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

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. (mn.gov)

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.

https://brooklynworks.brooklaw.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1549&context=blr

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.

Good points. The Canadian case you cited looks like a mess. It leaves the concept that someone kissing a sleeping partner has committed a sexual assault. However, that case arose from acts that exceeded prior consent, and on appeal the court stated that prior consent was sufficient even for acts committed after a person is unconscious.

If college campuses are going to change the definition of sexual assault as part of its internal disciplinary code, then I think it only fair to enact specific rules, after public comment, to put everyone on notice as to what is acceptable.

And I don’t understand how this is within their bailiwick anyways unless it happens on college property.

I don’t really have an opinion on the MN law except that it seems to be drafted poorly and does not give all parties advance knowledge of what is expected.

Society can evolve and laws don’t have to be the same from 1850. I think it only fair that if the state is going to expel me from college or put me in prison for having sex with a woman who is some flavor of intoxicated (even though I am intoxicated as well) then there should be definite standards enacted so I can be sure what side of the law I am on.

And further it should take into account that drunk sex is very common and not write a law that makes a lot of societally accepted consensual sex illegal, but just not prosecute that and use the law as a sword hanging over everyone’s (really the man) head.

But the argument is “No worries, you won’t be prosecuted for something like that.” Until you are.

I’m reminded of a case from a few years back where a guy’s wife was long term unconscious and he had sex with her in the hospital. He was convicted. He unsuccessfully argued that she had previously consented to sex if she was ever in such a condition.

That is a difficult one. He lost because his behavior was icky. I think this should be solved by rewriting the laws. Although @Jimmy_Chitwood and I would draft very different laws, that is how democracy works. We debate our competing positions and whichever one of us wins or has a partial victory, at least people know what is expected instead of this “we know it when we see it, and decide to prosecute” idea.

I think this is actually the problem with the state of Minnesota law at that time. My state also has the distinction between voluntary and involuntary intoxication, so just like the Minnesota case, a voluntarily intoxicated person is capable of consenting. But a physically helpless* person is also incapable of consenting - and the reason for the inability to consent make the opposite difference. There is what’s sometimes referred to as “misdemeanor rape” , which involves sexual intercourse with another without that person’s consent. Then there’s rape in the third degree,(which includes those who cannot consent for reasons other than their age and those where the lack of consent is not due to incapacity) and rape in the second degree which includes those who can’t consent due to mental disability or mental incapacitation.

And then we get to first degree rape, which requires either forcible compulsion or a physically helpless victim.

I don’t necessarily have a problem with the idea of laws that distinguish between voluntary and involuntary intoxication when it comes to the ability to consent. I do have a problem if it’s really true that someone who has intercourse with someone who is unconscious is only guilty of a misdemeanor, which is what the articles seem to imply. But in reading the court decision I saw this :

The jury convicted Khalil of third-degree criminal sexual conduct under Minn. Stat.§ 609.344, subd. 1(d), which states in relevant part:

A person who engages in sexual penetration with another person is guilty of criminal sexual conduct in the third degree if any of the following circumstances exists: . . .
(d) the actor knows or has reason to know that the complainant is
mentally impaired, mentally incapacitated, or physically helpless[.]

And this was the definition of physically helpless in Minnesota in 2017 :

“Physically helpless” means that a person is (a) asleep or not conscious, (b) unable to withhold consent or to withdraw consent because of a physical condition, or (c) unable to communicate non-consent and the condition is known or reasonably should have been known to the actor.

I have not been able to find anything that explains why he couldn’t be/wasn’t convicted based on the victim’s physical helplessness - was there no testimony that she was asleep/unconscious during some part of the assault? Were there two separate charges and the jury acquitted on the one involving the victim being physically helpless , perhaps because they were convicting on the one involving mental incapacitation ?

So maybe the problem wasn’t actually the law - maybe the issue was how it was prosecuted.

*“physically helpless” means that a person is unconscious or for any
other reason is physically unable to communicate unwillingness to an
act.

There was also a case discussed here:

When does dementia mean an inability to continue to say yes? Or to say yes (or initiate) even if confused?

That’s the one I was thinking of! So this idea of “don’t worry, it doesn’t apply to spouses” is the exact opposite of what happened in that case.

To be fair, the people who say “don’t worry, it won’t apply to spouses” probably were not thinking of a spouse with dementia or who was in a coma or who had some injury that affected their mental capacity. When I’ve seen the “Don’t worry” line, it’s always been in reference to a spouse who was asleep or maybe drunk and kind of presumes the relationship is such that no legal complaints will be made. I mean, no one says “Go ahead, have sex with your soon to be ex-spouse after the papers have been filed and you’re fighting over property. No way they complain to the police and if they do, no way they will arrest you.”

There’s a really big difference between “the police aren’t going to arrest you for kissing or engaging in sexual contact with your spouse when they are asleep unless there is a complaint from them (or someone on their behalf)” , which is what people usually mean when they say such laws won’t apply to spouses and " if you haven’t actually used physical force, you are entitled to assume that your spouse consents no matter what the state of your actual relationship is" - which is how it would be if the law actually was written to not apply to spouses. Maybe - it’s not like marriage and/or cohabitation has never been a defense to even forcible rape charges

Well for what it’s worth the state lost that case. Unclear though whether it was based on a conclusion that they could not prove they had sex that night or that someone with dementia can be allowed to want and have sex.

Oral is penetrative sex. Any of the three natural holes, and presumably any squicking too (squicking , man made hole… But thats usually secondary to murder )

So there’s another fine line to decide. If her hands did the deed or he did the deed of penetrating ??

In Canberra there are two cases related to the consent isnt consent discussion.

  1. Man pays a prostitute with an envelope, and the deed is done, and then she leaves and discovered the envelope is empty. Man agrees the envelope was empty. So he is charged with rape. While there is a law about deception to get consent is rape, it usually means false identity… not deceit to pay a prostitute, normally that is a debt owed, or at worst theft of the $300 worth of services . (obtaining money, goods or services by deception " or something ? ) Confusing this is that he pleaded guilty to rape , so no trial. I didn’t see an appeal result, but I assume he couldn’t undo his plea, as he had made statements already - its not that he had not been able to remember the events of the case.

2 Brothel owner makes a deal with potential worker, if prostitute is good in a test session with him , then she can work there in his brothel… So then he is charged with rape and found guilty by trial … the court finding that at the she consented, she was being harrassed for sexual favour, there not being any payment being made at that time, and as not related to working for N hours, or N services, it didnt fall into an agreement concerning rates of pay/fees/commission… that the consent laws didnt allow the brothel owner to enforce a quality assurance program.