Is this rape? (*Don't Need Answer Fast*)

[bob_2]

Lets take up the case from Joey’s point of view: He had a few drinks and went upstairs (maybe to have a piss). As he comes out, he see’s a guy leave a bedroom and when he looks in the door, there is a naked woman on the bed.

Now Joey may well assume that she just had sex with the guy who left and thought he would try his luck. He goes in and starts, maybe a little touching and a kiss etc. The woman responds appropriately and intercourse follows. If the woman did not protest, it wasn’t rape. If, on the other hand, she was so out of it that she just lay there while he jumped on, it was.

After the event, which had no witnesses, it would be tricky for a jury to decide. This is almost always the case with these trials. It would likely depend on who had the best lawyer and who looked the most credible in court.

[robert_columbia]

@Wesley_Clark

What if he was too drunk to tell the difference or too drunk to care, was he raped?

That’s a good question. If both of us are dead drunk and we end up in bed, are we both victims? Both rapists? Part of me says that since rape requires a specific mens rea, someone that’s too drunk to recognize what they are doing couldn’t possibly form the necessary intent to commit rape (knowledge that one is having sex (as opposed to, say, playing football), knowledge that the other person does not consent, etc.). If I’m too drunk to consent to sex, how can I intend to have sex?

[LSLGuy]

I *think *the usual argument against that symmetry is that a man too drunk to know what he’s doing will be unable to achieve an erection. Whereas a woman too drunk to know what she’s doing can still be penetrated.

So if penetration occurred, that she didn’t then / doesn’t now want, that is essentially proof that she was out of it then and equally proof that he wasn’t.

[grude]

Woman tried to rape sleeping man after breaking into his apartment

This case is confusing because some say attempted or tried rape, but then it says he awoke to her having sex with him and they found her DNA on his penis I guess?

I’m baffled how someone could get on top of a sleeping guy, achieve penetration, and go at it without waking the victim.

[LinusK]

I’ve learned more details. I’m ambivalent about whether to post in this thread, for obvious reasons. I’m going to be deliberately vague about some things.

Apparently the injuries to Joey were much more serious than what I’d been led to believe. He went to the hospital. The police got called, and he refused to give up any names. Nathan used something - a weapon, to inflict the injuries.

Denise and Nathan are back together again, in the sense of living under the same roof. Nathan supposedly wants Denise to go to the police, but she won’t. He then asked her to leave, but she won’t do that either.

Denise says she wants to make the relationship “work”. She’s saying she no longer remembers much about that night: she doesn’t even remember going upstairs in the first place.

Sally says “everyone” saw them go up together, and it was “obvious” what they were going to do, from the way they were acting.

The night of the party Joey said he only went upstairs to use the bathroom, he heard something in the bedroom, went in, and Denise came on to him. He said he didn’t know Nathan and Denise were married, only that they were together at the party. He didn’t know where Nathan was. He figured they’d had a fight, and Nathan left. I don’t know what, if anything, he’s said since then.

Sally says Denise was “wasted” at the party, and if she wouldn’t have let Joey anywhere near Denise, if she’d known she was alone up there. Harry says Denise is a promiscuous, and if she can’t tell the difference between her husband and a stranger, “maybe she shouldn’t drink so much.”

Which is ironic, since Harry drinks more than he should himself, and he’s done some pretty incredibly stupid things himself when he’s drunk.

[TBG]

Isn’t this the plot of Revenge of the Nerds?

[astro]

The scary part of this is that per the OP’s description Denise was (at one point) quite ready to throw “Joey” under the bus and pull the “I was raped” trigger as a fig leaf to save her relationship, and for whatever reasons, possibly the knowledge that her friend’s description of events will not back her up, has pulled back from this.

[Drunky_Smurf]

@Svejk_1

I figured this out in one go and detect no real grammatical issues in the OP. No diss, but perhaps the issue lies with you?

+1

[Grrr]

@LSLGuy

I *think *the usual argument against that symmetry is that a man too drunk to know what he’s doing will be unable to achieve an erection. Whereas a woman too drunk to know what she’s doing can still be penetrated.

So if penetration occurred, that she didn’t then / doesn’t now want, that is essentially proof that she was out of it then and equally proof that he wasn’t.

I don’t disagree with your reasoning here, but speaking from anecdotal experience, there was NO amount of alcohol that could give me limp dick (short of being passed out). Of course, that’s no longer the case now as I’m in my mid forties, but it makes me wonder, what percentage of 20-something males actually have to worry about “whiskey dick”?

[Wesley_Clark]

@LSLGuy

I *think *the usual argument against that symmetry is that a man too drunk to know what he’s doing will be unable to achieve an erection. Whereas a woman too drunk to know what she’s doing can still be penetrated.

So if penetration occurred, that she didn’t then / doesn’t now want, that is essentially proof that she was out of it then and equally proof that he wasn’t.

That sounds like an attempt to justify an androphobic legal and social system. That is like people who say domestic violence doesn’t count when a woman does it because women don’t hit as hard. I’ve been drunk and been able to achieve an erection, I don’t think I’ve ever not been able to when inebriated.

[LSLGuy]

I’m not defending the proposition, merely stating that it’s been argued in various forums, both formal and informal, in the past.

[TruCelt]

I can certainly imagine a case where,

1. she was very drunk and trying to have sex with her husband
2. he left and said he’d be right back
3. She went to sleep in a dark room
4. jerk boy stumbles in, sees her there and decides to get over on her
5. she groggily wakes up to what she thought was her returned husband and responded physically to him
6. Her husband walked back in and she realized this wasn’t him.

In this case, I would think that her reaction to realizing her husband was not the man inside her would be pretty obvious. Screaming horror and disgust, you know, rather than “Oh! look out! it’s my husband!” Hubby’s response would seem to indicate the former.

I can also imagine a case where

1. ditto
2. ditto
3. She got really pissed off that he’d take a call in the middle of sex, much less leave the room (why was that necessary?!?)
4. Another guy walked in looking scrumptious and she drunk/angry agreed to something she wished she hadn’t.

One would think in this case hubby would be yelling at his wife more than putting a beat-down on the other guy.

I have to say, there’s something wrong with a husband who leaves his wife naked, drunk, and vulnerable in a house full of drunken party-goers. This is high school stuff here, you don’t do it.

It also makes sense that she doesn’t want to press charges. The other guy may also have been quite drunk, and the court process is utterly brutal to women. She wants it to just be over with, and possibly feels that hubby punished him enough. (I don’t agree, but it’s a reasonable thought to have.)

[actualliberalnotoneofthose]

@LSLGuy

I *think *the usual argument against that symmetry is that a man too drunk to know what he’s doing will be unable to achieve an erection. Whereas a woman too drunk to know what she’s doing can still be penetrated.

So if penetration occurred, that she didn’t then / doesn’t now want, that is essentially proof that she was out of it then and equally proof that he wasn’t.

Cool, I guess if a woman does me while I’m asleep (it has happened before) I am consenting by decree of my nocturnal erection.

[TruCelt]

@actualliberalnotoneofthose

Cool, I guess if a woman does me while I’m asleep (it has happened before) I am consenting by decree of my nocturnal erection.

Nobody here said that, and no, it’s not OK. Unless of course you are in a relationship where it’s been discussed and “wake-up” consent has been given.

But I also don’t think it’s true that the point of no return judgement wise necessarily intersects with the point of no, errr, reTURN. . . nudge, nudge.

[Your_Great_Darsh_Face]

@Shakes

I don’t disagree with your reasoning here, but speaking from anecdotal experience, there was NO amount of alcohol that could give me limp dick (short of being passed out). Of course, that’s no longer the case now as I’m in my mid forties, but it makes me wonder, what percentage of 20-something males actually have to worry about “whiskey dick”?

As for me, I have another ten years on you, but go back far enough, all alcohol did to me was make it impossible or very hard for me to come, and go back a few years further, I could perfectly well get an erection even when I’d have preferred not to. These days, not so much, but that’s not the point here.

[BigT]

I’m not sure why the legalities were being brought in. The story in the first post, and what we were given to assume, was rape. If she did not know it was him, she could not have given affirmative consent, which makes what he did rape. Rape laws just haven’t caught up with affirmative consent yet.

Of course, the story turned out to be predictably more complicated, and, by going up with him, it makes it clear she did consent. Yes, conceivably she could have told him no once they were alone, but she never alleged that.

The scenario was not that she went up with her husband, and then some guy jumped in bed with her when the husband wasn’t looking. That scenario, assuming she couldn’t tell the difference (which was required by the OP), would have been rape.

[even_sven]

@Ibanez

They need a leg up on “rape culture” /s

You should take a gander what’s considered harassment now.

Wow. You win the strawman of the century.

The linked article is about harassment, as in harassment-- bothering people.

It has nothing to do with sexual harassment. At all.

[even_sven]

@LSLGuy

I *think *the usual argument against that symmetry is that a man too drunk to know what he’s doing will be unable to achieve an erection. Whereas a woman too drunk to know what she’s doing can still be penetrated.

So if penetration occurred, that she didn’t then / doesn’t now want, that is essentially proof that she was out of it then and equally proof that he wasn’t.

It’s not about being too drunk to maintain an erection. It’s about being too drunk to aim that erection in any particular direction. The level of drunk we are talking about it passed out, vomiting, incoherent, unable to form sentences and unaware of your surroundings.

[tim-n-va]

I’m a little concerned by some of this. Clearly no one should have sex with someone that they don’t want to have sex with.

When one person is exhibiting all of the signs of being receptive to sex - physical responses, verbal comments, etc. - putting a legal burden on the other person to somehow evaluate whether the person really means all of those signals they are sending seems unreasonable.

[LSLGuy]

@BigT

I’m not sure why the legalities were being brought in. The story in the first post, and what we were given to assume, was rape. If she did not know it was him, she could not have given affirmative consent, which makes what he did rape. Rape laws just haven’t caught up with affirmative consent yet.

Of course, the story turned out to be predictably more complicated, and, by going up with him, it makes it clear she did consent. Yes, conceivably she could have told him no once they were alone, but she never alleged that.

The scenario was not that she went up with her husband, and then some guy jumped in bed with her when the husband wasn’t looking. That scenario, assuming she couldn’t tell the difference (which was required by the OP), would have been rape.

Two thoughts:

1. You seem to assume there is something called “rape” which is different from the legally-defined crime in the jurisdiction in question. I strongly question that idea. “Rape” is whatever the local jurisdiction says it is, no more and no less. We can certainly disagree about (and discuss) what any jurisdiction *ought *to say it is. But IMO that’s a different issue from what the OP is asking about.

2. IMO you have misunderstood the OP. Or at least ISTM you understand it differently than I do. My take:

The woman and her husband go upstairs and commence having sex. He is interrupted by a phone call and leaves her in the bed. Later another man comes upstairs, enters the bedroom and, under murky circumstances, has sex with the same woman. While this is going on the husband returns, sees what’s happening, and beats the other man.

The question is then: With partial and conflicting explanations of the “murky circumstances”, was the sex between the woman and the second man a rape?

YMMV.