I think the key word here is “understand”. It’s not “know”. IOW, to be defined as “too drunk to consent”, a person doesn’t have to be drunk to the point where they think they’re doing oral sex on “a shapeless void”. Only too drunk to understand things. That’s a much more ambiguous concept.
If you look at the actual story that the Slate article is centered on, the woman in that case was clearly capable of initiating sexual activity, and of texting about it etc. But she was judged too incapacitated to consent to the sexual activity even though she was the prime initiator.
I don’t know what your intention is with this. In all cases I’ve been discussing, the person nominally gave consent, and the only basis for saying that there was no consent is that consent while incapacitated isn’t valid consent. I’ve not been discussing any situation where a person had the capacity to consent and didn’t.
You responded to me, in reference to the scenario I was talking about, and told me I was incorrect, and you mentioned “giving valid consent.” Whatever scenario you were talking about, I was talking about the one in the OP and the one brought up elsewhere in the thread. My intention was to help you understand why you were mistaken, and why the language you were using was imprecise.
The OP posited a hypothetical scenario. I answered with a counter scenario which you just dismiss out of hand because of their differing facts, but I don’t see how it makes a legal distinction. And it matters not if I am likely not going to be reported to the law because most people fancy themselves to be a decent enough of a human being not to be committing sexual assaults. And if what happened in the OP was a sexual assault, you haven’t shown how my wife did not do the same thing in my hypo.
Shifting gears, this “too intoxicated to give consent” arises from the common law level of intoxication which is basically “so blind ass drunk that you have no idea where and what you are doing” but commentators misunderstand this and apply sort of a DUI level of intoxication to these cases which is legally incorrect.
In addition to being legally incorrect, it would be absurd. How about a capacity to contract? If a drunk person gets an Uber home from a bar, should he get his money back because he was too drunk to voluntarily contract? Of course not. It would also be absurd because literally thousands if not millions of hook ups are done after drinking alcohol, on college campuses and elsewhere. It would be taking a law which is meant to protect incapacitated people and applying it to outlaw very common behavior, including that which I posed in a hypo with my wife.
To follow up, it would be an extremely rare case in which a person was an active participant in sex yet was deemed too intoxicated to consent.
I agree that it is, but I was responding to the OP’s set of facts and suggestion that the man might be guilty of sexual assault because the woman was drunk. Yes, she was drunk, but she was not so intoxicated such that under the law she could not consent. Her intoxication may have affected her judgment, but it did not take away her capacity of consent.
You may have been also talking about the scenario in the OP, but I did not quote your entire post. In the part of your post that I quoted, you were talking about “any hypothetical scenario about two drunk people both assaulting each other”.
And in discussing “any hypothetical scenario”, you laid down a rule that "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". This rule is what I think is incorrect. IOW, that a person can be “engaging in sexual touching of the other person” but still be “incapacitated to the point where they can’t decide whether they want to have sex” (i.e. that their consent is invalid).
This is what I intended in my first post on the subject, and my subsequent posts continued in that context. Perhaps at some point you switched to talking about something else, in which case I missed it.
IME, it’s not unusual for the law to be inconsistent WRT situation which don’t come up often, and thus don’t challenge the legal principles involved.
If there were a plethora of people challenging their Uber receipts - or wives accusing their husbands of sexual assault - based on the standards of consent used in sexual assault cases, then it would present a challenge to the law and need to be addressed. But as it is, there aren’t and it doesn’t.
There are many things that people routinely do with their spouses which would be outright sexual assault if they did them to people they weren’t married to. But I’ve never heard of a spouse complaining to law enforcement that their spouse touched them sexually without permission, so the issue doesn’t come up. I don’t know how the law would deal with it if it did. (There was a case of a guy who was accused of rape because he had (consensual) sex with his wife in her nursing home, though she had some level of dementia. But it only came up because he was reported by the nursing home staff; had they been at home it would not have been a legal issue.)
I agree with all of this, but the law must have an internal logical consistency or else it becomes arbitrary and violates due process.
If a woman in the situation posited is too drunk to consent to sex, then she is a fortiori too drunk to consent to an Uber contract. And the law, and courts or university administrative boards must do more than simply say that nobody has challenged an Uber contract or that spouses don’t typically consider this to be sexual assault.
Those are arguments for a heightened consent standard in sexual assault law, you know. An Uber contract is certainly not gonna hold up in court simply because the drunk person doesn’t have evidence that they didn’t consent to paying Uber. The court is going to ask Uber where the receipt is. Where’s the written consent. Where are the terms and conditions and the proof that the rider accepted them.
So what you are arguing for–consistency, after all–is a requirement for affirmative consent for sexual activity. Except based on each of your posts, I am confident that you aren’t actually arguing for that.
Yes - the original drunk and consent discussion related to being so drunk the person was passed out or close to it - i.e. just because (s)he is too drunk to figure out what’s going on and unable to coherently say “no” does not imply consent. They have to be in the frame of mind that they can in fact understand what’s going on and so meaningfully consent.
This has morphed in the politically correct world that if the person has had one or more drinks, then any consent is meaningless - unless they consent to themselves getting behind the wheel of a car. If “she’s consumed alcohol in the last 12 hours” is the bar to consent, the population would likely drop substantially in the next 30 years. The real test is - can the person understand what’s happening and do they appear to object or consent? If they are too passively intoxicated to object, they are too passively intoxicated to consent - even if they are not passed out.
In the OP’s case, it would be hard to argue that someone actively trying to give a blow job does not understand what they are doing and is consenting to this. Keep in mind another feature of alcohol is that it reduces inhibitions (well before it induces lethargy and loss of consciousness). So “I want to give him a blow job” is the definite desire (and consent) of the (female) active participant, well before the stage of “I have no idea what is happening to me” where consent is impossible.
Of course, if the male failed to consent, then it is no different than if a drunk male attacked a female. Being active enough to perform the attack indicates sufficient coherence of mind to form the intent and carry it out. Bad judgement and lack of inhibition does not get someone off the hook for their actions.
“But what if they’re both drunk?” The sobriety - or lack - of the victim is irrelevant if it is an unwanted attack. If the victim is too drunk to consent, it is still on the active party to determine that the victim is able to consent. If they are both too drunk to consent, they are too drunk to proceed past the point of collapsing on the floor.
“But what about blacking out?” The fact that a person may have sufficient alcohol that their ability to form long term memories fails does not mean that at the moment they are not in control of what they are doing and intending to do it.
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.
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.