We have discussed many cases in this and other threads that say otherwise. Women who have been drinking have filed allegations against men, and the men have been found guilty because the women were drunk and therefore could not consent. (ie not cases like Stanford where it appeared to be incapacitation)
I am not sure where you got that quote about incapacitation vs intoxication, but I like it. I am firmly in the camp that thinks that should be the case with all statutes, etc. I have said MANY times that the line between doing something because you are drunk and have lowered inhibitions should be at least the legal limit for drunk driving. I would prefer it be between there and being passed out.
My interpretation is that the study thinks the police should be arresting people even if the crimes may not be proven to a reasonable doubt standard at the time of arrest. The alleged perpetrator would be arrested, and meanwhile the investigation of the alleged crime would continue.
From reading another thread, I have learned that a person cannot give consent when drunk. So that would mean that all drunk sex is non-consentual, or rape. For both girls and guys. So these college kids are raping each other all the time.
Sorry if that sounds flip, but honestly, if that is the case, what on earth are we doing by allowing these kids to get so drunk that they are legally no longer adults capable of taking care of themselves and making decisions? This whole situation is so ridiculously unhealthy!!!
I am also in the middle when it comes to “victim blaming” (actually, way over to the side that says to never blame the victim). Maybe it is because I abhor absolutes that I find the argument that a victim can NEVER be at fault, to be faulty. In almost all cases the victim is NOT TO BLAME. Just because a woman wears a miniskirt does not make her at fault if she is assaulted. But, a female prison guard who goes into a prison wing of rapists and teases them while wearing a thong should not be surprised if the doors are accidently opened and she is assaulted.
I know that was a crazy example but there is an overlap between personal responsibility and culpability.
Response to post #1038: What if both people are drunk and one passes out during consensual sex?
Well, you could go back to that wonderful tea video. First stop trying to give them the tea if they are passed out then call for help. If your partner passed out for ANY reason during consensual sex wouldn’t you stop what you were doing and get help?
In the Stanford case even if the young woman had seemed interested at one time she was no longer interested (due to unconsciousness) by the time they were seen by the cyclists. In that case if you are a human with any decency you stop what you’re doing and get call for help and make sure she is safe. No matter what the level on consent might have been before, once she is passed out continuing to have your sexual encounter, leaving her there alone behind the dumpster and going home to bed, or running away are never the right answer.
It’s not about putting on your “big boy/girl pant” it’s about acting like a decent human being.
Some people say that. There may be some on this thread who hold that view, but they are in the small minority. Some of us believe that a person can give consent if they are physically capable of indicating consent, even if very drunk; others of us hold that in some cases people are so very drunk that they are unable to comprehend what they are doing and cannot give consent even if they seem to.
@saintfan I agree with you but I am not sure it is always that simple. There are several ways that the still conscious person might not know the other person has passed out. They might not be able to see their face (to put it delicately). One or the other of them might keep their eyes closed during the act. If it is the guy he wouldn’t see her passed out. If it is the girl she might just be the type that keeps her eyes closed.
In a non-wasted state I would guess that a reasonable person could still tell if a person passed out by their lack of interest (movement?). When the other person is also wasted I am not sure that it wouldn’t often be the case that they failed to realize the other person had passed out.
Ok, let’s say two 21-year old friends (a male and a female) are at a party, getting super drunk, and the next morning they wake up together completely naked somewhere, and there is evidence that sex happened. The girl knows that she is not physically attracted to her friend and would not have had sex with him sober. But let’s say in this hypothetical situation that they were both so drunk that neither of them remembers what happened at all (they have both blacked out). What is the likelihood of a rape accusation surfacing later? And theoretically couldn’t the male bring a rape charge himself, since no-one can give consent while drunk? I guess it really just depends on how the two individuals involved process the event, emotionally, psychologically, and socially. In this case, acting like a decent human being might involve recognizing that getting so drunk that you have no memory and make terrible choices, is a really bad idea, and you are at least a tiny bit responsible for your behavior while loaded, even if there is some unpleasant outcome that you’d like to disassociate yourself from. The sad thing is that alcohol makes decent people less decent and less rational.
The likelihood is very small, since the number of drunken sexual encounters outnumbers the number of accusations by an enormous amount.
ETA: At some schools, having sex with a person as drunk as both of these people were is an offense against the student conduct code. Either one could accuse the other, and very likely at such a school the accusation would be upheld. If your student attends such a school, they are taking a risk in a situation like that because having sex with the other person is deemed sexual misconduct.
@Cardinal Fang I agree 100% with post #1165. I wonder where the line gets drawn and how we expect it to be determined by participants. Your and my idea of
is probably very different from different groups of people (eg higher than some and lower than some)
Right…because being a decent person means taking responsibility for a mistake, even if you don’t remember it. But according to the law apparently, both people were raped. Because no one can give consent while drunk.
@dstark I read the actual Stanford regulations and the problem is how someone defines some of what is contained in it, like “under the influence of a controlled substance and unable to control their body”. Here is a link to what NPR said about the new California law:
[quote]
The legislation says silence or lack of resistance does not constitute consent. Under the bill, someone who is drunk, drugged, unconscious or asleep cannot grant consent./quote.
What about prosecuting all these kids, male and female, for underage drinking and for serving alcohol to underage persons? Why are colleges not cracking down on the primary cause of the problem?
If you want to know what the law says, step away from NPR. Look at the actual law:
(my emphasis added)
It doesn’t say that someone who is drunk cannot consent. It says that someone who is so incapacitated by alcohol that they can’t understand the fact, nature or extent of the sexual activity can’t consent. That’s a much more stringent standard; most people, even when they’ve been drinking, are not that incapacitated.
As I mentioned, it is easy to look at what you quoted and say “See, drunk isn’t the same as intoxication”. (especially since they say that. The problem is that the section on incapacitation leaves too much open to interpretation. Some prosecutors have apparently (from what I remember) said that being drunk keeps victims from being able to “appreciate the quality of the act”, or “not having control over his/her body”. Can’t walk straight but are still coherent and give consent? Sorry, you couldn’t because you didn’t have “control over your body”.
I LOVE the idea and intent behind the Stanford regulations. I just think that they are too open ended. If I get time I might try to find cases where victims were drunk but not passed out and the victims still obtained either guilty verdicts or expulsions against the other person.
