Grade Point DeVos decries ‘failed system’ on campus sexual assault, vows to replace it

[Alyrium Denryle]

In the hypothetical you describe above, if a state were to decriminalize gay-bashing, the remedy would likely be in the form of overturning convictions, or requiring dismissal of charges, of assault and battery against those accused of bashing straights, on the basis that if the state chooses to criminalize battery, it must do so in an even-handed manner, and unless and until it does so, no persons may constitutionally be tried for battery.

Furthermore, if there was a positive Constitutional entitlement to have one's attackers punished, The victims could appeal sentences, independent of prosecutors. Or alternatively, they would have Article III standing to petition for an injunction in federal court to compel a prosecutor to appeal a sentence the victims feel is not enough. There is no precedent for this.

You completely misinterpreted or deliberately misrepresented the Supreme Court case at issue, you fucking moron.

They police don't have a duty to protect individual citizens because they physically can't do it. They cannot teleport from place to place, so if for whatever reason they fail, it cannot, by itself, be held against them in court.

Jesus fucking christ how stupid are you?

[Simon_Jester]

I refer to this article.

http://www.nytimes.com/2005/06/28/polit ... ref=oembed

Supreme Court rules that police do not have constitutional duty to protect person from harm, even woman who obtained court-issued protective order against violent husband which made arrest mandatory for violation; decision overturns ruling by federal appeals court in Colorado; it had permitted lawsuit to proceed against town of Castle Rock, whose police failed to respond to woman's pleas for help after her estranged husband

This article is not relevant to my point. You are being overliteral.

The state's enforcement officials do not have a duty to protect individuals from harm in the sense of "provide bodyguards," but they do have a duty to do so in the sense of "uphold the law."

In the hypothetical you describe above, if a state were to decriminalize gay-bashing, the remedy would likely be in the form of overturning convictions, or requiring dismissal of charges, of assault and battery against those accused of bashing straights, on the basis that if the state chooses to criminalize battery, it must do so in an even-handed manner, and unless and until it does so, no persons may constitutionally be tried for battery.

Precisely so. The point is: There would be a remedy. There would need to be a remedy, because constitutional rights have been violated. The state cannot declare one group to be 'outlaws' or 'fair game' or 'acceptable targets' for crime, and decline to enforce laws criminalizing attacks against that group.

Because the law cannot withdraw its protection of a designated outcast group. As Alyrium notes, this is not because the police has a duty to protect individuals from specific attacks. It physically can't do that, and cannot be sued for failure to do that, because there aren't enough cops to be everywhere at once. However, while the police do not have a duty to protect specific persons directly, the law has a duty to protect the citizenry as a whole collectively.

For example, it is a gross violation of equal protection if the law only "protects" right-handed people by punishing crimes against them, but does not thus protect left-handed people in the same fashion.

Likewise, it is reasonable for the federal government to require that colleges which receive federal funds refrain from sex-based discrimination, and make reasonable efforts to ensure that their campuses are safe for potential victims of rape and other sexual assault.

The dispute of course is what constitutes reasonable, and just how far Congress should go in regulating universities in this regard, especially in adopting specific disciplinary procedures.

I do not object to having this debate. My point is that it is not inherently an injustice, not an unjust intrusion on rights, to insist on such things.

In other words, we are not arguing over whether the government has standing to insist that colleges do something about campus rape. We're arguing over how much the government does to insist that.

[TimothyC]

The only "hoax" (I dislike that term since they were terrible miscarriages of justice) I can really recall was the Duke case where those racist rich white kids were falsely accused of rape by black strippers and all but burned at the stake in the media only for it to turn out they were falsely accused and the DA knew it but still prosecuted them. Then the case fell apart and he lost his law license which would probably not have happened if they were black kids on scholarship. In fact odds are good they would still be in prison as opposed to rich white kids whose families could afford expensive attorneys.

The Rolling Stone article "A Rape on Campus" (the UVa fraternity accusation) also comes to mind.

Please refer to my posting of a Slate article two and a half years ago here.

[Flagg]

Jesus Christ, way TLDR.

[Dominus Atheos]

Betsy DeVos’s decision to weaken campus sexual discrimination and assault response guidelines is being challenged in court. Equal Means Equal, on behalf of three plaintiffs, has filed a federal lawsuit calling the DeVos policy “unlawful, arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law.”

The complaint says that the DeVos rules in their entirety violate Title IX because they “permit schools to treat civil rights harms differently on the basis of sex.” The rules allow universities to use a more onerous burden of proof — the clear and convincing standard — in the case of a sex-based civil rights harm although the rules do not state that this standard can be used in other protected class categories, such as race and national origin. The preponderance of the evidence standard has long been the standard required under civil rights laws, the complaint argues. In 2004, the department sent a letter to Georgetown University that said it applied the wrong standard for sexual discrimination complaints by using the clear and convincing standard.

Will the courts allow DeVos’s rapist-protection guidelines, or will she be forced to go back to the drawing board?

There are a mountain of legal and moral issues and fears at play among all the people who are trying to pull "campus sexual discrimination and assault response policy" in one direction or another.

Just a few of them are:

• State actors
• Right to an education.
• Whether prosecuting someone for rape with the maximum penalty being expulsion is a civil procedure or a criminal one.
• Define rape down into things that just a few years ago were not what people thought of as rape, such as having sex with a girl while she is very drunk.

And then that raises even more issues.

• What happens if someone accidentally commits rape, but didn't know? Does Mens Rea count for anything, or is it not required to commit rape.
• What if a very drunk girl says yes to sex, but then wakes up the next day and says "No, I was too drunk to consent"?

It makes social libertarians like myself who would really don't like to be called "rape supporters" pull out our hair.

[Dominus Atheos]

Daily kos

[Dragon Angel]

• Define rape down into things that just a few years ago were not what people thought of as rape, such as having sex with a girl while she is very drunk.

A lot of things weren't considered rape until relatively recently. Marital rape in the US was not considered universally illegal until 1993. Just because it may not have been a thing before we were born or while we grew up doesn't mean it is any less valid.

• What if a very drunk girl says yes to sex, but then wakes up the next day and says "No, I was too drunk to consent"?

Think of this like signing a contract while under the influence of any substance: If somehow you are drugged up and a random shark decides to get you into an extremely predatory deal, the legality of that would be very much under dispute. Not even to mention the morality or ethicality of it. If the other party is that inebriated, just don't have sex with her. No matter what she says, just ... don't have sex. Period. Find another girl. Put that dick back in.

[loomer]

Several of those issues are fairly well settled legal points. If you were too drunk to meaningfully consent to sex, it is rape, and that has been the case for quite some time. Exactly where that line is drawn depends on the specific facts of the matter - e.g. 'random bar hookup with a stranger' will usually have a somewhat lower threshold of 'how drunk is too drunk?' than 'long-term committed relationship with a habit of combining sex and alcohol' - but the basic principle is clear, consistent with the rest of the law regarding sexual assault, and well settled. This has been the subject of decisions since at least the 80s from my recollection, and I wouldn't call 30 years ago 'a few years'.

If you did not know you were committing rape, in most jurisdictions the question then defaults to a secondary issue, which is whether you were reckless of the possibility. If you weren't deliberately raping someone, and you say, repeatedly asked them during foreplay 'hey, you wanna keep going?' and they repeatedly said 'yes' without being so hammered that the yes loses its capability to constitute consent, then the recklessness question isn't going to be answered with 'yes' against you. As always, case by case basis, but generally just checking in if there are no other factors (e.g. dangerous atmosphere, severe power imbalance, threat of violence) is sufficient to disarm the recklessness provisions on the basis that if you were checking, got a positive answer, and weren't taking advantage of a guy too drunk to give real consent, you probably weren't trying to rape them.

In general, it's actually really easy not to be accused of rape by not doing things that could be rape. The exceptional fringe cases of false accusations will happen regardless, and really, it's just good practice for life in general not to fuck people who are too drunk to consent. Even if the legal and moral arguments aren't enough, the very real possibility of getting vomit in your genitals should probably be enough reason to keep your dick and/or pussy out of that mouth, you know? Exercise more care when considering whether or not to fuck drunk people, just like you would with a drunk person who might be trying to fight you, or who insists on making waffles and keeps passing out next to the gas burner, or when helping them up some stairs. If they're noticeably impaired, then they are noticeably impaired.

[Flagg]

And ITT we find out that DA is a creepy shit.

About the only thing that’s murky about the “too drunk to consent” thing is if both parties are just about equally drunk.

Otherwise, if you’re with a drunk girl and you are more or less sober you don’t take advantage unless you’re a piece of shit rapist. If you’re really into having sex with her you wait until an opportunity arises where she can actually give consent.

And it’s not been a few years, it’s more like a few decades.

[Dominus Atheos]

And ITT we find out that DA is a creepy shit.

About the only thing that’s murky about the “too drunk to consent” thing is if both parties are just about equally drunk.

Otherwise, if you’re with a drunk girl and you are more or less sober you don’t take advantage unless you’re a piece of shit rapist. If you’re really into having sex with her you wait until an opportunity arises where she can actually give consent.

And it’s not been a few years, it’s more like a few decades.

What if the guy has been drinking and the girl is sober? How many years in jail should the guy or girl who took advantage get? What's the bar for too drunk to consent? How should a person recognize it? Should the guy or girl who took advantage be considered a sex offender when they get out of prison? What if the guy or girl wakes up the next morning and doesn't think that it was non-consensual, even if they were past the bar for too drunk to consent? What if they were past the bar, but did still give "enthusiastic consent"? Can enthusiastic consent not be consent? Obviously no means no, but does yes sometimes not mean yes? When does yes not mean yes? How should someone know when yes doesn't mean yes?

An again, how many years in jail should someone spend for getting that question wrong?

Like I said, these questions make civil libertarians pull out our hair because of how difficult they are to answer, and the effects on other people if they aren't answered perfectly. People could be raped or innocent people could be thrown in prison if judges and lawmakers get it wrong.

PS It must be nice to be so pig-ignorant that you think these sorts of questions have simple black and white answers.

[loomer]

What if the guy has been drinking and the girl is sober?

In most civilized countries, there is no difference between the rape of a man and the rape of a woman in their sexual assault statutes, and where there is, there is a general tendency to find an alternative model for prosecution so long as the police and prosecutor doesn't just go 'lol can't rape a guy!'

How many years in jail should the guy or girl who took advantage get?

This is a question for your local legislature or judiciary. You will find most Western legislatures have made specific rape provisions including sentencing guidelines that differ between violent offences and sexual assault of a drunken person, and that where no such legislative guidance exists, there is usually a body of precedent to that effect. This is not the wild west - it is a well settled area of law.

What's the bar for too drunk to consent? How should a person recognize it?

It's a situational bar, but usually it's placed fairly highly. It isn't going to be easy to miss unless you're hammered too. We're talking 'out of it', 'falling over', 'totally smashed', 'singing the wrong words to karaoke' and 'trying to make waffles then forgetting they were making waffles and starting a fire' levels of drunk. Quite frankly, if you cannot recognize when someone is significantly impaired by alcohol then you should probably refrain from engaging in sexual conduct with strangers who have been drinking for the safety of others.

Should the guy or girl who took advantage be considered a sex offender when they get out of prison?

Well, that depends, doesn't it? Do you think a convicted rapist should be considered a sex offender?

What if the guy or girl wakes up the next morning and doesn't think that it was non-consensual, even if they were past the bar for too drunk to consent?

If they were too far past the bar, then they couldn't give consent at the time - but they always have the right to decide whether or not to make a complaint or to view it as their decision. But again - the bar isn't particularly low in this arena, legally anyway.

What if they were past the bar, but did still give "enthusiastic consent"? Can enthusiastic consent not be consent? Obviously no means no, but does yes sometimes not mean yes? When does yes not mean yes? How should someone know when yes doesn't mean yes?

Oh, I don't know - maybe when they're too intoxicated to give consent yes doesn't mean yes. It doesn't matter how much someone who keeps passing out yells 'fuck me!', if they're passing out they're too drunk. How you know is really, really easy: Check how drunk they are before you take your pants off. If they're so sloppy drunk that they're barely, or not at all, coherent - refrain from sex. It's that simple. If they've been falling down (or at least more than usual, if they have a balance condition), refrain from sex. No one is expecting you to become a human BAC reader, just to exercise a basic sense of decency and refrain from having sex with men and women who are obviously drunk. If they're that rare category of person who can be totally blitzed but look completely sober, then that is your defence.

Again, all that is being asked by this reasoning is that you make a small effort not to rape people. In the best case scenario, you've missed out on a shag - but if they were into you, they'll probably be up for one the next time around when they aren't quite so drunk. In the worst case scenario, you've managed not to rape someone you otherwise might have! Gold star!

An again, how many years in jail should someone spend for getting that question wrong?

And again, a question for your legislature and judiciary.

Like I said, these questions make civil libertarians pull out our hair because of how difficult they are to answer,

That's strange, because they're actually very easy to answer with even basic research and reference to law.

and the effects on other people if they aren't answered perfectly. People could be raped or innocent people could be thrown in prison if judges and lawmakers get it wrong.

This is your standard balancing act for literally every criminal law. This is not novel to this issue.

PS It must be nice to be so pig-ignorant that you think these sorts of questions have simple black and white answers.

They aren't simple black and white, but there are definitely a lot less than the fifty shades of grey you're trying to pass it off as having.

[Flagg]

What if the guy has been drinking and the girl is sober?

In most civilized countries, there is no difference between the rape of a man and the rape of a woman in their sexual assault statutes, and where there is, there is a general tendency to find an alternative model for prosecution so long as the police and prosecutor doesn't just go 'lol can't rape a guy!'

This is the standard “lol men get raped too!” retort used as if that fact somehow negates the argument.

To DA: As loomer states, makes no difference. If the guy wakes up and feels he has been taken advantage of in his drunken state then his report is just as valid. Despite what macho culture holds, but cultural fuckuppery is really a different subject.
The reason people are using female terms in describing victims of date rape is because females are far and away more likely to be victims of it.

How many years in jail should the guy or girl who took advantage get?

This is a question for your local legislature or judiciary. You will find most Western legislatures have made specific rape provisions including sentencing guidelines that differ between violent offences and sexual assault of a drunken person, and that where no such legislative guidance exists, there is usually a body of precedent to that effect. This is not the wild west - it is a well settled area of law.

Yeah, this is probably one of the stupidest fucking rhetorical questions ever put forth. It’s like this idiot isn’t aware that there are already laws and penalties on the books for this shit, and there have been for decades. Like you said, this isn’t some issue requiring pioneers in cutting edge law enforcement.

DA is either unaware of that and thus is staggeringly ignorant to the point that it makes one wonder why the fuck he’s posting in this thread or he’s fully aware of all of this and he’s just concern trolling men’s rights bullshit.

Either way he’s really fucking dumb.

What's the bar for too drunk to consent? How should a person recognize it?

It's a situational bar, but usually it's placed fairly highly. It isn't going to be easy to miss unless you're hammered too. We're talking 'out of it', 'falling over', 'totally smashed', 'singing the wrong words to karaoke' and 'trying to make waffles then forgetting they were making waffles and starting a fire' levels of drunk. Quite frankly, if you cannot recognize when someone is significantly impaired by alcohol then you should probably refrain from engaging in sexual conduct with strangers who have been drinking for the safety of others.

Again, it’s like he’s fully unaware of the last 30 fucking years. I just question the sincerity of his questions at this point. It’s setting off all sorts of MRA alarms.

Should the guy or girl who took advantage be considered a sex offender when they get out of prison?

Well, that depends, doesn't it? Do you think a convicted rapist should be considered a sex offender?

What if the guy or girl wakes up the next morning and doesn't think that it was non-consensual, even if they were past the bar for too drunk to consent?

If they were too far past the bar, then they couldn't give consent at the time - but they always have the right to decide whether or not to make a complaint or to view it as their decision. But again - the bar isn't particularly low in this arena, legally anyway.

What if they were past the bar, but did still give "enthusiastic consent"? Can enthusiastic consent not be consent? Obviously no means no, but does yes sometimes not mean yes? When does yes not mean yes? How should someone know when yes doesn't mean yes?

Oh, I don't know - maybe when they're too intoxicated to give consent yes doesn't mean yes. It doesn't matter how much someone who keeps passing out yells 'fuck me!', if they're passing out they're too drunk. How you know is really, really easy: Check how drunk they are before you take your pants off. If they're so sloppy drunk that they're barely, or not at all, coherent - refrain from sex. It's that simple. If they've been falling down (or at least more than usual, if they have a balance condition), refrain from sex. No one is expecting you to become a human BAC reader, just to exercise a basic sense of decency and refrain from having sex with men and women who are obviously drunk. If they're that rare category of person who can be totally blitzed but look completely sober, then that is your defence.

Again, all that is being asked by this reasoning is that you make a small effort not to rape people. In the best case scenario, you've missed out on a shag - but if they were into you, they'll probably be up for one the next time around when they aren't quite so drunk. In the worst case scenario, you've managed not to rape someone you otherwise might have! Gold star!

An again, how many years in jail should someone spend for getting that question wrong?

And again, a question for your legislature and judiciary.

Like I said, these questions make civil libertarians pull out our hair because of how difficult they are to answer,

That's strange, because they're actually very easy to answer with even basic research and reference to law.

and the effects on other people if they aren't answered perfectly. People could be raped or innocent people could be thrown in prison if judges and lawmakers get it wrong.

This is your standard balancing act for literally every criminal law. This is not novel to this issue.

PS It must be nice to be so pig-ignorant that you think these sorts of questions have simple black and white answers.

They aren't simple black and white, but there are definitely a lot less than the fifty shades of grey you're trying to pass it off as having.

This is just stupid MRA horseshit. Fuck off, DA.

[Dominus Atheos]

What if they were past the bar, but did still give "enthusiastic consent"? Can enthusiastic consent not be consent? Obviously no means no, but does yes sometimes not mean yes? When does yes not mean yes? How should someone know when yes doesn't mean yes?

Oh, I don't know - maybe when they're too intoxicated to give consent yes doesn't mean yes. It doesn't matter how much someone who keeps passing out yells 'fuck me!', if they're passing out they're too drunk. How you know is really, really easy: Check how drunk they are before you take your pants off. If they're so sloppy drunk that they're barely, or not at all, coherent - refrain from sex. It's that simple. If they've been falling down (or at least more than usual, if they have a balance condition), refrain from sex. No one is expecting you to become a human BAC reader, just to exercise a basic sense of decency and refrain from having sex with men and women who are obviously drunk. If they're that rare category of person who can be totally blitzed but look completely sober, then that is your defence.

I don't know if you are trying to move the goalposts, or if you are too stupid to know how getting drunk works. There is a large gap between "starts making bad decisions" and "is only half-conscious". This discussion is about the former period.

[loomer]

What if they were past the bar, but did still give "enthusiastic consent"? Can enthusiastic consent not be consent? Obviously no means no, but does yes sometimes not mean yes? When does yes not mean yes? How should someone know when yes doesn't mean yes?

Oh, I don't know - maybe when they're too intoxicated to give consent yes doesn't mean yes. It doesn't matter how much someone who keeps passing out yells 'fuck me!', if they're passing out they're too drunk. How you know is really, really easy: Check how drunk they are before you take your pants off. If they're so sloppy drunk that they're barely, or not at all, coherent - refrain from sex. It's that simple. If they've been falling down (or at least more than usual, if they have a balance condition), refrain from sex. No one is expecting you to become a human BAC reader, just to exercise a basic sense of decency and refrain from having sex with men and women who are obviously drunk. If they're that rare category of person who can be totally blitzed but look completely sober, then that is your defence.

I don't know if you are trying to move the goalposts, or if you are too stupid to know how getting drunk works. There is a large gap between "starts making bad decisions" and "is only half-conscious". This discussion is about the former period.

Oh, is it? Well, that's very convenient for you, but as I was answering the question quite specifically of 'when is consent not consent' which had no reference to or proviso of 'when not too intoxicated to give consent', it's also a falsehood, or are you too stupid to understand how a question works? Do you plan on ignoring the rest of my points as well?

[Dragon Angel]

There is a large gap between "starts making bad decisions" and "is only half-conscious". This discussion is about the former period.

You're answering your own question and you refuse to acknowledge it. "Starts making bad decisions" is already very beyond the line of "it's acceptable to make moves to stick your dick in her". "Is only half-conscious" is a smokescreen that distracts from the point that her judgement has already been impaired. You've already entered the zone of get the fuck away.

Do you have an impulse control problem that, when you can clearly recognize someone is easily influenced or not making logical sense, you just can't resist shagging her? If you do that is a problem you really should resolve ASAP.

[Lagmonster]

DA's illustrating an important problem that I think most people fail at. If you cannot effectively and clearly teach people *how* to make a reasonable judgment, then you better brace yourself for a shitload of people making horrible mistakes as they fumble their way towards understanding. Saying that something is common sense, or well described by legal scholars, or clearly understood in your particular culture or sub-culture, is a shit way to educate a person.

Using a similar example, "Don't drive if you have had ANYTHING to drink" is easier to teach than "Don't drive if you've had TOO MUCH to drink". The former is simple to measure: No is anything greater than zero. The latter is not, and relies too much for my comfort level on self-awareness, the opinion or judgement of others who themselves may not have good judgment (or be there), or the latitude to make a few mistakes - possibly fatal ones - as you experiment to zero in on the threshold.

[loomer]

You may generally be right, but I extend limited sympathy to someone trying to pretend these questions are in any way novel, not fairly well-settled points of law.

[Lagmonster]

If the Trump thing has reinforced anything with me, it's that treating assholes like assholes has no effect whatsoever on the power, position, or privilege of assholes.

[Flagg]

If the Trump thing has reinforced anything with me, it's that treating assholes like assholes has no effect whatsoever on the power, position, or privilege of assholes.

So what’s your solution? Honest question. Because I don’t think doing anything but treating them like assholes is actually better.

[Lagmonster]

This is a bit of a departure from the OP, but...look, I don't know how to reach every jerk on the planet, because some people are just crazy and others are willing to die in a fight. I only know for a fact that you can't treat people like shit even if they are objectively shitty; American prison documentaries should have taught us all about that. Doing so to a demographically significant segment of a voting population just means that when they become politically ascendant, the ass-fucking they're going to give their enemies is going to be that much more unpleasant. See: Trump, supporters of.

I have, however, entered into a lot of profitable truces with people I've had very good reasons to want shipped to Antarctica. I won't naively pretend that there is always common ground to find with the people who hate you, but: https://www.nbcsandiego.com/news/politi ... 30913.html

[Dragon Angel]

I try to be informative whenever I am able, but while my patience can be extensive, it is not infinite. This is why although I was serious, I did not enter sarcasm mode in my first reply. Then DA doubled down on his baffling obtuseness and I became more sarcastic. If DA chooses to triple down, I reserve the right to become even more sarcastic in proportion.

[Coop D'etat]

You may generally be right, but I extend limited sympathy to someone trying to pretend these questions are in any way novel, not fairly well-settled points of law.

I'd dispute that point. There is pretty well settled legal theory on the subject. Actual legal practice can be all over the map on the matter because there isn't much by the way of clear and unambigious signs that someone is over the line of ability to consent unless they are well over it. Just because the legal formulation is clear doesn't mean it easy to apply to real circumstances. I'll say this though, Dragon Angel's formulation of a person making bad decisions level of impairment being unable to consent is likely legally incorrect, regardless of whether its morally correct or not. The standard is whether the person is too impaired to understand the nature of what they are agreeing to, not whether they're making bad decisions. An impaired judgement is not equivalent to inability to make decisions, although they may correllate.

Sexual assault cases involving intoxication tend to be one of the more difficult types of crimes for the legal system to handle properly, so I'm fairly sympathetic to the notion that university tribunals with untrained participants and lack of well established procedures simply aren't competent to deal with them.

I don't think it all helps matters for people to imply North American sexual assault laws state that drunk people can't consent to sexual activity, because that isn't correct at all. There is a clear legal distinction from being drunk (say at a state too intoxicated to operate a motor vehicle) and being so intoxicated that they don't understand what they are agreeing to.

[loomer]

I'd dispute that point. There is pretty well settled legal theory on the subject. Actual legal practice can be all over the map on the matter because there isn't much by the way of clear and unambigious signs that someone is over the line of ability to consent unless they are well over it.

This is why most legal formulations apply a pretty high level of intoxication, wherein it is clear that someone is too drunk. Personally, I'm a fan of NSW's formulation which falls into the slightly more ambiguous side in interpretation but has a much clearer meaning in that the consent must have been significantly influenced by intoxication.

Just because the legal formulation is clear doesn't mean it easy to apply to real circumstances.

Sure - but it also doesn't mean that this is dangerous new territory that's never been explored. It's old territory that has been repeatedly explored by all sorts of theorists, judges, barristers, and cases. The near universal principle that emerges is that where the line is to be drawn does need to be formulated by reference to the specific circumstances of a case, but this is literally no different from any other criminal offence not of strict liability or consent matter.

I'll say this though, Dragon Angel's formulation of a person making bad decisions level of impairment being unable to consent is likely legally incorrect, regardless of whether its morally correct or not. The standard is whether the person is too impaired to understand the nature of what they are agreeing to, not whether they're making bad decisions. An impaired judgement is not equivalent to inability to make decisions, although they may correllate.

You will note I have consistently used a higher standard than Dragon Angel's formulation, and it is for that precise reason. However, I again emphasize that the NSW formulation is superior in my view, where the standard requires both intoxication - which may be moderate to severe - and for that intoxication to very specifically play a part in the obtaining of that consent.

Sexual assault cases involving intoxication tend to be one of the more difficult types of crimes for the legal system to handle properly, so I'm fairly sympathetic to the notion that university tribunals with untrained participants and lack of well established procedures simply aren't competent to deal with them.

No disagreement on these points. My main beef is with the idea that these questions are somehow novel and dangerous new territory that 'civil libertarians' are right to be concerned by. The area to be concerned by is the execution, not the well-settled principles.

I don't think it all helps matters for people to imply North American sexual assault laws state that drunk people can't consent to sexual activity, because that isn't correct at all. There is a clear legal distinction from being drunk (say at a state too intoxicated to operate a motor vehicle) and being so intoxicated that they don't understand what they are agreeing to.

Quite true. The law is not that drunk people can never consent to sexual activity, but that drunkenness can represent a voiding factor to consent. The practical outcome of this is what I've been hammering at: If you know someone is drunk, if they are visibly drunk but not to the point of being so completely gone that consent would automatically be void, and you don't have a longstanding sexual relationship involving alcohol, then be communicative and be receptive. It's good practice generally with a new partner (especially one you don't know terribly well) anyway, and at worse, you get a reputation as 'that guy/girl who kept asking if I was into it' and not 'the Summerdale Rapist'.

[Simon_Jester]

There is a large gap between "starts making bad decisions" and "is only half-conscious". This discussion is about the former period.

You're answering your own question and you refuse to acknowledge it. "Starts making bad decisions" is already very beyond the line of "it's acceptable to make moves to stick your dick in her". "Is only half-conscious" is a smokescreen that distracts from the point that her judgement has already been impaired. You've already entered the zone of get the fuck away.

There seems to me to be a bit of a two-step going on here.

"Is this person intoxicated enough that their judgment is impaired" is your standard, but apparently going by loomer's words, the legal standard is "is this person intoxicated enough that they're half-conscious?"

The consequences of a society-wide decision that it's socially unacceptable to have sex with people who are only half-conscious are... [SET A]

The consequences of a society-wide decision that it's socially unacceptable to have sex with people who might have moderately impaired judgment are [SET B]

A and B are very different things, and people who are comfortable with the consequences of one set may not be comfortable with the other.

Do you have an impulse control problem that, when you can clearly recognize someone is easily influenced or not making logical sense, you just can't resist shagging her? If you do that is a problem you really should resolve ASAP.

I know you're talking to DA...

Me, I went straight from "too awkward and party-averse to even have this problem" directly to "stably married" without passing Go. It's an academic question to me- but one where I do want to make sure we're all being intellectually honest.

And ITT we find out that DA is a creepy shit.

About the only thing that’s murky about the “too drunk to consent” thing is if both parties are just about equally drunk.

To be fair, it's not like this is an unlikely outcome, since there are a hell of a lot of social gatherings out there where men and women both do roughly equal amounts of drinking.

If you want to increase your safety from the "Schrodinger's rape" scenario, you basically have to:
1) Refrain from getting drunk in mixed company,
2) Stay away from social gatherings such as parties where both sexes meet and drink to some level of excess, or
3) Both.

Given that one of the main socially acceptable reasons to consume alcohol at all is social gatherings like parties, this... kind of constitutes a weak form of backdoor prohibition on the consumption of alcohol.

I don't necessarily think we should disapprove of that, but we should very openly acknowledge it as a probable consequence. If men can get charged with rape for having sex with a roughly-equally-drunk woman, men are taking a risk by going to parties where women and alcohol are present, and we are making "go to a place with both booze and women" a borderline-illegal act. Drunk partying is less of a crime than, say, drunk driving, because it's legal in and of itself... but if you drink and party, you face an unavoidable risk of ending up guilty of a severe crime you honestly didn't think you were committing at the time.

It's a situational bar, but usually it's placed fairly highly. It isn't going to be easy to miss unless you're hammered too. We're talking 'out of it', 'falling over', 'totally smashed', 'singing the wrong words to karaoke' and 'trying to make waffles then forgetting they were making waffles and starting a fire' levels of drunk. Quite frankly, if you cannot recognize when someone is significantly impaired by alcohol then you should probably refrain from engaging in sexual conduct with strangers who have been drinking for the safety of others.

Are we comfortable having arguments in which the defendant is struggling to prove that the plaintiff "wasn't that drunk," or somehow tried to conceal their drunkenness? Are less-social or more inexperienced men inherently at more risk due to not being as adept at recognizing the signs of severe intoxication?

If the answers turn out to be "yes and yes," fine, but we should, again, let's be prepared to openly accept this as the price of doing business. Not something to be in denial about.

Again, all that is being asked by this reasoning is that you make a small effort not to rape people. In the best case scenario, you've missed out on a shag - but if they were into you, they'll probably be up for one the next time around when they aren't quite so drunk. In the worst case scenario, you've managed not to rape someone you otherwise might have! Gold star!

I'm not even saying any of this is unreasonable...

But if we're actually going to solve this issue, it will probably be by effectively banning mixed-sex social gatherings where alcohol or other intoxicants are served in large quantity.

I wouldn't miss that kind of party very much, personally. Others might, and not just men looking to get laid.

DA's illustrating an important problem that I think most people fail at. If you cannot effectively and clearly teach people *how* to make a reasonable judgment, then you better brace yourself for a shitload of people making horrible mistakes as they fumble their way towards understanding. Saying that something is common sense, or well described by legal scholars, or clearly understood in your particular culture or sub-culture, is a shit way to educate a person.

Using a similar example, "Don't drive if you have had ANYTHING to drink" is easier to teach than "Don't drive if you've had TOO MUCH to drink". The former is simple to measure: No is anything greater than zero. The latter is not, and relies too much for my comfort level on self-awareness, the opinion or judgement of others who themselves may not have good judgment (or be there), or the latitude to make a few mistakes - possibly fatal ones - as you experiment to zero in on the threshold.

Yes- but as noted, "don't drink and drive" is a much simpler norm to establish than "don't drink and party." An absolute ban on combining alcohol consumption and mingling with the opposite sex is going to be a tough sell.

[loomer]

"Is this person intoxicated enough that their judgment is impaired" is your standard, but apparently going by loomer's words, the legal standard is "is this person intoxicated enough that they're half-conscious?"

Please refrain from misrepresenting my statements. That is the absolute, concrete point at which consent is almost universally going to be found void. It is not the sole extent of the standard, which is whether they were too intoxicated to give actual consent - a situation determined on a case by case basis.

To be fair, it's not like this is an unlikely outcome, since there are a hell of a lot of social gatherings out there where men and women both do roughly equal amounts of drinking.

If you want to increase your safety from the "Schrodinger's rape" scenario, you basically have to:
1) Refrain from getting drunk in mixed company,
2) Stay away from social gatherings such as parties where both sexes meet and drink to some level of excess, or
3) Both.

Given that one of the main socially acceptable reasons to consume alcohol at all is social gatherings like parties, this... kind of constitutes a weak form of backdoor prohibition on the consumption of alcohol.

You missed the actual fourth option, which is really easy: Don't have sex with people who may be too drunk to give consent, and if you do have sex with people who are drinking, do your level best to ensure the sex is consensual. Is there a reason why you have decided this is not an option to avoid your 'schrodinger's rape' scenario?

I don't necessarily think we should disapprove of that, but we should very openly acknowledge it as a probable consequence. If men can get charged with rape for having sex with a roughly-equally-drunk woman, men are taking a risk by going to parties where women and alcohol are present, and we are making "go to a place with both booze and women" a borderline-illegal act.

No. We are making 'sex without consent' an illegal act. Believe it or not, it is possible to be drunk at a party with another drunk person and not put a part of your body inside or around a part of their body. Sex is not the inevitable and only result of two drunk people in a room, nor even the most likely one. You also assume for some reason that the male will be the aggressor and not the victim, which is not merited - it is entirely possible for it to be the other way around, and the usual rule is that the party that initiated the sexual act when both were equally intoxicated bears the responsibility for ensuring it is consensual.

Drunk partying is less of a crime than, say, drunk driving, because it's legal in and of itself... but if you drink and party, you face an unavoidable risk of ending up guilty of a severe crime you honestly didn't think you were committing at the time.

Or you could keep your pussy in your pants and face no risk at all of being guilty of raping a dude. It's pretty easy!

It's a situational bar, but usually it's placed fairly highly. It isn't going to be easy to miss unless you're hammered too. We're talking 'out of it', 'falling over', 'totally smashed', 'singing the wrong words to karaoke' and 'trying to make waffles then forgetting they were making waffles and starting a fire' levels of drunk. Quite frankly, if you cannot recognize when someone is significantly impaired by alcohol then you should probably refrain from engaging in sexual conduct with strangers who have been drinking for the safety of others.

Are we comfortable having arguments in which the defendant is struggling to prove that the plaintiff "wasn't that drunk," or somehow tried to conceal their drunkenness? Are less-social or more inexperienced men inherently at more risk due to not being as adept at recognizing the signs of severe intoxication?

If the answers turn out to be "yes and yes," fine, but we should, again, let's be prepared to openly accept this as the price of doing business. Not something to be in denial about.

I mean, considering that these are cases where the plaintiff has already had to prove that a sex act took place and that they were too drunk to give consent? Yes. All the defence has to establish is that, on whatever standard of proof is being used, they weren't having sex with someone who couldn't give consent or who to a reasonable person would appear to fall into that category. In cases where the other party isn't totally smashed and they exercised the basic caution of 'check in with your sex partner' and 'don't fuck someone who's passing out', you've already got a pretty solid defence that you neither deliberately nor recklessly raped someone. The alternative cases are very much the fault of the rapist. Less socially able men may be at more risk - but that is also the case for all sexual offences and life in general, not something unique to this circumstance.

Again, all that is being asked by this reasoning is that you make a small effort not to rape people. In the best case scenario, you've missed out on a shag - but if they were into you, they'll probably be up for one the next time around when they aren't quite so drunk. In the worst case scenario, you've managed not to rape someone you otherwise might have! Gold star!

I'm not even saying any of this is unreasonable...

But if we're actually going to solve this issue, it will probably be by effectively banning mixed-sex social gatherings where alcohol or other intoxicants are served in large quantity.

I wouldn't miss that kind of party very much, personally. Others might, and not just men looking to get laid.

Again, the alternative is not 'ban parties!', it's just 'keep your dick and or pussy in your pants if you think the other person might be a bit too drunk, or at the very least, check and make sure everything is hunky dory before boarding the 11:15 train to Poundtown'. That is how you solve the issue - by recognizing that drunk people and consent are tricky and opening an actual, effective dialogue between the would-be sexual partners.

DA's illustrating an important problem that I think most people fail at. If you cannot effectively and clearly teach people *how* to make a reasonable judgment, then you better brace yourself for a shitload of people making horrible mistakes as they fumble their way towards understanding. Saying that something is common sense, or well described by legal scholars, or clearly understood in your particular culture or sub-culture, is a shit way to educate a person.

Using a similar example, "Don't drive if you have had ANYTHING to drink" is easier to teach than "Don't drive if you've had TOO MUCH to drink". The former is simple to measure: No is anything greater than zero. The latter is not, and relies too much for my comfort level on self-awareness, the opinion or judgement of others who themselves may not have good judgment (or be there), or the latitude to make a few mistakes - possibly fatal ones - as you experiment to zero in on the threshold.

Yes- but as noted, "don't drink and drive" is a much simpler norm to establish than "don't drink and party." An absolute ban on combining alcohol consumption and mingling with the opposite sex is going to be a tough sell.

Literally no one here has advocated for such a ban.

EDIT: Unfucking quote tags.