Which of these consent-related circumstances can be considered "rape"?

[even_sven]

1. Not rape. People are responsible for their own choices.

2. Not rape. The exception is if you are [i[incapable* of giving consent. If you cannot speak, are passed out, or cannot coordinate yourself to resist or make your wishes known, it is rape.

3. Rape.

[robert_columbia]

My take is that if you have an established, habitual, consensual sexual relationship with someone, it is reasonable to assume that consent has not been revoked unless you are told so using some unambiguous language or gesture, which could be as simple as a “no” statement in response to a come-on or a serious shove in response to touch. But if you “submit” without as much as a word or gesture in opposition, thinking to yourself, “I don’t consent, but I’m not going to tell him I don’t consent and I won’t resist, because I want to be able to put him in jail for rape”, you just effectively consented. This woudn’t necessarily apply to come ons from true strangers and wouldn’t necessarily apply to direct threats made by a partner.

[MichaelEmouse]

@robert_columbia

My take is that if you have an established, habitual, consensual sexual relationship with someone, it is reasonable to assume that consent has not been revoked unless you are told so using some unambiguous language or gesture, which could be as simple as a “no” statement in response to a come-on or a serious shove in response to touch. But if you “submit” without as much as a word or gesture in opposition, thinking to yourself, “I don’t consent, but I’m not going to tell him I don’t consent and I won’t resist, because I want to be able to put him in jail for rape”, you just effectively consented. This woudn’t necessarily apply to come ons from true strangers and wouldn’t necessarily apply to direct threats made by a partner.

I largely agree with this but I do wonder about the liminal phase where people are neither true strangers nor in an established, habitual, consensual sexual relationship. Say, the first few dates or bumping a friendship into a FWB/relationship. From a legal POV, considering there’s a presumption of innocence and the burden is beyond reasonable doubt, a gray area favors the accused. From a non-legal POV, it gets a lot more complicated.

[Skald_the_Rhymer]

@Taomist

Someone ‘drunk’ can’t give informed consent.

If both parties are drunk, does that mean each is guilty of rape?

[MrDurden]

@Taomist

Someone ‘drunk’ can’t give informed consent.

Now this is more to the matter of that particular scenario. If someone who is over some arbitrary legal limit, are they unable and not responsible for the decisions they make? Of course we hold the drunk person responsible if they choose to drive, why not when they choose to have sex with someone?

If you can’t give informed consent while drunk, why are police allowed to use drunken confessions against you in a court of law?

[JRDelirious]

@the_apples_fell

I’ll describe each situation in greater detail, since it did not allow me to do so in the choices.

Situation 1; Two people go into sex without really saying anything.. it just naturally progresses as such. Verbal consent nor opposition were given on either end. One of the people involved is uncomfortable, but says absolutely nothing nor indicates their discomfort in a way comprehensible to the other person. However, the next day they decide that since they didn’t really want it, they will claim rape.

Not rape, legally or morally. Consent need not be explicit: “Just going along with the flow” without expressing any reservations could be understood as tacit consent by reasonable people. Valid consent can be given for the wrong reason yet still be consent.

Situation 2; Someone who is clearly drunk comes up to someone else (who is sober) and is flirting with them, and then the two go alone and proceed to have sex. The next day, after realizing what happens, the formerly drunk individual feels as if the sober one took advantage of their drunken state and that had they not been drunk, they would have said no. They then wish to press charges for rape.

Depends on what we mean by “clearly” drunk and on the nature of the advances made while drunk, since the scenario has* the inebriated person* taking the initiative. Individuals can be inebriated yet still be morally competent, so at some varying threshold point Mr/Ms. Sober fails the ethics test but is still on the right side of the law, but should be very, very, very careful to read the signs and would be well advised to take a raincheck…

Situation 3; Someone gives consent right off the bat (verbally) and then halfway through says “I don’t want to continue” but they are pressured into it and/or forced to continue.

Direct coercion? Rape.

[MandaJo]

I think there are occasions of the first case where the man is not a rapist, but the woman clearly was raped. I am thinking of girls, here, not women, that come from cultures or backgrounds that have not taught them to assert themselves at all, and especially not to men. A fourteen year old laying there with tears running down her face wishing with all her might that this was all over but never once thinking that she has the right to say so? Yeah, that’s a rape. The fifteen year old boy sweating on top of her, totally oblivious to her discomfort because he’s an idiot who thinks she must be loving it the way he is is not a rapist, he’s just an ignorant child.

You can’t prosecute this sort of thing, but the feelings of violation and despair the girls feel are real, and shouldn’t be dismissed as “You didn’t say no, so on your own head be it”.

[robert_columbia]

@Skald_the_Rhymer

If both parties are drunk, does that mean each is guilty of rape?

It’s possible that if you are drunk enough to lack the ability to consent to sex, you are necessarily drunk enough to lack the ability to form the criminal intent/mens rea for rape, though that might depend on the jurisdiction. Socially, I’d say that if you are too drunk to realize the ramifications of what you are doing, you are too drunk to intend to violate someone.

[the_apples_fell]

@MandaJo

I think there are occasions of the first case where the man is not a rapist, but the woman clearly was raped. I am thinking of girls, here, not women, that come from cultures or backgrounds that have not taught them to assert themselves at all, and especially not to men. A fourteen year old laying there with tears running down her face wishing with all her might that this was all over but never once thinking that she has the right to say so? Yeah, that’s a rape. The fifteen year old boy sweating on top of her, totally oblivious to her discomfort because he’s an idiot who thinks she must be loving it the way he is is not a rapist, he’s just an ignorant child.

You can’t prosecute this sort of thing, but the feelings of violation and despair the girls feel are real, and shouldn’t be dismissed as “You didn’t say no, so on your own head be it”.

I agree. For someone to earn the designation “rapist”, I feel they would have to be aware that the other person was uncomfortable and/or unwilling to proceed with sexual acts, yet they push the other person past their limits regardless. It’s a deliberate behavior that disregards the (known and clear) feelings of another. And if someone has any doubt if their advances are welcomed, they should ask.

[MichaelEmouse]

@robert_columbia

It’s possible that if you are drunk enough to lack the ability to consent to sex, you are necessarily drunk enough to lack the ability to form the criminal intent/mens rea for rape, though that might depend on the jurisdiction. Socially, I’d say that if you are too drunk to realize the ramifications of what you are doing, you are too drunk to intend to violate someone.

A curious situation, isn’t it? I can say that in Canada, the only way that self intoxication could* prevent someone from being found guilty of sexual assault (which includes rape) is if the person was so intoxicated that they were zombie-like.

I have some vague memory of reading about something similar in British law.

Also, the mens rea includes intent but also usually extends to recklessness (i.e.: not giving a fuck) and willful blindness (i.e.:see no evil, hear no evil) so someone could be convicted even if they did not intend to violate someone.

As for the victim’s level of intoxication, it’s obvious that someone who’s passed out/zombie isn’t able to consent. It’s also obvious that someone who’s a little squiffy is able to consent. But in-between those extremes lies a lot of reasonable disagreement over what constitutes too drunk to consent.

• I do mean “could”. Statutes restrict the intoxication defence so it’s not clear if it’s even possible.

[TriPolar]

1. Not rape
2. Not rape
3. Rape if forced, not if pressured. I presume pressured isn’t the same as forced or it wouldn’t be an option.

[Grrr]

My problem with consent while drunk:

If someone gets drunk, gets in their car and kills a family of four; nobody in their right mind says: “Oh he was drunk, lets give him a pass.”

So by that same token you can’t say: “I can’t be held responsible for what I do with my vagina while intoxicated.”
You chose to drink. You live with the consequences.

[the_apples_fell]

@Shakes

My problem with consent while drunk:

If someone gets drunk, gets in their car and kills a family of four; nobody in their right mind says: “Oh he was drunk, lets give him a pass.”

So by that same token you can’t say: “I can’t be held responsible for what I do with my vagina while intoxicated.”
You chose to drink. You live with the consequences.

I agree. Drunken behavior cannot be an excuse sometimes but not others.

[MichaelEmouse]

It isn’t a question of being excused. To take a concrete situation, say a woman gets drunk at a party and then passes out in the coatroom. A man enters and has sex with her. Even if she chose to get drunk, she doesn’t have to be excused for anything. She committed no fault and hurt no one else, unlike a drunk driver. There is no pass to give her because she doesn’t have to ask for a pass.

The issue of being held responsible is also lacking in precision as to what responsibility implies.

The analogy with drunk driving is lacking because very different aspects are pertinent when we ask ourselves if someone is an intoxicated victim and if someone is an intoxicated criminal.

As for “you chose to drink, you live with the consequences”. I’m pretty sure that if you got drunk to the point of passing out and found a couple of gay guys had run a train on you while you were passed out, you wouldn’t be quite so categorical.

[AHunter3]

@the_apples_fell

I am curious because there is often ambiguity over how much opposition needs to be demonstrated, before one can claim rape.

My view is that consent is needed from the get-go (an affirmed “yes”), but the second that someone changes their mind and shows it (saying so, pushing the person away, pulling away) and the other refuses to stop, it is clearly rape.

The more ambiguous situations I am unsure, since I am not involved in the legal field.

• If I, (I happen to be a guy), being of sound mind, am not massively stupendously impaired, I figure I am capable of saying “no” to anything I do not want to proceed. Female people should be equally able, minus serious explicit or implicit threatening components to the situation.

• I take it for granted that I can change my mind at any time, including after I’ve got my damn clothes on the floor and my aroused boyparts out in the air. Therefore, so does she. There is absolutely no time at which she loses the option of saying “You know, on second thought HELL no”. It’s rape if you don’t let someone opt out.

• Rape is a damn serious accusation. It should not be thrown about lightly since it should not be taken lightly. If anyone opts out in reasonably clear language and the other person doesn’t acknowledge, that’s rape, but you can’t expect the other person to be a mind reader. If anyone creates an atmosphere of intimidation I understand it could be (or feel) unsafe to opt out, but to call it rape without opting out there should be some overt and specific elements to the atmosphere of intimidation or otherwise the other party is being asked to be a mind reader.

[Jimmy_Chitwood]

@Shakes

My problem with consent while drunk:

If someone gets drunk, gets in their car and kills a family of four; nobody in their right mind says: “Oh he was drunk, lets give him a pass.”

So by that same token you can’t say: “I can’t be held responsible for what I do with my vagina while intoxicated.”
You chose to drink. You live with the consequences.

If someone gets drunk and gets the shit beaten out of him, does he have to live with the consequences of what he did with his face while intoxicated, or is this one of those general rules that only applies to this one situation that you’ve decided you’re aggrieved by? That is a rhetorical question.

I’ll attempt to make the same point I usually make, and then everybody will tell me I’m wrong: those three situations are all sexual assault. A few mostly obvious points:

1. Sexual assault is a unique classification of a wrong thing to do. It isn’t like larceny, it isn’t like drunk driving, it isn’t like murder. That isn’t a moral argument, even though it could be one – it’s probably way more important to realize that rape is very different from other crimes in a bunch of ways, of which the question of consent is probably the most fraught with complication. Analogizing it to property crimes and drunk driving is not helpful and just opens the conversation up to semantic battles nobody wants to fight. Well, I kind of do, but mostly nobody.

2. A hypothetical is not the real world. There’s a big difference between a situation where you tell us that in fact there was no consent (which is what “Verbal consent nor opposition were given on either end. One of the people involved is uncomfortable, but says absolutely nothing nor indicates their discomfort in a way comprehensible to the other person.” amounts to) and a situation where one person is telling one story and the other person is telling another story, which is what happens in a courtroom, which is the only place the actual determination of what can be considered rape actually happens, and then only when it’s proven beyond a reasonable doubt, which there certainly would be if it were the real world and not a fictional scenario. A theoretical conversation just supplies the answer to “was there consent,” when in fact that question, in the real world, is a goddamn nightmare and doesn’t have anything like a tidy answer. Once we’re let in on the secret knowledge that person B was at alll pertinent times uncomfortable and not only didn’t manifest consent but also didn’t actually experience it, the concept of reasonable doubt doesn’t apply. In the real world, not only do we have to wonder how anyone would know person B was uncomfortable if it literally didn’t manifest itself in any way, but we also have to wonder if a person is really uncomfortable if they literally show no signs of discomfort. It’s like a zen koan. And like a zen koan, it has relatively little direct application to everyday life.

3. If an analogous situation generally wouldn’t be found to be rape in a real world courtroom because of evidentiary issues and burdens of proof, but it is rape in theory when a definitive answer to the consent question is supplied ex cathedra, then the theoretical conversation will far overstate the practical ramifications for real people who believe the rapist or “rapist” is getting a raw deal.

4. Point #3 leads to a lot of people, during theoretical conversations, kind of flying off the handle about the absurd ways that “these so-called rapists,” by which let’s be honest they mean men, are being unfairly maligned by the legal system, when in fact the real world scenarios tend not to play out like that because of reasonable doubt and because of this exact phenomenon.

5. Point #4 leads to a tremendous divide between the people focusing on real-world sexual assault cases and people focusing on theoretical sexual assault cases, which is to say to a lot of people kind of flying off the handle about point #4.

[AHunter3]

@MichaelEmouse

It isn’t a question of being excused. To take a concrete situation, say a woman gets drunk at a party and then passes out in the coatroom. A man enters and has sex with her.

While she’s passed out? Rape. Period. End of story.

If you have sex with me while I’m passed out, that’s without my consent and that’s rape, too.

[Grrr]

@Jimmy_Chitwood

If someone gets drunk and gets the shit beaten out of him, does he have to live with the consequences of what he did with his face while intoxicated, or is this one of those general rules that only applies to this one situation that you’ve decided you’re aggrieved by? That is a rhetorical question.

Rhetorical, or not. Did said drunk guy give consent to have his face beaten to a pulp? If so, then yes.

I’ll attempt to make the same point I usually make, and then everybody will tell me I’m wrong: those three situations are all sexual assault. A few mostly obvious points:

1. Sexual assault is a unique classification of a wrong thing to do. It isn’t like larceny, it isn’t like drunk driving, it isn’t like murder. That isn’t a moral argument, even though it could be one – it’s probably way more important to realize that rape is very different from other crimes in a bunch of ways, of which the question of consent is probably the most fraught with complication. Analogizing it to property crimes and drunk driving is not helpful and just opens the conversation up to semantic battles nobody wants to fight. Well, I kind of do, but mostly nobody.

I disagree. And frankly, I don’t know where your logic is coming from. It all comes down to personal responsibility. You can’t say (Drunkenly) “Let’s screw” then afterwords when you’re all sobered up say: "Well, golly, I didn’t really mean it. I was drunk and you should have know better.

Seriously, why does it become incumbent on the one with the penis to supersede the judgement of the woman? It’s ridiculous and sexist.

2. A hypothetical is not the real world. There’s a big difference between a situation where you tell us that in fact there was no consent (which is what “Verbal consent nor opposition were given on either end. One of the people involved is uncomfortable, but says absolutely nothing nor indicates their discomfort in a way comprehensible to the other person.” amounts to) and a situation where one person is telling one story and the other person is telling another story, which is what happens in a courtroom, which is the only place the actual determination of what can be considered rape actually happens, and then only when it’s proven beyond a reasonable doubt, which there certainly would be if it were the real world and not a fictional scenario. A theoretical conversation just supplies the answer to “was there consent,” when in fact that question, in the real world, is a goddamn nightmare and doesn’t have anything like a tidy answer. Once we’re let in on the secret knowledge that person B was at alll pertinent times uncomfortable and not only didn’t manifest consent but also didn’t actually experience it, the concept of reasonable doubt doesn’t apply. In the real world, not only do we have to wonder how anyone would know person B was uncomfortable if it literally didn’t manifest itself in any way, but we also have to wonder if a person is really uncomfortable if they literally show no signs of discomfort. It’s like a zen koan. And like a zen koan, it has relatively little direct application to everyday life.

3. If an analogous situation generally wouldn’t be found to be rape in a real world courtroom because of evidentiary issues and burdens of proof, but it is rape in theory when a definitive answer to the consent question is supplied ex cathedra, then the theoretical conversation will far overstate the practical ramifications for real people who believe the rapist or “rapist” is getting a raw deal.

4. Point #3 leads to a lot of people, during theoretical conversations, kind of flying off the handle about the absurd ways that “these so-called rapists,” by which let’s be honest they mean men, are being unfairly maligned by the legal system, when in fact the real world scenarios tend not to play out like that because of reasonable doubt and because of this exact phenomenon.

5. Point #4 leads to a tremendous divide between the people focusing on real-world sexual assault cases and people focusing on theoretical sexual assault cases, which is to say to a lot of people kind of flying off the handle about point #4.

I’m not going to speak to this because it looks like a lot of double talk to me.

[TriPolar]

There are different levels of ‘drunk’. When someone is passed out they can’t consent to anything. Unfortunately people who drink enough to pass out don’t have good memories of what they may or may not consent to before they pass out. People can be really drunk, but still awake, and their level of intoxication may not be obvious. Someone who has a little bit to drink is perfectly capable of consent.

So getting right down to it, drugging someone without their knowledge would remove the possibilty of consent. As long as someone voluntarily drugs themself, consent is possible, and lacking evidence to the contrary, is likely to be assumed.

[Qin_Shi_Huangdi]

For the third option, I think its the first time SDMB has seen unanimous consent on a poll…