First off, I understand that two lines need to be drawn. One line is when someone goes from just buzzed to “Too drunk to legally consent.” The other line is when someone is so beyond drunk that they’re essentially unconscious. For the sake of this thread, let’s look at the area between those two lines, wherever it happens to be for you. Someone is drunk beyond the point where they can legally consent to sex, but still coherent and communicating. This is the zone that I’ll hereby call “drunk.”
Now, to rehash the old argument. Drunk girls can’t consent to sex, so any guy who has sex with a drunk girl is guilty of sexual assault. Aha! say the clever people on the other side, then if two drunk people have sex they’ve both been sexually assaulted!
It seems like a sound argument, or at least a well-accepted observation of a double standard.
Should we try to eliminate this double standard? If so, how do we do it without giving men a free pass to get drunk and do whatever they want? Can we codify a solution, or will this always be a case of “he said/she said” that needs to be hashed out by a jury?
I always thought it was a pretty weak argument personally. If you’ve consented to getting drunk and then consented to having sex turning around later and saying ‘I couldn’t consent because I was drunk’ is just denying responsibility for your own actions.
Obviously exceptions apply, you’ll never get a universal answer for this situation.
The issue is the law is attempting to define someone’s intentions by defining hard rules - this never works, and never will. There are just too many factor and situations and the law should stay out of this one, it’s a lose lose situation for everyone.
Again this is different then the case that someone is passed out - but that too can be OK, depending on the relationship.
For the most part the state should stay out of people’s sex lives.
How does this work? If both partners are too intoxicated to consent to having sexual relations, how the hell did they end up having sex? Were they tied to strings, ala puppets? Was there pantless tripping involved?
Is it actually true that consent given while intoxicated isn’t binding? Does it differ state to state? Does it only apply to sexual encounters? Could I spend a bunch of money or sign a horrible contract and then renege by claiming intoxication?
If not, what is the rational for treating sexual situations different from others in regards to giving consent?
That’s not true, actually. The statutory language (and it varies state to state) typically states that a person can’t consent if they are “incapacitated” by alcohol or dugs, not that at any level of intoxication automatically precludes the ability to give consent.
Yes, this raises the question of what constitutes “incapacitation,” but that’s what juries are for.
Right, I should also clarify that this is a minor issue that tends to get overblown because it’s so open to interpretation. I’m sure the vast majority of these situations don’t end in this manner – it’s either obviously rape or obviously not, and juries would likely figure out the difference. And if they can’t, they’ll default to “not rape” because sadly it comes down to “I say she consented and there weren’t any other witnesses.” So my apologies for focusing on an issue that may not require any attention.
But I wasn’t finally prompted by this thread to ask the question, since in it Jimmy Chitwood claims that “If she got ‘way too drunk,’ the conclusion is that she didn’t have consensual sex. Sex that isn’t consensual is called…”
I can’t get past this point: if someone is coherent and communicating, how can you reach the conclusion that they are too drunk to legally consent to sex?
The trouble is with the law in most US jurisdictions - while consent is required, what the law actually looks for is non-consent, and the victim has to express non-consent. In most of the US, the default situation is that a woman consented to sex. She has to specifically say no for that sex to be non-consensual.
That’s where the drunk thing becomes a problem. If the burden is for affirmative consent - asking “Do you want to have sex?” and receiving a “yes,” then the problem doesn’t completely disappear, but is less prevalent. Under the majority rule, however, it is perfectly possible to think of a girl too drunk to answer the question, or even really understand it.
So, if the woman wakes up the next day and thinks the guy is cute, and decides not to press charges, then the sex was consensual. If she can’t believe she did THAT with HIM then it becomes rape? I can understand if the woman is completely passed out and has no idea that sex is occuring but anything short of that should be considered a major screw up by the woman but not rape.
One thing no one has mentioned is whether anything changes if the man intentionally got the woman drunk(er). And how well he knew her in her sober state.
Whilst having sex with someone who is unconscious, slipping in and out of consciousness or incoherent could reasonably be classed as rape if the woman is reasonably coherent it enters a much greyer area.
Compare someone who meets a woman he knows to have had casual sexual relations* and who was already well oiled and the prime mover in initiating sex with someone who meets someone he knows to be against casual sex and who is sober when they meet but reluctantly succumbs to his insistent advances after he’s plied her with alcohol (whilst possibly concealing the strength of alcohol that she’s consuming).
Note this is to be taken simply as evidence she has no fundamental objection to casual sex not that having casual sex in the past in any way lessens a woman’s right to say no.
Absolutely not. But about if she’s conscious and coherent?
I asked before, and it’s kind of crucial to this discussion: if someone is coherent and communicating, how can anyone reach the conclusion that they are too drunk to legally consent to sex?
If I meet a woman at a bar, and she is conscious and coherent, and we go to my place and do the horizontal bop, at what point could I have ever determined she was too drunk to legally consent to sex, so I don’t commit a rape?
I contend that if a person is conscious and coherent they are NOT legally too drunk to consent.
Honestly, Skateboarder Bo, I’d think you will be very hard pushed to find cases of a person convicted of rape for having sex with a drunk, but conscious and coherent, girl who agrees to have sex.
I would say that if someone cannot walk without continually stumbling or bumping into things then there’s a prima facie case for saying that she cannot give informed consent.
Again, this depends on how well you know her. If you’ve already had sex and she’s been happy with that a slightly more lax standard would probably apply.
If you have provided her with all the alcohol involved and/or she’s evidently very inexperienced sexually or in terms of alcohol, a much stricter standard should be used.
Of course, when any such case gets to a court of law it’s going to be a nightmare unless things are very clear cut.
So the claim is that the two lines defining “drunk” that were drawn in the OP have very little space between them, to the point of defying the usual understanding of the word “drunk”?
Not that that’s necessarily a bad thing - but if a word is going to be used in an overtly non-standard way we should all be aware of that fact.
What I mean, begbert2, is that when these cases actually happen, because of the legal construct of “consent” used in the US, it isn’t a situation of the person saying yes (as there is no requirement for her to say yes), it is more likely to be the person no saying no. Now it is a lot easier to conceive of a girl being so drunk that she cannot/doesn’t say no than it is to conceive of a girl being conscious and coherent and saying yes to sex, but being legally unable to give that consent…
Yorick said anything short of complete unconsciousness was fair game. I was specifically :dubious:ing at that.
I don’t think you’d find many people who would conclude that. There is, however, no doubt that there are levels of intoxication short of unconsciousness which preclude an ability to give meaningful consent – a point at which a person can be “communicative,” yet still “incapacitated.” Alcohol intoxication is graduated, and the graduation of lucidity varies from individual to individual. There isn’t a clean line to draw. It’s obviously impractical to make sex illegal under any level at all of intoxication, yet we just as obviously can’t say it’s open season on anything that isn’t in a coma either. It comes down to “incapacity” to consent, which is a judgement call, and it’s up to a jury to make that judgement.