since we’re saying consent should not be invalidated by simple intoxication, a change in the legal standard - it wouldn’t be rape.)
If we’re trying to put forth a new legal standard, your assumption that the actions in question are rape indicates you’re not looking beyond the **current ** legal standard, which is irrelevant to the discussion.
This may seem nitpicky, but under your scenario, she likely isn’t sufficiently intoxicated so as to negate her ability to consent. She’s still conscious and still able to form a sentence. So if we agree that it wouldn’t be kidnapping, we’d also have to agree that it wouldn’t be rape.
CandidGamera: Could you explain to me what the “explicit double-standard being endorsed by the current legal position” is? If the answer is that the consequences to a man who has sex with an intoxicated woman (and intoxicated is defined as passed out or too drunk to refuse) are far more serious than the consequences to the woman for getting herself in the position to pass out or be too drunk to refuse, then we are simply going to have to disagree.
In positing a change in the law, which you now seem to be doing, an understanding of the current law seems relevant. So are you suggesting that the law be changed to state that voluntary intoxication of the victim be a complete defense to a general intent crime that requires lack of consent on the victim’s part?
In other words, is your new legal rule a rule that applies only to sex crimes, or does it apply across the board – to theft, kidnapping, stalking, etc.?
I wasn’t aware you were using intoxicated in so limited a manner. Then again “too drunk to refuse” is a grey gulf as wide as the Grand Canyon, so perhaps limited isn’t the right term. But I will once again clarify that : WE’RE NOT TALKING ABOUT PEOPLE WHO ARE UNCONSCIOUS.
To boil down the position to its essence : If you are conscious and capable of answering questions, you should be able to give consent. The current legal system seems to have a much lower standard of “intoxication” than you do.
Guess what? We (mostly) agree!
I believe that the legal system has the same standard I do (after all, that’s where I got it from). How it works out in practice, however, may be different. Do you have a citation to a case where the court used a lower standard to measure consent, or is this anecdotal?
I suspect that this comes down to the gut-level reaction that a man gets the short end of the stick if a woman wakes up after drinking heavily, regrets having had sex, and claims it was rape. I agree that isn’t fair (see post 15). But remember that her allegation of rape leads only to an investigation. A man won’t be prosecuted unless there’s evidence to show lack of consent (it is the prosecution’s burden at trial to show that she didn’t consent; it is not the defendant’s burden to show that she did). If there’s no evidence, no prosecution. (And if the prosecution learns that the woman made it up, she’s up a creek for false reporting.)
Yes, then the man has to spend the rest of his natural life knowing that at one time he was suspected of a crime, but wasn’t charged. Bad? Yes. Enough to change the system?
So now I’m back to where we started: how would you change the legal system to avoid the unfairness to a man of having to live with the fact that someone made an unsubstantiated allegation against him?
Then what the hell have you been going on about?
“Too drunk to consent” is not an objective standard. Further, it seems unlikely that, beyond “unconsciousness”, there can be an effective objective standard.
But that isn’t where we started at all. I haven’t been discussing unsubstantiated allegations at all. Perhaps you’re confusing me with another… well, checking the thread, no… perhaps an imaginary poster, then. 
Say too fucking bad, you were drunk. I tend to side with the folks crying bullshit on the whole consent issue. People consent to get drunk. What happens to them afterward, as a consequence of inebriation, is their responsibility. Forced sex is forced sex. But this “consensual sex while drunk is nonconsensual” baloney should have been shitcanned before the laws were ever put into effect.
Don’t want to regret sex? Don’t get drunk. End of story, in my book. Same goes for any other behavior. You regret it? Too bad. Stay off the sauce if you can’t handle it.
Incidentally, after some googling on the subject of a legal definition of intoxication, I only find two standards - for public intoxication statutes, it’s posing a danger to themselves or others; for the generic case and for drunk driving, it’s based on BAC.
Haven’t seen “unconscious or too drunk to refuse” yet.
Well, I’m pretty offended, but I imagine once I sober up I’ll be all right.
Let me see if I understand what pravnik is saying. Intoxication can remove the INTENT component from a crime, but it does not remove the ACTIONS of the crime. By the same toke, because your mind is in an altered state, it also removes your ability to give consent.
So basically, getting drunk will excuse you in the sense that you didn’t MEAN to do it, however it does not excuse you from the fact that you actually DID do it (whatever it is).
So I think drunk has been covered to death and the horse beaten a bit to boot (being drunk does relieve you of responsibility for your actions seems to be the consensus in both the legal and the philosophical sense), but…
What say you to other drugs?
Let me post four examples:
(caveat - none of these are personal experiences, although all four are real cases from my home town, so don’t go thinking I’m some sort of drugged out basket case writing this from prison! :))
I’ve been binging on crystal meth for days, not slept for 5 days or so, and am on the fringe of a psychotic break, and I get into a fight with my live-in girlfriend who I physically injure. She refuses to press charges, but I am arrested by police, charged with assault, found guilty, and sentenced to 1-5 years. Am I responsible?
I smoke a bowl, pass out, then fall off my sofa onto my infant son crawling on the floor, accidentally injuring him resulting in a trip to the hospital for him. I get arrested and charged with Child Abuse, although the charges are dropped. Am I responsible?
Whilst in the depths of withdrawals from a serious heroin addiction, I commit the crime of street robbery to get $10 to get a fix, but no one gets hurt during the robbery, although I use a knife to threaten my victim. I am arrested, found guilty, and put into prison for 10 years. Am I responsible?
Whilst on ketamine, I lose spatial awareness and accidentally break my friend’s nose, resulting in an altercation that is broken up by police officers and club bouncers, and results in assault charges against both of us. Whilst under arrest, I break free of the arresting officers, steal one’s gun, and shoot him, escaping for a brief time before being shot myself and killed. Am I responsible?
What say you all?
Shit
Does NOT relieve you of responsibility.
Darn it. Vacation from posting for a bit and I still can’t get it right! :mad:
You’re responsible in all four cases. By voluntarily becoming intoxicated, you implicitly take responsibility for whatever you do in that state, no matter which particular drug you used.
I don’t think the law says that. If it does, I’d like it if someone could explain here. This is a sincere question. Is it possible, under current law, for someone to be convicted of rape if:
- The alleged victim was voluntarily drunk.
- The alleged victim gave explicit verbal consent.
- The sole evidence to support the accusation of rape is the fact that the alleged victim was drunk.
I’m no lawyer, but I’m having a hard time believing that anyone would ever be charged with rape, much less convicted, in such a situation. They might be accused of rape, in which case there’d probably have to be an investigation of some sort, but the same would be true if someone who hadn’t been drunk made a rape accusation.
If it is true that the law treats voluntarily drunk people who give explicit consent differently from sober people who give explicit consent, it should be easy for someone to provide some cites to this effect and clear up my misunderstanding.
Not in New York (assuming, of course, that there is no dispute regarding the voluntary nature of the drunkeness and the explicit consent)
and
If a person voluntarily got drunk, “mentally incapacitated” wouldn’t apply, and if the person explicitly consented, “physically helpless” wouldn’t apply.
Well that is a mighty relief.
sidebar
from http://www.digitalnaturopath.com/cond/C244977.html
Just suck it up and live through the pain 
I also get more talkative and sometimes flirty. Which isn’t much of a problem with my wife since I include her in the fun, a few eye-rolls later my wife has made a new aquaintence over her idiotic husband
So a black man who in a drunken state walks into a bar that sober he would have realized is a Klan hang out, and gets beaten to a pulp? No crime??? A drunk who gets robbed has still been robbed. A woman who gets raped while drunk has still been raped, though many police forces will not prosecute in that situation, and many judges (though less than in the past) will dismiss the charges.
Those are rather ridiculous examples to try to pass off as analogies to my own. A drunk person who consents to sex has consented, IMO. Some here are arguing that’s overly simplistic. I disagree, obviously.
I fail to see how getting beat up while drunk or sober has anything to do with the above.