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Author Topic: Sex While Intoxicated  (Read 3175 times)

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Offline Aethereal

Re: Sex While Intoxicated
« Reply #100 on: April 19, 2015, 11:04:39 PM »
Quote
I do not believe minors are truly capable of understanding the ramifications of their actions, and thus are not truly capable of consenting to sex.
     I disagree, strongly. There is no abrupt physical difference between 17 and 18 year old, and the US consent laws are, frankly, utterly ridiculous in some places. A 17-year-old is fully and completely capable of making clear and conscious decision on whether or not to engage in a sexual act. Whether their SO is 17 or 19 doesn't make much difference. A 14-year-old can be held criminally responsible in my country. I've lived on my own since I was 16.
    By what you said, I supposedly was incapable of deciding whether or not to have sex for a full two years after obtaining my own room hundreds of miles from my parents, managing my own finances, and driving a two-ton metal monstrosity capable of killing pedestrians if either I was not paying attention or they just decided to suddenly sprint over the road from behind some object.
    If anything, we are giving children the rights to decide for their life too late, and often somehow expecting them to just magically suddenly know what they've never experienced when they hit 18... (And believe me, I still think that even my 14-year-old self was better at deciding what to do with my life than my mother. My father was, luckily, more reasonable and didn't get all kinds of ... ideas.) Rather than ban children (or "children", since calling a 17-year-old a child can be a bit of a stretch) from doing things, we should teach them about consent and deciding as early as possible.
    And, for the sake of it, I definitely have met some people in the 50+ range whom I'd not trust with a plastic butter knife, let alone a car, a computer, or sex...

    As for the subject at hand ... tough call. For one, I certainly think that the male is not always the one to blame (nor are males always the rapists - I could bring you real examples of both females raping females and females raping males, including at least one where the female literally hit the male unconscious with a heavy object before proceeding to climb atop of him - he later ended up hospitalized with a significant head trauma). And scenarios of "I consented, but now I'm regretting it" and "I said yes, but never really was certain whether I wanted it" should be ruled with the other party(es) clear - no one can read minds or predict future.
    It can also be hard to - in retrospect - tell how drunk exactly someone was. Drunk people often feel that they are just "slightly tipsy" (so said a guy who proceeded to mumble something about a bear carpet and his nationality, and then went on to make even less sense ... I've actually had several drunk to all hell people very determinedly explain me that they are not really drunk at all) and definitely fully capable of making rational decisions. If both were conscious enough to give what appeared to be clear consent at that time, then I'd generally count the case unsolvable and punish neither. In this kind of word-against-word scenario, there is no way to make a ruling.
   Everything would, of course, be much easier if people simply did not drink that much...

Offline Tairis

Re: Sex While Intoxicated
« Reply #101 on: April 29, 2015, 08:31:40 PM »
Yes, but in this instance neither party should of had a cup of tea because they were both too intoxicated to know WTF they were doing. Besides, was is Jasmine or Licorice?

That's kind of the point of the problem: if you're both too drunk to consent how is it the guy always the one responsible for taking advantage?

Offline SweetSerenade

Re: Sex While Intoxicated
« Reply #102 on: April 29, 2015, 08:33:34 PM »
That's kind of the point of the problem: if you're both too drunk to consent how is it the guy always the one responsible for taking advantage?

Because in this instance he was the adult, and she was a minor?

Offline Tairis

Re: Sex While Intoxicated
« Reply #103 on: April 29, 2015, 11:04:29 PM »
Because in this instance he was the adult, and she was a minor?

So because she was under an arbitrary age this somehow effects the physiological fact that they were both incapable of making a rational decision? Regardless of the idiocy of US laws and age of consent, it makes zero sense to me that that should be the basis of the argument if alcohol is being blamed as the reason she couldn't consent. Her age is a completely separate subject.

Offline SweetSerenade

Re: Sex While Intoxicated
« Reply #104 on: April 29, 2015, 11:07:16 PM »
So because she was under an arbitrary age this somehow effects the physiological fact that they were both incapable of making a rational decision? Regardless of the idiocy of US laws and age of consent, it makes zero sense to me that that should be the basis of the argument if alcohol is being blamed as the reason she couldn't consent. Her age is a completely separate subject.

She was a minor, she should have never been drinking with anyone -much less drunk in his room. It is actually illegal to provide alcohol to minors. The fact of the matter is he is getting the brunt of things because she can't remember consenting, and she is a minor. If she had been an adult, they would probably be looking at this differently.

I apologize if this seems harsh, but it's just the way things are here. The fact of the matter is most rape cases never make it this far, and that's because the women are almost always forced to face extreme social fallout for stepping forward and talking about what happened. I know this personally, I lost all of my friends of the time - and I even was suspended from school for trying to tell them that a teacher was assaulting me.

Offline Tairis

Re: Sex While Intoxicated
« Reply #105 on: April 29, 2015, 11:25:27 PM »
If he was intentionally supplying her with alcohol that's one thing, if they both got drunk at a party or other function it's another. This is the part that drives me crazy (and isn't specific to this one case), how it always comes back to 'well he should have'... Why is it always 'Well HE should have... verified how old she was/stopped her from drinking/etc'. But if you even start a sentence with the phrase 'Well SHE should have...' it's victim blaming.

The issues that come from reporting a crime need to be addressed both as a society and from a government standpoint. But I also think that if people really want equality of the sexes we have to stop giving one gender a blank pass to make whatever bad decisions they want, while telling the other that THEY are completely responsible for anything that happens no matter what.


Offline consortium11

Re: Sex While Intoxicated
« Reply #106 on: April 29, 2015, 11:32:04 PM »
She was a minor, she should have never been drinking with anyone -much less drunk in his room. It is actually illegal to provide alcohol to minors. The fact of the matter is he is getting the brunt of things because she can't remember consenting, and she is a minor. If she had been an adult, they would probably be looking at this differently.

That's not really what happened in this case.

1) She could remember consenting (by deed if not strictly by word); while parts of her memory were fuzzy she could remember most of the encounter. This wasn't a case where she was passed out or blackout drunk. The issue was whether she was held to have the capacity to consent at the time, regardless of whether she did or didn't.

2) The investigation looked into the fact she was a minor and completely discarded it as being a relevant point. If you're saying the investigation would have looked at it differently is she wasn't a minor then you're saying that they lied when they reported their findings.

Offline AbboTristain

Re: Sex While Intoxicated
« Reply #107 on: May 04, 2015, 09:59:46 PM »
According to US law as I understand it, you cannot give sign a legally binding contract or give legally valid consent while intoxicated. This is to protect people from others who use their impaired state to take advantage of them. I don't think it's difficult to see why this is necessary, but please correct me if I'm wrong.

According to US law as I understand it, if you commit a crime while intoxicated, you cannot use your intoxicated state as a defense. This is to protect the rest of us from people who would use their intoxicated state as an excuse. I don't think it's difficult to see why this is necessary, but please correct me if I'm wrong.

It is possible for someone who is not legally capable of giving consent (whether because of age or intoxication) to commit rape. The best way I can say this is that it's because your ability to give legally binding consent to something is not tied to your ability to be held responsible for committing an act of violence against another person.

Deciding if a given instance was rape can be tricky, to say the least, when you're talking about legal evidence and not just hypotheticals. I won't deny that in cases like the one described, there's a bias to assume the male is the one at fault if anyone was, and male rape victims certainly have a horrible time trying to get anyone to take their account seriously.

But I really don't buy that there's some epidemic of women who are pretending to be rape victims as a way to attack men, or as a way to dodge responsibility for a night they regret. The former is paranoid, the latter ridiculous in the extreme. (I'm not saying it never happens, but I don't think there's ever been cause for a "Yes Means Yes" campaign.)

Just my two cents.

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Re: Sex While Intoxicated
« Reply #108 on: May 04, 2015, 10:59:32 PM »
(I'm not saying it never happens, but I don't think there's ever been cause for a "Yes Means Yes" campaign.)

Just my two cents.

Ah - you are aware that there is a 'Yes means yes' campaign, right?  The idea being that if your date hasn't said 'yes, I want to have sex with you', you shouldn't proceed with sexual activities.

Offline consortium11

Re: Sex While Intoxicated
« Reply #109 on: May 05, 2015, 02:17:17 PM »
According to US law as I understand it, you cannot give sign a legally binding contract or give legally valid consent while intoxicated. This is to protect people from others who use their impaired state to take advantage of them. I don't think it's difficult to see why this is necessary, but please correct me if I'm wrong.

Intoxication only invalidates consent (or the ability to agree to a contract) if the intoxication is severe enough that the person in effect didn't consent; they had no idea what was going on and were mentally incapable of understanding it. Simply having a drink... or even being drunk... isn't enough. Nor is it enough to argue that you only consented/signed the contract because you were drunk (i.e. that your decision making was altered due to intoxication and you'd never have done it if sober), which is why in this case the activist who convinced the Jane Doe in question to make a rape accusation spent a long time changing her story from "I wouldn't have done it if I was sober" (paraphrased slightly, her original position).

If having a drink, being tipsy or even being drunk was enough to completely invalidate consent then not only would the vast majority of sexual escapades begun at bars result in sexual assault or rape charges against both parties but the bars themselves would shut down within about as week as anyone who spent money there went back saying they were intoxicated and thus the contract to buy further drinks were invalid.

According to US law as I understand it, if you commit a crime while intoxicated, you cannot use your intoxicated state as a defense. This is to protect the rest of us from people who would use their intoxicated state as an excuse. I don't think it's difficult to see why this is necessary, but please correct me if I'm wrong.

Depends on the jurisdiction, the crime, the state of intoxication and whether it was voluntary or not (so did you willingly consume an intoxicating beverage or were you in essence spiked).

As a starting point, most crimes can be split into two camps; ones that only require someone being reckless and those which require someone to intentionally do something. These are general rfered to as "basic" (only recklessness) and "specific" (intention required) intent crimes. As a general rule most jurisdictions hold drunken intent to still be intent. So much like the above, if you intentionally do something it's no defence to say you only did it because you were drunk.  However the courts do hold that someone can be so intoxicated that they are unable to form intent (much like one can be so intoxicated that they can't consent or agree to a contract). While one can still be found guilty of basic offences (with the logic being that becoming drunk enough to do an act constitutes recklessness itself even if there is no intent) if one cannot form intent then they cannot be found guilty of a specific offence. A similar basic one? Certainly and that's why in practice it rarely makes much difference. But a specific one requiring intent? If intent can't be formed due to intoxication then there can be no intent and thus no crimes which require intent can have been committed.

It is possible for someone who is not legally capable of giving consent (whether because of age or intoxication) to commit rape. The best way I can say this is that it's because your ability to give legally binding consent to something is not tied to your ability to be held responsible for committing an act of violence against another person.

It's not that clear cut. Depending on jurisdiction rape can be an offence requiring specific intent, although it's not entirely clear (the UK has a very confused position on it for example). If it is a crime of specific intent then someone who is so intoxicated they cannot consent may well also be so intoxicated they cannot form intent and, in that regard, thus cannot be held to have committed a rape. California (where this case took placer) is as messy as the UK when it comes to deciding whether rape is a specific offence or not but case law suggests that it may be.

Furthermore rape generally requires the perpetrator to be aware (or should have been aware) that the other party wasn't consenting and/or includes a defence of reasonably (but mistakenly) believing that the other party had consented. Tests of whether something is "reasonable" or not tend to go back to the "reasonable person" test; would a hypothetical reasonable person in the same circumstances have believed/done (depending on the test) the same thing. Most jurisdictions take into account the person's characteristics and the circumstances when doing so; instead of a completely generic reasonable person they'd use say, a reasonable person of colour or a reasonable person who had just been attacked or a reasonable *insert characteristic or circumstance here*. Level of intoxication may be included in this... jurisdictions differ. If it is then if someone is held as being too drunk to consent then using the first part of the requirement/defence above they may claim that they were also too drunk to note the lack of consent. If a reasonable person who was as intoxicated would not have realised the lack of consent then they may well have a defence there.

I should note of course that few of these apply to this example. The police investigated the case and believed that the Jane Doe drunkenly consented and thus there was no sexual offence. It was the college that decided a sexual assault had happened and when the girl said yes she didn't actually say anything at all and colleges aren't bound by criminal law and procedure in the way the courts and law enforcement are. They can, and do, pretty much make up the rules as they go along and only occasionally get slapped on the wrist.

But I really don't buy that there's some epidemic of women who are pretending to be rape victims as a way to attack men, or as a way to dodge responsibility for a night they regret. The former is paranoid, the latter ridiculous in the extreme. (I'm not saying it never happens, but I don't think there's ever been cause for a "Yes Means Yes" campaign.)

1) I think it's unfortunate wording on your part, but there is a "Yes Means Yes" campaign, although from the context you're using it here I think you're referring to a different thing. The mainstream "Yes Means Yes" campaign relates to changing the standard of consent so it's no longer about not saying no, it's about actively saying yes. That had a whole load of issues that come with it but not really related to this situation. I'm assuming when you talk about s "Yes Means Yes" campaign you're talking about a hypothetical one by people disgruntled that their partners said yes the night before but now claim they didn't because they regretted the experience.

Unfortunately such a campaign may be needed if cases like this keep happening.

Let's run over the context of it again. The girl in question thought she had consented. In fact, to quote her again "I would never have done that if I had been sober. Ö I donít know what was going through my head." She was, to use the above terminology, talking about drunken intent. She may have only done it because she was drunk but she still decided to do it. Textbook case of drunken intercourse that people may regret but is not rape or sexual assault. Then, under constant pressure from an activist, her story suddenly changes to no longer be "I only consented because I was drunk" to "I was so drunk I couldn't consent and the guy should have known that". Yes no longer meant yes. The college agreed. It held that when a woman says yes she may not actually mean yes and good luck trying to work it out. Remember, this is a girl who, drunk or not, was able to send coherent text messages (both to the man in question and to a third party where she bragged about going to have sex), sneak out of her dorm room past her friends (and actually sneak; they wanted to keep her there. She bragged about that as well), navigate down to the man in question's floor, find his room and get in it. After they had sex she then left and went off to find another guy who see was sitting on the lap of and flirting when her friends found her.

If a woman can do all that and still not mean "yes" when she says "yes" then when exactly does yes ever really mean yes? And how is someone meant to know that when a woman capable of doing that says "yes" she's actually saying "I'm too incapable to say yes"?

2) While it may not constitute an epidemic there are quite a few cases. To use an example I've mentioned previously one of the largest college insurers did an audit of all the cases where colleges had been forced to pay out on matters relating to sexual offences. With the massive publicity about this supposed wave of campus rapes (which some dodgy statistics still waved around claiming that a woman is more likely to be raped in a US college then they would in the Congo during the civil war when mass rape was a widely used tactic) and the fact that colleges have been reportedly awful at dealing with rape claims then you'd assume that the majority of payments went to women who had been sexually assaulted and the college failed them. They weren't the majority. Instead 72% of all payouts went to male students who had been accused of rape by the college and subsequently sued the college, generally for rights violations.

Offline Aethereal

Re: Sex While Intoxicated
« Reply #110 on: May 05, 2015, 03:20:25 PM »
Quote
Remember, this is a girl who, drunk or not, was able to send coherent text messages (both to the man in question and to a third party where she bragged about going to have sex), sneak out of her dorm room past her friends (and actually sneak; they wanted to keep her there. She bragged about that as well), navigate down to the man in question's floor, find his room and get in it. After they had sex she then left and went off to find another guy who see was sitting on the lap of and flirting when her friends found her.

If a woman can do all that and still not mean "yes" when she says "yes" then when exactly does yes ever really mean yes? And how is someone meant to know that when a woman capable of doing that says "yes" she's actually saying "I'm too incapable to say yes"?
This is why I am on the guy's side here. If a person is conscious and seems mostly coherent when they say yes, and it still does not necessarily apply, from which criteria should you even begin to tell anything?* Carry an alcometer with clock and signature pad attached and tell people to blow into it and take their signatures declaring consent before and after sex (provided the amount of alcohol in their breath was under certain percentage before said sex), and even then only have sex in a room with multiple cameras?

*Excluding the cases where a person deliberately got other drunk to "soften them up". In that case, the blame would shift again. 

Offline consortium11

Re: Sex While Intoxicated
« Reply #111 on: June 11, 2015, 05:52:22 AM »
Frankly it's getting to the stage where as someone with a legal background I'd be telling people... primarily men... to not have sex while in college and, if you do, make sure it's with someone who's not in college. Despite how relatively remote the chances are that someone will later claim that it was a sexual assault, if they do there is almost nothing one can do to defend themselves.

Take this case for example.

(Main source for the story here; it contains links to much of the documentation but is from a clearly activist website).

So, to run through the undisputed facts of the case:

Student gets blackout drunk... clearly intoxicated but not necessarily obviously beyond the ability to consent.

Is kissed by another student

Is taken back to the other students room.

Other student performs a sex act upon them.

In light of the story in this thread and the discussion within I'd assume that we'd all think it was the student who targeted the drunk student who found themselves in hot water. After all Amherst, the college in question, not only has a policy relating to intoxicated consent which makes clear that intoxication can invalidate consent and it is the responsibility of the other student to be aware of their partners level of intoxication (and thus consent) but also has a "yes means yes" policy. If anything it's a more clear cut case then the one discussed in this thread as here one student was only tipsy while the other was blackout drunk compared to both being blackout drunk in the other.

No, it's the other way around.

Two years after the claimed sexual assault the less drunk student claimed the drunk student raped her and he was subsequently expelled.

The Jane Doe claims that the sex act started out consensually but part way through she wanted to stop and pushed against him, at which point he didn't immediately stop. The John Doe has no recollection of this due to being blackout drunk. Due to the low "preponderance of evidence" requirement if that was everything there was I could perhaps see why the decision was made; she says he raped her, because of his intoxication level he can't say he didn't, thus on the balance of evidence it is more likely he did, thus found liable, thus expelled.

But surely we must look into things with more detail then that?

First, the John Doe in this case is clearly not a particularly great person. The Jane Doe in question was the roommate of his then girlfriend and she claims that he bragged about having got with both of them. Drunk or not and despite his relationship being fairly casual cheating on your girlfriend with her roommate is a pretty awful thing to do. But being a bad person doesn't mean one commits sexual assault.

Secondly, I'm aware of the trap inherent to going "well, she didn't act like a sexual assault victim would". People handle trauma differently, they don't always make what appear to be smart choices with hindsightetc etc.

But take a look at this.

The first part is the statement from the John Doe's then girlfriend. She remained friends with the Jane Doe following the incident, broke up with the Jon Doe before briefly getting back together again. At no point over that period did the Jane Doe tell her that she had been raped or warn her that the John Doe was a rapist. The second part is a series of text messages between the Jane Doe and the residential counselor from later that night. They make no clear the encounter was at least partially consensual, make no mention of ever becoming non-consensual, make clear again that the John Doe was extremely drunk, present the Jane Doe's biggest worry being how to cover up the sexual encounter so that people don't criticise her for it and then go into detail about how she had sex with a third party later that night (who she invited to her room and later complained that he was there for hours before he finally had sex with her). The text messages between her and the third party (as well as his statement) can be seen here; he saw no indication that she was upset or confused.

So, what to take from this?

1) I noted here before how sexual predators could use the current set up as a way to shield themselves from the consequences of assaults. Here we have another example where one could easily paint that as being the case. Because the Jane Doe made the accusation it appears that any angle where she may be liable for having performed a sex act upon someone too drunk to consent has been ignored. If anything it's a "how to" guide for getting away with sexual assault; find someone who is so drunk they are unlikely to remember, have sex with them and then later claim they sexually assaulted you. Because you complained the college will not investigate your own assault and because the other partner can't remember (or remember clearly) they won't be able to mount an effective defence.

2) Even with the note above about the danger of expecting a certain type of behaviour from someone who has been sexually assaulted, shouldn't the tone and nature of those text messages and Jane Doe's conduct afterwards still make some difference to the case? When mere hours after the claimed sexual assault the apparent victim is texting her residential counselor complaining that the third party hasn't slept with her yet:

Quote from: Jane Doe
Ok why is he just talking to me??

Quote from: RC
In your room?

Quote from: Jane Doe
Like, a hot girl in a slutty dress. Make. Your. Move.

Quote from: Jane Doe
YEAH

Quote from: RC
Just make out with him already

Quote from: Jane Doe
Ohmygod action did not happen til 5 in the fucking morning

I can't help but think despite myself that... going by the preponderance of evidence... it doesn't paint a picture of someone who just suffered a traumatic sexual assault. Neither do the rest of the text messages to either the RC or the third party.

3) Much like the complaint which referred to earlier in this thread, this one came years after the alleged incident took place and... and I think importantly... once the alleged victim had become friends and come under pressure from activists with a clear interest in cases of this type. That worries me.

4) The complaint (which can be read in full here) makes the allegation in section 77 that the college targets men of colour in cases like this; it claims that only men of colour have been punished under the updated policy (the college denies this but does not go into further details). The complaint references the Special Oversight Committee on Sexual Misconduct's January 2013 report which notes that the college had a "a prior reputation for taking "a more punitive attitude toward non-white perpetrators, especially if the victim is white." In this case the John Doe is a person of colour.

5) Let's say for a moment that the alleged victim was lying. How would the John Doe defend himself against that claim? Being too drunk to remember, what evidence could he present that would mean the college didn't class him as a rapist and expel him?

Offline LisztesFerenc

Re: Sex While Intoxicated
« Reply #112 on: June 13, 2015, 02:09:48 PM »
I can't help but think despite myself that... going by the preponderance of evidence... it doesn't paint a picture of someone who just suffered a traumatic sexual assault. Neither do the rest of the text messages to either the RC or the third party.

  So what would paint a picture of a traumatic sexual assault? I ask because I have read several accounts and some hypothesis that many people are biologically incapable of playing the victim role of society and the media has constructed them.

Offline Tairis

Re: Sex While Intoxicated
« Reply #113 on: June 14, 2015, 10:35:54 PM »
Id think 'not going back to your room and then having sex with someone else in the same night' might qualify for a check box on the 'assault' list.


Offline Sethala

Re: Sex While Intoxicated
« Reply #114 on: June 18, 2015, 01:32:27 PM »
  So what would paint a picture of a traumatic sexual assault? I ask because I have read several accounts and some hypothesis that many people are biologically incapable of playing the victim role of society and the media has constructed them.

I think that ties into a greater problem with rape as a crime that nearly every other crime doesn't have to deal with: it's a crime about permission.

It's relatively easy, for instance, to figure out if a murder happened.  Is there a dead person that didn't die to natural causes or suicide?  If the answer is yes, then it's probably murder.  With rape, there's no physical test.  You can tell if sex happened, but determining if it's consensual sex or rape relies solely on whether the victim was willing or not, or was capable of determining whether they were willing or not.  There's no set checklist that could be made for making that determination; instead a good deal of reasoning and deduction has to go into it.  In this case, we have a woman who had sex that may or may not have been rape, who then went on to have sex again, tell people she was having sex, and express that her primary concern wasn't "I was raped" but "I just convinced my roommate's boyfriend to cheat on her with me".  Is it possible someone who was legitimately raped would have that reaction?  Entirely possible, yes.  Is it possible that someone who just had consensual sex would have that reaction?  Again, it's possible.  What's important isn't figuring out if it's possible, however; what's important is figuring out what's more likely to be possible, keeping in mind that you're using that person's reactions to determine whether someone else should be punished.