Drunken Consent.

OK, I must admit, this the one forum where I never go, but I don’t where else to put this, really.

In several contexts lately, it’s come up that consent given while intoxicated is not really consent, for legal purposes.

Now, if intent is an essential component to commiting a crime, why could a canny drunk not evade consequenses for a DWI/DUI by claiming “But Officer, I never consented to drive, I was too drunk too make that decision!” ?

OK, rip it to shreds. :smiley:


Because then he’d be admitting he was drunk? And wouldn’t that basically trump any disclaimers or excuses he might make?

Won’t work, since this is really about gender politics. A man who claimed that he couldn’t consent to sex because he was drunk would get laughed at. A woman on the other hand can get people to buy into it, even if the man was as drunk or drunker, and even if she was the sexual aggressor.

There’s a case on this as far as I remember, and I will look it up when I get the chance. I seem to remember the holding is that the degree of “drunk” to avoid the ability to form intent to drive drunk is massively higher than that required to be guilty of a DUI.

I also have some vague recollection of a case where having your car out while drinking was sufficient intent to drive drunk, but that is much hazier in my mind.

True, but the Hypothetical Drunk isn’t contesting the facts, only asserting that because he was too impaired to form criminal intent, he shouldn’t pay criminal consequences.

So if you want this defense to work, make sure you’re really, really drunk, and steal a car to get home in. :wink: Use the same defense for the charge of auto theft.

Next we’ll work on the ‘Steve Martin’ Defense: I forgot armed robbery was illegal.

Sad, but true. At some level, I’m using this absurd argument to debunk the ‘the male is always responsible for unfortunate, drunken sex’ meme. (Disclaimer: rape, or surreptitious intoxication is not unfortunate, those are crimes.) I’m talking about two drunken adults, who both feel sex is a good idea, at the time.

It does seem like any male so charged could make the identical counter-complaint, assuming he also had been drinking.

The problem, of course, is that if someone is actually passed out from alcohol injestion, that really does seem like a state where it is impossible to give consent. It’s also a state where it’s impossible to operate a car, or do much of anything. Anyone coming across someone passed out and having sex with them has committed rape–would you agree with that? However, somewhere between there and having had a glass of wine earlier in the evening, there is a line. Figuring out where that line is is the complicated part.

One problem I think is that we demand that for there to be a rape, there must be a rapist. It seems to be that it’s possible for a legitimate misunderstanding to occur–someone gives consent when sober, but later changes their mind but is too drunk to make that clear–but the way we talk about it, the person in that position either has to blame the other person for a heinous crime OR they can’t be upset/tramatized by the experience–either he’s a rapist or you’re a slut, no middle ground. I think under some very rare circumstances rape can occur subjectively, and it ought to be possible to validate the victim’s trama without blaming a rapist.

There is no logical consistency to the handling of drinking alcohol and drunkenness.

You’ve pointed out one problem: sometimes we want to hold someone responsible for what they do while intoxicated; other times not.

There is another, even thornier problem: the notion that alcoholism is a disease, not a chosen proclivity. In recent decades this idea has become ever more popular (along with many other diminutions in personal responsibility, but I digress).

So now if you want to make a drunk responsible for anything, you have the farce of prosecuting the consequence of a disease.

The logical extension of all of this is that, since we are products of our genes and our environments, none of us is personally responsible for any reprehensible behaviour. It may be the surly old geezer in me talking, but I see modern culture heading generally in this direction. Somewhere between the cutting off of hands and a hand massage for the perpetrator to raise their self-esteem is a happy medium of accountability and punishment.

Many disease states are grounds for removal of driving priveledges (diminished vision, epilepsy, bad diabetics, etc) even without prosecution per se. Although a diagnosis of alcoholism may be used to dodge criminal responsibility once, having driving priveledges revoked due to the admission disease state. Being not allowed to drive in the future, at all, would quickly trump the “poor me im an alcoholic defense”.

The epilepsy comparison I think is a good one since many epileptics are perfectly capable of driving and may do so for years without incident, maybe even feel a seizure coming and manage to pull over, yet they are still denied licences based on that state.

You are confusing consent to engage in sex, which is a non-criminal matter, with a mental capacity to commit a crime. I can only speak for Florida, but here, under the law, if you voluntarily become intoxicated, then that is not a defense for any crime you commit.

So, if you knowingly pour booze down your throat, you are consenting to whatever activities you ultimately do when or if you become intoxicated. In the same vein, if somebody slipped a date rape drug in your drink, and the next morning you woke up in jail charged with all sort of debauchery, you may very well have a defense for your actions.

I think the whole idea of chicks getting drunk and then later claiming that they were raped is an over-hyped issue promoted by feminists for their own agenda. I personally know of zero instances where a man was prosecuted under the scenario you describe.

I am unaware of driving privileges being revoked purely on the basis of a diagnosis of alcoholism. One has to be found guilty of driving while intoxicated to be at risk for revocation, and the consequences of such an infraction are independent of whether it was a poor one-time judgment or a reflection of chronic alcoholism. Conversely, one can be an admitted alcoholic and have a license to drive.

Is that a typo? What agenda do you think feminists have that would be served by women doing this?

It’s an excuse to accuse men of rape.

Yes, that is clearly rape.

Indeed, especially afterwards, when it’s all he said / she said.

Ought to be possible, but I don’t see it. A lot of the inequality, deference or benefit of the doubt shown to women in such circumstances is a consequence of biology. An inadvertently pregnant woman is still pregnant, while the man can say ‘Who, Me?’ as he rides towards the sunset. The law is slanted in the opposite direction in compensation, it seems to me.

OTOH, equality means being equaly responsible with your reproductive organs and alcohol intake. It’s a feminist perspective, really. :slight_smile:

Not confusing, I’m comparing diminished capacity to give consent to sex to diminished capacity to form criminal consent by driving intoxicated to examine the legal concept of diminished capicity by intoxication.

I know that’s how it works in practice, and have no argument against it, I’m wondering why diminished capacity becomes an issue in the sexual realm, and inviting discussion. ‘That damn bartender put something in my drink, I had no idea that vodka stuff would make shooting bottle rockets at the state capital
sound like a good idea.’

I didn’t describe any scenario of man-rape. I know those are as rare as hen’s teeth. Anyone who advocates false accusations of any sort is very wrong, IMHO. See commandment #9. (I’m not Xtian, but it’s a moral view that’s pretty self evident.)

Wait, I just re-read what you wrote. Are you claiming that cases of women, after consenting to sex, use alcohol as an excuse to claim rape, or ‘grey rape’ or date rape, are very rare, but feminists exaggerate them? I guess there are other planets besides Mars and Venus.

But we can’t remove a woman’s ability or priviledge to have sex even when it’s demonstrated she’s used it irresponsibly. BTW, I’m an epileptic who drives, I can do so legally, so long as I’ve gone 60 (or is it 90?) days without a seizure. My state assumes epilepsy is a correctable condition.

I think he means that feminists are very aggressive in pushing that scenario as “rape,” not that they’re hyping the idea that it’s a fatuous ploy.

Some states (including here in Wisconsin) have statutes that allow Intoxication to be used as a defense against a criminal charge. There are a whole bunch of conditions and exceptions that apply though.

To the best of my knowledge nobody ever successfully used this defense against and OWI. “I was so drunk I didn’t even realize I was driving a car” or “I was so drunk I didn’t know I was drunk” may give those in the court room a chuckle and something to talk about later on, but won’t get your case dismissed.