In this real life sexual assault scenario, who's at fault? (Somewhat graphic language)

I heard a comedian on a podcast tell an interesting story he claims happened to him and was curious legally who would be found guilty of sexual assault.

Basically about a decade ago he had just done a comedy show and was walking off stage to the green room (or whenever comedians hang out after their set). As he was hanging out with another comic, a female comedian who was much taller than him and was HEAVILY intoxicated went up to him and started trying to pull down his pants saying that she “Wanted to suck his dick” because she was apparently into him. And she groped his penis through his pants her female friends immediately tried to stop her and drag her away but the male comedian was in a bit of shock and simply said “Hey let her have it I want to see where this leads” but eventually she got dragged off.

Now, legally, had she “accomplished” her stated goal, if someone were to claim sexual assault who’s at fault? The male comedian for allowing a drunk woman to have her way with him, or the female comedian for starting this whole mess in the first place? He claimed later that in the #MeToo movement era if that had happened around that time he might have pressed charges against her just to prove a point but I’m curious if she could have pressed charges against him as well.

Putting morals and common sense aside, I don’t see a legal strategy for the woman to successfully prevail with charges against the man. Had the oral sex been successful, one of two things happened. Either the man consented or was somehow coerced. If coerced, her pressing charges may place her in legal jeopardy. If he consented, what cause of action would she have over an act she initiated after willingly consuming alcohol elsewhere?

Of course the point you’re making is whether or not the man should consent to allowing an obviously intoxicated woman to perform oral sex. In this scenario, the man played no part in the woman’s intoxication so I see no culpability there. I would compare this to a drunk driver causing damage but attempting to use self induced intoxication as a defense. People need to accept responsibility for their actions, drunk or sober.

Just my opinion.

If Joe Blow gets roaring drunk and goes forth and puts his unwanted hands on some woman’s bod, it is not assumed that he was drunk and she took advantage of him. His being drunk doesn’t get him off the hook for being sexually intrusive. Why would you assume it would work differently for the woman in the OP?

“Technically” the woman would be guilt of sexual assault but practically speaking I don’t see there’s any way charges if “laid” (sorry about the pun) would ever get to court. The playing field in this area isn’t level (age issues aside).

I’m scratching my head to see how the man could be guilty of anything. I can see the argument that the woman is guilty of something, but the argument is weak as the man did eventually consent and could argue that her prior knowledge of him made her reasonably believe he was likely to consent. And if he did not consent, it wouldn’t have taken other women to “drag” her away; he could have stood up and said “no.”

Nothing to see here all around, but it is troubling that someone might think that the man could be prosecuted in this situation.

The OP was fantasizing that the man could be prosecuted. I don’t see anyone else saying he was in any danger of that.

Drunk sex on campus: Universities are struggling to determine when intoxicated sex becomes sexual assault. (

The lawsuit in that article makes a good point. If we are going down this road (which we shouldn’t) why is Jane not equally as culpable as John? Are we saying that they both had unconsesual sex?

I think the part you’re missing is that the man in the OP’s story gave consent, albeit after the fact ("“Hey let her have it I want to see where this leads”). IIUC it is as if, in your scenario, after Drunk Jow Blow put his hands on the woman, she said, “That’s okay; let him continue.”

As I understand it, the problem is that a severely intoxicated person cannot consent to sexual activity, but what if it is the intoxicated person who aggressively initiates the activity?

And this craziness takes it down to new levels. If my wife and I go to a function where she gets really drunk and I drive home and she wants sex, and I don’t really want to but agree because she is my wife, then it would seem that sexual assault charges are in the making for both of us, even though this is very common, happens all of the time, and nobody thinks it to be criminal. It’s time that society gets itself a reality check on this stuff.

No. You can’t fuck a drunk chick when she’s passed out. But sex due to intoxication is very common and people are going crazy with the idea.

ETA: Happens all of the time in society, not in my particular relationship.

You don’t have to really want sex to legally consent; you just have to agree to it.

Yeah, but in my hypo, my wife was drunk. Did she legally consent?

ETA: Also assume I only agreed after she “assaulted” me without prior consent, e.g. kissing, trying to take shirt off, etc. It opens any marital relationship to dual sexual assault charges.

Yeah I was under the impression if a drunk person has sex with a non-drunk person that’s considered sexual assault for the non-drunk person because drunk people cannot give consent.

As I understand it, once he said “Let her have it, I want to see where this leads” there’s a good legal argument that he’s consented and can’t claim rape.

Exactly who would be bringing sexual assault charges against you, in this scenario?

Do we still have rules about answers in Factual Questions needing to be based on something? I know there were at some point.

C’mon. What is the “it” in your last sentence? An article about the plaintiff’s account in a lawsuit arising from campus sexual assault policies is putting you and your wife in legal jeopardy? There are no such things as “dual sexual assault charges” for the same interaction. And university sexual assault policies do not apply to your marriage, even if the facts as stated by a complaint were 100% accurate descriptions of the policy in question. Which they never are.

The way that it works is that anyone can press charges against anyone; the “claim” is irrelevant to the facts of the situation, of course. It’s not like if someone says an assault occurred, you have to find one person at fault. In any sexual assault analysis, you’ve got a person who is doing an action. That action is the thing that either is or isn’t an assault. It’s not like “these two are generally having sex, who is doing assault, is it both of them?;” it’s like “she removes his pants, does he consent to that? She grabs his penis, does he consent to that? She puts this body part on that body part, does he consent to that?” and so on. The assault is a specific action taken by one person without consent to that specific action, not just the overall fact that some sexual activity occurred.

If, in the story, the guy wants her to be doing those things, then she isn’t assaulting him, although she’s engaging in very risky behavior because it’s basically just luck that he wants her to be doing them, since she didn’t seem to inquire or anything based on the story. If he doesn’t want her to be doing anything, then she is assaulting him. And if the facts are that he didn’t do anything but stand there while she did stuff, he isn’t engaging in any action that even could be an assault. You can’t passively assault.

Now, if he then takes her and has penetrative sexual intercourse with her, and she is so drunk that she doesn’t have the capacity to consent to that, and that should be apparent to him, then at that point he is committing a rape. But in that case, it still would not have been an assault by him when she touched him. You would maybe also find, in most cases, that the fact that she was aware and active enough to be performing some other sexual acts meant that she at least had the capacity to consent. But of course maybe she would not consent.

This is why any hypothetical scenario about two drunk people both assaulting each other is silly. If both people want the other person to be touching them (which it seems like they probably do if they’re also touching the other), then it’s consensual. If both are engaging in sexual touching of the other person, they are not incapacitated to the point where they can’t decide whether they want to have sex, because they are engaging in sexual touching. If this is the one in a trillion scenario where both parties are completely incapacitated and have no idea what’s going on, but they’re simultaneously interested in performing a sexual activity that the other person isn’t interested in, and they both successfully complete that action, then you are not going to have any evidence at all that an assault occurred. You can sort of postulate at the bar that such a scenario is happening, but in practical terms it is impossible for evidence of it to exist.

I don’t think this is correct. Impaired people can have the capacity to do all sorts of things but still not be considered to be giving valid consent to things which are done to them. The fact that a drunk woman is engaged in sexual touching does not imply that she gave meangful consent to being herself sexually touched.

As you seem to touch on, the law - or at least college sexual assault policies - tends to treat the man in sexual encounters as the actor and the woman as the passive recipient of his actions. So in situations where both parties are equally drunk, and are engaged in sexual activity with the same level of apparent willingness, the man is judged in the capacity of actor, and his intoxication is looked at in the sole context of whether it excuses his actions, which it does not. The woman is looked at as the passive recipient of his actions, and her intoxication is looked at in the context of whether it impairs her ability to give consent, which it does. So given the same level of intoxication, the intoxications - both the man’s and the woman’s - work against the man.

You are wrong. A discussion of the definition of incapacity that is used in many college contexts, the one advocated for by Brett Sokolow, is in the article that you yourself linked. You aren’t distinguishing at all between whether someone can consent and whether they did. Incapacity is only a question as to whether they can.

Actually engaging in affirmative sexual touching is extremely relevant to whether someone has the capacity to consent to sexual touching. Capacity to consent is different from whether or not you actually consent, but I already said that.

I don’t know where you got the idea that I was “touching on” the idea that the law is biased against men. I definitely was not.

I’m sorry, but I have no idea of what you’re saying here.

Nothing in the article I linked, or anywhere else that I am aware of, indicates that anyone who can initiate sexual activity is therefore not incapable of giving meaningful and valid consent, as you seem to be claiming. For example, in the linked article "Sokolow proposed that universities adopt a technical definition of incapacitation as “an inability to make a rational, reasonable judgment or appreciate the consequences of your decisions,” and many institutions have come in line. Sokolow also proposed a “common-sense definition” of the term: the inability to “understand Who, What, When, Where, Why and How with respect to that sexual activity.” While the state of incapacitation looks different in different people, Sokolow said that it’s often evidenced by “slurred speech, bloodshot eyes, the smell of alcohol on the breath, shaky equilibrium, vomiting,” and “outrageous or unusual behavior.” But people in these states are absolutely capable of initiating sexual activity.

I’m sorry, I didn’t mean to give that impression. I meant that you seemed to adopt that attitude yourself in depicting the man as the actor when depicting “if he takes her and has penetrative sexual intercourse …”, even though you’d to that point been discussing a woman doing the initiating. But perhaps I was reading too much into it.

A person who is incapacitated does not understand who they are with, what they are doing, where they are, and how events are occurring. Evidence that a person affirmatively engaged in a sexual act with another person tends to demonstrate that they do understand these things – it is difficult to perform oral sex on the shapeless void. I am hard-pressed to imagine a situation where a person does understand who they are with and what they are doing well enough to decide they want to give someone a hand job or something, but doesn’t understand who they are with and what they are doing well enough to make a reasoned decision about whether they want to have intercourse.

(Edit: and again, whether they have capacity is not the same as whether they did consent. You were talking about whether a person has given valid consent. Incapacity is the question of whether it is even possible for a person to give valid consent, which is different. A person can have the capacity to consent and still not consent).

You’re misreading the reference to indicators of incapacity. Not every person with bloodshot eyes or slurred speech is incapacitated; those are ways that incapacity often presents. The article makes that mistake as well with blackouts.

You’re right that I discussed the woman doing the initiating, and then the hypothetical where the man was the initiator. In both cases, the passive person is not the person whose behavior is potentially an assault. That is not connected at all to the idea that the man is always judged a particular way; sex has nothing to do with it. The situation is always judged (at least, if it’s done properly obviously) in terms of who did what, and whether the other party consented to them doing it.