Please, enlighten me. How can you prove someone was or was not drunk two nights ago. Girl walks in your office and says “I got drunk on Friday night and had nonconsentual sex with Ryan. I wouldnt have slept with him sober and feel taken advantage of.” Where is the burden of proof here? It’s not like there are always witnesses to interview and even if there were they’d need to have been paying attention to what someone else was drinking. And even then that doesn’t prove a person was drunk.
And if you have two people who are trashed and they have sex with each other does that mean they raped each other?
The burden of proof is where it always is: on the prosecutor if the case comes to trial. Personally, I tend to doubt that a case such as you describe would be considered substantial enough even to justify pressing charges, but IANAL.
If charges are brought, then the investigators start looking for evidence, just as Marley23 described to you a few posts ago.
You, like Fotheringay-Phipps, don’t quite seem to grasp the meaning of “incapacitated” here. If two people are both genuinely incapacitated from intoxication then it’s long odds that neither of them manages to initiate sex. If they do, and each of them ends up believing that the other raped them, then it’s up to the investigators and the courts to sort it out.
I cannot understand why you seem to think that would be a bad thing. Yes, acquaintance rape, like marital rape and child molestation, is one of those crimes that generally occur in private with no witnesses, so it can be hard to sort out innocence and guilt in such cases. But why would you imagine that it would be preferable simply not to acknowledge or deal with it at all?
Because that’s where all these objections seem to be directed: “This serious crime should not be taken seriously because it can be difficult to establish the facts.” Uh, and, so what? Do you also oppose enacting or enforcing laws against child sexual abuse because it can be difficult to sort out what happened and children are often unreliable witnesses?
Okay, so here’s a true story - you legal types, let me know how this new law would affect things.
Jack and Mary, both friends of mine but who didn’t really know each other, met at a gathering. Neither had been drinking. Jack is a very forward fellow, but not a bad guy, and, finding Mary attractive, put his hand on her knee as they talked. Mary didn’t react to this, so he moved his hand higher and higher. He noted that she seemed a bit nervous, but he was moving slowly and making eye contact and felt that he was giving her every chance to say “No”. Because he really isn’t a bad guy, he fully intended to stop when/if she said No or moved his hand away, but he hoped she wouldn’t. She never acted to stop him, but shortly her friend called her away and that ended the encounter.
Unfortunately for both of them, what he didn’t know is that Mary is a survivor of longtime sexual abuse, and when he started moving his hand up her leg she started internally freaking out. She was trying really hard (and quite successfully) to keep it from showing, but what he saw as “nervous but not saying no” was actually “frozen in panic”. Her friend who called her away had looked over and, knowing her history, guessed what was up and gotten her out of there. Mary wound up spending the night crying, throwing up, and generally living in Flashbacks From Hell land.
Naturally, when Jack found out about this, he felt absolutely horrible about it, apologizing like crazy. He kept saying that she should have said no, he would have stopped right away if she had said no. I really believe he would have. However, as I told him afterwards, if he had sought a yes instead of waiting for a no, all this trouble would have been avoided.
Given this situation:
No drugs/alcohol involved.
One party genuinely feels they are having a consensual encounter.
The other party has definitely not consented, the encounter is 100% unwelcome but they cannot or do not voice their objection, hoping the other person will just go away.
I’ve had a few to drink but unless I’m missing something, even if they were in college(remember this law only applies to college students) then it wouldn’t since they didn’t have sex.
Thanks for the answer. And the campus police answers to whom exactly? The county police? Or is it purely internal, and they’re under the sole authority of the university? And if the latter, do they have all the same rights as regular police? Could they search, arrest, enquire, execute a warrant, for instance?
In fact I knew there was such a thing as a “campus police”, but assumed that despite its name it was just the equivalent of private security and would tell people not to park their car over there or maybe at most expel troublemakers from the ground.
Which isn’t a good idea IMO, because I suspect 99.9 % of people who have sex don’t actually ask their partner “do you want to have sex?”, they just have sex, period, hence technically are rapists. I myself must admit I raped pretty frequently by that standard.
And when we’re talking about law, “technicalities” is all there is. If you are “technically” a rapist, you’re a rapist, period. And inevitably somewhere, someone will be sentenced for a nonsentical reason. Technically again, since it’s a criminal matter, if your girlfriend admit she didn’t give affirmative consent, you’re a rapist and should go to jail, even if she states that in fact she wanted to have sex.
So, a law that would state “sex is rape unless affirmed consent” (not apparently the case here) would be an extremely bad idea.
Your earnest legal analysis would be more impressive if you had read the law. The affirmative consent policy addresses how colleges evaluate which complaints to investigate. That’s all.
Not redefining rape, nothing to do with your wife. This is about internal investigations of filed complaints at, and only at, universities.
Furthermore, affirmative consent is way more common than you think. “You ready for this? Do you want some? Can you put the condom on? Think you can take this?” Nobody is talking about a three page contract- just make sure your partner is awake and eager.
Two “learning of limits” are going on, which sometimes blend into criminal rape.
young men are learning that although social convention requires them to take the initiative, there is still a cut-off point where they don’t have to control. And that includes a factor of when the partner is too drunk to exercise her input. College is where they learn to handle the onus of initiatorship without doing something they’ll regret for the rest of their lives.
These young men are not Ted Bundys. They’re drunk too, and they don’t want to hurt women. But they’re under a lot of pressure to “get laid or bend over faggot.” They are incredibly ignorant, and drunk, and think the woman is saying no to keep from feeling like a slut; condemned to her social role much as they are to theirs. And even if they aren’t charged with rape, they’ll hate themselves for it for the rest of their lives. Let’s protect them too. That sucks, but that’s the way it is, and college is when they get a handle on that.
2. young women are learning how much booze they can handle. They’re going to want/need booze for sex for the rest of their lives: except for that first six-month honeymoon endorphin rush, or later some odd Wednesday night meat & potatoes quickies with the hubby, for the majority of American women sexy time will include a glass or two of wine . That sucks, but that’s the way it is, and college is when they get a handle on that.
Let’s give these victims of social conventions “yes means yes” as a counter-convention.
They think the woman is saying no to keep from feeling like a slut
They think the woman is saying no to keep from feeling like a slut
They think the woman is saying no to keep from feeling like a slut
Christ on a croissant. I went to college in the early 1980s, and we thought we had fixed that.
How the hell did this idea that an unattached woman is a “slut”, simply for honestly and openly having as much consensual nonmonogamous sex as she chooses, get dragged out of its crypt and sent forth upon the earth again to prey upon the living?
Like I said, it sucks. But demonizing men is not going to help anything. This is not just “men bad, women good”*
Women maintain the myth of sluttiness, because your boyfriend is your status symbol (not someone you, you know… “love,”), and other women who threaten that status do so by offering sex. Men step in to exploit slut-shaming culture (and use it to justify their actions).
Men impose an equally harsh hierarchy of winners and losers on each other, and in adolescence, when their earning ability is not available for achieving status, pussy is the coin of the realm.
Young men need to stop raping young women, but let’s look at the supply train to that activity too. Even if it places some part of the blame where some people don’t’ want to shoulder any.
*consider this: men don’t like being raped either. In fact, we really, really hate it. And one of many reasons is that women generally aren’t cool about it. Except for Arabia and Sicily, a woman who has been raped will not be “damaged goods” by males. But if an American freshman boy is raped, he won’t have to rent a tux for his Senior prom.
ISTM that your understanding of the word “incapacitated” in context is incorrect. Incapacitated doesn’t mean passed out and it doesn’t mean incapable of any sort of thought, or whatever. It simply means lacking ability of “something”, that something to be understood by context or subsequent definition. In this case, the latter is helpfully provided. So incapacitated means lacking ability to “understand the fact, nature, or extent of the sexual activity”. That’s a lot less than “completely passed out, don’t even understand what hole you are in, or think you guys are playing checkers”.
But I’m willing to be corrected if people with actual expertise speak up. Can someone knowledgeable about the law confirm whether this law would only apply to women in the condition that even sven describes? And more specifically, in the context of our point, in the condition where it would be impossible for sex to occur if both parties were in that condition (which is even sven’s claim)?