The College Rape Overcorrection

[Terralthra]

It could be that men are only likely to be targeted, or are only vulnerable to coercion, for a short window (say, ten years), whereas women are likely targets for sexual assault or rape for a longer window (say, twenty or thirty years)*
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*Yes, there are individual cases of sexual assaults committed against girls and women of all ages; I'm just picking an arbitrary number to communicate the idea.

Yeah, no. The difference that the lifetime rape rates are so staggeringly different is that they aren't counting men who are forced to penetrate or coerced into having intercourse as "raped". Read it yourself.

Nearly 1 in 5 women (18.3%) and 1 in 71 men (1.4%) in the United States have been raped at some time in their lives, including completed forced penetration, attempted forced penetration, or alcohol/drug facilitated completed penetration.

It specifically does not include "forced to penetrate" or "attempted forced to penetrate". In other words, according to the NCVS, men are only raped when they are penetrated against their will, not when they have sexual intercourse against their will.

[Thanas]

Shock and trauma and drugs are prevalent at most rape cases. But what I really take issue with is that only because strong characters press charges we should assume the majority of victims are just lying.

Only charges within the new gray area that some are proposing we create. I wasn't talking about rape and assault cases under existing law.

My apologies, I missed that.

[Vendetta]

Yeah, no. The difference that the lifetime rape rates are so staggeringly different is that they aren't counting men who are forced to penetrate or coerced into having intercourse as "raped". Read it yourself.

I already quoted this. I also quoted the figure for men made to penetrate someone else which is 1 in 21, still nowhere near 1 in 5.

[Aether]

Eh, what the hell. Aether you are a newbie, so I will give you the benefit of the doubt; but I really do have to keep this short and to the point. That last post was actually longer than I intended. See what I mean about simplifying my life? These arguments used to be a real time waster for me.

Alcohol is a common element of the situations, but it does not mean that alcohol influences the two situations in the same way. It does not necessarily form a logical analogy because of its presence. As I said, the drunk driver can make a choice before getting drunk (as do people seeking sex with alcohol), and so society is holding them liable for the choice they made at the time of being sober to take no precautions. Whereas the person who goes to have a drink in a social context has no control over other people before, during, or after drinking. There is also a cultural belief system surrounding alcohol in general that causes widespread harm in our society that we want to discourage to decrease harm. Harm reduction is another purpose of the law, and the biggest one that influences drunk driving laws. So sometimes the law must take that into consideration, and that can mean that while impaired judgement is understandable in one set of circumstances, it is the entire reason another situation is dangerous. Utilitarian logic, you understand?

I mostly agree with this if an only if...

It is the act of having non-consensual sex that is a crime, and the presence of alcohol that is argued (well, really its just a fact) that makes consent impossible past a certain point of inebriation.

Emphasis mine. Making (poor) decisions while drinking does not absolve you of the consequences; whatever those may be. However, I think most people in this thread will agree with you that there is some point where consent is impossible after drinking. The problem we are all having is defining what that point is. I don't think we have come to agreement.

[Ziggy Stardust]

According to Alyrium, after a drunken sexual encounter, consent is subject to the whims of the participants after the fact where they can "retroactively consent", or "retroactively not consent" once sober. His statement that consent is simply an "unknown" under those circumstances, essentially means that you are sexually gambling based on the odds of someone "consenting vs non consenting" later and is wholly unacceptable and unworkable for the vast majority of the population.

What? Did you even read Alyrium's post, even the part you quoted?

Alyrium very explicitly said that this isn't an issue of retroactive consent, it is an issue of INVALID consent. There is a fine line, I admit, but it is an important distinction. He never advocated the idea of retroactively taking away consent, he is advocating the idea that the consent was never valid TO BEGIN WITH. Go back and reread his posts if you will. That was very explicitly what he was saying, even in the post you quoted. I don't really know how else to impart that point.

Consent is either given or its not. If you don't know if you have consent, then you don't have consent. Logically speaking, if we consider that "sex without first obtaining consent = rape", and that by Alyrium's stance consent cannot be given until after the fact, then he is in fact arguing that all drunken sex is defacto rape at the time it occurs.

Alyrium's stance is NOT that consent cannot be given until after the fact. His entire point is that, at a certain level of intoxication, that consent is INVALID. As you said, consent is either given or its not ... according to Alyrium, there is a certain point where you are so drunk that you're consent doesn't count as consent. For the same reason you just said, "If you don't know, then you don't have." That was his entire argument. Seriously, go back and reread his posts.

Kon El is correct in recognizing why this notion of retroactive anything involving consent is a fucking terrible idea if we are interested in coming up with just system for determining when a crime has actually occurred and when it has not.

Luckily nobody is advocating for that.

People have gotten drunk and had sex for centuries, to the pleasure of the vast majority of those involved. Outlawing, or defacto criminalizing as some of the more asinine suggestions would do, is not a desired outcome.

I agree. I have not advocated for such criminalization at any point.

Therefore a reasonable standard for valid consent while under the influence of alcohol, preferably one that would also apply to other mind altering substances, should be established. It should in the best way possible account for different tolerances people hold, and be such that a "reasonable person" could be expected to adhere to and rely upon.

I agree. And so does Alyrium. That was exactly what Alyrium was advocating. In fact, so far as I can tell, Alyrium was the one who introduced the "reasonable person" standard into this thread in the first place.

[Terralthra]

Me, actually, when I brought up the idea of different levels of intent as per the modal penal code, and again when trying to explain to Jub the concept when it flew over his head.

[Ziggy Stardust]

Oops, my bad. Hard to keep track of things in a thread this long.

[Kon_El]

Alyrium's stance is NOT that consent cannot be given until after the fact. His entire point is that, at a certain level of intoxication, that consent is INVALID. As you said, consent is either given or its not ... according to Alyrium, there is a certain point where you are so drunk that you're consent doesn't count as consent. For the same reason you just said, "If you don't know, then you don't have." That was his entire argument. Seriously, go back and reread his posts.

I have read them. It was first stated on page two

Original Consent=Invalid.
Condition: Schrödingers Rape. It both is and is not rape, until sobriety is achieved and the waveform collapses.

Obviously at a certain level of intoxication consent is impossible. This definition however sets the drunken default at rape and requires both people to overwrite their previously "invalid" stated consent after the fact to prevent it from being rape. It is prevents all drunken hookups from being considered rape while still setting a standard of consent that allows "yes" to mean no. The issue is that if we allow the level of drunkenness that permits apparent cognition and participation to overlap with the level at which consent is considered invalid we leave the determination of rape up to feelings of regret after the fact. Which is a terrible standard due to drunkenness not being a prerequisite for regret.

[Ziggy Stardust]

Obviously at a certain level of intoxication consent is impossible. This definition however sets the drunken default at rape and requires both people to overwrite their previously "invalid" stated consent after the fact to prevent it from being rape.

How does it set the default at rape? In my interpretation of Alyrium's argument, it does no such thing. He merely posits that drunken sex is RISKY behavior, not that it is inherently rape every single time. For an analogy, think of unprotected sex. Unprotected sex won't always give you an STD, but it is certainly a risky behavior with respect to STDs.

The issue is that if we allow the level of drunkenness that permits apparent cognition and participation to overlap with the level at which consent is considered invalid we leave the determination of rape up to feelings of regret after the fact. Which is a terrible standard due to drunkenness not being a prerequisite for regret.

But the determination of rape isn't being left up to feelings of regret after the fact.

Would you have sex with a person so drunk they can barely walk? Probably not. Because any reasonable person would realize that person is too drunk to properly consent. The "reasonable person" is the key, here. The entire basis of Alyrium's argument is that if a reasonable person can tell that a person is really drunk, then you shouldn't have sex with them. Now, obviously there is a lot of argument to be had over where you draw the line, and what constitutes a "reasonable person" in this sort of situation. But I am not trying to make an argument over where you draw that line; I was merely responding because I feel you were misrepresenting Alyrium's argument. It's not based on retroactively withdrawing consent because of regret, plain and simple.

[Simon_Jester]

Thing is, a bunch of people explicitly said "yes, you don't know if this person who is under the influence of alcohol is capable of consent or not, so it's a risk and what you're doing might be rape!"

At which point I think others are justified in interpreting that situation as "Schrödinger's Rape," because you're describing a situation where there is no precise standard of how to avoid the crime prior to the crime. And where (and this is important) either party could conceivably charge the other of rape, with justification... which makes both rape charges kind of hollow.

And trying to settle this in a courtroom using the 'reasonable person' standard is going to be an nightmare because most of the evidence a 'reasonable person' would use to decide whether someone is drunk is specifically about details of their behavior and mannerisms. The sort of information that will not be available from objective third-party witnesses after the fact, and which therefore will reduce to "he said, she said" more quickly than almost any other kind of rape case.

[Terralthra]

Weird. I mean, it seems like courts are a perfectly good place to settle he-said, she-said drunken credit card fraud allegations. Why is that cool for civil torts of tens of thousands of dollars, but not for sexual assault?

[Phillip Hone]

And trying to settle this in a courtroom using the 'reasonable person' standard is going to be an nightmare because most of the evidence a 'reasonable person' would use to decide whether someone is drunk is specifically about details of their behavior and mannerisms. The sort of information that will not be available from objective third-party witnesses after the fact, and which therefore will reduce to "he said, she said" more quickly than almost any other kind of rape case.

Two people walk into a room alone and have sex. One claims it was rape, the other claims they had sex consensually - what "objective" way is there to investigate this case? I don't really see how this is going to be any harder to take into court than most other rape charges.

Hell, even the case I mentioned above could just as easily led to two people both charging each other with rape and no surefire way of knowing who is lying.

[aerius]

Weird. I mean, it seems like courts are a perfectly good place to settle he-said, she-said drunken credit card fraud allegations. Why is that cool for civil torts of tens of thousands of dollars, but not for sexual assault?

Any idea what happened in that particular case? I can't seem to pull up the case info with the Florida court system search, which would imply that it was either settled or the court refused to hear it.

[Terralthra]

It appears to still be in litigation. Go here, put in "Gold, Mark" as one of the litigants. It should be one of a couple that come up.

[aerius]

Cool, thanks. Man what a mess, 3 years & counting and from the docket entries it looks like a total fuckjob. Good thing he's a lawyer, cause that looks like more several times more in billing fees than what he's suing for.

[Simon_Jester]

And trying to settle this in a courtroom using the 'reasonable person' standard is going to be an nightmare because most of the evidence a 'reasonable person' would use to decide whether someone is drunk is specifically about details of their behavior and mannerisms. The sort of information that will not be available from objective third-party witnesses after the fact, and which therefore will reduce to "he said, she said" more quickly than almost any other kind of rape case.

Two people walk into a room alone and have sex. One claims it was rape, the other claims they had sex consensually - what "objective" way is there to investigate this case? I don't really see how this is going to be any harder to take into court than most other rape charges.

Because now, it's not even a question of what someone said.

There is literally nothing to investigate except "did this person act drunk enough?" Specifically "did this person act drunk enough that a hypothetical reasonable person would decide they are legally incapable of forming intent to make a binding decision?"

So you have to debate not the relatively basic fact of "did this person say 'yes' or 'no,' " but the far more intricate and subtle question of "was this person drunk enough, and did they act like it?" Which makes "he said, she said" worse if anything can make it worse.

[Ziggy Stardust]

And trying to settle this in a courtroom using the 'reasonable person' standard is going to be an nightmare because most of the evidence a 'reasonable person' would use to decide whether someone is drunk is specifically about details of their behavior and mannerisms. The sort of information that will not be available from objective third-party witnesses after the fact, and which therefore will reduce to "he said, she said" more quickly than almost any other kind of rape case.

But what's the alternative? I fully agree that "reasonable person" has its own set of pitfalls and inherent issues. But how else do we go about making the determination? I think everybody in this thread agrees with the basic principle that SOME line needs to be drawn, and that it is inappropriate to have sex with people who are incredibly drunk. I think everyone here agrees that a line needs to be drawn SOMEWHERE, and we need some sort of process for drawing that line. The advantage of the 'reasonable person' standard is that it allows us to determine things on a case-by-case basis, as opposed to taking arbitrary universal standards and trying to force them to fit every case.

[Simon_Jester]

The real problem lies not in the "reasonable person" standard but the formal definition of "too drunk" that the reasonable person is supposed to refer to.

If we make that definition of "too drunk" restrictive enough, so that even mildly tipsy people are covered by it, then realistically we're trying to ban all drunken hookups as rape-by-definition. Which is going to run into huge problems. You will also run into the legal defense of "I was too drunk to consent myself, so wasn't I too drunk to form mens rea?"

If the definition of "too drunk" is relatively restrictive, on the other hand... You do not have this problem so much. If someone has to be staggering, lurching, slurring drunk before they are considered incapable of offering consent... well, that's the current state of the law, more or less. But in that case, if the law is applied consistently, there will be plaintiffs who are told "I'm sorry, but you did not display enough signs of intoxication for the prosecution to prove that you were incapable of giving voluntary consent."