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

I don’t see how you have made this leap. Private sexual activity is a constitutional right which the government cannot deny because I am at 0.8% BAC which might be a good level to say I cannot properly operate a car, but the question of consent to sex is wholly different.

Wow. So a sexual assault victim must prove that she didn’t consent? That turns even established law on its head. I know it wasn’t your intention, but it is where you position leads.

You are correct. Drunk sex is a part of life, for good or ill. It is not illegal nor should it be.

It’s your argument. It’s what you’ve just been saying, and what I responded directly to. You said there should be consistency between capacity to consent to contract and capacity to consent to sexual intercourse. You are the one comparing the two situations in order to point out that it would be “absurd” to invalidate Uber contracts because people were drunk. You said “of course” a drunk person shouldn’t be able to invalidate their Uber contract, and you drew a direct parallel to drunken sexual intercourse.

And yet, consent to those contracts requires affirmative proof in order for the contract to be valid. If consent to sexual intercourse was in any way at all consistent with consent to contract, you would have to show much more evidence to show that consent existed, i.e. to demonstrate that an agreement to have sex existed, i.e. to demonstrate that you had not committed an assault. You are calling for a heightened definition of consent, even though you do not recognize it.

The contract is prima facie valid. An invalidation would require proof from the party complaining of its validation to bring forward evidence that it was invalid.

This is why I am saying that consent to sexual activity cannot be viewed in this way. The common law would hold that if someone was able to use the Uber app, place the order for the ride, etc. that (s)he would have the capacity to consent.

You are arguing for a “heightened” standard for sexual consent which has no real bounds or any way to discern when a person, who is competent to consent, should nonetheless be denied a constitutional right to engage in private intimacy.

I am pointing out to you that that standard is the only reasonable consequence of what you yourself keep arguing for.

You want there to be consistency between the definition of “capacity to consent” in the context of a contract, and in the context of sexual relations. That’s the reason you brought up Uber contracts. It makes no sense to bring up Uber if you don’t think there is any comparison to be made. You did not say “this has nothing to do with Uber contracts.” You drew a direct parallel.

And to prove that a person owes you money, i.e. that they consented to pay you money to ride in your car, they have to demonstrate that you affirmatively “use[d] the app, place[d] the order for the ride, etc.”

In order to achieve consistency in the law, then, you need an affirmative consent standard to also apply to sexual assault.

Incidentally… how do you think the burden of proof in rape cases works exactly?

I guess we are talking past each other. An Uber ride, with no blood or broken legs, is assumed to be a consensual contract.

A sexual encounter, with no blood or broken legs, is assumed to be consensual.

The argument is, “I was too drunk to consent!” Why is the proof different for that versus the Uber ride?

You argued for a “heightened” standard for sexual contact. I ask then, can’t my wife fuck me when she gets drunk? It was her idea, not mine.

Because there is a contract, the interaction is assumed to be consensual. What would happen if there was no contract at all, and you went to court and said “this guy owes me 35 bucks for a car ride?” The whole point is that there is a contract. There is literally proof of the agreement.

That is why the proof is different. Because it is very obviously, immediately different. They’re the opposite of each other. You are saying you want the standard to be consistent. In order to make the standard consistent, you would have to change the thing that is different, which is that one requires a contract, an affirmative agreement, and the other does not.

“He consented to pay me for a car ride” – > OK where is your proof of that agreement, which, once presented, we will consider valid unless proven otherwise?

“He consented to sex with me” → OK, we assume that’s true without any proof

But in these hypos as in the OP, we have the same thing. There is a contract, e.g. an oral statement from the female co-worker of the comedian that she wanted to give him a blow job and he accepted. I mean, it is certainly not an enforceable contract at law, but it was consent, which is what the Uber contract required and was fulfilled by the payment and acceptance of services.

The presumption is therefore that there was consent on everyone’s part. The argument is that the woman in the OP was capable of walking into the room, pulling the man’s pants down, declaring her intention to perform oral sex on him, etc. She was not disabled. She was cognizant of what she was doing, even if alcohol gave her the lubrication to say and do it. That is not illegal, nor is she in any way under current law, nor future law unless the constitution or the Supreme Court overrules Lawrence, incapable of consent.

This, of course, is the entirety of the sole issue that you’ve been arguing against. The standards for proof of consent are different. Sufficient proof of one is not sufficient proof of the other, making comparisons inapt, and consistency would thus require a heightening of the standard. Yes.

No. The issue is that with sexual relations one can revoke consent at the last minute. Prior statements of consent are powerful evidence that consent was not revoked.

The issue is that the woman wants to have sex and sex ensues. That is valid consent unless it is proven that common law blind drunk intoxication was present. The law has been misapplied with the equivocation on the term “intoxication” applying a DUI or lesser level than what IS the law.

On looking into this a bit further, it seems there may be a difference between how the law tends to define it in criminal terms and how colleges enforce it in complying with Title IX. See e.g. 5 Questions About Alcohol and Consent You’re Too Afraid to Ask, Answered - Everyday Feminism

Cynthia Godsoe is a law professor at Brooklyn Law School who has done a lot of work on the regulation of intimate behavior and gender roles. She explains that in many places, a person is only legally considered incapable of consenting if they’re literally passed out and unconscious as the result of drinking or using drugs.

[Note: it’s unclear to me whether “many places” is the same thing as “all states”.]

However, things are often different on college campuses.

But these protocols are not consistent, and both the culture of a school and the interpretation of the law can mean that the stance on alcohol and what it means to be too intoxicated to consent to sex vary greatly between institutions.

According to Godsoe, “Many colleges have found impairment for rape even where the [survivor] actively consented both verbally and via body language.”

Apparently great variation between states.

The circumstance in the article seems pretty messed up to me.

Yep. The state of the law on consent in general and incapacity specifically is all over the place. Even the places that try to take it on and “fix” it usually end up drafting legislation that creates some new gap, or is used by courts in perverse ways. It’s a really complicated intractable problem, exacerbated by the fact that so many people just don’t really think there should be rape convictions for pretty much anything other than armed abductions.

That Minnesota case is yet another example of the conceptual problems people have with “capacity” vs. whether there actually was consent. The facts are you’ve got an unconscious woman laying on a couch and a guy has sex with her. The case ends up going all the way to the state Supreme Court which clarifies that she can’t have been “mentally incapacitated” in that state if it was the result of voluntarily drinking, which means that two of the three charges against the guy can’t stick, because he was charged with assaulting a person who could not consent.

But meanwhile, what is sexual assault, generally speaking? It’s having sexual contact with someone who doesn’t consent. So even if Minnesota law doesn’t put that woman in a category of people who are legally not capable of consenting, the facts are she’s unconscious, she wakes up and says “no,” and then she is unconscious again. That is clearly not a person who did consent, whether we say she is legally able to or not. But since we tie ourselves up in knots to allow these kinds of sexual activity in ambiguous circumstances, this guy gets off much, much easier because the woman merely did not consent, as opposed to having been incapable of consent. As if that changes the facts of what he did. The jury believed she was so drunk that she would have been incapable of consenting, if they were allowed to apply that rule in the case. But her being that drunk and merely not consenting, that’s not as bad.

I don’t know if this is correct either.

It’s not clear that the jury in this case found (beyond reasonable doubt) that she did not consent. Apparently, in Minnesota law, sexual assault of an incapacitated person is a separate charge, and the jury found the guy guilty of that specific charge. Therefore, the case turned on the definition of incapacitated under that specific law.

As you say, lack of consent is an issue of its own, but it does not appear that the jury found that to have happened in this specific case (though the victim did claim that it did).

See the actual ruling here: State of Minnesota, Respondent, vs. Francios Momolu Khalil, Appellant. A19-1281, Supreme Court, March 24, 2021. (

In particular, pages 4-5 and fn #2.

I don’t understand why you keep quoting me and saying things are wrong, and then just talking about unrelated stuff. Why would the jury find that she did or didn’t consent when the jury found that she was not capable of consenting. There was no charge about lack of consent before the jury. That is the point.

I had thought you were commenting on the court’s ruling, when it now looks like you were commenting on the state of Minnesota law and/or the prosecutor’s decisions. My apologies.

It looks to me (top of page 5 of the ruling) that “nonconsensual sexual contact” is a crime under Minnesota law, but only a gross misdemeanor for a first offence rather than a felony, while sexual contact with a mentally incapacitated person is singled out for a higher level felony. Presumably this is why the prosecution decided to go for the latter and not the former.

Long and I only tried to skim to relevant portions but highlights how much is left up to prosecutorial discretion and problems with laws as they stand.

Again it seems that many jurisdictions have very confusing and variable approaches. Does no mean no or is yes means yes required and when does intoxication reach incapacity for consent? What’s the place of “prostration of faculties” as a defense for the
initiator of activity?

It seems like any FQ answer will vary greatly on all of the specifics of the case, the exact charge, and the jurisdiction? And how the prosecutor feels that day.

And add to that the fact that, I don’t know, 98.9% of controversial rape “cases” that make the news and opinion columns are actually Title IX or other university administrative cases, not criminal ones, which use a whole different set of standards.

Which creates the situation where news about someone being found responsible for a university violation based on a “preponderance of the evidence” or “clear and convincing evidence” standard and a requirement for affirmative consent (which maybe results in like a one year suspension for a student or something) leads to this perception that people are getting sent to jail left and right for having sex with their date after they both had 3 glasses of wine. When the reality much more often is that a prosecutor won’t even think they have enough evidence to bring a rape charge in a case where a person says they were unconscious, like that Minnesota case.

Can a person give consent to engage in sex prior to getting drunk? There must be an awful lot of sexual assaults never reported, or cared about if not.

Depends whether the person becomes “drunk,” or becomes “incapacitated.”

If the person gives consent and then gets really drunk, but not drunk enough to not be able to withdraw consent if they want to, then there’s no problem. If there is a continuity of the person’s awareness of the situation through the actual sexual activity, then you could even consider that not even advance consent; they’re consenting to it while it’s happening.

If the person becomes drunk to the point of not even having the capacity to understand what’s happening, advance consent is not effective. It’s just strictly illegal to have sex with a person in that state. As you say, of course, if a person truly wants to engage in that activity, it never gets reported or cared about, but technically the sex would be an assault. There was a big case in Canada about a related subject… this one.

The trouble is, who is to say whether the specific activity that happens is the one that is consented to. There are always degrees of sexual activity, and actually the more “extreme” the activity the more important specificity in consent is. If there’s consent to choking, certainly that doesn’t mean consent to choking to death, for example. And the way the law treats it is to say you have to be in a state of mind where you are able to say “you are going too far” for it to be effectively consensual.