Terralthra wrote:Except, no, they clearly don't. Arthur_Tuxedo clearly laid out a situation in which the morning after, the person with whom he ended up in bed was quite freaked out, and Arthur said, "if I had had sex with them, I don't know what would have happened." That certainly seems to imply that he feared he might be accused of raping someone when from his perspective, it would have just been drunk people hooking up. My argument is that maybe, given the fucking obvious ambiguity and difficulty people have telling the difference between "drunken hookup" and "sexual assault", maybe we ought to err on the side of caution and not fuck people who are blackout drunk. Arthur_Tuxedo laid out a great argument, in fact, for erring on the side of caution and not fucking someone blackout drunk, but he seems to think it was an argument the other way.
His argument is that he
didn't do anything wrong that night, but that if he had taken one more drink, if his judgment had been marginally more impaired, he would have decided to have sex with a woman who
was "actively consenting and participating" in initiating sex with him...
But this woman would later have no memory of doing so. Even though he had no reasonable way of foreseeing that this woman would be blackout drunk and not remember anything, because it's not possible to
know by casual inspection whether a person is "blackout drunk" or "moderately tipsy."
I mean, presumably if the woman
had remembered the whole night, there wouldn't have been a problem on her end, if we accept Arthur's description of events. She even passed the "positive consent, yes means yes" standard. But if they'd had sex, and she came to you and said she was raped... you'd believe her, as far as I can tell, and ignore or condemn any attempt by Arthur to share his memories of what happened.
What I'm saying is that if you want to go around fucking blackout drunk people, you should be ready to accept the consequences of that action, which, under current law, can amount to an indictment for rape. You and others seem to be arguing that we should change that law, but framing it as if I, arguing for the existing law to stand as is and be enforced as is, am somehow a radical advocating for change.
Well, the main issue here is the standard of evidence. Can we justify a criminal indictment for someone who
tried in good faith to comply with the law, and who had
no reason to assume that the person they were talking to was legally incapable of giving consent? We're not talking about "falling down drunk" here, we're talking about "just drunk enough to trigger a neurological rewrite that prevents formation of long term memory after the fact"
In general, for a given law, you have to define reasonable procedures by which a law-abiding citizen can avoid conviction. Here, getting affirmative consent
is not enough, because the other party
might be to an unknown level unable to remember having given consent after the fact.
So the only way to avoid conviction is to never have sex with anyone you suspect might be even mildly impaired. And, realistically, to never become even mildly impaired yourself, lest you violate the first half of the resolution. In which case you're basically proposing to ban alcohol consumption at mixed-sex social gatherings because it leads to rapes... which is a self-consistent and honorable position to take,
but you should acknowledge you're doing it.
Under your interpretation of current law, it
is possible for two people to rape each other, and the very common activity of "getting drunk in the company of friends" is at least as risky as drunk driving and should not be attempted by anyone not willing to risk jail time. These are very significant things, that should not be glossed over as casual "but of course" propositions.
The current law makes either of two drunk people having sex with each other culpable for sexual assault. You're saying you'd rather that weren't the case, and I'm saying tough cookies...
The problem is that it's nonsensical. How can
the rapist themself not have consented to the sexual act they themself initiated?
It's like accusing two people of stealing the same TV from each other. Clearly,
someone has to own the damn thing.
You're the one arguing something needs to change here, and pretending that it's the status quo. It's not. You want to get drunk and fuck other drunk people, fine, do that. But there are consequences to your actions. Sometimes those consequences include an accusation of rape, under current law.
The law is what it is, and the law makes such an accusation reasonable, and you can't really change the law away from what it is without legalizing predatory behavior. Your choices are to fuck sober people, and have less of a chance of being accused of rape, or to drunkenly hook up, and accept a higher chance of being accused of rape. Choice is yours, but you want to make it my fault.
Part of the problem is that if we refuse to 'legalize predatory behavior' by creating a legal situation that leads to absurdities, we just make the task of
defending in court easier for said predators.
"Your honor, I had literally no idea she was blackout drunk, she actively assented to the sex act at the time, and in fact it was her idea in the first place" is a rather nasty defense for a genuine rapist to use. But it is made much easier to use in a
real rape case, if we are constantly bombarded by cases like Arthur's.
Because, well, that's a thing that could totally happen to a reasonable person, who honestly thinks the person they're dealing with
will remember consenting to (and suggesting) sex after the fact.
Except, no, that's not the argument. Arthur_Tuxedo just laid out a real situation in which, had he had intercourse with someone blackout drunk, he could have been accused of rape, under current law. Unless your argument is that we should change the law to be "If you're drunk, and someone fucks you, and you don't remember consenting, tough cookies, you didn't get raped because you chose to get drunk, and sometimes the consequences of getting drunk is that someone you don't want to fuck is going to fuck you," then I don't see how this is at all an abstract debate.
Well, the current state of the law is that in practice, if you're drunk, and someone fucks you, and you don't remember consenting... good luck getting a conviction because it's probably going to be their word about events (which they probably remember) against yours (which by your own admission you don't remember). Which means going through all the trauma of a public rape trial and
still having nothing happen.
So I think we need to figure out some way to modify the law to create a less nasty paradox, but I haven't figured out what it is yet.
