Sex While Intoxicated

[AndyZ]

http://www.slate.com/articles/double_x/doublex/2015/02/drunk_sex_on_campus_universities_are_struggling_to_determine_when_intoxicated.html

So, I'm reading through this article, which talks about the various ways that colleges deal with sex while intoxicated.  I can attempt to summarize, but I figured that just posting it would help.  It's far from unique, but it goes into a lot of the issues.

The way I'm thinking right now, it seems like that as long as someone is conscious, we shouldn't let intoxication dissuade the ability to give legal consent if that intoxication was knowingly accepted.

I doubt anyone present would agree that we should expel the man and excuse the woman when both people have been drinking, but if we're either going to expel both or excuse both, the latter seems like a better solution.

Certainly you can make a case for expelling both.  We don't allow driving while intoxicated, and any crimes performed while intoxicated still count against you.

I've been told that legally, you lose the ability to give consent only when you're no longer really conscious.  This might just be something that's changed with the idea of actually saying yes now instead of not saying no.

Am I on the right track with this or am I missing something?

[kylie]

      It may be true that it's much simpler to go after cases where the victim was unconscious, and it is true that courts often assume women who drank brought everything on themselves.  But that does not mean there are no legal grounds to ask "Wait a second, was this one set up for an attack and was she too intoxicated to give or express consent?"  So I dunno quite where you are getting this.

I've been told that legally, you lose the ability to give consent only when you're no longer really conscious.  This might just be something that's changed with the idea of actually saying yes now instead of not saying no.

Am I on the right track with this or am I missing something?

I really suspect you are missing a lot. And I hope so, because as written, it comes off as a lovely waiver for all sorts of use of alcohol as a weapon or aide in crimes.

     Anyway, suggest for a start you look through the diagnostics for how much is 'too intoxicated' depending on the situation, in the Pdf "Prosecuting Alcohol- Facilitated Sexual Assault" by the National District Attorneys Association (NDAA). The author is Scalzo, the release I see is 2007 and check out pp. 5-10 in particular.  Sorry cannot get a full url as my phone just opens a pdf reader.

[consortium11]

I've been told that legally, you lose the ability to give consent only when you're no longer really conscious.  This might just be something that's changed with the idea of actually saying yes now instead of not saying no.

It depends slightly on jurisdiction but on the whole it's more nuanced then that. Obviously someone who is unconscious can't consent but we also tend to accept situations where someone is conscious but is so clearly out of it due to alcohol that they still can't consent.

Onto the topic as a whole:

The key for me here is the difference between two positions:

I couldn't consent because I was too drunk

I only consented because I was too drunk.

The first is prima facie sexual assault/rape for fairly obvious reasons; there is no consent. The obvious example is the one mentioned above; if someone is unconscious because they've drunk too much if you then engage in sexual relations with them then they clearly haven't consented and, outside of rare circumstances, you have no reason to suspect they have. Thus sexual assault, thus rape. As also mentioned above however it's generally not just limited to situations where someone is passed out. If someone is right on the edge of consciousness... still just about aware of what's going on around them but only barely... I'd be tempted to say it's also still sexual assault/rape even if they mumble a semi-coherant "yes" when you ask about having sex with them. While people may balk at the comparison, one can be drawn with people who suffer from mental disabilities and whether they're allowed to have sex; just as their mental impairment means that they can't comprehend the nature of the act they're engaging in, the alcohol can do the same temporarily.

But for me the second isn't sexual assault. And it's why I hate the quote from the "victim" mentioned in the linked article (emphasis mine).

“I would never have done that if I had been sober. … I don’t know what was going through my head."

For me just as drunken intent is still intent (if you intend to do something when drunk you can't use your drunkenness as a defence... a well established legal principle) drunken consent is still consent. If you normally wouldn't consent but because you're (voluntarily) drunk and inhibitions have been lowered you do consent then you still consented. These aren't cases where you weren't able to consent, it's cases where you did consent. And I hate the fact that people are now trying to classify that as sexual assault.

The case mentioned in the story is pretty much the absolute worst example of that, with a young man's life disrupted... if not outright ruined... through a combination of pseudo-science and misguided good intentions. It even falls squarely into the "if I regret in the morning it's rape" school of thought with the "victim" making clear during the investigation that she'd hoped her first time was more special. It also leads to the bizarre situation where if the John Doe in this case was vindictive he could have likewise had the girl in question expelled; he was just as drunk as her and from the eye-witness testimony she was the one who initiated sexual contact. But he didn't and as a result she gets to continue on her life while his gets ruined. The fact that her sexual aggression and him being just as drunk as her don't constitute a defence is a ludicrous.

Let's also look at one list from Kylie's link when it comes to determining whether someone was too drunk to consent (ignore the fact it views all victims as female):

How drunk was the victim?

The more intoxicated the victim was, the less likely it is that she was capable of consenting.The following factors can aid in this determination:

● Was she conscious or unconscious? Did she regain consciousness during the rape? Did she pass out during the rape? If so, what did the accused do?

● Did she black out?

● Did she vomit?

● Could she speak? Was she slurring? Was she able to communicate coherently?

● Was she able to walk or did someone (in particular, thedefendant) have to carry her? Did she have to lean on someone?

● Was she able to dress/undress herself?

● Were her clothes disheveled?

● Was she responsive or in a non-responsive state?

● Was she able to perform physical tasks or was her coordination impacted? For example, did she light the wrong end of a cigarette or spill things?

● Did she urinate or defecate on herself?

● What was her level of mental alertness?

● Did she do anything else to indicate whether she was capable of cognitive functioning? For example, did she use her credit card? Did she use her cell phone or e-mail?

Applied to this case pretty much every single item on that list would be answered in the way that indicated she wasn't too intoxicated to consent. Yet the equally drunk man gets expelled.

Worst, if there was a chillingly clever predator out there it actually gives them a built in way to escape all punishment. Make sure to mention that you're drunk to a few friends, make clear to stagger around a bit. Find a clearly intoxicated victim. Have sex with them. Immediately run to the authorities and claim it was you that was raped. Bang. You can get away largely scott free as now its your victim who faces punishment.

It's the farcical result of the farcical misuse of statistics to present farcical points because they agree with someone's political views and let the truth or any concept of fairness be damned. It's the result of the President repeating the massively discredited "1 in 5 women are raped at college" stat that pretends US colleges are places where a woman is more likely to be raped then in the war-torn Congo. It's the results of sex negative feminists and those who wish to shame all sexual or kinky behavior being allowed to peddle their nonsense while well-meaning useful idiots talk about being a "rape apologist" whenever anyone points out how awful these things are.

I'd hoped that the Rolling Stone farce... where they invented a gang rape because their reporter wanted to write a story about a gang rape and fraternities... would prove a watershed. And perhaps it has... at least this story is being told now. But it's still sickening that it happened in the first place.

[Pumpkin Seeds]

You are missing a lot.  A person who is legally drunk for instance does not have the ability to make medical decisions for themselves.  They are considered incompetent to make decisions.  They do not need to be unconscious.  By that idea there can be no consent if intoxicated, whether the inhibition is lowered or not.  There is simply no consent possible.

[AndyZ]

     I really suspect you are missing a lot. And I hope so, because as written, it comes off as a lovely waiver for all sorts of use of alcohol as a weapon or aide in crimes.

There's quite a lot being reported.

I'd hoped that the Rolling Stone farce... where they invented a gang rape because their reporter wanted to write a story about a gang rape and fraternities... would prove a watershed. And perhaps it has... at least this story is being told now. But it's still sickening that it happened in the first place.

The same author commented on the Rolling Stone thing, so maybe so.

You are missing a lot.  A person who is legally drunk for instance does not have the ability to make medical decisions for themselves.  They are considered incompetent to make decisions.  They do not need to be unconscious.

Then how can they be charged with crimes?

[Pumpkin Seeds]

Because other people do not suffer for your poor decision making while under the influence.  A person that is intoxicated made the choice to drink and then under the influence went out to commit a crime.  The individual made that choice to take on a substance and then endanger another’s life or property.

[AndyZ]

Okay, so you would say that both of them should have been expelled?

[Pumpkin Seeds]

Did she force herself on him?

[AndyZ]

They were both too drunk to give consent, and she came to his room.

[Pumpkin Seeds]

Not sure.  He did send a pretty coherent text message to her stating, "When you're away from them come back."  That seems rational enough to recognize a danger, her friends, and initiate a plan to get what he wanted which was sex.  He also had the where with all to use a condom during the exchange.  He did invite her to his room which means he initiated the second interaction.  He knew she was drunk by this point, the interaction had been stopped, but he engaged her again for sex.

[AndyZ]

But he was drunk, so he couldn't give consent.

Edit: Also, she was the one to bring up the condom.  Minor point, but if you're going to bring it up...

[Pumpkin Seeds]

Actually, no he had the condom.  She asked if he had one and he said yes.

He did not need to give consent because he was the one inviting her to have sex.  The person initiating the action does not need to give their consent because they are already doing the action.

[AndyZ]

Okay, so your argument is that whoever initiates while drunk is at fault and the other person is blameless?

[consortium11]

Actually, no he had the condom.  She asked if he had one and he said yes.

He did not need to give consent because he was the one inviting her to have sex.  The person initiating the action does not need to give their consent because they are already doing the action.

1) Consent has to be ongoing; it doesn't matter if someone initiated the action or not.

2) The point here isn't that either party didn't consent, it's that they supposedly couldn't consent because they were so drunk. If that is the case then it doesn't matter what they're actions are... none constitute consent.

[Deamonbane]

Things are getting to the point where people have to sign a legal agreement to have sex, with lawyers present.

[Oniya]

Things are getting to the point where people have to sign a legal agreement to have sex, with lawyers present.

Does that count as group sex, or just voyeurism?

[consortium11]

Things are getting to the point where people have to sign a legal agreement to have sex, with lawyers present.

In this case it wouldn't matter; it wasn't that she didn't give consent, it was that whatever consent she gave wasn't important.

[Silk]

Now this is a situation that has a horrible habit of rubbing me the wrong way so I'll only make this short

Both male and female are sober, then the male is the perpetrator and the female the victim because patriatchy and reasons!
Male drunk female sober, male is the perpetrator and the female is the victim because the males inhibitions and ability to reason are hampered.
Male is sober and female is drunk the male is the perpetrator and the female is the victim because her ability to give consent is hampered.
male and female are both drunk, the male is the perpetrator and the female is the victim because patriarchy and reasons!

No matter what happens, you can spin the situation to make the male the perpetrator and the female the victim, lets take that story in the reverse shall we?

She did send a pretty coherent text message to him stating, "When you're away from them come back."  That seems rational enough to recognize a danger, his friends, and initiate a plan to get what she wanted which was sex.  She also had the where with all to use a condom during the exchange.  She did invite him to her room which means She initiated the second interaction.  She knew he was drunk by this point, the interaction had been stopped, but she engaged him again for sex.

In a real life scenario, would this of been seen as her raping him?

[Sho]

See, I have a major problem with this whole any-alcohol-and-consent-doesn't-count thing. While I do think that there are a number of women who have been horribly victimized because they were drinking and unable to give consent, I think that it is ridiculous to expel a male student and keep the female student in school when both fairly clearly had consensual (if drunk) sex.

I think that this sets up a dangerous precedent where it seems like women (in the majority of these cases it seems to be women making the reports) are easily able to claim rape when they wake up and regret a decision they made. Under the current rules, they aren't wrong; it is rape. I just happen to disagree that two drunk students having consensual sex is rape - or rather, that the man is raping the woman and the woman doesn't have the agency to take responsibility for having made that particular decision.

I think that the rules need to change; I think women need to be protected from being raped while drinking, but these rules seem to set up male students for failure. I'm not sure what the right answer is, but I don't think that this is it, and given that multiple people saw them and said that they seemed to be enjoying themselves, I don't think that he should have been thrown out of school.

Frankly, if we're going to use this drunk-consent-is-not-consent rule, I think that both students should have been thrown out of the school because neither of them would have been considered capable of consenting.

Anyways, just my two cents.

[Pumpkin Seeds]

Honestly I have no sympathy for men that wind up in hot water due to these decisions.  The possibility isn’t exactly hidden and there is already a school policy against having sex while drunk.  He took a chance that the woman he was having sex with wouldn’t press charges and he was wrong.  There is no reason he could not have waited until morning to sober up, call her and talk to her.  Instead he texted her to come over after the initial activity was over because he knew that he could get laid because she was so drunk.  He was thinking with his “little head” and made a poor decision.  The dangerous precedent people are discussing here is that a woman has to live with his poor decision, while he receives the pleasure and can continue to do so again.  I find this disturbing that men become so frightened when alcohol makes a woman unable to consent. 

Picking up random people in a bar is dangerous.  Women have had to worry about the dangers for decades.  So, I am sorry to say that the men now have to be a little more discerning and careful when drinking and picking out sexual partners. 

As for the reverse situation, many rape cases were dropped because a woman brought a man back to her apartment.  Hell, many rape cases are dropped because of what she was wearing.  So maybe we need to pull back a moment to place the amount of rape cases that are thrown out, dropped or not considered due to things like who invited who over and such.

I did not say she is blameless Andy.  She made a poor decision, but the school is not going to expel a rape victim.  Also he never filed a complaint against her for sexual misconduct.  So he can hardly expect her to be expelled for reporting him. 

[AndyZ]

Okay then.  So you're comfortable with inviting someone to your place being accepted as consent for initiating sex?

Edited with strikeouts and color.

[Silk]

Honestly I have no sympathy for men that wind up in hot water due to these decisions.  The possibility isn’t exactly hidden and there is already a school policy against having sex while drunk.  He took a chance that the woman he was having sex with wouldn’t press charges and he was wrong.  There is no reason he could not have waited until morning to sober up, call her and talk to her.  Instead he texted her to come over after the initial activity was over because he knew that he could get laid because she was so drunk.  He was thinking with his “little head” and made a poor decision.  The dangerous precedent people are discussing here is that a woman has to live with his poor decision, while he receives the pleasure and can continue to do so again.  I find this disturbing that men become so frightened when alcohol makes a woman unable to consent. 

Picking up random people in a bar is dangerous.  Women have had to worry about the dangers for decades.  So, I am sorry to say that the men now have to be a little more discerning and careful when drinking and picking out sexual partners. 

As for the reverse situation, many rape cases were dropped because a woman brought a man back to her apartment.  Hell, many rape cases are dropped because of what she was wearing.  So maybe we need to pull back a moment to place the amount of rape cases that are thrown out, dropped or not considered due to things like who invited who over and such.

I did not say she is blameless Andy.  She made a poor decision, but the school is not going to expel a rape victim.  Also he never filed a complaint against her for sexual misconduct.  So he can hardly expect her to be expelled for reporting him.

I know it's invoking godwins law, but meh,

Hey the Jews in Israel are rounding up and gassing Innocent Germans, but it's ok because the Nazi's did it. They should've known that Jew's whould harbor resentment and should've been aware of the danger while being in a Jewish majority country!

[Nachtmahr]

I know it's invoking godwins law, but meh,

Hey the Jews in Israel are rounding up and gassing Innocent Germans, but it's ok because the Nazi's did it. They should've known that Jew's whould harbor resentment and should've been aware of the danger while being in a Jewish majority country!

This seems extremely inappropriate.

I'm sorry to butt in, but I've been following this discussion, and this right here seems not only borderline offensive but also completely out of context.

[Silk]

This seems extremely inappropriate.

I'm sorry to butt in, but I've been following this discussion, and this right here seems not only borderline offensive but also completely out of context.

Why because pointing out that because women had to worry that there is dangers when going out, that men shouldn't complain that they have their own things to worry about? Why is it ok for both to suffer when it makes far more sense to work towards making it so neither have to suffer? of course the only REAL difference is women very rarely have to suffer in silence compared to men in this regard? Sure the case might be dropped, but at least they get the chance to have the case in the first place. Men don't get that luxury 90% of the time.

[AndyZ]

Appreciated, Silk, but ultimately unhelpful.  Part of the reason for Godwin's Law is that the issue can quickly devolve into emotional responses instead of reasoned logic.  While the comparison might be obvious, it can be handled better calmly and checking for consistency.

As an aside, the only person I've ever seen who self-identified as "Nazi" actually preferred the term "National Socialist," since the abbreviated word has kind of devolved into a slur.  (Not sure whether or not it should be, but I haven't fully felt comfortable drawing lines involving what people call themselves.)