It’s insulting to men too, because it assumes that they’re just all waiting for the opportunity to commit an easy rape where they likely won’t be caught and prosecuted, and that’s just not true.
Most men are upstanding people who would not consider raping a woman.
I think that consent requires a concious decision. While blacked-out you are not concious.
Well, that’s all fine as far as it goes, but this isn’t the way a jury is supposed to act. In case (i) you have absolutely no way of determining whether the guy was lying, and are basing your decision on your personal opinion of his actions rather than on the establishment of fact beyond reasonable doubt, and in case (ii) are acting with absolutely no basis in law (at least in the UK, where the case in the OP took place). The Sex Offences Act 2003 contains no reference to a “reasonable belief” that the consent was valid, and if you voted in this manner according to your reasoning, you would in effect be simply making the law up as you went along.
Should you wish for a “reasonableness” condition to make its way into UK law, all well and good (although I disagree), but you can hardly contend that a judge and jury should simply see things your way and act on instinct; that is not how the legal system works. In UK law (and in just about every jurisdiction save Sweden, I believe), drunken consent is still consent, like it or not. If it were not, I would guess that roughly 5% of the population would be raping each other nightly, unaware of the severity of their willingly-performed actions.
Logically Loquacious, it becomes obvious from other articles (notably the BBC’s) that the case was retracted by the prosecution (not at the judge’s instigation), after the woman admitted in cross-examination that she could merely not remember giving consent. Had she testified that she was fully unconscious (and presumably this could have been backed up in this by the people who packed her into a taxi with the defendant), then the prosecution would not have withdrawn their case. Since she testified merely to not being able to remember, the prosecution conceded that they had no case; this was not a move that was forced on them by the judge, who merely assented to their withdrawal, and instructed the jury accordingly.
You’ll get no argument from me that the defendant acted like a shit; I have little but contempt for someone who would take advantage of a woman (or man) in this manner, consent or not. But my distaste for his actions does not constitute proof beyond a reasonable doubt that he is guilty of rape, and the woman’s own testimony introduces all the reasonable doubt that is necessary for the case to be dismissed outright, as indeed it was.
No, this is quite incorrect. See here for example:
I don’t think this is the same, as there are men who would rape women, not all, not most but some, and it would serve a woman well to know this little piece of info. I do agree that it is insulting to assume that a man raped a woman because she was drunk however.
I am not going to even begin to foster the notion of paternalism with a woman’s right to sexual autonomy (in response to kanicbird and catsix). However, I thought about your questions, Hentor, and decided to do a little legal research in my own State of Washington with respect to this legal standard. In Washington State, a person is guilty of second degree rape, in relevant part, when sexual intercourse occurs with a victim who is “incapable of consent by reason of being physically helpless or mentally incapacitated.” RCW 9A.44.050(1)(b).
Okay, but what is 'mental incapacity? RCW 9A.44.010(4) states that mental incapacity is defined as, “is that condition existing at the time of the offense which prevents a person from understanding the nature or consequences of the act of sexual intercourse whether that condition is produced by illness, defect, the influence of a substance or from some other cause.” (Note: There is a separate definition for “unconscious,” but since we all seem to agree that this is illegal conduct, I will not cite that definition herein).
Huh? Well, I believe this falls back on the contract law argument. What is reasonable based on all of the facts? Would a contract be enforceable when one party (or even both parties) is/were falling down drunk. Probably not. There has to be a conscious, affirmative act of consideration in order for the contract to stand. The mere fact that the drunk fell easy prey to the sober (or more sober) party does not make the contract valid.
So, how do we know when a victim is mentally incapacitated? I think that is the job of the legal system and juries to decide. Hopefully, the jury will not be so prejudiced by their own sense of morality that it will color the results. Drunken consent? Not in Washington State. Couldn’t the argument have just as easily been turned around to query whether there was “drunken non-consent?” If one looks at the facts, the woman did say that she would not have slept with the man who allegedly raped her. Shouldn’t she have been afforded the opportunity for a jury to determine what reasonably occurred that night?
I am so glad we both agree that these are mutually exclusive forms of conduct.
Yes, catsix, I know of what you speak. Maybe we should start a new thread…all the strange places we had (consensual) sex. :eek:
Not being an attorney (only the brother of one), I’m not sure of how contract and criminal law intermesh.
This is where I have difficulty conceiving of this as contract law. The invalidity of the contract in this case means that a man is at risk for jail time and having his life turned upside down. If this is the result of rape, this is a good result. If this is the result of a rueful woman who wishes she hadn’t said “Yes” last night, it is a horrible injustice. The idea of contract law, however, also must consider the sobriety of the man as a factor. If intoxicated, should he be held accountable for his actions in some way that the woman should not (again presuming a circumstance of a woman consenting to – or even asking for – sex)? If the contract is invalidated because neither is capable of giving consent, what is the result in terms of sanctions to be applied, and to whom? Again, you see, we get into a determination of how drunk is drunk for both the man and the woman.
So what does that mean? What I am trying to debate is what the standard should be. Rather than giving your opinion about what is drunken consent, you suggest that it’s only a matter for the jury. Okay, perhaps this is the reality when consent is in dispute, but not much use for debate fodder. Just going to the legal code of Washington State and pointing to non-graduated concepts of “mental incapacity” puts us back at post #1 of the debate. If there is “no drunken consent” in Washington, I would suggest to all men in Washington that a woman who has had a drink is off-limits because she is no longer responsible for herself.
I agree with the decision to withdraw the charge if the woman cannot recall if she gave her consent. Barring pregnancy or STD, the worst case scenario for her is that she had sex with someone she might not have otherwise. The worst case scenario for him is far more dire.
If “no means no,” it should be the case that “yes means yes.” If you don’t draw the line there, I feel you must draw the line at the other clearly identified end of the distribution, and say that women who consume any alcohol are no longer allowed to have sex.
I disagree that with a drinking situation and rape that a line should be drawn with respect to just the yes or no inquiry. If memory of the victim were the only inquiry then mentally handicapped or a woman that was beaten so badly during her rape that she could not recall the rape would mean that charges would never be brought against the rapist.
So how would I, and I say I because there is no scientifically quantifiable way in which to do otherwise, determine whether consent occurred during a drinking binge?
First, I would not consider the “intent” of the alleged rapist. Intent is not an element in proving or disproving the rape. To determine otherwise would be to say that all drunken men could rape at leisure because they did not have the mental capacity to know whether the waoman said yes or no to sex.
Second, I would ask whether the woman consented to the rape (subjective inquiry of the victim). Yes: not rape. No: prosecute for rape. I don’t know: continue the inquiry.
Third, I would make an objective inquiry of all of the circumstances leading up to the alleged rape. Can the bartender, friends, other witnesses verify whether the woman had the ability to speak, move in a manner that would lead them to believe that she had or did not have the ability to consent to the sexual contact? Were there witnesses to the attack? Was her blood alcohol taken within a close time to the attack? Was it very high in alcohol content? Was there physical evidence of rape, e.g., vaginal tearing and so on. This would mean looking at the totality of the circumstances leading up to the sexual contact.
In the case of the UK woman? With the facts available, I would tend to agree that there is insufficient evidence to determine consent. However, I disagree with the UK Judge’s inquiry of consent stopping at the first question. Maybe he did consider all of the facts, but his statement did not say that. He merely stated that drunken consent was consent. If she could not remember what happened then the inquiry ended there according to the UK Judge.
The worst case scenario you assign to the woman could also include AIDS. I would say that is quite bleak for her.
Here, and in much of your response, you are introducing physical violence and obvious coercion. Let’s be clear that we are not talking about forced sex. Any coercion is wrong. We are discussing when a person can be charged with rape because the woman was unable to consent to sex due to her own alcohol consumption.
Okay - here you indicate that if the woman said yes, it is not rape. I think we are in agreement, but I am confused by the degree to which you are pursuing the issue of lack of ability to consent due to alcohol consumption. If she said “Yes” but was drunk, is it rape? (Also, if she cannot recall whether she said yes or no, why would you pursue the case?)
Okay, but we are right back to determining the standard by which one can tell from external criteria how drunk is too drunk to consent. I do acknowledge, however, that it might be possible to have witnesses describe a set of circumstances by which a jury could decide that a reasonable person should not have pursued sex. I’m just unsure of what that would be and to what degree.
Here again - what attack? Any “attack” would be physical coercion, which I would hope we are all in agreement about.
Would you be looking for greater than a 0.5? 0.8? 1.0? Why or why not?
Let’s again presume it is absent.
And I agree, except that I thought that the prosecution withdrew. Nevertheless, if he says she consented, and she says she doesn’t know if she did or not, I agree that it stops right there. And I still feel that we haven’t come up with a compelling way of determining when consent is not really consent because someone is intoxicated.
I presumed that “sexually transmitted disease” would cover that, but we can specify that as well without changing my point. Which was, if the primary loss for the woman due to her consenting while intoxicated is her “virtue” (and her feeling bad that she had sex with an unattractive person), she should guard against such outcomes more carefully. I would weigh that as far less valuable than someone else’s freedom, social stigmatization and future employability.