<p>I did not say that the women was passed out. You are adding something that was not said. I said that she is not participating. I am asking if you agree that if the women is not actively participating as described above, it is reasonable that a man should realize that she may well be incapacitated and stop.</p>
<p>You are so ready to argue and refuse to acknowledge anything that does not support your position that you have to add words that were not said, and then respond with a non sequitur that this does not happen in most cases. However, you raise all manner of issues that do not happen in most cases. </p>
<p>If we are only going to discuss most cases, then this thread would be about women who are actually raped and men who lie about what happened. However, it is almost entirely about handling the exceptions. That makes some level of sense because exceptions do matter. However, when an exception is raised that is not in your favor, you say that it is not worth discussing because it is the exception. I do not understand that.</p>
<p>^^ Fair enough, but the same problem exists. </p>
<p>There is the assumption the intoxicated guy has a clue she is not participating, but it is assumed the female is clearly exhibiting she is not participating. </p>
<p>This illustrates short of video cameras in every dorm room why this stuff is hard. Too many assumptions are required, which means errors all over the place. </p>
<p>My only concern is the gray area cases. And, the college deciding them in favor of the female because she was drunk and therefore couldn’t consent. That’s inappropriate handling of the exceptions imho. Also, you said she wasn’t smiling, making eye contact, or reacting in any way and was probably incapacitated. Unfortunately, you’re making that part up. No-one has claimed that. </p>
<p>@ awcntdb
I understand the evidence issue. That is a legitimate discussion. </p>
<p>However, if we can not agree when all facts are known, then discussing standards of evidence seems pointless to me. Personally, I feel a lot better if there is a consensus around the known facts, but opinions vary about the standard of evidence needed to convict. I am more concerned if we can not agree even in the type of situation that I am presenting. </p>
<p>If posters think that it is a legitimate defense for a man to say that he did not know she was incapacitated because all the women he has sex with lie there passively like they are dead, so he can’t tell the difference, that is more problematic for me.</p>
<p>I am not rejecting any exception; I am simply applying any exception both ways.</p>
<p>Overall, my position is very simple: if both male and female are intoxicated, then both cannot consent and if sex happens then both are equally responsible. There is a point where biology automatically takes over.</p>
<p>However, back to the initial presented scenario. As I wrote, I would not have enough evidence to decide if the male and female had conflicting stories and no proof or evidence of anything untowards.</p>
<p>Your position is that an intoxicated man can never be a rapist if he penetrates an intoxicated woman? I assume you will make an exception if she passes out during the encounter? Or maybe not… maybe that’s just biology automatically taking over?</p>
<p>@awcntdb
“Overall, my position is very simple: if both male and female are intoxicated, then both cannot consent and if sex happens then both are equally responsible. There is a point where biology automatically takes over.”</p>
<p>I have a couple of concerns about this, but thank you for providing a position to discuss. That was helpful.</p>
<p>My concerns are:</p>
<ol>
<li><p>I do not see intoxicated and incapacitated as the same. 0.08 blood alcohol may be legally drunk for driving, but not for inability to understand your actions. I mean that for both parties involved. </p></li>
<li><p>This definition seems to give men who are around drunk women the ability to down a few drinks and then rape as many drunk women/men as they wish, with impunity. All they have to say is “I was drunk too.” </p></li>
</ol>
<p>Therefore, they go out every weekend, find their target, then have a few drinks before they strike. </p>
<ol>
<li>It seems to imply that if an person is incapacitated, whatever others do to them while they are in that state is their own fault. </li>
</ol>
<p>I do not think that you intend these ramifications, just that they are there. is there a way you could modify it to address these concerns?</p>
<p>Sober/drunk is a continuum, not an on/off switch. Many of us, I daresay, male and female, have gone out, had a few drinks, and gotten flirtatious with someone, maybe engaged in a little making out, maybe even had sex, when we probably wouldn’t have if stone cold sober. (Which, I might add, doesn’t mean we didn’t WANT to.)</p>
<p>I disregarded the “I thought she was sober” thing in the mind experiment, or rather edited it to " We’d both been drinking, but she seemed to want to have sex with me and seemed to be able to do so of her own free will."</p>
<p>I’ve certainly encountered people who were drunk but functioning who had only hazy memories at best of what went on the next day. I don’t think a fellow-partier is a reliable judge of who is and is not going to remember what they did last night.</p>
<p>As an aside, I’ve done further reading on the Parker Gilbert case mentioned above, and the woman says that she had three shots of vodka before going out, and that she had 3 beers at the party where she met Gilbert that evening. Everyone who testified FOR her said she wasn’t drunk.</p>
<p>I never said anything of the sort. And the passing out part is irrelevant to the situation. </p>
<p>What said was I could never adjudicate, and there is not enough evidence to decide punishment solely on the word of the female that she was raped, which is what many of these colleges are doing; completely absent of any pattern of behavior of the male, absent any evidence, and absent any proof. </p>
<p>This is where I predict the system is going to fail in court, and come back to bite the colleges and the accusers. Punishment based on word-of-mouth and an accusation is for totalitarian societies, not ours.</p>
<p>And the above is also further complicated if the female is intoxicated making her recollection and word-of-mouth suspect to accuracy. And doubly complicated if the male is intoxicated and his recollection is suspect as well.</p>
<p>I am looking at the 8:43 am post. That was edited at 8:47am. It still says “She seemed sober to me, and I didn’t see her drink anything.”</p>
<p>Again, an important factor in my mind is how drunk/incapacitated the victim is. Disregarding evidence issues for the moment, and assuming all facts are known, I am going to say that a victim who has 2 or 3 drinks and has a 0.08% blood alcohol should not be driving, but is capable of understanding a situation and consenting to sex. She is probably acting a little silly, but is able to ambulate without assistance, and actively participate in sex, if she wishes. This person will remember what happened last night, if no other substances are involved.</p>
<p>However, if they left a party together, and she was staggering, or receiving assistance to walk, or seemingly unable to say goodbye to anyone in a coherent manner, then I am going to see the situation differently. Similarly, if a woman who has been drinking heads for the bathroom, and a man follows behind her and pulls the door shut, I am going to say that he is putting himself at risk. Claiming that he did not know how drunk she was, and that she asked him to penetrate her from behind while she was puking into the toilet in not believable in my mind. </p>
<p>Your position is that an intoxicated woman can’t be raped if the rapist is also intoxicated , unless, as Much2learn suggests, you want to amend what you wrote.</p>
<p>What you wrote is very clear. And it is how women have traditionally been treated.</p>
<p>@awcntdb
“Overall, my position is very simple: if both male and female are intoxicated, then both cannot consent and if sex happens then both are equally responsible. There is a point where biology automatically takes over.”</p>
<p>For the sake of discussion, let’s assume that the law is that once two people are drunk, no one is responsible for what happens, then no one is legally responsible. </p>
<p>Furthermore, lets say, for the sake of discussion, that a man and women get drunk and he rapes her, but there is no dispute about the fact that both were drunk, so legally the man can not be prosecuted. </p>
<p>A few weeks later, the same man is at a party and again drinking heavily. He meets a couple of very attractive women and a man who is with them. The ladies offer to go back to his room with him, and play a drinking game and he agrees. They are all legally drunk, but he is more drunk. Furthermore, these ladies are acting in a seductive manner and encouraging him to drink more. </p>
<p>As he becoming they ask if they can handcuff him to the bed, and he agrees in slurred speech. He is not passed out but completely helpless. At this point, the ladies male friend, also drunk but much less so, repeatedly has his way with the incapacitated man, the man says no, but is very drunk and handcuffed. The 2 ladies and their friend helpfully video tape the entire thing so and use a breathalyzer so it is clear that they were all legally drunk. The way I read the wording of your proposed law, this would be perfectly legal. Do you agree?</p>
<p>I am going to go out on a limb here and say that based on my experience young women who have tipsy or drunk sex (not blotto or passed out, just drunk) willingly and under their own power enjoy it and would have no reason to file a report or complaint in the aftermath. Women don’t just go around filing reports for the heck of it after having sex. If a tipsy or drunk woman chooses to engage with a young man and that encounter turns sour e.g. forced undesired sexual activity, a friend of the guy also stepping in, recording, etc that can still be rape or sexual assault even if she thought she was going to have consensual garden variety sex with one guy. Women don’t just suddenly feel violated when they’ve had regrets. That’s not how it works. Even drunk sex with someone who you think twice about the next day is a live and learn moment. Yes, you might realize that you made regrettable decision in the light of day if you had an encounter with beer goggles on (or tequila goggles or Jaeger bomb goggles), but it’s a no harm no foul thing. </p>
<p>And this “the female” construction sounds just way too Ferengi for comfort.</p>
<p>I’m not awcntb, but I think it is obvious that a “No” doesn’t become a “yes” just because both people are drunk.</p>
<p>If a woman (or man) says no and the partner goes ahead and does it anyway (leaving aside, for a moment, the thornier issue of what happens when a “no” is followed by a “yes” or “whatever” later on), that’s pretty clearly rape. Not an issue. The issue is what happens when both people have said yes - or if no one actually knows what was said, because they parties involved are too drunk to remember. </p>
<p>I agree with you that a lot of the “murky” cases are almost certainly rape. But we shouldn’t expel an individual based on statistics, and if there is no evidence either way, I I don’t think adopting a standard that assumes that drunk women are presumed to be incapable of consent is a fair way of getting over that problem. </p>
<p>OK, I see now you were addressing something else. My post above was addressing the scenario put forth by @Hunt, which I thought you were responding to.</p>
<p>awcntdb wrote:</p>
<p>
</p>
<p>My quote above clearly says that there is responsibility in BOTH directions, male and female. And in such a case, there needs to be a clear default position if BOTH are responsible.</p>
<p>As Title IX clearly states, the operating construct is an intoxicated PERSON (male or female) cannot consent AND if BOTH persons are intoxicated when the sex occurs, then the default has to be no crime occurred because BOTH parties (male and female) are defined as incapable of consenting to the act of sex. </p>
<p>No one is denying sex occurred, but it would be rather illogical to say if two persons BOTH deemed UNABLE to understand and consent to having sex do have sex, then one of the parties is responsible for ignoring the non-consent of the other, even though that one party is deemed unable to understand or consent to anything as well. A person who is deemed mentality unqualified to understand and to give consent for himself, cannot be, in the exact same second, deemed to be qualified to understand and interpret consent from another party who too is deemed unqualified to understand and give consent. Makes no sense. These are two idiots passing in the night.</p>
<p>Remember, the standard being put forth by Title IX is an intoxicated PERSON cannot consent - this applies to both the male and the female - so the male cannot consent to sex anymore than the female, according to Title IX. If under this definition neither the male or female can consent to sex, the default position must be no crime occurred, if they do have sex, as they are BOTH deemed unqualified to even consciously understand or consent to having sex. </p>
<p>Bottom line, there are two intoxicated people, and they did something together, and the colleges now want to pretend that one of the people is less an intoxicated idiot than the other and should be held responsible for understanding the situation, as well as understanding what the other person is saying. When in fact their own rule book says no person, meaning both the male and female, can consent when intoxicated and therefore BOTH do not understand the situation. If no one in the situation can understand and consent to what is going on, then both the male and female are equally responsible for any action and no crime occurred. Sex occurred, but no crime. Rape is a crime; sex between two parties who, by Title IX’s own standards, are BOTH deemed unqualified to even understand and consent to each other, is a sex act, not a crime. YMMV, I understand that.</p>
<p>@awcntdb “if two persons BOTH deemed UNABLE to understand and consent to having sex do have sex” </p>
<p>I agree with this conceptually.</p>
<p>However, as a practical matter, it would be difficult to convince me that a man is able to become aroused, and penetrate another person and release, while being so drunk that he is honestly unable to understand that he is doing so. </p>
<p>^^ I am going to bet this will never be brought up in court because there will be many parents looking at each other knowing they both do not remember when little junior “happened.” The answer to your query is, “easier than you think.” </p>
<p>“Putting himself at risk” is being too charitable, IMHO. Unless she actually <em>invited</em> him to join her in the bathroom. I have been at parties, back in the day, at which a couple decided to have sex in the bathroom, much to the dismay of those waiting to use it.</p>
<p>But again, we are debating the finer points of this issue, the grey areas. I think it is important to realize that MOST of the rapes are not in the grey area, even if the woman was disabled by alcohol by her own actions.</p>
<p>The courts are failing in those cases, en masse. It is virtually impossible to get a rape to court, much less win the case. What are we going to do about that? When it comes to college students, adjusting the Title IX procedures to work better, including some kind of checks and balances or court of appeal, would seem to be the best hope</p>
<p>I am trying to point out an issue with @awcntdb’s proposed law.</p>
<p>The wording is clear that once people are drunk, no sex acts can be adjudicated. In my opinion, this would lead to a total free for all. </p>
<p>Drunk men would be able to legally rape anyone who is drunk. </p>
<p>On the other hand, women would be free to legally seek revenge against a rapist as long as both parties are legally drunk first. At that point, she can physically restrain her rapist and penetrate him with any object that she wants to with no concern about being arrested. It would all be legal. </p>
<p>This does not sound like a good solution to me. </p>
<p>@Consolidation
“The courts are failing in those cases, en masse. It is virtually impossible to get a rape to court, much less win the case. What are we going to do about that? When it comes to college students, adjusting the Title IX procedures to work better, including some kind of checks and balances or court of appeal, would seem to be the best hope”</p>
<p>I agree completely that something needs to be done. The current situation is not acceptable. I do not accept the argument that when only two people are in the room, a crime can not be proven because you can never be 100% sure what happened. </p>
<p>What is most troubling for me is this a a uniquely high standard of proof that people only applied to rape cases. I have never heard it suggested that this rule should be applied to any other crime. I have never heard it suggested that if two people are in a room and one of the shoots the other one, that it can not be adjudicated because if the shooter says they were in fear for their life, no one can prove that they are lying because no one else was there. </p>
<p>Why is it a reasonable standard, but only for this type of case?</p>