If someone is intoxicated, I agree that it seems weird to disregard their consent when drugs+alcohols are the social lubricant of society (and very interwined with sex).
Also, of course you are responsible for your actions even when under the influence (drive and kill someone? no excuse because you were intoxicated - it's your fault). It's crazy to me that people call that "victim blaming". Although I understand how someone can take advantage of others, I don't think the distinction is intoxicated = taken advantage of.
EDIT - a lot of you seem to think that this is equivalent to a DUI. It is not. If you are driving under the influence, then you are the perpetrator of the accident. If you are drunk and somebody else sexually assaults you, then the other person is the perpetrator.
There's a very big distinction to be made here between an assault and if the person gives consent - or sometimes could even be the initiator. Again, to be very clear, I'm not saying that was the case here.
You’re stupid if you get drunk downtown with an expensive smartphone where it can be easily stolen. Still, does it mean that you have somehow to share jail time with your thief, or does it mean that the thief has to serve less time, or that your thief may go with your smartphone because it’s your fault to get drunk downtown in the first place?
Explain please.
Even if you are not drunk those are still not your fault in the way its argued here. A better (similar) analogy would be: if you are drunk and someone downtown asks you for 60$ and you give them, but tomorrow realize your mistake, is it your fault?
They're also not harmless. And I chose the word person for a reason - this could happen between a straight man and a gay man, or a woman could take advantage of a drunk man (although he's not likely to regret it, unless maybe he's married or something - or she gets pregnant)
The thing is I think you have some responsibility for your own decisions, drunk or not.
I don't think it's right to take advantage of someone who's drunk - but it's tough to prove that after the fact and many a young man has had their lives ruined by a woman who they thought consented and then later accused them of rape.
On the other hand I can really empathize with the woman's POV here, and think that it's terrible that there are men out there who take advantage of them when they're under the influence - and I'm sure that's more common.
This just doesn't seem cut and dried.
You come in here with the high moral ground and make such wild indignant proclamation that "men are not bears." Please take this to another community.
> How drunk someone is around another human being has nothing to do with the perpetrator’s culpability.
This is just stupid on its face. DUI exists for a reason and DUI tests are given not because police assumes the drivers, of course would, "take responsibility" and not drink, but because the police exercises common sense if an idiot driver is unable to walk a straight line.
No. The idea that being around a member of the opposite sex (and does this apply to members of the same sex? e.g. men raping men, and women raping women?) in a private space while being intoxicated levies some kind of 'responsibility' to be on the lookout for rape is absolutely victim blaming. It's insisting that her non-sexual actions of literally just being around someone confers a responsibility of any kind pertaining to a sexual act on her.
I specifically used the word person because I think this could happen between any two people of any sex. I'm certain it even happens to men, by women. Just men are much less likely to regret it the next day.
> levies some kind of 'responsibility' to be on the lookout for rape is absolutely victim blaming
If you gave consent because you were drunk, that's not really rape, it could be poor judgment. The perpetrator might reasonably think you're sober enough to make your own decisions. Especially if they are also inebriated.
Just calling it victim blaming is missing that this is a pretty gray area.
No, it's lack of judgement. Total inability to judge, in fact.
> The perpetrator might reasonably think you're sober enough to make your own decisions. Especially if they are also inebriated.
It doesn't matter what the perpetrator thinks. And especially? Is the perpetrator less guilty of rape depending on his blood alcohol level?
It does matter in most jurisdictions. Rape is usually not a strict liability crime. Conviction requires both an act (actus reus) and criminal intent (mens rea) on the part of the defendant. (Statutory rape, on the other hand, often is strict liability with only an actus reus requirement).
Generally if an act can be legal or illegal and the defendant believes that they are doing the legal version, the mens rea requirement is not met and the defendant is not guilty. Many jurisdictions do require that the defendant's belief be in good faith and their mistake be one that a reasonable person could make.
For an example of the kind of thing the prosecution must typically prove, here are California's jury instructions for "rape of intoxicated woman or spouse" [1].
I think it may be the only thing that can decide the difference between a crime here or not. If the other person gives consent, then how you judge their ability to make their own decisions here is the difference between having intent to rape or not having intent. Intent matters in a lot of crimes, I don't think it matters in rape cases - I could be wrong.
> Is the perpetrator less guilty of rape depending on his blood alcohol level?
So the victim has no responsibility if blood alcohol level is too high for good judgment, but the perpetrator is responsible no matter their blood alcohol level and judgment? That seems self-contradictory.
As in other forms of battery, intent matters in rape, but it is thr defendant’s intent to commit the requisite form of physical interaction, not the defendant’s intent with regard to the absence of consent by the alleged victim.
> > > Is the perpetrator less guilty of rape depending on his blood alcohol level?
Interestingly, legally, the answer (in the US) is yes if the intoxication makes him incapable of being cognizant of the nature of the act, because it makes him incapable of thr requisite mental state. But there is a huge caveat: in general, voluntary intoxication has been specifically adopted into law as not defeating the mental state requirement for a crime (or, equivalently, as satisfying it for any mental state up to and including specific intent).
> So the victim has no responsibility if blood alcohol level is too high for good judgment, but the perpetrator is responsible no matter their blood alcohol level and judgment? That seems self-contradictory.
Well, no, its not self-contradictory. If your voluntary intoxication causes harm to yourself, you suffer the consequences as much as if you had chosen the outcome (and that’s true whether or not someone else is punished for their role).
If your voluntary intoxication causes unlicensed harm to someone else, society has decided that you suffer the consequences as much as if you had chosen the action, as well. No inconsistency.
Exactly. That's why they're called 'victim' and 'perpetrator'.
If the victim got triple blackout drunk, the only person they'd hurt is themselves. But the rapist, in addition to physical damage, inflicts deep, lasting psychological damage upon their victims. It's not just "regret".
If "he gives consent", then she isn't a perpetrator. By definition.
If one of the parties gets drunk, they can't give consent. Again, by definition.
> If one of the parties gets drunk, they can't give consent. Again, by definition.
Say she comes on to him, and he responds enthusiastically. But he's too drunk to give consent by your definition. Then she's just committed a rape? From her POV, also drunk, she made a move, he reciprocated, all in all it was a pleasant evening.
She clearly didn't mean to commit a crime in this case, and both their judgment was impaired. Whose fault is it?
I don't think it's fair to say it's all her fault - and I don't think a court of law could find fault here, fairly, with no witnesses and no evidence.
So drunk people should never have sex? What if they're in a stable relationship?
The answer to your question is no. The victim bears no responsibility. The abuser took advantage of someone, who bears no fault for the result. There's no "well, both parties were in the wrong here". The abuser should not have abused the other party, no matter how vulnerable the other party made themselves.
You specifically said you didn't want to victim blame, then immediately blamed the victim.
<rolls eyes>
By redefining consent you've just redefined rape to include some large percentage of people in stable relationships. If everyone's a rapist nobody is.
Also, people in stable relationships can have non consensual sex. It was legal to rape your wife until like the 90s in parts of the states.
Blowing your husband because it wastes less of your time then him trying to woo you or popping a Viagra because your wife is hitting the bong and you know what she's gonna want next aren't ideal but they're facts of some peoples lives.
There's no way you can honestly allege those sorts of things are rape. So how do you justify your redefinition of consent?
That said, there are many folks who aren't enthusiastic about the act itself, but have enthusiasm for the outcome. Many asexual folks I know, for instance, are enthusiastic that they can do something that makes their partners happy, even while not particularly enjoying the act. You are interpreting my definition in only the narrowest possible lens.
I'm not arguing about what consent is, I'm arguing about whether you bear responsibility for what happens to you if you put yourself in a vulnerable position, give consent without being of sound mind, and then regret it later. I think 1) that's pretty dumb to put yourself in that situation, and 2) you do have partial responsibility for what happened.
I'm asking about this situation in general, not about her specific case.
>> But does a person not have some responsibility here to not get so intoxicated when alone with a member of the opposite sex in a private space?
No. You are shifting the blame to the victim here. You should not be assaulted/attacked/whatever whether you are sober, tipsy, drunk, unconscious.
In general regardless of your state of mind, you should be deciding if somebody is actually capable of giving consent in their state of mind regardless of how they act.
A drop of alcohol does not remove all ability to give consent but there is a point where it is no longer possible and so you’re left with a situation where there isn’t right and wrong absolutely but a grey area of many degrees... which as a decent person you should always err on the side of caution.
It's not a responsibility in ethical sense yet it is street smart behaviour.
A less amplified example: if you walk into a biker bar, insult that the regulars are assholes whose bikes you just kicked over outside, they have no moral justification to hurt you just as people are ethically bound to not sexually abuse intoxicated persons in our society. But there's some chance the guys in the biker bar won't just call the police and politely retain you until they arrive and, instead, you get beaten into some half-liquid state of matter.
The reason for that is because the regulars likely follow their own rules and not yours or the greater society's. Similarly, predator-type people don't follow the morals that we recognize. If all you can resort to is morals, you will lose with people who don't play by your rules. If someone doesn't see a moral problem in the sexual abuse of a passed out person it won't help to merely remind this person of just that: the abuser simply doesn't give a shit but plays a whole different game.
This is where the society could step in with its justice system and link the abusive behaviour to something the abuser does actually mind, like a harsh enough conviction to make the abusive behaviour less inviting. But society also has to be fair so as to not give harsh convictions to people who have not abused anyone despite being accused of doing that, and then the waters get muddy again. In many cases there's no objective verdict to be reached because no third party can ultimately tell what the heck happened, even if actual abuse did take place.
This leads to the bizarre but common pattern where the potential victims have to become proactive in taking measures to not actually become victims, and in doing so limit their choices and decisions of what to do, where to go and with whom. The onus somehow gets transferred to the person who shouldn't have to use time and energy to prevent these things from happening. The potential victims are the only party in the game who follow the society's rules and they have that losing stance because of that.
They shouldn't have to have -- and they don't have -- a moral responsibility to prepare for the worst: the moral responsibility single-handedly falls on the perpetrator -- the one who doesn't ever consider morals! So, the result is that the potential victims are imposed by purely practical concerns to limit their choices in order to secure themselves against wrongdoings, just in case. It's not right but it's also smart -- that's the big dilemma.
Is it good practice to lock your front door, on the assumption that some people are malicious and will take advantage and rob you if you don't? With particular caution suggested in some areas? Yes.
Is someone who is robbed when they did not lock their front door responsible for the crime in some sense? No, not really. A normal human failing to carry out a precaution that shouldn't be necessary in the first place, perhaps. I've forgotten to lock my front door once in a while, haven't you?
1. there was no breaking in;
2. you didn't take minimum precautions to protect your door (a 3-point lock is often required) and other openings.
And yet
I'm talking about close to blackout drunk, heavily incapacitated, not slightly tipsy.
What if the other person believes the incapacitated person is not so far gone as to be unable to consent?
Is consent only consent if you give a breathalyzer test in front of a witness?