Alyrium Denryle wrote:That is how it works for ANY crime by negligence. There are many ways to commit a negligent crime while committing acts that are themselves perfectly legal. The act itself is not the offense (or rather, is not necessarily an offense. If you kill someone while committing another criminal offense, it is usually charged as manslaughter rather than negligent homicide due to the recklessness involved. If not as Murder II or Murder I, depending on the exact nature of the criminal offense), anymore than using rat poison is. The crime comes in ignoring (by the Reasonable Person Standard) the risk associated with the act, and any harm that results. If I recklessly spread rat poison around a kitchen and no one is hurt, I am not guilty of an offense (just stupidity). It is only an offense if someone dies.
In the same way, if person X has sex with person Y while Y is drunk, but Y is perfectly happy to have done so the next day, no one was harmed. Ergo, no one was raped. Or at least not raped in any way that has meaning in an ethical or legal sense.
This sounds more like the consent defense against assault: if you punch me in the face, and I don't mind, or I explicitly asked for it in advance under circumstances that would justify it (like a boxing match), then you have not committed assault.
Thing is, in all these other cases you don't have anyone
explicitly telling you that your actions are not criminal, and then later changing their mind and deciding it was criminal, and having that change of mind be enough to send you to jail. If I enter a boxing ring with you of my own free will, and I get punched in the face, the fact that I was drunk when I did it will not necessarily remove your consent defense.
You can argue it should, of course.
Whereas here, sex with a slightly to moderately drunk person is being defined as non-criminal activity... unless something makes it a serious felony after the fact, in which case you're a sex offender.
That violates a lot of the basic principles of jurisprudence.
No. It does not. A great deal of tort and criminal law has to do with an actual harm being done. You cannot rape someone without harming them, and the existence of that harm depends on the other person's perception and personal experience. It is just on a delay, due to chemically induced temporary brain damage to the prefrontal cortex. Once the act is done, you have either raped them or have not. But neither of you know about it until the next day
This is at best
unusual in criminal law: a case where a crime is committed at H-hour, and at H+1 nobody thinks a crime has happened and there is no evidence anywhere in the world that a crime has been committed... but at H+24 there is evidence of a crime in the mind of a person, and this is enough to convict.
So at the very least I think we should recognize that this is an unusual thing. Almost all other crimes have more... tangibility, more concrete difference between the "crime has occurred" and "crime has not occurred" states. There is some physical referent in the physical world that we can point to and say "because XYZ is arranged thusly, because this person is dead or that object is broken, a crime has taken place."
Here, we have a crime where the physical actions, and even the words that were exchanged during the crime, can be
totally identical between Case A and Case B... and yet have Case A be a crime and Case B not be a crime. The characterization of Case A as a crime hinges entirely on a state of mind on the part of the plaintiff, which need not even have existed at the time the crime was committed. There need be no physical evidence by which Case A and Case B can be distinguished, there need not be any step the defendant could have taken to avert the disaster after the initial negligent act was committed.*
Indeed, the only physical evidence that there was any possibility of a crime even taking place is in the defendant's ability to accurately interpret the details of the plaintiff's mannerisms, body language, and behavior in order to determine that they were "too drunk." And the defendant's only defense is to assert that the plaintiff did
NOT seem "too drunk," which is likely to create exactly the sort of victim-blaming showpiece that we normally prefer to avoid in rape trials, precisely to avoid traumatizing the victim.
That may be part of your idea of what can reasonably be called evidence of a crime, and I'm not saying your views are without merit. But I really do think it is in order for us to admit that such views are
unusual, out of the ordinary in jurisprudence, and have implications that may need to be explored.
Because we have taken a rape case. We've removed all the questions of consent (retroactively removed). We've removed the question of whether the plaintiff was actively participating in the sex act (since, by having decided after the fact that they were too drunk, they negate their own prior "yes"). We've removed the question of whether any witnesses could possibly even
comment on whether the sex act appeared consensual- consent is irrelevant, and they weren't close enough to smell the alcohol on the plaintiff's breath.
The only thing that's left is "your honor, my client argues that the plaintiff didn't look drunk enough to have impaired her judgment, that he did not know she had consumed X shots of whiskey, and I would like to present as Exhibits A, B, and C evidence of the plaintiff's history of heavy drinking and high alcohol tolerance."
This does not strike me as helpful.
And it's likely to turn into a legal mess. So at the very least it'd be nice if we could standardize on a set of behavioral criteria that would be viewed as "indicators that this person is too impaired to consent."
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*To borrow the 'left rat poison out and a child ate it' case, one would still have the option of watching the child and stopping them from eating the rat poison; failure to do THAT would be negligence in its own right. But here, there's nothing like that, once the act is in motion it follows a ballistic trajectory and the defendant has no moment at which he could conceivably intervene to prevent disaster, or even
know disaster has occurred, until he gets a call from the police.
So what clear method exists for distinguishing between a person who is legally capable of saying "yes" and having that be legally relevant, and a person whose "yes" is legally irrelevant?
Use your better judgement and ere on the side of caution. Or find a way to romantically/sexily administer a breathalyzer. Drunk people can usually be spotted. The more apparent the drunkeness, the more likely it is that they cannot consent. Edge cases (like in a case where a raging alcoholic has a BAC or .23 and cannot be distinguished from sober) are matters for trial, and likely will not result in a conviction.
There is no easily defined formulae, because the data that would permit you to know exactly how drunk someone is requires specialized equipment you lack.
That lack of knowledge has no bearing on the harm done. It DOES bear on criminal culpability to the extent that a reasonable person could tell if the other person was intoxicated.
As in "too intoxicated."
Because, at least in current law, in
most areas there is a distinction between "noticeably intoxicated" and "too intoxicated to make legally binding decisions."
So what clear method exists for distinguishing between a person who is legally capable of saying "yes" and having that be legally relevant, and a person whose "yes" is legally irrelevant?
Short of a breathalyzer, there is not one, and the question of culpability is a matter for trial. On the other hand, human are actually pretty good at determining whether someone else has been drinking. I have never had a problem with it, and I am almost oblivious socially.
This is true; the main issue I perceive is that, under the law, the odds that a person will be treated as legally unable to say "yes" increases
sharply past a certain level of intoxication.
If that level is "person is physically impaired and incoherent," then it is easy to say "never have sex with anyone who is at or near that level of intoxication."
If that level is "person is giggly, impulsive, and slurring their speech," well quite frankly some people can reach such as a state in full sobriety if they think it situationally appropriate to do so.
Which leads to the "your honor, the plaintiff had
one beer" defense, in which case we have to ask: how did the plaintiff come to feel victimized in the first place under those circumstances and is this a productive way of dealing with it?
[Hopefully in THAT case the case would get dismissed short of trial, but I think it's still an issue with how you propose to handle the interaction of sex and alcohol]
This is immensely hard, because there is a basic principle of jurisprudence stating that the activities we call "crimes" have to be well-defined things that a person can avoid committing by sticking to a well-defined, legal course of action.
There is no such legal principle. Especially where crimes of negligence are concerned. Please, point me to a precise listing of every possible way there is to commit criminally negligent homicide. No such listing or set of definitions exists, because the methods by which such a thing can be committed are myriad. Just like the outward manifestations of drunkenness.
That is what the Reasonable Person standard is for.
[/quote]One of the well-defined things a person has to do is "be a reasonable person who correctly interprets obvious evidence of potential dangers, and takes the appropriate steps to avoid causing harm to others." Since we
have a legal definition of 'reasonable,' this is a well defined concept.
The catch is that we are now extending "be a reasonable person" to "never sleep with anyone who's had more than two drinks. Or possibly one, they might be a lightweight and you have no way of knowing that."
And I'm pretty sure that this level of teetotaler sentiment is not in line with the general opinions of the general public of
either sex. Or, more fundamentally, that a lot of people out there are implicitly prepared and willing to act in ways that suggest THEY think they have the ability to consent to their own actions while drunk. In which case it's tricky creating a situation in which any and all of them are legally free to change their minds and retroactively make criminal the behavior of other people who proceeded in good faith with the same basic assumptions they did.
