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

[Dragon Angel]

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.

In my defense, I used the "bad decisions" wording because that is what DA used. I could not tell in what sense DA was using it or if he was intentionally being hyperbolic and trying to create a thousand-mile fifty shades of gray gap, so I just went along with it. My intent was more or less to mean "impaired judgement such that I just blindly follow the directions of any would-be chucklefuck rapist, also sorry I revealed all my employer's dirty NDAed secrets", not "oops I might have spent tens of bucks over my drinking budget tonight my bad".

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.

As I mentioned to loomer and Coop, I didn't know what DA was trying to imply, so I went along with his wording. "Half-conscious", as I interpreted it, meant "is blackout drunk and needs to be manually assisted to walk", whereas "bad decisions" was interpreted to be "impaired like being extremely susceptible to suggestion". How you, loomer, and Coop interpreted "half-conscious" may have been more like how I interpreted "bad decisions", which would change this discussion entirely.

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.

I don't know where you're going with this one.

[TimothyC]

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.

I don't know where you're going with this one.

Simon is pointing out that his personal experience with using alcohol as a social lubricant is non-existant because of how the relationship with his spouse unfolded, and he wants his post to be read in that perspective.

[Dragon Angel]

Simon is pointing out that his personal experience with using alcohol as a social lubricant is non-existant because of how the relationship with his spouse unfolded, and he wants his post to be read in that perspective.

Ah, very well.

In turn I should probably mention then that my experiences with alcohol tend to be ... irregular, when compared to what "most people" seem to experience. In that, while it is possible for me to get so drunk that the world feels like an endless blur leading to a light at the end of the tunnel, my logical sense and reasoning don't seem to be too affected. Actually I tend to become more paranoid of my own movements and suspicious of others' motives... So, what I know of the different stages of drunkenness is based half as much on other people's testimonies as it is from my own personal experiences, because my cognitive changes seem like they're almost opposite from others'.

[Simon_Jester]

"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.

Misrepresentation implies intent to misrepresent. That isn't here.

A big part of what I'm trying to convey here is that there is a real, non-made up band of uncertainty between "a person is too drunk to consent when they are conspicuously losing motor control and fading in and out of consciousness" and "a person is too drunk to consent when their judgment is significantly impaired." People may legitimately be worried about where they stand with respect to... call it quasi-consensual sex, where this band is in play.

That includes people who are not douchebag wanna-be-exploiters of innocent women they got drunk. People who engage in what are by the standards of our present culture fairly normative behavior like going to parties with a mix of friends, acquaintances, and strangers of both sexes, and getting seriously intoxicated... Such people may in fact not be douchebags and may in fact be concerned.

Because if the present trend is followed to a logical conclusion that leaves people (primarily but not only) males sure they're not guilty of rape... you have to change some aspects of our present culture that we don't normally think of as being characteristic of "rape culture" as such.

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?

Because drinking will diminish one's own capacity to discern whether a person is too drunk to give consent.

If Alice can be too drunk to know that Bob is too drunk to consent to sex, Alice has a problem on her hands if she gets drunk... and her 'safe' position maps back to my choice (1).

We've had people give specific examples of this on the forum- a male poster who remembers an incident where a female friend hit on him while too drunk to fully grasp what she was doing... and he was at the time drunk enough to feel a temptation, that had he been more drunk he might well have succumbed to, only to discover the next day that she had no memory of what she was doing.

I mean, when it comes to drunk driving the standard is clear enough "don't drink and drive, the risk of accidentally killing someone is unacceptable."

The parallel standard is clear enough, too... but it's "don't drink and party." Because if you drink to more than mild tipsiness, you can accidentally rape someone who at the time, to your own drunken brain, appears to be a willing sex partner.

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...

Please stop attributing bullshit sarcastic straw positions.

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.

Then we have the scenario discussed above. Bob and Alice were both drunk, enough so that their judgment was disrupted but not to the point of physical collapse. Alice initiates sexual activity. They have sex. The next morning, due to details of their respective alcohol tolerance and biochemistry, Bob remembers Alice initiating a sex act. But Alice doesn't remember initiating it. Sober, Alice wouldn't have wanted sex with Bob, and she knows it.

How is this distinguishable from Bob having raped Alice while she was drunk? Aside from Bob's own testimony, this looks a lot like a case of alcohol-based date rape. Reversing the genders doesn't actually change the question, either. Still looks like alcohol-based date rape if it was Betty who remembers Alan initiating sexual contact and Alan who has no memory of it and is disgusted by the idea after the fact.

To me, the only safe way to play this game is not to play at all, by avoiding becoming more than very slightly intoxicated in mixed company.

YES, obviously you won't get in legal trouble if you don't actually have sex with anybody while drunk, YES, obviously it is possible to not have sex while drunk, I shouldn't have to say these things are obvious but apparently I do.

But just as you can't realistically decide "just don't have a car accident" after getting moderately drunk and getting into a car, you can't realistically decide "just don't have a hookup you'll regret in the morning" after getting moderately drunk and getting into certain kinds of social settings with equally intoxicated members of the opposite sex. You might avoid the regrettable hookup 99 times out of a 100... but the 100th case can still be indistinguishable from rape even if neither party intended it that way at the time. Just as a drunk driver may get home safe 99 times out of 100, then have a disastrous accident the 100th time.

We tell drunk drivers not to take the chance. How do we justify not saying the same to drunk partiers?

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!

And if a drunk driver is careful enough and doesn't hit anyone, they won't have an accident. We still made drunk driving illegal in the end, precisely because it's not that simple.

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.

And, assuming the legal system goes right that day, the defendant is safe.

If the defendant's lawyer fucks up, or the jurists are unsympathetic, or there is a witness who misremembered something that was said the night of the party in a way dangerous to the defendant... then things get awkward.

Much safer to not drink and party.

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.

Dialogue is a great solution between sober and mildly intoxicated people.

It's a rather inadequate solution between moderately intoxicated people.

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.

My point is that this trends pretty clearly in that direction.

Saying "you can drink and party, just keep it in your pants while doing so" is basically saying "go on, take your chances, I'm sure you won't make a mistake or misjudge someone else's level of intoxication while yourself intoxicated. What are the odds of that happening?"

And I don't even MIND the idea that for 21st century gender norms to bring down rape culture, we have to eliminate the custom of consuming intoxicants at mixed-sex social gatherings. I can live with that. But saying that "no no, you're perfectly safe as long as you exercise good judgment while drunk!" is a satisfactory way of ensuring people can behave in a safe, conscionable, definitely-not-rapist way... I don't buy it.

[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.

Misrepresentation implies intent to misrepresent. That isn't here.

A big part of what I'm trying to convey here is that there is a real, non-made up band of uncertainty between "a person is too drunk to consent when they are conspicuously losing motor control and fading in and out of consciousness" and "a person is too drunk to consent when their judgment is significantly impaired." People may legitimately be worried about where they stand with respect to... call it quasi-consensual sex, where this band is in play.

There's really no need to worry if you follow the extremely easy guidelines I keep setting out, at least in terms of criminal charges. You're also missing that a large part of that band is where people are still noticeably impaired even if they aren't falling down and actively passing out. Drunk people, shockingly, act drunk.

That includes people who are not douchebag wanna-be-exploiters of innocent women they got drunk. People who engage in what are by the standards of our present culture fairly normative behavior like going to parties with a mix of friends, acquaintances, and strangers of both sexes, and getting seriously intoxicated... Such people may in fact not be douchebags and may in fact be concerned.

Sure, but those people still have a responsibility to conduct themselves in a responsible manner.

Because if the present trend is followed to a logical conclusion that leaves people (primarily but not only) males sure they're not guilty of rape... you have to change some aspects of our present culture that we don't normally think of as being characteristic of "rape culture" as such.

No, you just need to ensure there's a recognition that alcohol impairs judgment and therefore the validity of consent - something literally everyone is aware of for the first point - and that where someone's been drinking, a little more caution is needed. This is not a change to culture or anything to do with rape culture, it's a recognition of a basic biological fact.

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?

Because drinking will diminish one's own capacity to discern whether a person is too drunk to give consent.

If Alice can be too drunk to know that Bob is too drunk to consent to sex, Alice has a problem on her hands if she gets drunk... and her 'safe' position maps back to my choice (1).

In such cases, if both parties are genuinely too drunk to determine consent, then there is still responsibility. This is another of those well-established legal principles. If you knowingly and willingly get yourself completely shitfaced and then carry out a crime, you're still responsible for it. This is the law already, this is not a change that will happen, it already is how it is. Why? Because by getting that drunk, you were being reckless, and recklessness is sufficient to overcome lack of deliberate intent to commit an offence.

Your objection here is basically meaningless. 'Oh no, if I get too drunk I might rape someone by accident'. Don't get that drunk in the first place if you want to avoid liability for your drunken actions. We again return to the basic fact that the questions and alarm being raised are nearly all over well-settled points of law.

Now, in terms of fairness, the courts will usually consider things like 'was genuinely too drunk to establish consent'. They may be (usually are, if there's nothing that would outweigh it) more lenient, especially if it wasn't a violent rape, but the fact remains that a drunk rapist is a rapist. If you are so completely blitzed that you were acting as an automaton, that is its own, total defence. There are already legal tools in place to address this concern.

We've had people give specific examples of this on the forum- a male poster who remembers an incident where a female friend hit on him while too drunk to fully grasp what she was doing... and he was at the time drunk enough to feel a temptation, that had he been more drunk he might well have succumbed to, only to discover the next day that she had no memory of what she was doing.

Sure, and that poster made the right decision.

I mean, when it comes to drunk driving the standard is clear enough "don't drink and drive, the risk of accidentally killing someone is unacceptable."

The parallel standard is clear enough, too... but it's "don't drink and party." Because if you drink to more than mild tipsiness, you can accidentally rape someone who at the time, to your own drunken brain, appears to be a willing sex partner.

If you also get into a boxing match with someone who, at the time to your own drunken brain was a willing participant but in fact was not, you will be charged with assault. Why should we treat a sexual assault any differently?

It also takes a lot more than moderate tipsiness to be so unable to judge the tone and response of others to render you unable to interpret facts and make decisions accordingly. So no, the standard is not 'don't drink and party', but that old chestnut, 'drink responsibly'. Exercise basic self-control, or accept the responsibility for your actions that result, because at the end of the day you're the one pouring that next drink down your throat.

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...

Please stop attributing bullshit sarcastic straw positions.

I will when you stop acting as though mine is 'ban alcohol at social gatherings, ps. drunk sex is always bad'.

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.

Then we have the scenario discussed above. Bob and Alice were both drunk, enough so that their judgment was disrupted but not to the point of physical collapse. Alice initiates sexual activity. They have sex. The next morning, due to details of their respective alcohol tolerance and biochemistry, Bob remembers Alice initiating a sex act. But Alice doesn't remember initiating it. Sober, Alice wouldn't have wanted sex with Bob, and she knows it.

How is this distinguishable from Bob having raped Alice while she was drunk? Aside from Bob's own testimony, this looks a lot like a case of alcohol-based date rape. Reversing the genders doesn't actually change the question, either. Still looks like alcohol-based date rape if it was Betty who remembers Alan initiating sexual contact and Alan who has no memory of it and is disgusted by the idea after the fact.

It's distinguishable from Bob's own testimony and his BAC readings at the time of the arrest/complaint. Your scenario would need more evidence to point to it being rape to get a conviction that wouldn't be overturned on appeal, since 'no, she initiated the act and she consented' is still a defence that the prosecution needs to prove beyond a reasonable doubt is not true.

To me, the only safe way to play this game is not to play at all, by avoiding becoming more than very slightly intoxicated in mixed company.

If you somehow lose all self control or the ability to exercise basic discretion at anything more than very slightly intoxicated, then yes, that is probably for the best for literally everyone involved. But that is not a backdoor attempt at prohibition - it's a recognition of your own inability to control yourself at levels of drunkenness well below where that is the norm.

YES, obviously you won't get in legal trouble if you don't actually have sex with anybody while drunk, YES, obviously it is possible to not have sex while drunk, I shouldn't have to say these things are obvious but apparently I do.

Given your continual attempts to paint the idea that alcohol may make consent dubious as being some backdoor ban on partying, you very much do need to say these things. They are not obvious from the rest of your conduct.

But just as you can't realistically decide "just don't have a car accident" after getting moderately drunk and getting into a car, you can't realistically decide "just don't have a hookup you'll regret in the morning" after getting moderately drunk and getting into certain kinds of social settings with equally intoxicated members of the opposite sex. You might avoid the regrettable hookup 99 times out of a 100... but the 100th case can still be indistinguishable from rape even if neither party intended it that way at the time. Just as a drunk driver may get home safe 99 times out of 100, then have a disastrous accident the 100th time.

We tell drunk drivers not to take the chance. How do we justify not saying the same to drunk partiers?

Saying the same is exactly what I've been suggesting. Don't fuck people who are too drunk, or accept the responsibility for what happens after. Believe it or not, most people are in fact able to exercise self control while drinking moderately to the degree that they can avoid drunken hookups they don't want.

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!

And if a drunk driver is careful enough and doesn't hit anyone, they won't have an accident. We still made drunk driving illegal in the end, precisely because it's not that simple.[/quote]

I mean, the equivalent situation is actually 'keep your keys in your pocket and call a taxi'. Drunkenly raping someone is really no different to drink driving, as you're right to point out, but it really is as simple as 'keep your dick in your pants if you're too drunk', the same way we take no pity on people who drunkenly decide to drive. Why should one be treated differently?

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.

And, assuming the legal system goes right that day, the defendant is safe.

If the defendant's lawyer fucks up, or the jurists are unsympathetic, or there is a witness who misremembered something that was said the night of the party in a way dangerous to the defendant... then things get awkward.

That's what appeals are for. It's also a criticism of the justice system, not the basic idea that consent obtained from an intoxicated party may be unreliable.

Much safer to not drink and party.

Well, again, if you can't maintain a modicum of control after a few drinks, then yes - it is much safer for everyone involved if you don't.

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.

Dialogue is a great solution between sober and mildly intoxicated people.

It's a rather inadequate solution between moderately intoxicated people.

The dialogue isn't particularly difficult. It's literally just 'is this still good? You still wanna fuck?' If you find yourself unable to ask that, congratulations, you're too drunk to be having sex. Put your dick in your pants and step away from the train to poundtown. And just like an assault, or drink driving, if you push on after getting yourself too drunk to exercise responsibility, then that is on you.

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.

My point is that this trends pretty clearly in that direction.

Saying "you can drink and party, just keep it in your pants while doing so" is basically saying "go on, take your chances, I'm sure you won't make a mistake or misjudge someone else's level of intoxication while yourself intoxicated. What are the odds of that happening?"[/quote]

The great majority of people manage to drink and party without raping anyone, whether violently or through lack of real consent. Telling people to exercise some sense and responsibility is not pushing a trend of 'don't drink and party', but rather one of 'remember, you are responsible for your actions'.

And I don't even MIND the idea that for 21st century gender norms to bring down rape culture, we have to eliminate the custom of consuming intoxicants at mixed-sex social gatherings. I can live with that. But saying that "no no, you're perfectly safe as long as you exercise good judgment while drunk!" is a satisfactory way of ensuring people can behave in a safe, conscionable, definitely-not-rapist way... I don't buy it.

Do you intend to keep raising the strawman that this is somehow an attempt to erase having a drink with mixed company? Because again - literally no one is advocating for that in this argument, just for people to take a modicum of personal responsibility and to avoid raping people, and the radical idea that exercising a bare minimum of judgment (' i am too drunk to be doing stuff right now' or 'they are too drunk to be doing stuff right now') may help diminish cases of rape.

[Ziggy Stardust]

Saying "you can drink and party, just keep it in your pants while doing so" is basically saying "go on, take your chances, I'm sure you won't make a mistake or misjudge someone else's level of intoxication while yourself intoxicated. What are the odds of that happening?"

And you realize that the alternative position you are de-facto arguing is "go on, take your chances, I'm sure you won't be taken advantage of when you're drunk because we have zero social pressures against that. What are the odds of that happening?" You are quite literally putting the onus on the VICTIMS to avoid the assault, as opposed to the potential perpetrators.

(To simplify my example and use specific gender references, though the argument generalizes beyond them) You are basically saying the same thing as "girls shouldn't dress slutty if they want to avoid sexual assault"; after all, "slutty" is such a vaguely defined term and may vary case-by-case, so we can't expect guys to be able to restrain themselves in the presence of sluttily dressed girls.

To use another analogy, think of this in terms of false positive and false negatives on a smoke alarm. A false positive means there really isn't a fire, but the alarm goes off and you are ready to evacuate or otherwise deal with the situation. A false negative means there really is a fire, but the alarm doesn't go off and you burn to death. It is NEVER possible to optimize BOTH types of false event rates, so you have to choose an appropriate balance between them, based on how you weight the CONSEQUENCES of those false events. For a smoke alarm, we tolerate higher false positive rates than false negative rates, because the consequences for a false negative rate are so much fucking higher than for a false positive rate.

It's the same exact thing we are talking about here: conceptualize a "false positive" as "the other person actually was legally able to consent but you misjudged their level of intoxication and didn't have sex with them" and a "false negative" as "the other person was NOT legally able to consent but you misjudged their level of intoxication and had sex with them". The latter is just SO much fucking worse than the former, and you have to be a real monster to think we shouldn't be trying to minimize the latter at the possible expense of the former. Yet, your entire argument in this thread seems to boil down to "lol well it's hard to tell when someone is drunk so telling people to be responsible is a slippery slope".

[Simon_Jester]

[under some time pressure here, not intentionally ignoring loomer, just... can't fully reply right now]

Saying "you can drink and party, just keep it in your pants while doing so" is basically saying "go on, take your chances, I'm sure you won't make a mistake or misjudge someone else's level of intoxication while yourself intoxicated. What are the odds of that happening?"

And you realize that the alternative position you are de-facto arguing is "go on, take your chances, I'm sure you won't be taken advantage of when you're drunk because we have zero social pressures against that. What are the odds of that happening?" You are quite literally putting the onus on the VICTIMS to avoid the assault, as opposed to the potential perpetrators.

Um... no. I'm arguing a very different position. You're recalling a huge complex of stereotypical claims made by entirely different non-Simon people, and just assuming I hold that position.

My position isn't that we should put the onus of responsibility on rape victims or whatever. It's that we should be intellectually honest about what we're asking for.

Premise: Rape is ghastly and evil. No person with a sliver of conscience would even contemplate rape.
Premise: The correct definition of rape is X.
Conclusion: Never, ever, do anything that could plausibly mean you were responsible for a rape in any way.

The first premise is pretty well universally accepted. If we define X as X is being defined here... Well, what does the conclusion look like? Just going to a party where spontaneous sex is a realistic plausible outcome, intending to get drunk*, but not intending to commit rape is not enough. It would be unconscionable to do that, for exactly the same reason it's unconscionable to get into a car intending to drive drunk, but not intending to hurt anyone.

...

Just about every drunk driver intends to get home safe without hurting anyone. Just about no drunk driver ever intends to hurt someone by clumsily screwing up their driving. Their intentions are harmless in the very specific, strict sense that they do not actively desire to cause harm to others.** The problem isn't their intentions, it's that the alcohol impairs their judgment and ability to carry out their own basically benevolent intentions. So they fuck up, and crash, and hurt or kill people. People they never wanted to hurt, and whose suffering or death they are now responsible for.

By parallel construction, if you can get drunk enough to THINK a person is not as drunk as they truly are, and initiate sexual activity with them, which they actively agree to at their impaired state... You've just done the equivalent of driving drunk and hitting someone. You didn't intend it when you started out. Sober you'd never have done it. But your intentions don't matter under this definition of rape. Your (drunken) impression that your partner was capable of consent doesn't matter. You just committed rape.

Given that we accept this, the only conscionable solution is to absolutely avoid creating this class of situation. Just saying "don't fuck people who are too drunk" isn't enough. Because if you are getting drunk along with them, you can't trust your judgment of who's sober enough to consent any more than you can trust your judgment of when it's safe to zoom through an intersection.

Which is where I'm getting "don't drink and party."

...

And if convincing people that "don't drink and party" sounds like a tough job... Well, that's the job we appear to be signing up for. No point pretending otherwise.

Sure, some decent human beings will be concerned and shocked. And their intuition may cry out that no, their normative (now deemed reckless) behavior of getting drunk enough in mied company to misjudge other people's capacity for consent is NOT malicious. Which it isn't, but that doesn't matter, because it's still reckless and unacceptable to drink and party, and we'll just have to convince everyone of that.

So there it is, I guess?
________________________

* "Drunk" is here defined as "enough intoxication that your judgment is significantly impaired and distorted, i.e. intoxicated enough for the infamous 'beer goggles' to be a meaningful factor in decision-making." Other drugs such as ecstasy that could do the same thing can be substituted for alcohol here. If I want a word for "not intoxicated enough to significantly impair/distort judgment," I will use 'tipsy' or 'buzzed' or some such word, instead.

**OBVIOUSLY drunk driving is still grossly negligent and reckless. The point is, there's a difference between recklessness and malice.

To use another analogy, think of this in terms of false positive and false negatives on a smoke alarm. A false positive means there really isn't a fire, but the alarm goes off and you are ready to evacuate or otherwise deal with the situation. A false negative means there really is a fire, but the alarm doesn't go off and you burn to death. It is NEVER possible to optimize BOTH types of false event rates, so you have to choose an appropriate balance between them, based on how you weight the CONSEQUENCES of those false events. For a smoke alarm, we tolerate higher false positive rates than false negative rates, because the consequences for a false negative rate are so much fucking higher than for a false positive rate.

Yeah, that's my point. My point is that this argument leads logically to creating a social expectation that "drink and party" is to rape what "drink and drive" is to causing lethal car accidents: Behavior so unacceptably reckless that it should be at least widely disapproved of and probably if not certainly illegal in its own right.

Yet, your entire argument in this thread seems to boil down to "lol well it's hard to tell when someone is drunk so telling people to be responsible is a slippery slope".

Well, it IS hard to tell them that, and you plan to tell them that. I'm not opposed to you succeeding in doing so. But I suggest that if you want to win the debate, you start brainstorming ways to seem more convincing to a wider demographic than you do right at the moment.

[loomer]

A brief note on this ridiculously annoying 'drink driving' tangent. Very few jurisdictions absolutely prohibit driving after consuming alcohol except for learner drivers. They prohibit driving while intoxicated. You can drink and still be safe to drive - it's just a low threshold because very low levels of intoxication cause slowdown that causes accidents.

The same basic logic applies to having sex while drunk. Consuming alcohol does not automatically render consent invalid or make it impossible to exercise good judgment about having sex with someone, but intoxication can and does lead to mistakes of judgment, usually at a much higher threshold than that for driving since 'a little bit slower in reaction time' may lead to six dead children in a car wreck but is unlikely to lead to a sexual assault. So the analogy can actually be seen favourably, in that the law is not in fact 'don't drink and drive' but rather 'don't drink (to the point of intoxication significant enough to increase a risk of accident more than marginally in the average person) and drive'. The equivalent is thus not 'don't drink and party', but rather 'don't drink (to the point of intoxication significant enough in the individual or average case to lead to serious difficulty in judging the reliability of consent, either giving or receiving) and fuck'.

[Dominus Atheos]

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.

In my defense, I used the "bad decisions" wording because that is what DA used. I could not tell in what sense DA was using it or if he was intentionally being hyperbolic and trying to create a thousand-mile fifty shades of gray gap, so I just went along with it. My intent was more or less to mean "impaired judgement such that I just blindly follow the directions of any would-be chucklefuck rapist, also sorry I revealed all my employer's dirty NDAed secrets", not "oops I might have spent tens of bucks over my drinking budget tonight my bad".

Impaired judgement such that a person who would give a firm no to a"one night stand" while sober instead says yes. Who wakes up the next morning and is horrified and feeling violated that a total stranger had sex with them. The old trope of getting drunk and waking up with a stranger in your bed.

[Alyrium Denryle]

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.

In my defense, I used the "bad decisions" wording because that is what DA used. I could not tell in what sense DA was using it or if he was intentionally being hyperbolic and trying to create a thousand-mile fifty shades of gray gap, so I just went along with it. My intent was more or less to mean "impaired judgement such that I just blindly follow the directions of any would-be chucklefuck rapist, also sorry I revealed all my employer's dirty NDAed secrets", not "oops I might have spent tens of bucks over my drinking budget tonight my bad".

Impaired judgement such that a person who would give a firm no to a"one night stand" while sober instead says yes. Who wakes up the next morning and is horrified and feeling violated that a total stranger had sex with them. The old trope of getting drunk and waking up with a stranger in your bed.

Then yeah, that would be rape. Would you like me to go into the physiology of how this happens? Long story short, alcohol impairs executive function by blocking out-going connections from the prefrontal cortex to the rest of the brain. Inputs come in from the thalamus and amygdala like normal, the prefrontal cortex makes a decision (Go or No Go) and sends the message out to stop the Amygdala from telling the rest of the brain to go ahead and screw. That message never gets sent with the strength to override the amygdala. Once sober, that decision gets re-integrated into the person's conscious awareness (conscious awareness being an epiphemenon of the whole brain).

The reality is, in the overwhelming majority of cases, the people doing the drunk raping are not hapless individuals out for a good time. This is something everyone here seems to have missed. Actual studies have been done on this. When surveyed, 5ish% college aged men will readily admit to knowingly sleeping with people who were unambiguously too drunk to give consent, so long as the researcher does not call it rape. When asked to estimate how many times they have done this, the mean response is about 4 times, which lines up pretty well with statistics regarding rape on college campuses. There is wiggle room of course, these guys are likely to over-inflate their "prowess", the the victim might not actually care (they may have given retroactive consent), but the numbers are fairly telling.

In the main, we are actually discussing ways to combat serial sexual predators who use drunkenness as a shield/hunting tool.

[Simon_Jester]

A brief note on this ridiculously annoying 'drink driving' tangent. Very few jurisdictions absolutely prohibit driving after consuming alcohol except for learner drivers. They prohibit driving while intoxicated. You can drink and still be safe to drive - it's just a low threshold because very low levels of intoxication cause slowdown that causes accidents.

The same basic logic applies to having sex while drunk. Consuming alcohol does not automatically render consent invalid or make it impossible to exercise good judgment about having sex with someone, but intoxication can and does lead to mistakes of judgment, usually at a much higher threshold than that for driving since 'a little bit slower in reaction time' may lead to six dead children in a car wreck but is unlikely to lead to a sexual assault.

Yes; this is why I had a little footnote in my last post in which I talked about what I meant by the word "drunk."

So the analogy can actually be seen favourably, in that the law is not in fact 'don't drink and drive' but rather 'don't drink (to the point of intoxication significant enough to increase a risk of accident more than marginally in the average person) and drive'. The equivalent is thus not 'don't drink and party', but rather 'don't drink (to the point of intoxication significant enough in the individual or average case to lead to serious difficulty in judging the reliability of consent, either giving or receiving) and fuck'.

I will admit that I chose the phrasing to throw the issue into sharp relief- but I also spent multiple paragraphs defining and contextualizing my terms.

What I'm trying to convey here is that to nail down in the culture this thing that needs to be nailed down in the culture this way, it is going to become necessary to create a norm along the lines of "don't drink and party." Just as this norm doesn't need to exclude people who have one martini with dinner and drive home, it doesn't need to exclude people who have two beers at the party... but somewhere in there, it will need to kick in.

Because the threshold for "am I sure I won't be committing rape at this party" is still "I cannot allow myself to become drunk enough that I fail to notice that someone else is looking at me through beer goggles, or fail to notice that someone else's apparent interest in me is entirely the result of how intoxicated they are."

Any lesser threshold provides reduced probability that you commit a hideous crime, but does not eliminate the probability. For people who care about not committing hideous crimes, this is or ought to be very important.

Impaired judgement such that a person who would give a firm no to a"one night stand" while sober instead says yes. Who wakes up the next morning and is horrified and feeling violated that a total stranger had sex with them. The old trope of getting drunk and waking up with a stranger in your bed.

Then yeah, that would be rape. Would you like me to go into the physiology of how this happens...?

See, this is my point. To achieve the stated goal, we need to establish a norm that knowingly entering a situation where you could plausibly find a stranger and go to bed with them, and getting drunk enough that you might do so, failing to spot signs the stranger COULD fail to remember consent... is extreme, unconscionable recklessness.

Because any meaningful risk of waking up the next morning and being accused of rape by someone who genuinely believes you raped them because they don't remember consent and you were too drunk to realize they wouldn't remember consent... is too much risk. Therefore, getting drunk enough for that to be a risk, whatever that threshold may be for you, is recklessness of the same category as drunk driving.

The reality is, in the overwhelming majority of cases, the people doing the drunk raping are not hapless individuals out for a good time. This is something everyone here seems to have missed.

I am entirely in agreement with you on this subject, but you will not eliminate the drunk raping without eliminating the norm of "it's okay to get drunk enough that you fail to notice another person being drunk enough that their prefrontal cortex is unable to tell them No Go about the idea of having sex with you."

Because if Drunk!You thinks their prefrontal cortex is still in the loop, and is wrong, you've committed rape.

Notably, this standard also applies to both sexes. Consider a woman who goes to a party and gets drunk enough to think a man is genuinely attracted to her, when in fact he is not and would never have pursued sexual activity with her while sober. When he sobers up he goes "wait, I slept with WHO? Ew."

The only reason the woman is secure from rape charges right now is because of our existing cultural meme that female-on-male rape isn't a thing to begin with. Weren't we planning to abolish that meme?

Honestly, the effect of what needs to be done is going to be indistinguishable from "don't go to parties and get drunk enough to get raped," except for the important difference that it is specifically kindlier to victims (which is a significant improvement, admittedly). Because if everyone has to stay sober enough not to mistake "horny but too drunk to consent" behavior for "horny but able to consent" behavior... frankly, I doubt anyone can safely get "horny but too drunk to consent" in the first place.

In short, we need to bring about a phase change in the level of drinking that occurs at parties. I don't mind that particularly, but I do think we should be able to admit it without squawking angrily or dodging up and down about it.

Actual studies have been done on this. When surveyed, 5ish% college aged men will readily admit to knowingly sleeping with people who were unambiguously too drunk to give consent, so long as the researcher does not call it rape. When asked to estimate how many times they have done this, the mean response is about 4 times, which lines up pretty well with statistics regarding rape on college campuses. There is wiggle room of course, these guys are likely to over-inflate their "prowess", the the victim might not actually care (they may have given retroactive consent), but the numbers are fairly telling.

In the main, we are actually discussing ways to combat serial sexual predators who use drunkenness as a shield/hunting tool.

I strongly suspect that the majority of victims of drunk drivers throughout 20th century history were the victims of a small minority of the population who were most prone to drive drunk, and/or those who were already bad drivers made extremely bad by drinking.

This does not invalidate the point that to reduce drunk driving fatalities, we had to create a norm against all drunk driving. You cannot selectively enforce a norm only against the individuals who are the most serious problems.

[Simon_Jester]

[Minor clarification]

By "phase change" I mean "change the level of some variable in a system, to such a great extent, that the dynamics of the system change." We need to replace parties at which mutually drunken hookups CAN occur with parties at which they CANNOT occur, at least not when "drunken" is defined as "drunk enough to mistakely believe the other party is still capable of consent."

[Crazedwraith]

Are we assume that the level of drunk that make intercourse forbidden is so drunk that they both can't possibly be both that drunk?

Because that's the really ambiguous situation as far as I can tell. If they are both that drunk, then they have been raped but also can't hold the other accountable by the same logic. Apologies if this has been covered already.

[Lagmonster]

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.

I'm saying that in that example, it's easy to *explain* the limit to, say, your teenage child. Zero is non-subjective. "When you're impaired" is...ok, I won't say it's highly subjective...but it's clearly open to some interpretation. And I'm lamenting that there seems to be a huge gap in the ability of people who defend consent issues to adequately explain or teach other people about it. Especially people who want to pursue sexual opportunities but are undereducated and afraid of situations/people/consequences they are embarrassed to admit they don't fully understand, or which are incompatible and distant from the culture they were raised in.

Also, I don't care what you can and can't sell, I care what you can teach. You might have a hard time selling a 40kph speed limit at a town council meeting, but you can damn well haul out the graphs and teach someone why limiting your own speed relative to the environment you're driving in is smart. I have two sons who are growing up without many of the privileges I enjoyed. So being able to teach good judgement, especially in situations where judgement is getting its ass kicked by instinct or intoxication, is important.

[Simon_Jester]

Are we assume that the level of drunk that make intercourse forbidden is so drunk that they both can't possibly be both that drunk?

Because that's the really ambiguous situation as far as I can tell. If they are both that drunk, then they have been raped but also can't hold the other accountable by the same logic. Apologies if this has been covered already.

Yeah.

I mean, you can take an approach of "who initiated the sexual activity," but at that point it becomes kind of a randomized thing. Because you're basically flipping a coin as to which of the two judgment-impaired drunks makes an overt sign of how impaired their judgment is first.

Normal human courtship behaviors tend to include a lot of preliminary posturing and signaling, and those can happen between drunks. If one party is sober and the other is drunk, it's up to the sober person to think "this person may be signaling intent to mate, but is in no shape to make that decision, FALL BACK! FALL BACK!" If they're both drunk... well, as a practical matter, who makes that decision?

In order to prevent this, you're still stuck telling every decent person "don't get drunk at parties."

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.

I'm saying that in that example, it's easy to *explain* the limit to, say, your teenage child. Zero is non-subjective. "When you're impaired" is...ok, I won't say it's highly subjective...but it's clearly open to some interpretation. And I'm lamenting that there seems to be a huge gap in the ability of people who defend consent issues to adequately explain or teach other people about it. Especially people who want to pursue sexual opportunities but are undereducated and afraid of situations/people/consequences they are embarrassed to admit they don't fully understand, or which are incompatible and distant from the culture they were raised in.

I think a large part of the gap comes from the mindset of the 'defender of consent' group.

If your mindset is "the only reason you would be questioning me on this issue is because you want to commit rapes you vile scumbag," then that's going to leak out and you're not going to convince people. The great majority of humans are not in fact vile scumbags, and just because they question my advice on "this is how to abolish scum and make the world a better place" does not mean they are scumbags.

...

It's like, think about the difference between real environmental issues and Captain Planet.

In the children's cartoon version, environmental destruction is usually caused by very nasty people with poorly defined motivations and extremely conspicuous foul habits (like a radioactive guy named Duke Nukem who wants to irradiate stuff for no reason). In the real version, environmental destruction is usually caused by the collective action of normal people with normal motivations, who on the whole aren't much better or worse than anyone else except for environmental damage that they generally cause as a side-effect of whatever it is they were doing (like umpty billion people driving their cars to work every day).

Now, imagine I'm trying to prevent rapes by debating people on the Internet.

In the cartoonish version, my opponents have names like Vi-Ell Doush-Bagg. They are basically all males who constantly and sleazily lust after women, and have no reason to even discuss the issue except to defend their own future access to vulnerable women. That's their entire goal; the purpose of rape is rape, to paraphrase from 1984.

In the real version... well, to be fair, Vi-Ell Doush-Bagg and his friends do in fact seem to exist, or pretty close to it. But they are NOT a representative sample of the people who may be questioning or disputing the statements I make. I'm going to get a lot of pushback by people for whom "not raping people" actually is a very important component of their ethical makeup, and who are worried that I am in some way slandering them or making them out to be clones of Vi-Ell Doush-Bagg. I'm going to get pushback by people who fear they are at risk for being falsely accused of rape- who aren't worried about defending themselves against a true accusation but ARE worried about defending against a false one. I'm going to get pushback by people who are concerned about logical inconsistencies in my position (because those pedantic types ALWAYS how up) or about legal and constitutional-rights issues (because civil libertarian types ALWAYS show up).

And if I react to these people with "oh my god, you vile douchebag, stop defending rape culture!" over and over... Yeah, I'm going to drive those people away, and may actually cause them to start drawing up ranks and really defend rape culture. Instead of just, y'know, being in the way of wherever the "stop rape culture" bus happens to be driving by random coincidence.

Also, I don't care what you can and can't sell, I care what you can teach. You might have a hard time selling a 40kph speed limit at a town council meeting, but you can damn well haul out the graphs and teach someone why limiting your own speed relative to the environment you're driving in is smart. I have two sons who are growing up without many of the privileges I enjoyed. So being able to teach good judgement, especially in situations where judgement is getting its ass kicked by instinct or intoxication, is important.

See, if your intent is to teach the norm "don't drink and party" to the next generation in the hopes that drunken partying (and drunken hookups) will begin to die out in the early 21st century as drunk driving began to die out somewhat in the late 20th, that's fine and I don't have a problem with that. I won't miss drunken partying if it goes away.

But as a pragmatic matter, getting it to actually go away is a very difficult problem. We are not the first generation of adults to tell the next generation of teenagers not to go to drunken parties. It's not as though our parents encouraged us to do that, or as though our grandparents encouraged our parents to do so. And so on, back up to the days of Ur of the Chaldees.

So what I'm trying to convey is that the movement to bring down 'rape culture' may be feeling exasperation for a simple reason: namely, that they've reached a point where they are banging their heads against literally the exact same wall that has obstructed every temperance movement in history. To be sure, the behavior they're targeting is overwhelmingly practiced by a minority of horrible people, but it interlocks with behaviors that are very common and very hard to train out of people.

[loomer]

I haven't been able to be about for personal reasons. Unfortunately, I'm going to have to concede and withdraw for the same.

[Ziggy Stardust]

I mean, you can take an approach of "who initiated the sexual activity," but at that point it becomes kind of a randomized thing. Because you're basically flipping a coin as to which of the two judgment-impaired drunks makes an overt sign of how impaired their judgment is first.

Normal human courtship behaviors tend to include a lot of preliminary posturing and signaling, and those can happen between drunks. If one party is sober and the other is drunk, it's up to the sober person to think "this person may be signaling intent to mate, but is in no shape to make that decision, FALL BACK! FALL BACK!" If they're both drunk... well, as a practical matter, who makes that decision?

In order to prevent this, you're still stuck telling every decent person "don't get drunk at parties."

I was going to do a more thorough point-by-point response, but thought it would be a more efficient use of both our times to focus in, here.

It isn't clear to me WHY exactly it is you think the only way to prevent rape is to tell every decent person "don't get drunk at parties". Certainly, nobody else is making that argument here that I can tell. You keep vaguely alluding to the fact that there are going to be ambiguities when both parties are drunk, then waving your hands and saying that the only way we can resolve that ambiguity is by removing alcohol altogether, and trying to turn this into a temperance problem. It really feels to me like you are just shifting the goal-posts to avoid having an actual discussion about the issue.

Because, believe it or not, we can still apply a "reasonable person" standard to drunk people. Alcohol isn't a zero-sum game, where any alcohol consumption by either party immediately makes understanding what happened impossibly murky. It is possible to be really drunk and still pick up on signals, and it is still viable to hold people to "reasonable person" standards even if they are intoxicated. For the same reason that with non-sexual crimes (e.g. vandalism), we don't make allowances for the fact that they were intoxicated. Because the fact is that the vast majority of people, even while intoxicated, are capable of understanding that vandalism (or whatever crime) is bad and that they shouldn't do it.

And yes, I REALIZE that there will be ambiguities when dealing with sexual crimes when both parties are drunk. Nobody is disputing this. But you seem to keep repeating the fact that there will be some hard-to-deal-with cases as if this is somehow an impediment to any sort of intervention/education efforts whatsoever. And as I said in my last post (a point which you somewhat dodged), is that you are effectively putting the onus on the potential victims rather than the potential perpetrators. You seem to believe (for reasons not elaborate upon) that holding people to "reasonable person" standards (as we do in virtually every other realm of culpability assignment in our legal system) is tantamount to complete temperance, and therefore we shouldn't even try. Which is essentially saying that we shouldn't tell men not to try and rape women and that the responsibility is on women to avoid rapey drunk men. You are basically saying the status quo is fine.

And, look, I usually don't like to make statements like this ... but I REALLY think your opinion here is being colored by your admitted unfamiliarity with alcohol/partying culture. Every statement you have made about drunk people interacting jumps out as sounding like it is coming from someone who doesn't really understand what that entails. You really do seem to conceive of "drunkenness" as some sort of singularity event that results in such unfathomable changes to people's minds and social interactions that we can't possibly as sober people try to enforce any sort of rules or guidelines on behavior in that state. I honestly can't see a way to logically follow your argument without making that underlying assumption, because you keep repeatedly jumping from "Oh no, both people are drunk, this is a difficult situation to resolve" to "The only answer is temperance".

[Simon_Jester]

I mean, you can take an approach of "who initiated the sexual activity," but at that point it becomes kind of a randomized thing. Because you're basically flipping a coin as to which of the two judgment-impaired drunks makes an overt sign of how impaired their judgment is first.

Normal human courtship behaviors tend to include a lot of preliminary posturing and signaling, and those can happen between drunks. If one party is sober and the other is drunk, it's up to the sober person to think "this person may be signaling intent to mate, but is in no shape to make that decision, FALL BACK! FALL BACK!" If they're both drunk... well, as a practical matter, who makes that decision?

In order to prevent this, you're still stuck telling every decent person "don't get drunk at parties."

I was going to do a more thorough point-by-point response, but thought it would be a more efficient use of both our times to focus in, here.

It isn't clear to me WHY exactly it is you think the only way to prevent rape is to tell every decent person "don't get drunk at parties". Certainly, nobody else is making that argument here that I can tell...

I just got done watching ray245 make basically this exact argument over in another current N&P thread, so I hope you'll forgive me if I disagree.

You keep vaguely alluding to the fact that there are going to be ambiguities when both parties are drunk, then waving your hands and saying that the only way we can resolve that ambiguity is by removing alcohol altogether, and trying to turn this into a temperance problem. It really feels to me like you are just shifting the goal-posts to avoid having an actual discussion about the issue.

Uh, no, I'm trying to point out that the discussion doesn't just end when you say "men, don't be Vi-Ell Doush-Bagg the cartoon stereotypical serial rapist."

It's like this. Say you live in a country with a very high auto accident rate. People die in car accidents all the time. There are statistics that say that the average person has a 1 in 4 chance of being maimed or killed in a car accident. You decide, sensibly that your society needs to change its practices regarding traffic and driving. You need to get rid of 'reckless driving culture,' institute training programs to ensure everyone has basic skills on the road, and so on...

But sooner or later, you also need to tackle the drunk driving problem. If you don't, you're creating an inherent inconsistency in the rules you instituted to prevent traffic deaths, and people will get caught up in that inconsistency in a variety of ways.

Because, believe it or not, we can still apply a "reasonable person" standard to drunk people. Alcohol isn't a zero-sum game, where any alcohol consumption by either party immediately makes understanding what happened impossibly murky. It is possible to be really drunk and still pick up on signals, and it is still viable to hold people to "reasonable person" standards even if they are intoxicated. For the same reason that with non-sexual crimes (e.g. vandalism), we don't make allowances for the fact that they were intoxicated. Because the fact is that the vast majority of people, even while intoxicated, are capable of understanding that vandalism (or whatever crime) is bad and that they shouldn't do it.

And yes, I REALIZE that there will be ambiguities when dealing with sexual crimes when both parties are drunk. Nobody is disputing this. But you seem to keep repeating the fact that there will be some hard-to-deal-with cases as if this is somehow an impediment to any sort of intervention/education efforts whatsoever.

No, I'm trying to get people to at least fucking acknowledge that the problem will not go away with a few trivial and minor social interventions or changes in custom. Some parts of the problem have deep roots, and uprooting them will take effort. This is totally independent of whether the trivial and minor social interventions are a good idea or a bad idea.

The only reason I "keep pointing this out" is because people seem to be in denial about the point that "just don't have sex with someone too drunk to consent" is at least very slightly more complex than smirking condescendingly at men and saying the words to them. That there are in fact such things as "person who seems coherent and able to consent, but who is in fact not thus capable" or "person who seems able to consent, but will not remember tonight's events tomorrow and may well think they were raped if they have sex with a stranger or acquaintance that they don't remember wanting." These categories exist, and staying clear of them means being a bit more broadly responsible than some people admit.

I don't have a problem with accepting that level of responsibility, but I don't understand why people are so unhappy just accepting that it's what they're asking for.

And as I said in my last post (a point which you somewhat dodged), is that you are effectively putting the onus on the potential victims rather than the potential perpetrators. You seem to believe (for reasons not elaborate upon) that holding people to "reasonable person" standards (as we do in virtually every other realm of culpability assignment in our legal system) is tantamount to complete temperance, and therefore we shouldn't even try. Which is essentially saying that we shouldn't tell men not to try and rape women and that the responsibility is on women to avoid rapey drunk men. You are basically saying the status quo is fine.

This is completely false.

What I am saying is that if you are facing a situation where the line between "I've committed a legal recreational action" and "I've committed a uniquely heinous and terrible crime" is as simple as "you've misjudged the level of another person's intoxication, while yourself intoxicated..." The only conscionable course of action is to get out of that situation, so as to stop presenting a danger to innocent bystanders.

This equally true from the point of view of anyone who could conceivably commit rape under the legal definition of rape- that is to say, anyone who could conceivably wind up having sex with a drunk person who afterwards doesn't clearly remember the events of the night before. The sex of the person making the decision is irrelevant. I'm not even distinguishing between gender roles here, and I'm certainly not saying "victims are to blame." I am saying, very fucking simply, that it is unconscionable to conduct yourself in a way that might result in you committing rape accidentally, or leaving others with reason to think that you have done so.

And, juxtaposed with this, I am pointing out that there are entire categories of human social activity we now consider normative, where a person cannot reduce their risk to zero while still participating fully in the social activity as it now exists.

This is... totally unrelated to the claim you're making about what I say. You're claiming that I'm "saying the status quo is fine" or "saying we shouldn't tell men not to try and rape women" or "saying that... the responsibility is on women to avoid rapey drunk men." Nothing I'm saying even resembles that.

And I find it deeply frustrating to have this mischaracterization of my position crop up again a month after the fact.

And, look, I usually don't like to make statements like this ... but I REALLY think your opinion here is being colored by your admitted unfamiliarity with alcohol/partying culture. Every statement you have made about drunk people interacting jumps out as sounding like it is coming from someone who doesn't really understand what that entails. You really do seem to conceive of "drunkenness" as some sort of singularity event that results in such unfathomable changes to people's minds and social interactions that we can't possibly as sober people try to enforce any sort of rules or guidelines on behavior in that state.

Uh, no. I'm modeling "drunkenness" as a sliding scale where people's judgment and mental acuity gets progressively worse and worse as they consume more and more alcohol. People who are less drunken will make fewer mistakes, and fewer inaccurate judgment calls, than people who are more drunken. That is all, it is literally that simple.

If you believe otherwise, you're reading stuff into my post that is just plain not there.

[Dominus Atheos]

I mean, you can take an approach of "who initiated the sexual activity," but at that point it becomes kind of a randomized thing. Because you're basically flipping a coin as to which of the two judgment-impaired drunks makes an overt sign of how impaired their judgment is first.

Normal human courtship behaviors tend to include a lot of preliminary posturing and signaling, and those can happen between drunks. If one party is sober and the other is drunk, it's up to the sober person to think "this person may be signaling intent to mate, but is in no shape to make that decision, FALL BACK! FALL BACK!" If they're both drunk... well, as a practical matter, who makes that decision?

In order to prevent this, you're still stuck telling every decent person "don't get drunk at parties."

I was going to do a more thorough point-by-point response, but thought it would be a more efficient use of both our times to focus in, here.

It isn't clear to me WHY exactly it is you think the only way to prevent rape is to tell every decent person "don't get drunk at parties". Certainly, nobody else is making that argument here that I can tell. You keep vaguely alluding to the fact that there are going to be ambiguities when both parties are drunk, then waving your hands and saying that the only way we can resolve that ambiguity is by removing alcohol altogether, and trying to turn this into a temperance problem. It really feels to me like you are just shifting the goal-posts to avoid having an actual discussion about the issue.

Because, believe it or not, we can still apply a "reasonable person" standard to drunk people. Alcohol isn't a zero-sum game, where any alcohol consumption by either party immediately makes understanding what happened impossibly murky. It is possible to be really drunk and still pick up on signals, and it is still viable to hold people to "reasonable person" standards even if they are intoxicated. For the same reason that with non-sexual crimes (e.g. vandalism), we don't make allowances for the fact that they were intoxicated. Because the fact is that the vast majority of people, even while intoxicated, are capable of understanding that vandalism (or whatever crime) is bad and that they shouldn't do it.

And yes, I REALIZE that there will be ambiguities when dealing with sexual crimes when both parties are drunk. Nobody is disputing this. But you seem to keep repeating the fact that there will be some hard-to-deal-with cases as if this is somehow an impediment to any sort of intervention/education efforts whatsoever. And as I said in my last post (a point which you somewhat dodged), is that you are effectively putting the onus on the potential victims rather than the potential perpetrators. You seem to believe (for reasons not elaborate upon) that holding people to "reasonable person" standards (as we do in virtually every other realm of culpability assignment in our legal system) is tantamount to complete temperance, and therefore we shouldn't even try. Which is essentially saying that we shouldn't tell men not to try and rape women and that the responsibility is on women to avoid rapey drunk men. You are basically saying the status quo is fine.

And, look, I usually don't like to make statements like this ... but I REALLY think your opinion here is being colored by your admitted unfamiliarity with alcohol/partying culture. Every statement you have made about drunk people interacting jumps out as sounding like it is coming from someone who doesn't really understand what that entails. You really do seem to conceive of "drunkenness" as some sort of singularity event that results in such unfathomable changes to people's minds and social interactions that we can't possibly as sober people try to enforce any sort of rules or guidelines on behavior in that state. I honestly can't see a way to logically follow your argument without making that underlying assumption, because you keep repeatedly jumping from "Oh no, both people are drunk, this is a difficult situation to resolve" to "The only answer is temperance".

You are using the out-dated definition of drunken rape. As Alyrium Denryle and I have been trying to explain, nowadays society is starting to consider any sex after one person has been drinking enough to have their judgment impaired to be potentially rape. Simon Jester is saying that the only solution to this new reality is to teach people to not drink and party/have sex the same way we taught people not drink and drive.

Just to be clear, I don't necessarily agree or disagree with Alyrium Denryle or Simon Jester, I just agree that the situation is fucked, and that we're all fucked, and that everything is fucked. I'm a pessimist, obviously.

[Simon_Jester]

I might not go as far as "society is starting to consider," but yeah, basically this.

If our definition of rape includes sex to which both parties pseudo-consented, but to which one party did not truly consent to because they weren't sober enough to meet a definition of consent, then the "Schroedinger's rape" possibility is very much in play. Whether the sex act is a rape can only be determined retroactively, by whether or not the impaired party decides it was a rape in the morning after they sober up.

Human beings do not come with little floaty signs over their heads saying "is/is not sober enough to give consent to sexual activity." Determining whether another human is sober enough to consent is by definition a judgment call. And if that judgment call is one that you must make accurately in order to avoid committing rape, then you cannot allow your judgment to be impaired in a way that might stop you from making it correctly.

In which case "don't drink and screw" becomes about as mandatory as "don't drink and drive." If you drink and drive you may commit manslaughter without wanting to; if you drink and screw you may commit rape without wanting to.