My token Feminist vlogger that I watch was really upset about how many people were reacting to this Salon.com article.
http://www.salon.com/2010/09/03/was_i_really_raped/
Many people making comments on the article do not think that this woman was raped. I suspect that they feel it is inappropriate to use the term because the abuse of recreational drugs was involved and that sexual contact was initiated by the woman.
How do you guys evaluate this?
Based solely on that, I say he raped her, in the indirect-use-of-force sense; meaning he obtained a value he wouldn’t have received if her judgement wasn’t impaired, which he surely knew about.
It’s rape when one engages in a sexual act with a person who’s judgement is at (for lack of a clearly defined standard), “that level of impairment”, due to drugs/alcohol/ a hit-on-the-head/pyschosis.
Consider rape by force and the rape by indirect use-of-force described in the article. Although both types of rape are much more heinous than my follwing analogy, let me make it: Consider armed robbery (force) and the indirect use-of-force, theft, or fraud. All crimes.
Is it sexual assault to have sex with a person who one knows to have judgement at “a certain level of impairment” ? Yes.
Is the woman in the article telling the truth and not ommiting any key details? I don’t know. I need to hear more from her. But if I was a rape cop. I would definitely investigate the allegations and if I believed the boy knew her judgement was “at that certain level of impairment,” I would indict.
My token Feminist vlogger that I watch was really upset about how many people were reacting to this Salon.com article.
Legally, this case is as hazy as her memory of what happened during the incident. One, she isn’t sure sex happened ( ‘probably’ isn’t good enough for legality). Two, it appears at first she didn’t consent, and then did. Also, sex isn’t just “initiated” by one person, it’s a mutual thing, and part way through, either party can get uncomfortable and want to stop. In any case, if the guy had reason to believe her judgment was impaired, that would be rape if he had sex whatever the answer. A completely drunk person can’t consent when they are otherwise able! Unfortunately, because drunkenness can make memories hazy, the rapist can get away with it.
If they guy was extremely impaired also would that change circumstances?
That is, if two people are so drunk that they couldn’t consent, then was anyone raped?
Hairnet:
Perhaps technically both performed the actus reus but neither had the mens rea.
Ha, a legal eagle in the house! About the same as a mind-body split, is that SL?
To the best of my knowledge, drunk people are not exempt from legal responsiblity for their actions (be it responsibility for crimes committed, confessions of crimes, money spent, contracts signed, consent given, or whatever other actions one may take).
If she was too drunk to give consent (because she couldn’t speak, or wasn’t conscious), that’s different. But as long as an adult is able to agree to sex, they agreed to sex. It would be absurd to hold someone else responsible for decyphering their state of mind.
If they guy was extremely impaired also would that change circumstances?
That is, if two people are so drunk that they couldn’t consent, then was anyone raped?
By the logic that “drunk people can’t consent”, they would both be rapists.
If she was too drunk to give consent (because she couldn’t speak, or wasn’t conscious), that’s different. But as long as an adult is able to agree to sex, they agreed to sex. It would be absurd to hold someone else responsible for decyphering their state of mind.
When someone is severely drunk, their ability to think is impaired, so there is no reasonable sense of “consent” to offer. That applies to either party. The question to ask is if either of them were able to make a reasonable evaluation of the situation. Quite possibly the guy knew very well what he was doing, even if he drank some. It’s not absurd to decipher someone as drunk, so it’s fair to say forcing yourself onto a drunk person is rape. Guys can be raped too, so because this situation is so hazy, I can’t say who is the one to blame.
When someone is severely drunk, their ability to think is impaired, so there is no reasonable sense of “consent” to offer. That applies to either party. The question to ask is if either of them were able to make a reasonable evaluation of the situation. Quite possibly the guy knew very well what he was doing, even if he drank some. It’s not absurd to decipher someone as drunk, so it’s fair to say forcing yourself onto a drunk person is rape. Guys can be raped too, so because this situation is so hazy, I can’t say who is the one to blame.
An individual consents to getting drunk, and by extension, consents to putting him or herself in an impaired state of mind.
Also, as Nicky points out, is it rape for two drunk people to have sex with each other? If not, this creates a really bizarre incentive. If a sober guy wants to get with a drunk girl, he should simply knock back six shots, get wasted, and then have at her.
An individual consents to getting drunk, and by extension, consents to putting him or herself in an impaired state of mind.
Also, as Nicky points out, is it rape for two drunk people to have sex with each other? If not, this creates a really bizarre incentive. If a sober guy wants to get with a drunk girl, he should simply knock back six shots, get wasted, and then have at her.
Right, people get themselves drunk. Which says nothing about sex. Perhaps it was a stupid decision, but it does not imply consenting to all things that happen as a result. The same way consenting to sex does not imply accepting a baby that may happen as a result.
As I said, if neither was in a state of mind to make any decision, both are probably at fault and it is probably impossible to determine if someone was raped. If you can determine someone got drunk in order to evade blame, that’d probably be rape. If the guy had one beer, while the girl was 10 beers deep in a drunken stupor, that’d probably be rape. There is no reasonable way to construe consent from a drunk person.
Right, people get themselves drunk. Which says nothing about sex. Perhaps it was a stupid decision, but it does not imply consenting to all things that happen as a result. The same way consenting to sex does not imply accepting a baby that may happen as a result.
As I said, if neither was in a state of mind to make any decision, both are probably at fault and it is probably impossible to determine if someone was raped. If you can determine someone got drunk in order to evade blame, that’d probably be rape. If the guy had one beer, while the girl was 10 beers deep in a drunken stupor, that’d probably be rape. There is no reasonable way to construe consent from a drunk person.
Consenting to sex implies consenting to the risk of having a baby. Even using a condom during sex implies consent to a very tiny risk of having a baby. The same should apply to intoxication. It is not the responsibility of other people to evaluate the intoxication level of others before engaging in an activity with them.
More generally, why does consenting to one action not imply consent to potential results (intended or unintended)? Consent does not stop at intention.
Consenting to sex implies consenting to the risk of having a baby. Even using a condom during sex implies consent to a very tiny risk of having a baby. The same should apply to intoxication. It is not the responsibility of other people to evaluate the intoxication level of others before engaging in an activity with them.
More generally, why does consenting to one action not imply consent to potential results (intended or unintended)? Consent does not stop at intention.
It might imply consent to the risk, but it doesn’t imply consent to responsibility for others’ actions.
Driving a car implies consent to the risk of getting in an accident, but it doesn’t imply responsibility for someone hitting your car.
Even walking down the street implies consent to the risk of getting mugged, but it doesn’t imply responsibility for the mugging.
Same thing for a baby. Having sex _implies consent _to the risk of a girl getting pregnant, but it doesn’t imply responsibility if the woman decides to birth it.
This doesn’t mean that every time a drunk person has sex, it’s rape. It is contextual whether or not it is rape.
If the guy had one beer, while the girl was 10 beers deep in a drunken stupor, that’d probably be rape. There is no reasonable way to construe consent from a drunk person.
The necessary logical consequence of that statement (I’m talking about pure deductive logic) is that either point 1 or 2 is true:
if two people both have 10 beers, and have sex, they are both rapists
if a person has 10 beers and then rapes someone (for real, rapes a sober person who is saying no), he is not a rapist.
That is not debatable. Either what you wrote is false, or one of the two (absurd) statement I made is true. Which is it?
The necessary logical consequence of that statement (I’m talking about pure deductive logic) is that either point 1 or 2 is true:
if two people both have 10 beers, and have sex, they are both rapists
if a person has 10 beers and then rapes someone (for real, rapes a sober person who is saying no), he is not a rapist.
I was saying there are degrees of being drunk, so it’s not as simple as asking if someone had one drink at least. If two people are wasted out of their mind, I wouldn’t know what to call it, but probably something like rape. Probably not exactly, since I don’t even know how to apply consent to situations where neither person is able to think clearly. In any case, I am only saying some cases of drunk sex are rape, and knowingly having sex with someone as drunk as this girl is rape.
I also did not say a completely drunk person is not responsible for what they do, what I’m saying is a drunk person can’t consent in any meaningful way. The question is if the girl consented, which I think is impossible given her mental state. If the guy was just as drunk, that gets a lot more contextual to discuss what consent means here, but if the guy is sober, I think it’s easily a case of rape. If the guy only drank one or two beers, he’s likely still reasoning well enough to have no confusion that he’s abusing a situation for sex. Consent is what matters here, unlike murder, where consent plays no part.
I was saying there are degrees of being drunk, so it’s not as simple as asking if someone had one drink at least. If two people are wasted out of their mind, I wouldn’t know what to call it, but probably something like rape. Probably not exactly, since I don’t even know how to apply consent to situations where neither person is able to think clearly. In any case, I am only saying some cases of drunk sex are rape, and knowingly having sex with someone as drunk as this girl is rape.
Two “wasted” people having sex is similar to two 12 year-olds having sex. A 12 year-old (wasted person) having sex with a 30 year-old (sober person) is (can be) rape, but, having sex with another 12 year-old is not rape.
If two people are wasted out of their mind, I wouldn’t know what to call it, but probably something like rape.
Just to clarify: You believe that if two people who are drunk have sex, they should both be sent to prison for the crime of rape?
Or do you not think rapists should necessarily go to prison?
Two “wasted” people having sex is similar to two 12 year-olds having sex. A 12 year-old (wasted person) having sex with a 30 year-old (sober person) is (can be) rape, but, having sex with another 12 year-old is not rape.
That’s not a valid analogy. 12 yos are generally not held criminally liable for their actions, at least not to the extent adults are. Drunk adults, on the other hand, most definitely are.
Just to clarify: You believe that if two people who are drunk have sex, they should both be sent to prison for the crime of rape?
Or do you not think rapists should necessarily go to prison?
Only if rape happened. I didn’t say all cases of drunk sex are rape.
Only if rape happened. I didn’t say all cases of drunk sex are rape.
In that case, I wish you’d address the question I asked you two posts ago. Do you believe that two sufficiently drunk people who have sex are both rapists, or that drunk people who commit rape aren’t rapists?
Those are your two options. Or you can re-think your original statement.