I’m making the same point as you’re making. Your rephrase applies to basically any rape case, doesn’t it? Woman says no consent, man says consent. Unless “later” carries some shade of meaning other than the literal meaning, since by definition all allegations occur later.
So what I’m asking is, do you really want cites for cases where the man later said sex was not consensual, but the woman said it was, and the woman was tried on rape charges? I can do that, but so can google.
Yeah, that’s a little different from your summary. The charges of rape didn’t hinge on her thinking him a nerd, for two reasons:
In any case, the court acquitted the dude, so where’s the injustice? Certainly if a person wakes up from being passed out to find another person having sex with her (or him), with no memory of consenting to the sex, it’s reasonable to conclude the sex wasn’t consensual, and the passer-outter might reasonably bring rape charges.
I’ve never heard of such an incident, and I’d be interested in what you have along those lines.
Any chance you might take a stab at my questions in post #50? Thanks.
Why do you need to specify that the rapist was a woman in order to “leave gender out of it”?
In any case, there are plenty of anecdotal instances all over the internet of drunk men being raped, whether by a man or by a woman. If you want a higher-quality SDMB-type cite, try this article on an April 2014 study called “The Sexual Victimization of Men in America”:
How do you determine if someone was intoxicated and to what level a day or more later?
Is it just assumed that if she reports on Monday that she was drunk and had nonconsensual sex on Friday that she was in fact drunk? Does it all just hinge on her word? What if the guy says he was drunk too? Or she wasn’t drunk?
I don’t see how this can be proven after the fact.
It boggles my mind that we can hold people accountable for every decision they make while drunk (driving, fighting, stealing etc…) but not the decision to have sex.
Great Antibob:
Because the expectation only grows and grows. First the NFL is hit with a Domestic Violence issue. No sooner do they deal with it (however ham-handedly), then suddenly a child abuse problem pops up, and they need to formulate a policy to deal with that. What next? How do they anticipate every possible bit of reprehensible behavior that one of their players might commit?
Leave the policy-making (off the field) to the actual law-makers, the enforcement to the actual enforcers, and their need to stay ahead of the curve disappears. Let their policy be consequences for criminals after conviction through the legal system, and that’s a blanket policy that consistently covers their organizational ass, no matter how many unpleasant surprises their players/students can spring on them.
The point is that if a person is incapacitated, they are considered unable to make the decision to have sex. That is, they’re incapable of giving consent.
If you drive or fight or rob or rape while drunk off your ass, that’s on you because you still actually committed the criminal act after voluntarily choosing to get drunk.
But if you simply give consent to a legal act that requires your consent while you are drunk off your ass and thus legally incapable of knowingly consenting, that consent isn’t binding.
It’s not just about sex, either: under some circumstances, if you sign a legal contract while drunk, that contract can be unenforceable on the grounds of “incapacity to contract”. If the other party knowingly took advantage of your incapacity, they may be guilty of the crime of fraud.
I get the point about there being lots of gray area here. But fundamentally, the basic principle that people who commit crimes while drunk should still be held responsible, while people who take part in legal activities while drunk should not be assumed to have given true consent, is a sound one.
No, it’s not taken for granted. The police investigate it, look for evidence, and charges could be brought if they find enough evidence that a crime occurred. If the drinking took place at a bar, maybe they see how many drinks are on the alleged victim’s credit card. Maybe they interview the bartender or server or a cabbie who gave her a lift. If it happened at a party, they might interview other guests. That kind of thing.
I think you mean “Finally the NFL is forced to respond to a domestic violence issue.” Plenty of football players have been arrested for beating their wives or girlfriends, but there was never enough of a public outcry for the league to decide it had to act.
Are these genuine questions, or rhetorical questions? If genuine, it seems like the remotest familiarity with criminal law would answer them for you. If rhetorical, you’re off-base.
Because my default position was that gender is all kinds of relevant when discussing drunk sex that one person later says was consensual while the other says it wasn’t.
In order for me to say gender isn’t part of it, I need to see evidence that at least one time two drunk people had sex and the man later claimed it was against his will and the woman said it was consensual.
Thank you for that. That certainly raises the possibility that it might have happened, and was an interesting article. I fully acknowledge that men get raped, and have been raped by women. It is plausible that a man could have been drunk and not able to consent, although the woman believed it was consensual, and the man woke up the next morning believing he’d been raped (whether or not he reported it). But that article still doesn’t sound like that kind of situation specifically has happened.
You do understand that domestic violence (violence against adult members of the abuser’s family) and this sort of child abuse (violence against juvenile members of the abuser’s family) are very closely related, right? It’s not like they’re being asked to come up with a policy against beating your wife and a different policy against insider trading.
A simple policy–don’t hit members of your family–would cover both situations. Or, if it gives them the vapors to imagine yet more cases coming in, say, of players beating the crap out of foreigners, they could make a simple policy of don’t commit battery.
And hell, let’s cover insider trading. NFL, here’s what you do: tell your players to follow the fucking law, and bam, we’re done.
But for now, don’t beat the crap out of your family would cover the basics.
Left Hand of Dorkness:
That may well be true (it might also not be, people do not necessarily mentally put their wives in the same category as their children), but when the NFL or a college is put in the position of formulating its own shadow legal code, it generally does so in a minimalist manner, to address the known situations.
Well, that’s exactly what I was saying in the first place - it’s better for the NFL or a college to have a policy against breaking the law, and let legislators and policemen and judges do the job of defining, detecting and determining violation of said law.
But that raises the question of why sex should be uniquely singled out as requiring affirmative consent, while other acts that would be illegal if coerced are legal with consent-while-drunk.
For example, if you give a ride to someone who is drunk you don’t say that you’re guilty of kidnapping because that person’s consent to enter your car was not “knowingly” given. And so on.
It also ignores the question that I’ve raised repeatedly here of whether and why if two people who are equally drunk have sex with each other do we decide that one is the rapist and the other the victim based apparently on nothing other than gender.
Incapacitated. We are talking about people who are incapacitated: unconscious, unable to form speech, unable to comprehend what is going on around them, and unable to resist. What happens when two incapacitated people have sex? It doesn’t. How would that work? Incapacitated people can’t walk straight, gibber incoherently and have limited control of their bodies. They aren’t making love to anything except the toilet bowl. And I suspect you know that perfectly well, but somehow still feel compelled to stand up for your right to stick your dick in passed out women.
As for preemptive consent- try giving an innocent ride to kids on the street and I bet you’ll get your kidnapping charges in no time. Or try borrowing someone’s car without asking them and see if they accuse you of stealing it. Or walk into coworker’s house without knocking. When doing something that commonly raises objections, especially with people we don’t know very well, getting affirmative consent is the norm.
But that’s not what the standard is. The standard says: *“(B) The complainant was incapacitated due to the influence of drugs, alcohol, or medication, so that the complainant could not understand the **fact, nature, or extent *of the sexual activity”.
A lot can happen in such circumstances.
Again, did you miss the word incapacitated? We have words that legally mean “under the influence” and those are not the words being used here. The word incapacitated is there to mean “incapacitated”.
The text explicitly refers to people who do not “understand the fact, nature or extent of the serial activity.” So they are either completely passed out, don’t even understand what hole you are in, or think you guys are playing checkers.
Which, interestingly enough, also requires affirmative consent from two people. I tried playing checkers with a lady on the bus once, and she blew a whistle in my ear and ran away.
I was going to reply, then realized that even sven had addressed that point.
Yes, you’re skipping the word incapacitated. A man who is incapacitated due to drugs, alcohol, or medication is unable to communicate. A truly incapacitated man is unlikely to be able to have sex at all, let alone trying to find another woman. Same as with a man who is passed out asleep. Unable to have sex.
You keep bringing it back to the drunk and a few drinks more, but that’s not the extent they’re talking about here.
I don’t see why it’s remotely controversial to declare that a person who is so drunk they can’t understand the “fact, nature, or extent of the sexual activity” can’t legally consent to sex. That’s vastly less ambiguous and vastly clearer than other legal standards for when someone is considered too drunk to legally consent to sex.
Moreover, it’s hardly unique to the questions of sexual consent. For example in many if not most legal jurisdictions you can’t legally be bound by contracts you signed while drunk.
I even remember one case in Atlanta IRRC where a drunken celebrating college graduate spent 50,000 dollars at a strip club in one night and his family successfully sued to get the money back because he was so drunk that not only could he not remember the night but he was unable to stand and apparently needed “help” signing the receipts.
I’m pretty sure that car dealerships wouldn’t get away with selling to drunks in such a state.
How exactly did she say this? In a calm matter of fact way, like, “Hey, you know, I know I wanted sex, but if you actually did it, I would have claimed rape?”
I applaud your self-control. But I’m speechless that this woman was so two-faced.