The College Rape Overcorrection

[Eternal_Freedom]

My question was how long after they sober up can the consent be withdrawn? Is there/should there be a cut off point and if so, what should that be? A day? A week? A month?

[TheHammer]

My question was how long after they sober up can the consent be withdrawn? Is there/should there be a cut off point and if so, what should that be? A day? A week? A month?

The idea of "consent withdrawal" is actually the wrong concept to take. What you're really looking for is an "invalid consent". If it were a truly invalid consent then I'd expect it to be the same statute of limitations as any other sexual assault.

However, the key issue in the thread is that we can't seem to agree on criteria as to when consent should be considered "valid/invalid" in that mass of grey area between "Obviously valid", and "Obviously invalid".

[Scrib]

Alyrium talks about both though. Both invalid consent and retroactive consent, which seem different.

If you consent to protected sex and I gag you, flip you over and pour hot oil over you mid-coitus without using a condom I suppose one could say that clearly consent wasn't given and I was mistaken (at best). On a philosophical level this seems different from retroactive consent, even if in practice we'd have to find the alleged victim and get their opinion after the fact.

But yes, I can't really see any SoL that doesn't leave the victim or person setting the SoL open to some bad scenarios.

[Phillip Hone]

And I'm pretty sure that this level of teetotaler sentiment is not in line with the general opinions of the general public of either sex.

Neither are drunk driving laws.

I don't know where you and several others in this thread are getting this "You're TEETOTALERS!" angle from. Not you so much, Simon, though I feel you are touching on that a little bit.

Not that it's anyone's business, but I'm a relatively heavy drinker and still feel that drunk people can't really consent to sex.

[stormthebeaches]

I can't believe that this thread is seriously going on for this long with people arguing that drunk consent can be declared invalid. Not that people can be too drunk to consent (something that I agree with) but that any drunkness leaves consent invalid. This is a bullshit argument for several reasons.

1. No one has provided a satisfactory answer to the question: what do you do when both parties were drunk? Are they both rapists or are we going to decide this whole thing with a race to the police station? Some people have made efforts but their explanations are crap because their proposals would start a precedent of drunkness being a valid legal defense even in cases of voluntary intoxication, which is unacceptable. Considering how in the majority of drunk sex cases, both parties will have been drinking, I would like a good explanation for this.

2. I'm surprised that no one else has brought this up, but it can be very hard to tell if someone is drunk. Experienced drinkers can be drunk without showing any outward signs of being drunk (no stumbling or slurred words). I had several occasions back in university when I was talking to people who I could have sworn were sober, only to have them suddenly throw up. Hell, I've currently got a friend who gets drunk almost every weekend but shows outward signs of it. Unless if your average university aged guy is going to be carrying a breathalyzer with him at all times he is not going to always know who is drunk and who isn't. And that's just with alcohol, with drugs like crack and MDMA it can be even harder to tell who is high and who isn't.

3. Why does consent being invalid if drink is involved only apply to sex? If I buy something while drunk, have I been robbed? Let me ask you members of the drunk sex = rape crowd a question relating to an example from my personal life. Back at university, while very intoxicated, I gave a taxi driver a ridiculously large tip when he gave me a lift home (it was £6 something but I handed him a £20 and said keep the change). I would never have done that while sober, and being a broke university student I immediately regretted it the next day. Should I be within my legal rights to charge the taxi driver for theft on the grounds that I was too drunk to consent to giving him such a large tip? If I took him to court, would you support me? I want an answer here.

4. What about non alcohol related things? I assume that people who are high can withdraw consent, but what if a guy takes advantage of a women who is going through a rough patch in her life and is in a fragile emotional state? Would that be rape?

5. This is a completely unrealistic standard. Young people frequently and deliberately get drunk all the time. Just about every social venue serves drinks. Pushing drunk sex = consent can be declared invalid laws will make your average college hook up a game of chance. You think the war on drugs is bad, just wait till you see how a war on drunk sex will turn out.

[Terralthra]

And in this post, stormthebeaches asks a bunch of questions, most of which people in the thread have already answered. Congratulations.

[stormthebeaches]

Objectively? Ok. Too drunk to drive is too drunk to consent. Done. But you cannot determine that without a fucking breathalizer in the field, so the indicators you go by are behavior. You stupid retrograde fuckstick.

This is seriously flawed because it would mean that two beers in one hour would render someone capable of withdrawing consent the next day. Two drinks don't hinder your critical thinking that much, and more importantly, someone with two drinks in them will not be showing any outward signs of being drunk. This would turn your average college hook up into a game of chance.

Sometimes you can, actually. It depends on the crime. Assault is a General Intent crime, and drunkeness is no defense and does not function as a denial of mens rea. Murder however is a specific intent crime (usually), and alcohol or other substance use would be admissible as a defense, but the defendant would be wholly liable for the lesser included charge of assault.

Don't know how it works in the US, but this argument would not fly in the UK because a drunk person is perfectly capable of forming intent to murder, them being drunk just means that they are more likely to act on it, you could not get a murder charge, reduced to, say manslaughter with this defense. You might say that they would never act on it while sober but under UK law, when it comes to voluntary intoxication, you are responsible for whatever you do in your intoxicated state. Don't like that, then don't get drunk.

The only time, "I was drunk" can ever be used as a defense under UK law if you consumed alcohol against your will (someone spiking your drink, for example).

To put it in legal terms, my argument would be as follows
If Person A is too drunk to consent to sex, they are ipso facto too drunk to form the necessary intent to knowingly and willfully engage in sexual activity with another intoxicated person, and therefore cannot be held criminally liable for rape. They are just too drunk to know what they are doing. Now, if the rape in question came with violence toward a sober victim, then they likely would still be liable because it is not negligence anymore... but it might be mitigation in sentencing or something.

There are some serious flaws with this argument.

1. Why is someone who is too drunk to consent to sex too drunk to form the necessary intent to knowingly and willfully engage in sexual activity with another intoxicated person? Someone is is drunk can be perfectly aware of what they are doing, they just won't care because of the lowered inhibitions. This argument would work if you defined too drunk to consent as "unaware what planet she is on" but you have not do that, you have defined it as too drunk to drive, which is absurd. Two beers won't screw up your thinking anywhere near as much as you seem to think it does.

2. Under this argument, a moderately drunk guy could fuck a girl who is so drunk she is passed out on the grounds that he did not use violence. Combined with the "too drunk to drive = consent can be taken away mantra and what do we have? A system where is a guy who has had zero drinks fucks a girl who as had two beers, and if the girl regrets it the next day, he is a rapist. But is a guy who has had three beers fucks a girl who is so drunk she is passed out, he is not a rapist. I think we can both agree that this is problematic.

Many jurisdictions (including the US) recognize intoxication as an impediment to forming mens rea for various strict intent crimes, and you're a google search away from finding all sorts of people who have sued bars and strip clubs for credit card charges they "agreed to" while hammered, with varying degrees of success, along with all sorts of other contracts.

I would like to see some cases of people successfully suing bars and strip clubs for this. Are you seriously telling me that I would be able to get hammered at a bar, then demand a refund the next day, when I've sobered up, on the grounds that I was too drunk to consent to buying all those drinks after the third pint? What's next? If a drunk person gets a taxi ride home, can he have the taxi driver arrested for theft and kidnapping on the grounds that he was too drunk to consent? Madness!

[Jub]

And in this post, stormthebeaches asks a bunch of questions, most of which people in the thread have already answered. Congratulations.

Except they really haven't been. None of the anti-drunk sex posters (for lack of a better term) have really tried to define where we should draw the line when it comes to consent not being valid. The closest we have is the idea that having sex with anybody you even half suspect might be drunk is a risk and you should steer clear or risk being an accidental rapist. This is clearly not realistic in any sort of real world. Heck, even as we stand non-violent rape is a big game of he said she said and this would only increase the number of such cases.

So put up a clear position that could work for the real world or concede.

[Scrib]

And in this post, stormthebeaches asks a bunch of questions, most of which people in the thread have already answered. Congratulations.

Except they really haven't been. None of the anti-drunk sex posters (for lack of a better term) have really tried to define where we should draw the line when it comes to consent not being valid. The closest we have is the idea that having sex with anybody you even half suspect might be drunk is a risk and you should steer clear or risk being an accidental rapist. This is clearly not realistic in any sort of real world. Heck, even as we stand non-violent rape is a big game of he said she said and this would only increase the number of such cases.

So put up a clear position that could work for the real world or concede.

Why not? I assume that the argument is that practically this works just fine. Nothing can be prevented 100% but vigilance and care can reduce the chances of it happening to you until they're negligible.

[Jub]

Why not? I assume that the argument is that practically this works just fine. Nothing can be prevented 100% but vigilance and care can reduce the chances of it happening to you until they're negligible.

Here's an off the top of my head list of reasons it doesn't work:

1) It can lead to double rape where both people have had a drink or two and then have sex, each can equally make the claim that they were unable to consent
2) It leads to the ability to lie about how drunk one was when they agreed to have sex, if you set the bar too low this becomes a he said/she said issue which we should be aiming to avoid
3) It leads to other issues when the issue of consent and other actions taken while drunk
4) It leads to a person being able to take a sip of bear and then have sex with even drunker people while claiming they were to impaired to know the other person was too drunk to consent
5) In the real world people get drunk and have sex with one another without issue in great numbers on a daily basis, why make a corner case more important than the normal situation?

[Aether]

Objectively? Ok. Too drunk to drive is too drunk to consent. Done. But you cannot determine that without a fucking breathalizer in the field, so the indicators you go by are behavior. You stupid retrograde fuckstick.

This is seriously flawed because it would mean that two beers in one hour would render someone capable of withdrawing consent the next day. Two drinks don't hinder your critical thinking that much, and more importantly, someone with two drinks in them will not be showing any outward signs of being drunk. This would turn your average college hook up into a game of chance.

I have been lurking for quite some time and have been watching this thread because I find many aspects of the movement against rape culture lacking a coherent message. I find the the "too drunk to drive == too drunk to consent" interesting as it has come up numerous times in article comments that I have read over the last year or so.

Certainly a person who has a BAC 0.8 (in most jurisdictions that I am aware of) or above they are legally intoxicated; their inhibitions are lower, their motor skills are impaired, and some would argue that their judgement is impaired as well. I presume 'judgement' is implied to mean that the understanding consequences of one's actions is impaired.

In one scenario, a person has been drinking and then drives home. Their BAC is above the legal limit and thus they are legally intoxicated. Society does not give people a pass in this regard as the 'I was too drunk to understand that I was getting behind the wheel of a car' would not be considered. People are considered cognizant enough to decide to get behind the wheel and they are punished accordingly.

In a second scenario that same person has the same level of BAC. This time sex is involved. The argument is that person is incapable of giving consent because their judgement is impaired. They are not cognizant; i.e., 'they do not understand what they are doing' and this argument invokes sympathy in this case.

So in both scenarios we have a person who is legally intoxicated but in one instance is considered cognizant of their actions, but in the second scenario they are not.

I struggle to see the difference, so what am I missing?

[Simon_Jester]

And I'm pretty sure that this level of teetotaler sentiment is not in line with the general opinions of the general public of either sex.

Neither are drunk driving laws.

Thing is, the general public does seem to have come around to the idea that friends don't let friends drive drunk.

For this to be equivalent, we also need to convince everyone that friends don't let friends screw drunk either- not only that one shouldn't have sex with people who are very drunk, but that it's irresponsible and immoral to have sex with anyone who's drunk at all. With the fairly drastic changes to normal recreation and socialization patterns that would imply.

At the moment, the 'too drunk to consent' standard in the lawbooks is usually rather restrictive- to charge with rape, the plaintiff has to have been incapacitated, not just impaired. The advantage of this is that you can, realistically, tell if someone has been incapacitated by alcohol, because it's usually quite obvious. It's not so obvious to what extent alcohol has impaired the judgment of someone who is not so severely drunk. So "incapacitated" at least gives us the kind of specific standard people have been asking for.

If we try to change that drastically, and people here seem to imply that they think we should... we pretty much have to go all the way to "don't drink and screw, period." Because then there's no safe lower limit on how little alcohol a person can consume and invalidate their ability to give consent.

In the absence of such a lower limit, we're basically saying that social drinking is unacceptable if it might lead to sex, just as we currently say that it's unacceptable to engage in social drinking if you're planning to drive home.

I don't know where you and several others in this thread are getting this "You're TEETOTALERS!" angle from. Not you so much, Simon, though I feel you are touching on that a little bit.

Not that it's anyone's business, but I'm a relatively heavy drinker and still feel that drunk people can't really consent to sex.

What I mean is that if we create a situation where it's normal for successful rape prosecutions to take place in cases where the plaintiff has had, say, three or four drinks...

We're basically going to have to try and make 'drunk screwing' as much of a social issue as 'drunk driving.' I'm not saying we wouldn't be justified in doing so, but the implications would be very far-reaching. Since the number of people who get drunk with the express purpose of 'drunk screwing' is rather high, whereas relatively few people get drunk in order to drive drunk.

And in this post, stormthebeaches asks a bunch of questions, most of which people in the thread have already answered. Congratulations.

The core of his argument is that many of these questions have not been satisfactorily or consistently addressed. For example, the case of two drunk people having sex; Stormthebeaches raises the spectre of a 'race to the police station.'

More generally, you have two drunk people, who voluntarily got drunk and had sex, one of them thinks it was consensual, the other decides it wasn't. Witnesses indicate that there was affirmative consent. Or at least the words and actions we'd associate with affirmative consent between adults capable of affirmative consent. In other words, active participation, yes-means-yes, and so on.

[This is more or less the case of Sterrett and CB that was discussed in the OP]

The question is inevitably going to arise: would a reasonable person in this situation have known that the plaintiff was incapable of giving consent? Would they have known it sober, would they have known it after two beers? In theory this can be settled with a court hearing... but in cases like the OP you can have a college student being de facto expelled without due process because a university disciplinary panel decided to enforce these rules very, very harshly, with little or no regard to 'reasonable person' standards or anything else.

So basically, we have the problem that this standard of consent makes it very much possible for a symmetrical action in which two people do the same things, get equally drunk, are equally inclined to have sex... and yet one of them goes to prison and the other doesn't. Or one of them gets expelled and the other doesn't.

And I agree with Stormthebeaches that this has NOT been addressed in a satisfactory manner, except by people saying "let the courts sort it out."

At the very least it would be nice if someone would sit down and explain what 'due process' ought to mean for a college student accused of this category of mutually-drunk-sex-that's-later-found-to-be-rape. It sure isn't what Sterrett got.

[Formless]

Aether, the difference should be incredibly obvious. In one case (driving drunk), the drunk is endangering others. In the other case (drunk sex) they are being exploited by others. The difference is in who gets hurt; the alcohol is merely the catalyst for dangerous situations and drinking is thus always a risk, but those situations are not equivalent simply because they involve alcohol. A person can and should make accommodations ahead of time so that they don't have to drive drunk, in order to be considerate of other people's safety. However, people around the drunk person are an unpredictable variable, so the onus is on other people to be considerate of the problem with consenting while drunk. Put it thusly: drunk driving is wrong and dangerous, but pressuring a drunkard into driving because you are too lazy to be the designated driver or some damn thing makes you morally culpable for what happens next. That would be a better, if still imperfect, analogy to what is being argued here.

[aerius]

So let's say hypothetically we pass a law that says consent while under the influence isn't consent, and define under the influence as "had more than one drink in the past hour". You can substitute whatever standards you want for "under the influence", I'm just doing it this way to make it simple.

Sounds great, right? Well, couple problems. You're being judged by the 12 dumbest people who couldn't get out of jury duty. And if you've set the bar too low, you're going to end up trivializing rape and turning it into a casual crime such as driving under the influence, ie. "I know lots of people who do it so it's not a big deal". Rape conviction rates go down the shitter and rapists end up getting a slap on the wrist, much like the many drunk drivers who maim & kill others while driving under the influence. And that is the worst possible thing that can happen.

I don't know what the solution is short of making everyone wear a GoPro before, during, and after sex. The current system is imperfect but it might be the least bad solution.

[Scrib]

Why not? I assume that the argument is that practically this works just fine. Nothing can be prevented 100% but vigilance and care can reduce the chances of it happening to you until they're negligible.

Here's an off the top of my head list of reasons it doesn't work:

1) It can lead to double rape where both people have had a drink or two and then have sex, each can equally make the claim that they were unable to consent

Can already happen. The less alcohol consumed the smaller the chance that a person can legitimately claim impairment though.

You're talking as if we're talking about setting up a lower bound of blood alcohol level. We're not. We're merely talking about minimizing risk.

2) It leads to the ability to lie about how drunk one was when they agreed to have sex, if you set the bar too low this becomes a he said/she said issue which we should be aiming to avoid

This can happen regardless.

3) It leads to other issues when the issue of consent and other actions taken while drunk

Mhm.

4) It leads to a person being able to take a sip of bear and then have sex with even drunker people while claiming they were to impaired to know the other person was too drunk to consent

I don't see how this follows. I'm dealing with the practical argument of "don't sleep with drunk people because you're not confident of consent.". That's a precautionary measure. Sure, someone who sets their standard for impairment at one beer might have to deal with this scenario but, for the above practical advice it doesn't really make sense.

5) In the real world people get drunk and have sex with one another without issue in great numbers on a daily basis, why make a corner case more important than the normal situation?

And in the real world people get raped and accused of rape. The drunker someone is the more this happens. The more careful you are about the drunks that you have sex with the more the likelihood of ending up as the tragic story drops.

Again, I'm not claiming that you should set some legal limit at a single shot. I'm saying that the basic idea here: that, in the lack of any workable or set concrete limit on consumption before consent becomes void and a lack of any way to check this in so many cases your life is in your hands, and more caution isn't unwarranted. In fact, it could be argued that this is the realistic outcome.

[Phillip Hone]

Thing is, the general public does seem to have come around to the idea that friends don't let friends drive drunk.

It's a beautiful world you live in, Simon, but it's not this one. I mean this in a completely non-malicious way but I actually laughed out loud when I read that sentence.

For this to be equivalent, we also need to convince everyone that friends don't let friends screw drunk either- not only that one shouldn't have sex with people who are very drunk, but that it's irresponsible and immoral to have sex with anyone who's drunk at all. With the fairly drastic changes to normal recreation and socialization patterns that would imply

.

Yeah, just like getting people to stop zipping around when they're blasted. Which is hard to completely achieve as well.

.
In the absence of such a lower limit, we're basically saying that social drinking is unacceptable if it might lead to sex, just as we currently say that it's unacceptable to engage in social drinking if you're planning to drive home.

Yep, and I say, "go for it." Plenty of people want to fuck when they're drunk, but guess what - plenty of people want to drive when they're drink, and they DO, in fact, drive when they're drunk.

What I mean is that if we create a situation where it's normal for successful rape prosecutions to take place in cases where the plaintiff has had, say, three or four drinks...

We're basically going to have to try and make 'drunk screwing' as much of a social issue as 'drunk driving.' I'm not saying we wouldn't be justified in doing so, but the implications would be very far-reaching. Since the number of people who get drunk with the express purpose of 'drunk screwing' is rather high, whereas relatively few people get drunk in order to drive drunk.

Yep, it's gonna make society different.

[Jub]

I'm done with the quote pasta going on here, I'm going to state this plainly here and now.

Let me get this straight, people want to criminalize an act that has no risk for collateral damage and is already done to the satisfaction of both party on a, dare I say minutely basis, due to the fact that some small percentage of people make bad calls on who to sleep with while drunk? You know what happens when the average guy wakes up next to a woman he wouldn't have had sex with sober, he calls himself an idiot for getting drunk and banging the wrong person; end of story, except for maybe a few laughs about it with friends later. Why shouldn't we expect the same attitudes towards sex from women?

To not make this purely about women let me say this, we're not going to make rape or sexual assault any less common by further restricting sex and making it even more taboo. The better approach is to stop shaming people for wanting sex, thus allowing them to enjoy sex more leading to more happy fun sex all around. Instead we still have people thinking they should withhold sex to punish their partners for not doing chores around the house and we still slut shame women and expect men to be pigs. Making ever stricter laws won't make rape victims safer, it'll just ruin more lives and make sex even more taboo.

If you want to make sure rape cases are given due process I'm right there with you, but I'm not for criminalizing an act that's only a crime after the fact and in a single person's head. It's on the people drinking and having sex to be in control enough not to make terrible life choices and if they can't do that too fucking bad. You made the choice to drink, or snort crack, or do whatever other combination of things that makes you not sober, now own your choices and stop whining.

[Scrib]

There's no extra criminalizing taking place. Rape is already criminal. This is about attitudes. It's a bit like saying that giving alcohol to kids is already a crime but a lot of people have a less negative view of it. And the message we're sending to them is: beware the risks. If this fucks up the kid or someone finds out you will be fucked thus, tread carefully. Obviously giving someone a drink a night before they come of age is different from giving a six year old a drink, but it's on you to deal. (This is where I'm told that I'm being patronizing, but I cbf to think of a better analogy)

When faced with a situation that is inherently fuzzy then one should be careful, if not for the well-being of your partner then for yourself.

You seem to have gotten tunnel-vision over the most extreme possible interpretation here (she smelled alcohol so she can't consent).

[Jub]

There's no extra criminalizing taking place. Rape is already criminal. This is about attitudes. It's a bit like saying that giving alcohol to kids is already a crime but a lot of people have a less negative view of it. And the message we're sending to them is: beware the risks. If this fucks up the kid or someone finds out you will be fucked thus, tread carefully. Obviously giving someone a drink a night before they come of age is different from giving a six year old a drink, but it's on you to deal. (This is where I'm told that I'm being patronizing, but I cbf to think of a better analogy)

When faced with a situation that is inherently fuzzy then one should be careful, if not for the well-being of your partner then for yourself.

You seem to have gotten tunnel-vision over the most extreme possible interpretation here (she smelled alcohol so she can't consent).

Yes, but nobody here has drawn the line anywhere besides at the two extremes. Seeing as I'm happy with the line being at the most obvious possible extreme of drunkenness the onus isn't on me to define what makes a person too drunk to consent. Nor is he onus on me to prove that we won't see a proliferation of double rapes and he said/she said cases making it to court if this law were adopted. This law is far to broad and covers an issue where a total of one person can be harmed by a thing most people manage to do without calling it rape later at the risk of creating a new class of criminal out of people participating in normal everyday drunken sex. It also means that we're saying, look you're too stupid to be allowed to mix alcohol and sex, so no nobody can do it with risking winding up staring down the barrel of a rape charge.

Do you honestly not see the issue with this?

Also, why shouldn't we place he onus of responsibility on the person that drank and consented to sex? What is so wrong with expecting people to live with choices they made after they chose to get intoxicated?

My analogy to what you're suggesting is heavily restricting anything that could be used as a weapon to prevent a few murders per year, after all if you need a baseball bat it's not that hard to submit to a background check and sign binding legal documents while also being subjected to unreasonably restrict limits on your behavior. You swung your baseball bat near somebody who felt threatened by it, assault charges; that ball you hit accidentally beaned the person you're playing a game against and he later decides you coerced him into playing, battery charges. Are you getting the point yet?

[Phillip Hone]

I'm done with the quote pasta going on here, I'm going to state this plainly here and now.

Let me get this straight, people want to criminalize an act that has no risk for collateral damage and is already done to the satisfaction of both party on a, dare I say minutely basis, due to the fact that some small percentage of people make bad calls on who to sleep with while drunk? You know what happens when the average guy wakes up next to a woman he wouldn't have had sex with sober, he calls himself an idiot for getting drunk and banging the wrong person; end of story, except for maybe a few laughs about it with friends later. Why shouldn't we expect the same attitudes towards sex from women?

What we are suggesting would apply equally to men, women, and all individuals of diverse identities across the gender spectrum. Kindly take back your straw man.

To not make this purely about women let me say this, we're not going to make rape or sexual assault any less common by further restricting sex and making it even more taboo. The better approach is to stop shaming people for wanting sex, thus allowing them to enjoy sex more leading to more happy fun sex all around. Instead we still have people thinking they should withhold sex to punish their partners for not doing chores around the house and we still slut shame women and expect men to be pigs. Making ever stricter laws won't make rape victims safer, it'll just ruin more lives and make sex even more taboo.

Does punishing drunk driving make driving taboo? Who said anything about shaming people for wanting sex? Again, kindly take back your straw man.

If you want to make sure rape cases are given due process I'm right there with you, but I'm not for criminalizing an act that's only a crime after the fact and in a single person's head. It's on the people drinking and having sex to be in control enough not to make terrible life choices and if they can't do that too fucking bad.

You made the choice to drink, or snort crack, or do whatever other combination of things that makes you not sober, now own your choices and stop whining.

Again with the victim blaming...

[Jub]

What we are suggesting would apply equally to men, women, and all individuals of diverse identities across the gender spectrum. Kindly take back your straw man.

Yet not a person here can show me an example of a man calling rape after the fact. Funny that. Now go find an example the proves that this law equally effects gender or (un)kindly get fucked.

Does punishing drunk driving make driving taboo? Who said anything about shaming people for wanting sex? Again, kindly take back your straw man.

You keep equating the two, but in this case the only two people (unless they have a crazy drunk orgy) can possibly be harmed and both are active participants in the act. The two events are in now way equal, no act can cost potential hundreds of lives, the other might make a single person feel a bit icky afterwards.

Again with the victim blaming...

WHAT FUCKING VICTIM? The person who wakes up after making a choice they regret while drunk? Tough fucking luck, just like any other stupid thing you've done you own your mistake. That person who may have purchased and made the choice to consume alcohol entirely without the input of the person that later has sex with them, that person that willingly went past the point where they are making choices that they would have made while sober, that person who willingly decided to have sex with another willing person? Yeah, they're a victim about as much as a drunk driver is a victim when they end up totaling their car and guess who we don't have sympathy for?

How about this, should a person with depression, bipolar disorder, or other mental illnesses that can cause abnormal sexual desire be considered rape victims if they have sex they later regret while in an altered emotional state? These people didn't even choose to be in that state and nobody here has suggested that having sex with them is a crime. What if your long term prescription alters your level of sexual desire, is every instance of sex you have in the time period you spent on that medication potentially rape? What if you have a head injury at some point in life that makes you regret all your previous life choices including sex, after all now your new normal state may be emotional scared by choices you would no longer make, is that all rape now?

What this boils down to is that you're basically saying that grown as people can't be trusted to combine sex and alcohol even though the proof exists that both can and are done in a way that leaves both people satisfied far more often than it leads to a case where a person regrets it the next day. Not even addressing the social pressures that make one gender far more likely to regret it the next day than the other? Yet you can't even be fucked to address the additional issues that your stance creates if we choose to adopt it.

[Phillip Hone]

Yet not a person here can show me an example of a man calling rape after the fact. Funny that. Now go find an example the proves that this law equally effects gender or (un)kindly get fucked.

There's nothing gender specific about the law so the onus is on you to prove that it is somehow discriminatory against men. Most rapes are committed by men, so yeah, a law dealing with rape will involve persecuting more men than women.

There's a rather heavy stigma against male victims of sexual assault - doesn't mean they don't exist, and that doesn't mean the law couldn't protect them as well.

Does punishing drunk driving make driving taboo? Who said anything about shaming people for wanting sex? Again, kindly take back your straw man.

You keep equating the two, but in this case the only two people (unless they have a crazy drunk orgy) can possibly be harmed and both are active participants in the act. The two events are in now way equal, no act can cost potential hundreds of lives, the other might make a single person feel a bit icky afterwards.

First of all, thank you for only addressing one of my points. I'm not equating the two (another straw man). I'm pointing out that restricting someone's right to do something while drunk isn't equivalent to discouraging the activity itself - it just discourages mixing it with alcohol.

WHAT FUCKING VICTIM?

The person who was raped.

The person who wakes up after making a choice they regret while drunk? Tough fucking luck, just like any other stupid thing you've done you own your mistake. That person who may have purchased and made the choice to consume alcohol entirely without the input of the person that later has sex with them, that person that willingly went past the point where they are making choices that they would have made while sober, that person who willingly decided to have sex with another willing person? Yeah, they're a victim about as much as a drunk driver is a victim when they end up totaling their car and guess who we don't have sympathy for?

People who get raped aren't just deserving of no sympathy, they should be compared to drunk drivers!

How about this, should a person with depression, bipolar disorder, or other mental illnesses that can cause abnormal sexual desire be considered rape victims if they have sex they later regret while in an altered emotional state? These people didn't even choose to be in that state and nobody here has suggested that having sex with them is a crime. What if your long term prescription alters your level of sexual desire, is every instance of sex you have in the time period you spent on that medication potentially rape? What if you have a head injury at some point in life that makes you regret all your previous life choices including sex, after all now your new normal state may be emotional scared by choices you would no longer make, is that all rape now?

People in a altered state due to mental illness may also not be capable of consenting to sex. It's something worth considering.

What this boils down to is that you're basically saying that grown as people can't be trusted to combine sex and alcohol even though the proof exists that both can and are done in a way that leaves both people satisfied far more often than it leads to a case where a person regrets it the next day.

So many people being satisfied with sex justifies a few rapes? What the fuck is wrong with you?

Not even addressing the social pressures that make one gender far more likely to regret it the next day than the other? Yet you can't even be fucked to address the additional issues that your stance creates if we choose to adopt it.

Sorry, I don't think you've presented much evidence that this would be discriminatory towards men.

[Arthur_Tuxedo]

Arthur, you bring up some interesting points, but I think you have a fundamental misunderstanding of consent.

Consent is not a measure of what a person wants, but rather of what they consciously agree to. You can't even begin to compare it with the Mel Gibson defense, because the Mel Gibson defense is about Gibson's internal beliefs - does he hate the Jews? I completely agree with you that if you end up sleeping with someone while drunk, that is an indication that you had sexual feelings towards them and on some level wanted to. A drunk person is capable of genuine attraction, but not genuine consent. Where you go wrong is that you equate the two, when in reality, they are related but very different.

It is still possible to rape someone even if they want to have sex with you, if they haven't actually agreed to it, which can be for a number of reasons. Maybe they're not ready to have sex yet. Maybe they're waiting for marriage or some such. Maybe they're in a state where they are not qualified to give consent (past a certain threshold of drunkenness-see Jub's post for my thoughts on that).

You've made the same unjustified leap as the other posters, which is to assume that an intoxicated person is not aware enough of what they're doing and who they're doing it with to consent to sex, and like them you have also failed to define that "certain threshold". Drunk people know exactly what they're agreeing to and who they're agreeing to do it with, moral hangups and marriages be damned. It's not like someone who dropped acid and thinks they're a carton of yogurt agreeing to be stirred. The only threshold at which this is not the case is when someone is drunk to incapacitation and cannot form the words to consent or muster the coordination to resist (if they're even aware of their surroundings). Having sex with a person in that state is clearly rape even in the strictest sense. Setting the bar any lower causes far more problems than it solves (if it solves any) and creates nonsensical "double rape" situations, as well as trivializing actual rape by lumping it in with relatively normal behavior. I can understand the desire to discourage sketchy drunk hookups, but treating them as rape would ruin a lot of peoples' lives over a "crime" that most of them couldn't have possibly known they were committing with a "victim" who was a willing and active participant.

[Simon_Jester]

Aether, the difference should be incredibly obvious. In one case (driving drunk), the drunk is endangering others. In the other case (drunk sex) they are being exploited by others.

The exploitation model is an excellent model for what happens when a sober person exploits a drunk person's impaired judgment for sex.

Not such a good model when comparably drunk people make a mutual (possibly impaired) decision.

Because exploitation doesn't make much sense when you're forced to say two people are exploiting each other in the same way for the same thing.

Put it thusly: drunk driving is wrong and dangerous, but pressuring a drunkard into driving because you are too lazy to be the designated driver or some damn thing makes you morally culpable for what happens next. That would be a better, if still imperfect, analogy to what is being argued here.

If two people are equally drunk, and get in a car together, and one of them pressures the other to do the drunk driving, is that person liable?

Can already happen. The less alcohol consumed the smaller the chance that a person can legitimately claim impairment though.

You're talking as if we're talking about setting up a lower bound of blood alcohol level. We're not. We're merely talking about minimizing risk.

You're also, at least implicitly, accepting that people can be tried for rape, and potentially convicted because both they and the person they had sex with had (for example) three drinks.

I use three drinks as an example because in general that is enough to noticeably affect your judgment, but not enough to make you incapable of rational thought. You still know where you are, what you're doing, and who you're doing it with... but your judgment is impaired.

So this can turn into a rape trial, and then it all becomes a big debate over just how drunk both parties were, with the defendant having to make a bullshit defense like "I was too drunk to know she was too drunk" (if we use Alyrium's idea), or engage in character assassination by saying "the plaintiff is a binge drinker and routinely drinks far more than this with little or no impairment" or something similarly unsavory. And maybe the defendant goes free and maybe they go to jail, but we've created a situation in which the machinery of the state is brought to bear. Where a private institution like a university might summarily expel the defendant without due process (as described in the post that started this thread).

And as noted above, this has another consequence. Because once cases like this are happening every day, everyone will go "oh wait, I know somebody who had three beers and had a one-night stand with someone else that had three beers! They're not a rapist! Or if they are, then rape's been expanded to cover technicalities and the rape laws are bullshit!"

With the result that by expanding the definition of rape to include a fairly common human behavior that people of both sexes voluntarily participate in, we've managed to trivialize rape in the eyes of a large chunk of the population.

2) It leads to the ability to lie about how drunk one was when they agreed to have sex, if you set the bar too low this becomes a he said/she said issue which we should be aiming to avoid

This can happen regardless.

It will happen more, and in higher-profile cases with more sympathetic defendants who acted in good faith doing something that most of the adult population of America has done at some time... and is now faced with jail time and classification as a sex offender over.

3) It leads to other issues when the issue of consent and other actions taken while drunk

Mhm.

Yes, and that creates legal problems and precedents I'm not sure we want to set.

4) It leads to a person being able to take a sip of bear and then have sex with even drunker people while claiming they were to impaired to know the other person was too drunk to consent

I don't see how this follows. I'm dealing with the practical argument of "don't sleep with drunk people because you're not confident of consent.". That's a precautionary measure. Sure, someone who sets their standard for impairment at one beer might have to deal with this scenario but, for the above practical advice it doesn't really make sense.

The problem comes when the plaintiff can use "I myself was too impaired to consent to sex, and therefore too impaired to form the criminal intent to commit rape" to defend themselves when the person they had sex with comes back and says "while I didn't realize it at the time, this sex was rape."

At the moment we reject that defense, because our standard of 'too impaired' is physically impaired, to the extent that a person who's that impaired is unlikely to initiate sexual activity.

But if we start accepting that people who are still on their feet and aware of their surroundings after three or four drinks are 'too impaired' to consent to sex, we're going to start seeing this defense more often. Either we accept it (which sets bad precedent) or we reject it.

One of the bad precedents set by accepting this defense is that you could use it as a defense of raping someone who was a lot more drunk than you... because while you're less drunk than them, you're still drunk enough to be too 'impaired' to consent, and thus too impaired to form criminal intent.

5) In the real world people get drunk and have sex with one another without issue in great numbers on a daily basis, why make a corner case more important than the normal situation?

And in the real world people get raped and accused of rape. The drunker someone is the more this happens. The more careful you are about the drunks that you have sex with the more the likelihood of ending up as the tragic story drops.

Again, I'm not claiming that you should set some legal limit at a single shot. I'm saying that the basic idea here: that, in the lack of any workable or set concrete limit on consumption before consent becomes void and a lack of any way to check this in so many cases your life is in your hands, and more caution isn't unwarranted. In fact, it could be argued that this is the realistic outcome.

The core of the issue is that we seem to be seeing advocacy for setting the limit on consumption before consent becomes void lower, considerably lower. And we see institutions like universities who are already lowering this limit.

The lowering of the limit has consequences that cannot be erased simply by being "careful."

Thing is, the general public does seem to have come around to the idea that friends don't let friends drive drunk.

It's a beautiful world you live in, Simon, but it's not this one. I mean this in a completely non-malicious way but I actually laughed out loud when I read that sentence.

Sorry. I have relatively smart friends.

Let me be more clear. We as a society at least get the idea of designated drivers. And of bars confiscating people's keys. Stuff like that. It's not considered the realm of comedy to imagine a group of friends out to get drunk, where one guy stays sober to drive everybody home.

So while people often fail to practice basic precautions, we seem to be past the point where the drunk drivers are fighting for their right to drive drunk. They're into the "we get it's dangerous, we don't feel we have a sufficiently convenient choice, so we're gonna keep gambling" phase. It is socially accepted that drunk driving is at best a bad idea.

Drunk driving is NOT something people do for fun, with a handful of truly amazingly reckless exceptions.

...

Meanwhile, drunk screwing is practically a national pasttime for singles. And it's not just the men going out there either; women go out and get drunk and (in quite a few cases) have one-night stands while under the influence of moderate quantities of alcohol too.

But the idea of a bunch of guys going to bars to hit on women, and one guy deciding not to go because he's afraid of being accused of rape over a drunken one-night stand, would be treated as the realm of comedy.

We have nowhere near gotten to where we grasp as a society the idea that everyone should always refrain from sex with drunk people. At least with drunk driving everyone gets that they're supposed to not be driving drunk, even if some people break the rules. With drunk screwing, not everyone has gotten this idea, and because drunk screwing is in and of itself a popular recreational activity, there will be a lot of pushback if the idea does penetrate into popular culture.

For this to be equivalent, we also need to convince everyone that friends don't let friends screw drunk either- not only that one shouldn't have sex with people who are very drunk, but that it's irresponsible and immoral to have sex with anyone who's drunk at all. With the fairly drastic changes to normal recreation and socialization patterns that would imply

.Yeah, just like getting people to stop zipping around when they're blasted. Which is hard to completely achieve as well.

Harder. Drunk driving is something people do because it's more convenient than walking and cheaper than a taxi, and they're too drunk to realize the risk.

Drunk screwing is practically the whole point of alcohol consumption for many people. It's not something we do for convenience, it is in many cases why we went somewhere that serves alcohol. This creates a higher degree of pushback.

.In the absence of such a lower limit, we're basically saying that social drinking is unacceptable if it might lead to sex, just as we currently say that it's unacceptable to engage in social drinking if you're planning to drive home.

Yep, and I say, "go for it." Plenty of people want to fuck when they're drunk, but guess what - plenty of people want to drive when they're drink, and they DO, in fact, drive when they're drunk.

At which point you've basically said "no social drinking that might lead to sex." Which translates, for all practical purposes as "no social drinking."

In which case I think my characterization of this position of yours as "teetotaler" earlier in the thread was quite apt. You're basically trying to ban social consumption of alcohol, and while I don't think it's inherently wrong for you to try, realistically you are doomed to failure and will save yourself some time by admitting it.

[Jub]

Oh, so let's make a law that effects billions to protect handfuls of people that should be, as responsible adults, able to control who the actively participate in sex with, because a few idiot women regret their drunk one night stands the next day. Even better, you haven't defined what, aside from the "victims" after the fact regret, separates drunk happy sex from drunken rape sex. You're basically saying that any drunk sex can and should potentially be rape if the victim at some point in the future decides, nah that wasn't really a person I'd have fucked sober and calls rape.

The person who was raped.

The person that actively agreed to and participated in said sex after willing consuming another substance that any sane person knows the cognitive effects of can't be definition be a victim. Full. Stop.

People who get raped aren't just deserving of no sympathy, they should be compared to drunk drivers!

They actively and knowingly participated in the crime, if they didn't willingly consent at the time it is likely that no crime could have even been committed.

People in a altered state due to mental illness may also not be capable of consenting to sex. It's something worth considering.

Great, then define where the demarcation between able to consent and unable lies. Not just for this but for alcohol and every other drug.

If I call up an ex and have drunken sex with them and blow 0.08 afterwards, should I have the power to I ruin their lives by later claiming that I wasn't able to consent to the sex? In this case am I really the victim? By your standard I am, even if I hatched the plan before hand I can still argue that if I wasn't drunk I would never have carried it out, so it's still, by your standards rape. Can you not see how stupid this is?

So many people being satisfied with sex justifies a few rapes? What the fuck is wrong with you?

What part of a person having consensual sex equates to rape?

Not even addressing the social pressures that make one gender far more likely to regret it the next day than the other?

I can show females reporting this sort of sex as rape, can you show even one going the other way? The ball is in your court fucktard, put up or shut up.

Also, for all your chiding me for ignoring your points, you ignored this.

My analogy to what you're suggesting is heavily restricting anything that could be used as a weapon to prevent a few murders per year, after all if you need a baseball bat it's not that hard to submit to a background check and sign binding legal documents while also being subjected to unreasonably restrict limits on your behavior. You swung your baseball bat near somebody who felt threatened by it, assault charges; that ball you hit accidentally beaned the person you're playing a game against and he later decides you coerced him into playing, battery charges. Are you getting the point yet?

So answer this you piece of shit hypocrite.