This is where it gets really murky. If you approach and have sex with or molest an unconscious person, that is clearly non-consensual rape. But if both partners are extremely intoxicated and giving mixed signals to each other (kissing one minute, puking the next…gross, I know, sorry!), how is that really rape by or of either party?
If both parties are intoxicated and the act is oral copulation of a male, it seems counter-intuitive that the woman would have a higher claim for rape than the man, and presumably she does not, under the law. But we don’t hear about these situations as cases of males accusing females, at least I haven’t.
@CaliCash, thanks for the heads up. I want to watch that show.
http://www.thetakeaway.org/story/inside-campus-sexual-assault-hearings/
Clearly, some people don’t seem to be concerned about the difficulties of the scenario in which two people get heavily intoxicated and have sex, after which one of them accuses the other of rape. Is this because:
- You think that in any such situation, the person who penetrated the other is a rapist, and the other is a rape victim?
- You think this scenario doesn’t really happen, or happens only rarely?
- You think that it’s not really that hard to figure out culpability in a situation like that?
- Some other reason?
I can see the sense of #2. If most rapes of incapacitated women are perpetrated by serial predators who are (probably) not nearly as drunk as the victim, then our focus on gray area cases may be a waste of time. Maybe there really aren’t that many gray area cases. But (unsurprisingly) gray area cases are the ones that get a lot of press, probably because the case doesn’t get resolved quickly.
@Demosthenes49, thanks for the info about attempted rape and rape and the jury instructions. I had thought that attempted rape was a specific intent crime, and so I was confused that it was listed on the jury instructions a lesser included offense for rape.
I skimmed People v. Rundle. (Ugh. I need a shower and some bleach.) The court says that attempted forcible rape is not a lesser included offense of forcible rape. We should conclude that the reasoning extends to (attempted) rape of unconscious person?
I’m still confused about the guy who attempts to have sex with a three-year-old in the delusional but sincere belief that the age of consent is two. That guy is going to be acquitted because he didn’t intend to rape the child?
The idea of “attempted statutory rape” is a little complicated. Generally, statutory rape doesn’t require intent to commit a crime–and typically, error about the child’s age is not a defense. The example of the three-year-old is probably not too helpful. Let’s take a more realistic example. An 18-year-old and his 16-year-old girlfriend are in bed at her house about to have sex when her parents return unexpectedly. Her parents call the police to have him arrested. Can he be prosecuted for attempted statutory rape? Well, maybe. It depends on how the law on attempts is interpreted in that particular state.
I was interested to note that in California, ALL sexual intercourse by unmarried persons under 18 is unlawful. Depending on the relative ages of the participants, it may just be a misdemeanor, but it’s still against the law. The law in other states is a hodgepodge.
@Hunt Here is what I think about post #1203.
I think it happens very frequently and I am very concerned with the scenario you described. I think that many people don’t worry about the risk to a guy in that situation because of 2 main reasons.
1- I would guess that most people think that it would be rare for a guy to even press charges, and even rarer for police or prosecutors to take the allegations seriously.
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2- I think many people do not see a case like you mentioned as even being a possible rape against the guy. I know many people have commented that since a woman was penetrated then she was raped while the male was not penetrated in that case and therefore was not raped. I am also guessing that it is the difference in anatomy that makes people think that. In other words: he must have consented or he would not have been able to perform the act.
In general, for strict liability offenses, ignorance of the law is no excuse. Under that rule, it doesn’t matter that the perp thinks a two year old can consent. If he intends to have sex with her, then he has the requisite intent to commit statutory rape.
The woman wouldn’t have a higher claim for rape than the man. She is responsible for what she does-- in this case, she is responsible for giving oral sex to a guy. If he accuses and a jury decides he was unable to consent, then she will have committed a crime. Or, in the case of a college adjudication proceeding, she will have committed an offense.
Sometimes men accuse women. From Yale University Report of Complaints of Sexual Misconduct Brought forward from July 1, 2014 through December 31, 2014:
http://provost.yale.edu/sites/default/files/files/Final_Jan2015_Report.pdf
This is an old link. The age of consent law was very rarely enforced in the 70’s. I doubt it is enforced much today.
That can’t be right. If he was very very drunk and unable to consent, and she managed to stick his **** in her, she would be the guilty one.
I think the accusations aren’t so very common. Perhaps they are not rare, though.
In some cases, it’s easy. In other cases, it’s not so easy.
I guess I’m on the “some other reason” bandwagon. And the reason I have is, we don’t define offenses by whether they are easy to adjudicate. We define offenses by whether they are behavior that is so bad it should be subject to penalty. It should be a crime/offense to have sex with someone who is unable to consent by reason of intoxication, because people who can’t consent are not objects to be used for the sexual pleasure of others. And it should be a crime/offense even if in some cases it’s difficult to adjudicate.
How does this reasoning apply to having sex with someone who is unconscious? Same thing?
I’m in the 3 camp. I really don’t think it’s all that difficult for reasonable people to figure out. If someone is incapacitated - meaning they are passed out or mentally deficient or drugged no one should be having sex with them and it seems fairly clear. If one or both persons are intoxicated then in the absence of force or assault or coercion or some evidence of something illegal going on there is no culpability,they are both guilty of having sex with each other.
@“Cardinal Fang” Your statement in post 1208 is technically correct but I wonder if the theory behind it isn’t very different from what would happen in real life. What do you think would happen if a guy and girl were both wasted and she filed a claim alleging that he assaulted her by putting his manhood in her mouth. He files a complaint and says that he was too wasted to consent and she orally raped him. Nobody saw the sex act itself but numerous witnesses say that both of them were stumbling, slurring their words and puking before they went into the room.
Here is my guess as to the probabilities of each possible outcome:
1- He is found guilty and she is found innocent: 80%
2- Both are found innocent: 10%
3- Both are found guilty: 10%
4- She is found guilty and he is found innocent: ~0%
I read the Yale report. There were 13 cases of sexual assault. Most of the rest of the cases were sexual harassment or stalking or people in a relationship and had a problem.
One person was expelled. One person. It was a rape case. Page 6.
There were 62 cases. Some are stil pending.
http://provost.yale.edu/sites/default/files/files/Final_Jan2015_Report.pdf
You are going to have to wait for Demosthenes to come back and answer this one.
But I would guess that the prosecution must prove that the victim was unconscious, and that the perp knew the victim was unconscious while the sexual intercourse was occurring. I don’t think it is a defense for the perp to claim he didn’t know it was unlawful to have sex with an unconscious person. That is not going to get him off, I don’t think, as a law defines that scenario as rape. But as you discussed earlier, mistake or his own intoxication/incapacity may be a defense in that situation. I don’t know for sure.
@TV4caster, so your example is that we have two drunk, slurring, stumbling, puking people. Each independently accuses the other, so there is no issue of retalition. Both agree that his *** was in her mouth; that is undisputed. She says that he put his **** in her mouth, and he says that she put his **** in her mouth-- is that your example? Does each accuser say that the other person forced the behavior, or that they were an active participant?
If both agree that both were active participants, I think the college tells them both to go away and stop bothering the tribunal (although I’d do the opposite, and find both of them responsible).
If each contends that the other was the only active participant, then I don’t agree that he would be found responsible and she not responsible most of the time. Do we have any actual evidence on this?
What would happen if it was two guys, and each said the other was the only active participant? What would you say then? If it was me, I’d try to get more evidence, which is also what I’d do if it was a woman and a man.
Yes, that was my hypothetical.
I hadn’t thought about the force issue. Let’s ask both the case of each accusing the other of forcing the behavior, and the case or each saying they agreed but were way to drunk to have given consent.
TV4, I don’t know what would happen.
Let’s consider the second case: each says they agreed. We have no factual dispute. Both participated, and both were (by our outside witnesses) too drunk to consent. I think the college would quietly suggest to both of them that they both agree to drop the case. If they didn’t, the college would have no choice but to sanction both, because both are guilty by definition.
The first case is more difficult. Now we have a dispute of fact. Either the guy forced himself on the unwilling woman, or the woman forced herself on the unwilling guy, or both of them agreed and both of them are now denying their behavior. If the guy or the woman forced himself/herself on the other, then it doesn’t matter how drunk the other person was: it doesn’t matter whether if the person who was forced couldn’t consent, if they never even gave the appearance of consent.
The college has no choice but to try to find more evidence about what happened, because as it stands the college doesn’t know enough. Either person might be at fault, or both might be at fault, depending on exactly what happened. If there is no more evidence to be found, then I don’t agree that the college would sanction the guy and not the woman, because that would be difficult to justify.