Or maybe the whole species should just stop drinking. It’s just about as likely as it is for people to voluntarily give up sex.
This, by the way, is why I don’t drink.
I think what KellyM meant was that if someone was so drunk that they later can’t remember what happened, then they were too drunk to truly give consent. Many people in this thread seem to see alcohol induced blackouts as a casual thing instead of what they really are, a serious neurological malfunction. People who are in a blackout may be able to speak and move around, but their brains are not working properly. Someone in this state is in no more of a position to give consent than a child or a person with a severe mental disability.
That strikes me as being an absurdly subjective test for a criminal proceeding, nor does it establish what happens if the sex happens in the midst of drinking, rather than afterwards. (Sidebar: Jeezum crow, how much do people black out drinking? Get some frigging help.)
The test here that matters is what a reasonable person would think from the perspective of the accused. If the accused had a reasonable basis for believing the victim did not give consent (e.g. said “no”) or was incapable of doing so (e.g. was unconscious or drunk to the point of incoherence, or was a child, etc.) then the accused did in fact have criminal intent. If, however, the accused reasonable believed the person saying “let’s do it” was capable of giving consent, it’s not rape… even if the person later claims to not remember anything.
I find it remarkable that some of you seem to believe that once a woman voluntarily drinks, she is absolved of all responsibility for her drunken actions. I suppose she could also get in a car and run over some kids, right? Not her fault, she was drunk!
If a woman drinks of her own free will and becomes drunk of her own free will, she is still responsible for her actions, just like a man. Unless someone put a gun to her head and forced her to drink, her drunkeness is her fault.
When a drunk person consents to sex, to say this is rape solely because they are drunk (and no physical force was involved, or sex while the drunk is passed out) is to say that a person can voluntarily get drunk and not be responsible for their actions. I cannot agree with this.
Mind you, I feel that any person who takes advantage of drunk person [male or female] is scum and pure shit. But let’s not absolve a person of blame when they are impaired of their own choice.
who says she’s absolved of responsability for her actions? I’m saying that she’s not responsable for what was done to her without her consent (either drunk or sober) The drunkenness of the situation goes to her ability to remember events sufficiently the next day and/or ability to fend off an attack.
A choice to drink, and to excess does not include the invitation to any males in the vicinity to enter her various orifices without her expressed consent.
If a woman drinks to excess, passes out, she is not consenting, and some one who decides to have sexual relations with an unconscious person is committing an assault.
in law, if you sign a contract while drunk you aren’t held responsable, even if you chose to drink to excess
Wring, I don’t think anyone here is talking about having sex with someone who has passed out. I believe that the senario people have in thier minds is one where the woman is drunk but coherant, or at least as coherant as her partner and who is activly participating in the sex act: undressing herself/him, kissing, turning her face to be kissed, taking the initative in many ways. In this case, sex is not something “done to her” it is something she is doing. Now then, there are people who can act this coherently while really being blind drunk–too drunk to really give any sort of meaningful consent, or to remember more than hazy details in the morning. Under these (presumably fairly rare) circumstances I don’t think that the man she has sex with is a rapist, though she may well have been raped.
actually, the quote I lifted and responded to, did, IMHO, suggest that while the guy who ‘took advantage’ would be scum etc, it was still her fault since she chose to get drunk in the first place. I may have misunderstood.
I understand and agree that the scenario you are presenting is different, and that it may well present a difficult set of circumstances for folks who are engaging in sexual activity with people they don’t know well. It is a difficult thing to tell if some one is in a blackout or not, yes.
unfortunately, all of those ‘cues’ that you list can also be seen differently by different participants (turning to be kissed can also be trying to get away etc.) I remember another occasion in college where my ‘boyfriend’ (last encounter w/him, I assure you) tossed me up on a bunk bed, invited his pal up with us, I struggled with them, etc, they ‘talked over me’ about how ‘playful’ I was being, right up until I kicked one of them hard. They got the message then. But, up until then, they certainly took everything I was doing wrong. If I’d been drinking under those conditions, the strength of the kick/aim wouldn’t have been as good, and they may well have played that off as well.
But, then again, I’m back to my standby - when there is any possible doubt as to the mental condition of the other person or if they’ve actually consented etc, don’t have sexual contact with them - the worst that can happen is that you’ll have missed out on one sexual encounter. The best that can happen is that you won’t face criminal charges if your assesment of their condition is wrong (or if you simply just choose to ignore their protests since they’re probably just teasing)etc.
Oh, I agree completely, and if I ever have a son I will be sure to teach him exactly that, as I am sure you have taught your own son. My concern, I suppose, are for people wihtout smart mothers, or good communication skills. Especially pairs of people without smart parents or good communication skills. Outside of the realm of sex, and even without the effect of alcohol, massive misunderstandings between well-meaning individuals can occur (as in the example you gave). I think it is naieve to think that people who can’t communicate effectivly about where they want to eat dinner are going to be any better about talking out a subject laden with taboos. I have no answer to this, only the awareness that there will always be tragedies of miscommunication in any endeavor that requires an understanding between two people.
Note that I am not claiming that such tragic misunderstandings are at the root of many or even a signifigant number of rape cases. I just suspect that they can happen.
Oh, I think we’re on the same page, Manda. and I don’t know what the solution is, either.
I never said or implied consent was not needed. I didn’t mean that once a person drinks their body holes are open game. My beef is with those who say a person isn’t responsible for their own consent when they are drunk.
yea, Revetim I caught that on the second reading (should have posted a semi retraction for you, sorry).
however. consent while under the influence, as a matter of law (see my prior post) doesn’t cut it for contracts ya know, and, as I’ve seen personally, there’s always those ijiots (I assume from what you’ve posted that you aren’t one of these) who don’t really ‘hear’ the ‘no’, and assume that struggling is an enthusiastic response etc.
A bartender I once knew was a “nice guy” who offered inebriated women rides home. Once at her place he’d “help” her inside and then proposition her. If she said no, or asked him to leave, he’d stall and then ask her again, and again. Sometimes the women “gave in”. Others (like my ex-girlfriend on a post-breakup bender) fell asleep while watching TV with him and awoke with him inside them. He’d claim the woman had eventually consented before the sex act began.
My friend told him she was going to press rape charges and he laughed in her face, saying “How many people saw you leave the bar with me? I say you wanted it, and it’s your word against mine. Maybe you shouldn’t drink so much.” (Apparently my ex was so drunk she forgot she was a lesbian.)
I consider this man to be a rapist. He probably considers himself to be an opportunist. I’m sure a large contingent of people would call him to “a bit of a scoundrel” but would consider the women to be entirely at fault for drinking too much.
I strongly disagree with this. As I mentioned before, some people lose memory without being seriously impaired. I bet if you asked anyone at the Doper gathering I mentioned whether I seemed like I was able to give informed consent in the last 20 minutes or so before I left, they’d say yes, even though I blacked out that period of time. I was obviously drunk (‘magnificently drunk’ is how one person put it) but my wife was surprised in the morning to find out I didn’t remember leaving the party, going to the grocery store, and watching TV before going to bed.
Basically, if someone has been drinking a fair amount, no matter how functional they may appear to be, there is a chance they won’t remember things the next day.
Actually, it doesn’t say if the person is drunk, it says “a person who is too drunk to know the contract he or she is entering into”. There is a big difference. I have been drunk many, many, many times, but only a very few times have i been too drunk to not understand what i was doing.
point on that one was that ‘choosing’ to drink to excess did not mean that you ‘chose’ all of the things that happened to you afterward. drinking to excess does not necessarily mean drunk, OTOH, as was shown, there is legal precedant for using caution when assuming a person under the influence is freely consenting to anything.
Badtz. Seriously. what you are describing is NOT normal. Blackouts are not a normal part of people’s lives. They signal a real potential for a substanc abuse situation.
The memory thing - even sober people will forget some details. But if you find that you have lost major chunks of time, this is a serious issue (and not the common experience of some one who at times drinks too much).
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No problem.
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I hope you can see that it’s a debatable issue whether contract law can be applied to sexual situations? Although there are some parallels, I see no good reason to apply contract law to sex.
I think we are in agreement that a guy who pretends to not hear a “no” and/or ignores struggling is a rapist.
we’re in agreement on the latter point, the former, I agree that sex is not the same as a contract (well, when it’s done properly anyhow), but as a precautionary note for males who don’t wish to wake up to criminal charges, that’s where I’d be looking.
Perhaps we’re looking at two different things. There are situations where both parties would agree that rape happened. There are other situations where both parties agree that rape didn’t happen. We’re discussing in general, those cases where only one party considers the situation a rape *** I think we’d agree that we’d like that situation to be as rare as possible, right?
So, to that end, as a precautionary note, I’d suggest to folks that time honored classic ‘if there’s any chance the person is under the influence or in some other way not able to freely consent, you’re better served by not getting sexual at that point.’ We can then debate at our leisure if criminial charges would have been warrented under the circumstances, without that messiness of some one actually having been hurt. IOW, I’m focused on ‘it could be, therefore don’t’ , and I think you’re looking at ‘should it be? is it always true?’ sorts of things.
*** keeping in mind, of course, those situations where the rapist does the ‘I thought she meant yes when she said no’ type of thing.