It doesn’t matter if I was or wasn’t. Poor judgment does not equal incapacitation. She may have actually wanted to have sex and might have wanted to sober (doubt it, but not impossible). She might have wanted to make you both uncomfortable (most likely).
Incapacitation is a word with a very definite meaning. It means paralyzed, unable to move, etc, etc, (as I listed earlier from Websters).
Here is what you quoted earlier
Your post then went on to say that various things could cause.
So, let’s say that in your case the girl really did want to have sex with her brother. Do you think she would not have realized she was having sex? If a highly intoxicated woman hops on a guy while naked she obviously realized she is having sex. Therefore she is not asleep, not unconscious, and is aware that sex is occurring. Given the very definition that you quoted that means she could not have been too wasted to give consent.
In the LAPD/LASD report, the police who were interviewed list a lot of different kinds of possible corroborations for a he said/she said case: for example witness testimony as to their behavior beforehand and afterwards, physical evidence like bites or bruises, social media, phone calls immediately after the alleged event.
So do I, but the college tribunal has to decide the case before it. And that was whether Jane was capable of consenting. They had no need to consider whether John was capable of consenting, and they didn’t.
The defendant, Giardino, said that his conviction should be overturned because his drunk victim was physically incapable of manifesting a refusal to consent. The Court said, oh, no, we don’t buy that, that’s not our standard. She didn’t have to be that drunk in order to be unable to consent.
@TV4caster, I just got home. I looked what you said I posted about intoxication. You parsed that definition. You parsed the post. I don’t appreciate that too much. I’ll be ok.
Also, I have an experience. You weren’t there. Yet you tell me what happened. This is what happens to people who experience sexual assault. The victims have the experience. Others tell the victims what their experience was. Except in my case, it’s not a big deal.
@chris17mom wrote: “What about prosecuting all these kids, male and female, for underage drinking and for serving alcohol to unthisderage persons? Why are colleges not cracking down on the primary cause of the problem?”
I posted a link to a Chronicle of Higher Education series on this upthread, but to summarize (it was a long series), there are a number of reasons. One of them is that, under many state (and, in a few limited ways, federal) laws, schools undertake some liability if they acknowledge underage drinking is occurring on their campuses—it’s a lot easier to pretend it doesn’t happen. In addition, schools have extremely limited ability to police what goes on off-campus.* Also, in many cases it actually comes down to simple naked political power on the part of bar owners—if, say, they have the city council in their collective back pocket, they can happily make money off of students getting easy access to alcohol in surroundings that schools have precisely zero control over.
There are some exceptions, but they have to be crafted carefully. So, for example, several religious colleges (e.g., Brigham Young University) police students’ off-campus activities pretty intensely, but that has to be part of an agreement that the student (and parent/guardian, if the student is under 18) signs off on—and only private colleges can do that, anyway, absent evidence of a student being a clear danger to themselves or others.
That was not the California Supreme Court, that was the Court of Appeal for the Fourth District.
It is also not correct that “The defendant, Giardino, said that his conviction should be overturned because his drunk victim was physically incapable of manifesting a refusal to consent.”
In fact, Giardino argued (in pertinent part) that:
The jury should have been instructed that consent was either an element or a defense to the charge of rape by intoxication. The court held that merely proving actual consent is not a defense to rape unless the victim had the sufficient capacity to consent. Rape by intoxication is rape because of lack of capacity, not lack of consent, and therefore showing consent is irrelevant.
Rape by force requires evidence of resistance. The court notes that the statute was amended to remove this in 1980 (Giardino is in 2000). This is where you pulled the quote from. Giardino is not arguing that his conviction should be overturned because the victim was physically incapable of manifesting a refusal to consent. He was arguing the opposite, in fact, that the statute should only apply where the victim was incapable and in this case she was not. The court rejected this argument, holding that this statute is also about capacity and not about consent. A person can lose capacity when they no longer can exercise judgment. The court goes on to cite a few examples of drugged victims.
The court also notes that it is a defense to rape by intoxication that a defendant actually and reasonably believed the victim capable of giving consent.
If I understand correctly, it is argued here, and other places, that campus alcohol abuse is the problem and colleges need to keep students from drinking somehow to fix that problem. It is argued colleges have a responsibility to protect students from themselves.
Some who argue this also argue we are denying women agency when we try to protect them from drunken sex and that women just need to deal with the consequences if they behave irresponsibly. In this argument, it is seen as insulting and demeaning to attempt to protect women from themselves.
Don’t these arguments contradict each other? This isn’t rhetorical. I don’t know the answer. I don’t even know if my question is framed correctly. I am trying to understand various arguments going on here, and in the media, and how much sense they make.
Dstark: hope the wedding was wonderful
Dfbdfb: loving your footnotes
On any campus there is a percentage of kids who are underage – it is illegal for them to be drinking. I don’t see it as protecting those kids from themselves I see it as colleges giving more than lipservice to supporting laws. At one of kids’ college if you were caught with even one empty beer and you were underage you were given a fine and infraction and a letter was sent home to the parents.
Why do we have laws? Isn’t it to regulate behavior so as to protect people from themselves?
And also to protect some from the actions of others? (just guessing here)
If we have a responsibility to protect minors from themselves, by prohibiting underage drinking, do we also have a responsibility to protect minors from situations where they are likely to be victims of sexual assault or rape?
The Oxy case is probably not representative of most cases. In that case, from all the media accounts and the court documents, Jane initiated and willing participated in the sexual activity. She left her room and made her way back to John’s room. No witness said that he in any way coerced her into the activity. She was very drunk, but still capable of texting him, getting to his room and asking him for a condom. How is this not consensual drunken sex? She may have been wobbly and slurring but was not incapable of making the choice of leaving her room. Those that were trying to protect her seem to have been trying to protect her from making a bad decision she might come to regret, not protecting her from John.
If Jane had decided to get into a car and drive and got caught, she likely would have been found guilty of drunk driving. She would have been found to have been capable of making that choice. How is she not held to be responsible for her choice in this activity?
Many colleges would probably have not made the choice to expel John. To me, this is a situation in which some sort of sanction and education is appropriate. I don’t see John as a rapist or a danger to others. Is there any information on how the campus community reacted?
In this case, Jane was barely a minor but certainly capable of adult choices. The law allows those close to age 18 to be charged as adult in certain criminal matters. Most college students are adults, not minors. The drinking age not withstanding, 18 yos are granted most other privileges and responsibilities of adulthood.
We have the responsibility to minimize situations in which a woman might become a victim. I also think adults in charge have the responsibility to help young adults (or almost adults) to understand the consequences of their own choices and move on from bad ones. I have said before that if I was Jane’s mom I would not have wanted her to pursue this as a complaint, but would have gotten her counseling to help her cope with the situation. .
That being said, there are many more cases in which women who were assaulted are not believed than there are cases like the Oxy one. We have discussed this on numerous threads and I have yet to see any suggestions of a way to make fair decisions in the “grey area” cases. It is a pretty intractable problem as long as there are young adults and drinking in college, and when some drunken sex is consensual and OK but other times is considered a crime.
They are only “minors” technically for alcohol consumption and frankly I’m not entirely sure why we regulate alcohol consumption but “we” as a nation do. I’m not entirely sure what you mean by protecting minors form situations where they are likely to be victims of sexual assault. Even when I was in college I was housed freshman year in an “all girl dorm” and there were no co-ed dorms. There was a huge push by college students saying we’re adults and we don’t want the college “parenting” us and now there are even coed bathrooms on campuses. I can’t imagine in a hundred million years that the states or the federal government have any desire to “regulate” who lives with whom, if anything they are tilting to other way and getting granting rights to same sex marriages etc.
However, I have no problem if a college wanted to revert to single sex housing and dorm hours. That is the college’s prerogative and the kids can choose.
I don’t have a problem with colleges doing a better job upholding existing laws. I do have a problem when people try to push their own problems off by blaming others or trying to absolve themselves of responsibility through self-infliction of alcohol, drugs, food. I don’t believe in stretching our laws and local ordinances so far that they pass the boundaries of common sense and in effect create more laws and infractions to protect people form themselves and their own bad decision making. I think the conversation about incapacitation is interesting.
I tend to agree with TVForecaster about the subtle differences in dunk and incapacitated, but I also agree with Northwesty that it doesn’t really matter because in many cases there is no evidence. I could not find it credible that a person could text (without typos etc.) and still be considered incapacitated…not buying it. An incapacitated person can barely walk, let alone text.
This kind of case where there were clear signs of “ability to consent” and “consent”, yet the guy ended up being expelled, supports the people who say “SEE? ALL of these cases are just whether she regretted it the next morning! His life was ruined because someone else drank too much and he had no way to tell that she was lying or not giving consent!”
The ability to consent has not been clearly defined other than:
if you are underage (whatever that is in your state), you can’t consent no matter what
We educate minors about alcohol abuse. You have suggested it would be desirable to enforce existing drinking laws. You have objected to PC sex education. Why not endorse PC sex education for minors? To protect them in the same way we want to protect them from alcohol abuse? Why is this a problem for you?
I hope I’m not misrepresenting your views. I’m not really sure how you define PC sex education.
