# Lack of affirmative consent as rape? **URL:** \ **Category:** Great Debates\ **Created:** [August 18, 2009, 8:32pm UTC](https://boards.straightdope.com/t/lack-of-affirmative-consent-as-rape/506884 "2009-08-18T20:32:09Z")\ **Posts on this page:** 8\ **Page:** 6
**Author:** ![lobotomyboy63](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lobotomyboy63/32/2900_2.png) [@lobotomyboy63](https://boards.straightdope.com/u/lobotomyboy63)\ **Post date:** [August 21, 2009, 5:54pm UTC](https://boards.straightdope.com/t/lack-of-affirmative-consent-as-rape/506884/101 "2009-08-21T17:54:55Z")
> [@Freudian\_Slit](#): > > Right. And while I think shoving a cock in someone’s face is kind of boorish, you think that if you trusted someone enough to go to their room with them, you’d be willing to push it away or tell them no or bite down or something. The way the woman describes it is that she just seemed to not feel like saying no. I can understand the woman who’s got a gun to her head and pretty much has to go along with sex out of fear for her life, but is “I didn’t really feel like saying no” a rationale response to rape? I was wondering when someone would point out the “bite down” response. IANAL but IAAOOP (owner of a penis) and I wouldn’t ever shove it in anybody’s face for fear that Little Elvis might get chomped on. Of course so much could be circumstance…if she saw the guys beating up people and generally being aggressive, boozed up, etc. maybe there’s something to it even without the man threatening her specifically. OTOH if she’s giving him strong “come hither” glances, rubbing up on him, etc. then he isn’t totally remiss in thinking his advances were welcome. There must be cases where it definitely isn’t rape but it isn’t totally innocent on the guy’s part either. I wonder what lesser (but related) offenses might be considered. ---
**Author:** ![Rubystreak](https://avatars.discourse-cdn.com/v4/letter/r/e5b9ba/32.png) [@Rubystreak](https://boards.straightdope.com/u/Rubystreak)\ **Post date:** [August 21, 2009, 9:35pm UTC](https://boards.straightdope.com/t/lack-of-affirmative-consent-as-rape/506884/102 "2009-08-21T21:35:33Z")
> [@Freudian\_Slit](#): > > Yeah and alcohol is often involved. But if I drink and make a stupid decision, I don’t blame the guy who “got a girl drunk.” I wonder why “got a girl drunk” is in quotes, because I sure didn’t say it. Please don’t try to depict me as someone who is saying that women aren’t responsible for their actions. They are. But the other person is also responsible for theirs. It is 100% possible to say no to sex when offered if the person offering is so fucked up that they are not in their right mind, and I would say they have a moral obligation to do so. > [@](#): > > I’m a woman, I choose to get drunk. If I make a dumb decision, I don’t blame a guy for “taking advantage.” I blame myself for choosing to get drunk and not knowing better. Now, if the guy wants to have sex and I don’t and I tell him that and he ignores me, he’s to blame, not me. But for me being so drunk that I think it’s a good idea to do something stupid like have unprotected sex, and then realizing in the light of day that I wouldn’t have done that sober? My fault. Sure, I agree. However, there are situations where you are so drunk that you don’t have a coherent idea of what is going on, and aren’t able to give consent or withhold it in a meaningful way anymore. The law is designed to protect you when you are in that state. Ideally, it would protect both men and women, though in reality it probably protects men less because of social biases. That is unfortunate, but not a reason to get rid of the law. > [@](#): > > Anyway, I get the feeling that this thread is devolving into another “How drunk is drunk” tangents when what I really want to get at isn’t about impaired judgment but when you have consent. On the most basic level, is just lying there when a person asks if you want to have sex (or mounts you) equivalent to consent? I would say that, if you’re not capable of answering the question “Wanna fuck?” then you can’t give consent. If you’re thinking of mounting someone when they aren’t capable of conversation, and you don’t know them really well, you should probably forgo it. That seems like the sensible course of action, no? ---
**Author:** ![MichaelQReilly](https://avatars.discourse-cdn.com/v4/letter/m/df705f/32.png) [@MichaelQReilly](https://boards.straightdope.com/u/MichaelQReilly)\ **Post date:** [August 21, 2009, 10:52pm UTC](https://boards.straightdope.com/t/lack-of-affirmative-consent-as-rape/506884/103 "2009-08-21T22:52:58Z")
I’m far from an expert in criminal law, but as far as I know, with regard to drinking our legal system works on the “assumption of the risk” principle. That is, since the very purpose of alcohol is to impair your decision making ability, you assume the risk of any decisions you make while drunk. This is the reason that if I get blacked-out drunk and shoot someone, I can’t argue that I lacked the requisite mental capacity necessary to be guilty of the crime. In short, when a person is drunk, their mental state can be inferred from their actions. I’m curious to know how the law handles this issue with regard to rape. On one hand, if we want to be consistent we shouldn’t allow women to use their drunkenness to call into question what was, at the time, completely consensual sex; and to my knowledge, this is exactly how the law works. But on the other hand, I don’t think any of us wants to excuse a guy who takes advantage of a woman after she passes out from drinking; but the line between being really, really, drunk and being passed-out drunk can be rather thin (I speak from experience here). So what do we do come up with a workable solution to this issue? ---
**Author:** ![Freudian\_Slit](https://avatars.discourse-cdn.com/v4/letter/f/5daacb/32.png) [@Freudian\_Slit](https://boards.straightdope.com/u/Freudian_Slit)\ **Post date:** [August 21, 2009, 10:54pm UTC](https://boards.straightdope.com/t/lack-of-affirmative-consent-as-rape/506884/104 "2009-08-21T22:54:56Z")
> [@Zoe](#): > > It sounds more to me like the male is using her drunkenness as an excuse to have sex with her. That’s called “getting a girl drunk and taking advantage of her.” > > Of course she is responsible for being able to take care of herself. She did a crummy job of it and got drunk. It was foolish but not criminal. What he is about to do is criminal. **Zoe** said it, not you, **Ruby**. I guess the question comes, when are you too drunk to say yes? Passed out, obviously. Are there people who are having trouble walking/talking intelligently but can still say yes? ---
**Author:** ![Freudian\_Slit](https://avatars.discourse-cdn.com/v4/letter/f/5daacb/32.png) [@Freudian\_Slit](https://boards.straightdope.com/u/Freudian_Slit)\ **Post date:** [August 22, 2009, 3:54am UTC](https://boards.straightdope.com/t/lack-of-affirmative-consent-as-rape/506884/105 "2009-08-22T03:54:32Z")
> [@KellyCriterion](#): > > For those interested in this topic, I recommend watching the documentary [Raw Deal: A Question of Consent](http://www.imdb.com/title/tt0239879/). In this doco, you can watch actual video footage (clear vision, with sound) of a sex act in which the girl involved claimed (to police) was rape, and the guy involved said was consensual. The guy was arrested, but later acquitted due to the tape, much to the outrage of many womens’ rights groups. I found the first twenty minutes of it on [youtube.com](http://youtube.com). I wish I could see the rest. Something doesn’t really add up… ---
**Author:** ![Freudian\_Slit](https://avatars.discourse-cdn.com/v4/letter/f/5daacb/32.png) [@Freudian\_Slit](https://boards.straightdope.com/u/Freudian_Slit)\ **Post date:** [August 25, 2009, 6:31pm UTC](https://boards.straightdope.com/t/lack-of-affirmative-consent-as-rape/506884/106 "2009-08-25T18:31:39Z")
I know this thread has probably died but I did want to post something I read over the weekend. I read an excerpt from an anthology about sex (Yes Means Yes) where the woman talks about how our attitude to sex shouldn’t be trying to get some. Like, if the woman you’re with mumbles something or isn’t all that enthused, try giving her a back rub, etc.–working up slowly. Which I suppose is nice, but again, it seems a bit…patronizing. If I don’t want to be there, I won’t–I don’t feel like I need to be talked down to. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 25, 2009, 8:33pm UTC](https://boards.straightdope.com/t/lack-of-affirmative-consent-as-rape/506884/107 "2009-08-25T20:33:31Z")
> [@KellyCriterion](#): > > For those interested in this topic, I recommend watching the documentary [Raw Deal: A Question of Consent](http://www.imdb.com/title/tt0239879/). In this doco, you can watch actual video footage (clear vision, with sound) of a sex act in which the girl involved claimed (to police) was rape, and the guy involved said was consensual. The guy was arrested, but later acquitted due to the tape, much to the outrage of many womens’ rights groups. Actually, after the tape surfaced, the decision was made not to prosecute the men alleged to have assaulted Ms. King; and Ms. King was charged with making a false report. That charge in turn was dropped, and she was charged with operating an unlicensed exotic dance service. ---
**Author:** ![Freudian\_Slit](https://avatars.discourse-cdn.com/v4/letter/f/5daacb/32.png) [@Freudian\_Slit](https://boards.straightdope.com/u/Freudian_Slit)\ **Post date:** [August 25, 2009, 8:35pm UTC](https://boards.straightdope.com/t/lack-of-affirmative-consent-as-rape/506884/108 "2009-08-25T20:35:34Z")
> [@Bricker](#): > > Actually, after the tape surfaced, the decision was made not to prosecute the men alleged to have assaulted Ms. King; and Ms. King was charged with making a false report. That charge in turn was dropped, and she was charged with operating an unlicensed exotic dance service. Do you have any more info about that? Watching the first twenty minutes really intrigued me. [Previous page](https://boards.straightdope.com/t/lack-of-affirmative-consent-as-rape/506884.md?page=5)