<p>Ask yourself this: if you were the lawgiver, how exactly would you define “too drunk to provide consent to sexual activity?” Would it be a specific BAC, as for drunk driving? Or would it be a set of observable behaviors/characteristics? Or would it be more subjective–i.e., if a jury believes that the person would not have consented unless under the influence of alcohol? These things aren’t easy, which is one reason it is an area in which predators can function.</p>
<p>Hanna:
</p>
<p>This seems to me the main challenge of these threads. I really appreciate the posters who challenge how we use language. It definitely impacts how we are able to interpret events. More and more I realize that back in the 70s, at my college, women didn’t even have the words to describe what was going on. We literally didn’t have the words. I can barely even believe that now.</p>
<p>I think there are lots of issues with language relating to this issue, including murky definitions of terms, including “drunk,” “consent,” and “rape” itself. It doesn’t help that these terms are defined differently in different state laws–people also have different ideas about them in conversation. As for “accidental rape,” the problem with that term, in my view, is that it is inherently inconsistent. “Rape” is (in most cases) a crime of intent, which means that it can’t be an accident. We don’t talk about accidental murder or robbery, because those are also crimes of intent. If you accidentally kill somebody, it may be a crime, but it isn’t murder. So if it is possible to “accidentally” have sex with somebody who hasn’t consented, that isn’t what is normally referred to as rape–although it still could be a crime. I think many people object to the term, though, because they don’t believe it really is possible to “accidentally” have sex with a non-consenting person. I think it’s certainly possible–the “accident” could be a misunderstanding about consent, for example–but I can’t say how often it really happens. (And just to clarify, by “a misunderstanding about consent,” I mean, for example, having sex with somebody who expresses consent, and seems sober enough to consent, but isn’t actually sober enough to consent. Is that a mistake, or a crime?)</p>
<p>clearer definitions would sure help. I can add a couple examples though to Hunt’s query post 241. I’m not an atty, but I believe a driver [voluntarily] over the legal alcohol limit- even way over- would be considered responsible for any vehicle accident he caused. I suspect the same is true for a burglar that might be intoxicated at the scene of his crime. Similarly, if an intoxicated guy is evicted from a bar due his unruly behavior, and then he throws a brick through the front window, I believe he’d be responsible for his actions.
So based on those examples and principles, I’d consider a woman responsible for her actions, and if she consents to sex- even if she normally wouldn’t have- while drunk, then I’d consider her yes as a yes.
Of course, remembering the consent could be an issue later, and obviously a passed out woman cannot say yes.</p>
<p>Reflecting on the highly publicized cases recently–Savannah Deitrich, Steubenville, Vanderbilt, one of the two Marysville girls, the girl who was drawn on with markers–all of the females were apparently passed out, or close to it. Ostensibly from alcohol. (I say ostensibly because the Vandy victim, for example, might have been roofied, for all we know.)</p>
<p>Does this have something to do with the fact that they hit the news, when other cases did not? Does it indicate a strong trend, or is it irrelevant? I’m not sure, but does partially explain why people tend to focus on binge drinking when considering the subject.</p>
<p>One study indicates that 45% of college rape victims hadn’t been drinking AT ALL when they were raped. Which, if true, makes it certainly true that the majority (likely the vast majority) of college rape victims were not binge drinking or passed out when raped.</p>
<p>The news is usually made out of the unusual, not the usual, though it often plays to our prejudices.</p>
<p>Hunt,</p>
<p>the fact that Yoffe’s article is easy in contrast to writing about how to stop perps was one of the main criticisms I saw in other places: here is the chance for a writer on a national stage to try and tackle difficult issues and instead she took the easy way out and just told girls to stop drinking - and presented it as though this was our best option for tackling the issue. If I had the time, I’d go through her article and make the kind of edits I learned about in class (a writing class that actually had absolutely nothing to do with discussing sexual assault) and I guarantee it wouldn’t take me long and I’d come out with a product that would still present drinking as a risk factor without painting a picture of such dramatic agency on the part of the victims. In fact, when I read Yoffe’s response to the criticism, I felt better about her article, but the onus is on the writer to write in a manner consistent with their intent, not on the reader to figure it out (a belief her response did not indicate she shares). Writing is Yoffe’s job; I don’t really have any sympathy that it might be hard.</p>
<p>To respond to the question regarding how to legally define too drunk to consent - it will always ultimately end up being “at the discretion of the jury” because unlike say DUI where we can pull people over and breathalyze them, we simply will never be able to determine someone’s BAC at the time of the assault unless maybe it’s quick and the person IMMEDIATELY goes to the police. To expect that to become the standard is unrealistic to say the least. Even if we had a set of behaviors, we would need witnesses or recordings to corroborate the presence (or absence) of said behaviors and it either stays “he said/she said” or it becomes “they said/they said” and either way it ultimately falls on the jury to decide who is telling the truth. I’m inclined to believe that we could theoretically identify a BAC that is predictive of loss of ability to consent but even if we did - as I said a few sentences before, it would be a useless piece of information.</p>
<p>With regard to younghoss, you’d of course still have to have provision for a coerced yes - but I get the feeling you just forgot to mention it, not that you think any “utterance of yes” is consent.</p>
<p>Consolation - I do believe that only the most outrageous stories (that will get the most reads) will hit the news. The probably more typical story of the college girl who meets a guy in her math class, does a problem set with him later that week, then meets up with him at a party, has a couple drinks, dances with him, agrees to go back to her room, consents to making out, but does not consent to her pants coming off, thus enraging him for “being such a tease” such that he pins her down and rapes her isn’t going to enrapture people the way stubenville or marysville do - especially when most colleges try to prevent the story from getting out in the first place.</p>
<p>And with this post I’m also going to bow out of the discussion. The people who are left seem to be pretty up to speed/generally in agreement.</p>
<p>Younghoss, the individual operating a motor vehicle while intoxicated is committing a criminal act. Same with the person burglarizing a home or even throwing a rock through the window of a commercial establishment. Did you really mean to equate the act of a woman drinking–even to excess–to criminal behavior? </p>
<p>In any case. The issue here is not whether she is held responsible for being raped by virtue of her drinking. It’s a question that goes to the accused’s defense. The defendant can argue that the woman accusing him of rape consented to sexual intercourse. In that case, there is no crime because of the consent. In other words, state of mind is key. The problem with that defense is that incapacity, such as a state of drunkenness, precludes the ability to consent to sexual intercourse. There is no issue of capacity in any of the examples you cited above. Those are criminal actions regardless of the individual’s state of mind.</p>
<p>
So, where is that article? Surely, there is somebody out there capable of writing it, since you learned how to do it in a class? I’m sorry, but you and others see what you want to see in Yoffe’s article. I ascribe it to a somewhat justified hypersensitivity, so I guess writers like Yoffe need to take it into account. And I think she did. Your suggestions would, in my opinion, vitiate her main thesis, which is that college girls shouldn’t drink so much. If you’d prefer an article with a different thesis, why not write it?</p>
<p>As I said in post 244, my examples were in response to Hunt in post 241, referring to defining “too drunk to provide consent for sex…”. That seems a legal issue to me.
Did I mean to equate ? No. I do not equate them, 3girls, do you? I didn’t even address the broad issue of drinking too much in my post 244 </p>
<p>My examples were very limited in scope and were offered to demonstrate that a guy is considered responsible for his own actions if voluntarily intoxicated during those acts. So similarly, a woman would be responsible for her action(giving consent for sex) if she were voluntarily intoxicated- and said yes. It is the giving consent that I was comparing, because my post was in response to post 241. The action I am comparing is not the act of drinking- that was a given in post 241. I am comparing the affirmation of consent.
My examples point out the responsibility for one’s own actions- compared to the consent for sex when voluntarily intoxicated(and still functioning). To draw a picture bigger than that from my examples would be to go beyond the scope of my examples. </p>
<p>In re post 247, no I didn’t “forget” anything. My post 244 was giving my opinion about the questions brought up in post 241 and nothing more. Those questions(241) only dealt with the validity of a woman’s consent while drunk, so my responses addressed only that.</p>
<p>I’m trying to make clear to you that you cannot equate criminal actions that are not at all dependent on state of mind with consent to engage in intercourse which is. I’m kind of amazed that you would try to analogize these, for any reason. </p>
<p>Getting into a vehicle to drive while intoxicated is a strict liability crime. It’s purely a matter of blood alcohol level and not whether you were too intoxicated to have legal capacity. You might well be clearheaded and legally responsible for your actions in other respects but once your bac is over the legal limit, you are criminally and civilly liable for that action–even if no damage occurs. </p>
<p>Burglary may have a state of mind requirement to it (intention to break into a home) but larceny (the stealing part) does not. Drunk or not, taking property from another is a criminal act.</p>
<p>Throwing a brick through a window? State of mind is also not relevant, particularly if that brick hits a person. It is the action that’s wrong not the state of mind of the individual.</p>
<p>A woman who is too drunk to give consent to intercourse is, legally, too drunk to give consent. She is NOT responsible for the criminal acts of another person any more than is the person who is hit by the car driven by the drunk driver or whose property is taken from his home by your drunk burglar or who is hit by the flying brick thrown by your drunk patron. Your comparisons don’t work.</p>
<p>Just a minute, though. “Consent” is not just about a person’s state of mind, but also what is conveyed to another person. If the other person reasonably believes that consent was given, there should be no crime. This is where we run into problems, because people can be pretty drunk, but still be able to speak, converse, and act in various ways. (The law does recognize statutory rape, in which sex with an underage person is a crime, even if the accused reasonably believed the person wasn’t underage.)</p>
<p>Now, maybe we are talking about only a small portion of real scenarios–but it points up the proof problem. Somebody having sex with an unconscious person is relatively easy–it’s harder if the person is able to make statements or engage in actions that can be interpreted as consent. After all, people do consent to casual sex, all the time, even if they haven’t been drinking, or haven’t been drinking all that much.</p>
<p>Here’s a thought experiment: A pregames at home, drinking x shots of vodka. A goes to a party, and meets B. Later B suggests they go to a private room and have sex, and A says, “OK.” They have sex. A is conscious, and never says no or physically resists. The next day, A says the sex was non-consensual because of alcohol impairment. The testimony of B, corroborated by others, is “We could tell that A had had some drinks, but A didn’t seem all that drunk, and was able to converse and answer questions.”
Was this rape? Does it matter what the “x” was in the beginning of the example?</p>
<p>Another thing to consider–it may be that one reason the serial rapists are able to get away with their activities is that may have quite a bit of consensual sex as well. They may be serial exploiters, but they may not have to commit rape all that often to get what they are looking for.</p>
<p>From a legal point of view consent has only to do with a person’s capacity to consent and nothing to do with how the other person perceives it. If, for example, a person is mentally impaired or is under the age of majority, that person also lacks legal capacity. It doesn’t matter how lucid the person is or whether the person appeared to be capable. </p>
<p>Whether or not a person had the legal capacity to consent is a matter of fact that is determined by all the circumstances surrounding the act. In your scenario, a jury might determine that the individual had legal capacity based on what was observed about her alcohol intake and her behavior. If there was some external evidence that made clear she’d had a spiked drink or had drunk to excess, whether or not the other person thought she was incapacitated or not is irrelevant.</p>
<p>
What you say may or may not be the case, depending on the way the state’s law is written. In some states, it’s only a crime if the victim was “known to be” incapacitated. And if you were writing your state’s law, how would you address this situation? Would you want to incarcerate somebody who reasonably believed, based on the victim’s behavior, that there was unimpaired consent?</p>
<p>For example, in my state, the rape law includes the following:
. Assuming that “mentally incapacitated” includes “too drunk to form consent,” the accused must know, or should reasonably have known, of the incapacity. In such a state, “he said/she said” cases are going to be difficult to prosecute.</p>
<p>3girls, you keep reading something into my posts that I am not saying. Posts 244 and 250 refer to women that DO give consent. They do not address a woman unable to give consent.
A burglar or brick thrower(my previous examples) cannot plead innocence successfully on the grounds that he only did that behavior because he was voluntarily drunk. I do not believe the law will excuse the behavior based on- my judgment was clouded because I was drunk. Similarly, imo a woman cannot come back after-the-fact to say that sex was rape because she would not have consented normally, but she did so because she was drunk. In other words the guys in previous examples are held responsible for their decisions and the fact that they were drunk when they made the decision does not excuse them. I believe that same principle should apply to a woman that consents to sex while drunk.</p>
<p>You aren’t the only one that holds that position, though 3girls, that the man can be held responsible for the woman’s decision… Atty Gloria Allred also holds the position that the man is responsible for the womans’ decision if the woman is drinking, even if the man is drinking too. She believes a woman might say yes, but if the man feels her judgment is clouded then acting on the yes and having sex is rape. I disagree. She believes the man can-and should- overrule her decision if she says yes, but must abide by her decision if she says no. I think no means no, but yes means yes.</p>
<p>The issue I am discussing is not- was she responsible for the rape? It is - was it even a rape, if she gave consent? 2 very different ideas.</p>
<p>Note my examples do not address force, saying no, those underage, those with mental handicaps, victims of “spiked” drinks, or those who are too drunk to even respond. My examples are addressed only to voluntarily drunk women that consent to sex.</p>
<p>younghoss, as my post above indicates, in some states, the issue will be whether the victim was “mentally incapacitated” and whether the accused knew this. What seems to me to be challenging here is the question of how incapacitated a person has to be to make consent invalid–and how that is going to be determined. I don’t have a good answer to that.</p>
<p>
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<p>Consensual sex is not what serial rapists “are looking for”.</p>
<p>
Do we actually know this? We are not talking about home invaders, but people operating in a college environment. I know it’s the standard theory that rape is about power, but it seems to me that college boys also exert power when they have sex with multiple people, even if some of them consent.</p>
<p>I know that it is conventional wisdom that rape is “about power,” but I would also note that all of the young women in the highly publicized cases where we have seen their picture are conventionally attractive and apparently socially successful within their social context. How often do serial rapists go after girls who are overweight, unattractive, social “losers”? Seems to me that attraction–or at least attractiveness-- plays a big role in victim selection. Perhaps it is because dominating/racking up a score with a person who is generally acknowledged to be a worthy conquest is the point, and a “lesser” victim would not prove anything. (And yes, I do know that rapists have targeted elderly women, but I think that is probably a major exception.) But I have some doubt.</p>
<p>Consolation, I think what you mention may be a reason to wonder whether these college rapists are the same as other rapists–they may not be. I wonder if part of what they are doing is for the consumption of some of their peers–it’s not enough that they make the “conquest”–their friends have to know about it. I don’t know if this is true of other rapists. And if this is the case, it makes the “bystander” responsibility element of education even more important.</p>