Consent and blame.

Genghiz Cohen

So, Girlfriend and I have some of the most boring conversations. We would both be fairly ok at the auld debating and would spot gaps or fallacies in each others logic fairly often, and then ruthlessly dismember the others argument.

So we had one last night about state of mind, consent and blame.

There is a prerequisite to getting into the argument proper.

Do you think there is a point of inebriation where a person can no longer give consent and enter into any kind of contract.

If so, imagine a scenario. (That rhymes a little )

You have 2 people past that point and then they are all like "SEX!" and the next morning Person A wakes up and regrets what happened and cries rape/sexual assault/whatever. Apparently if you can show that Person B was the person who first suggested sex then in some states in the US, Person B is guilty of rape/sexual assault. While Person A is completely blameless.

Girlfriend agrees with this thinking but I do not. She says that a person is responsible for their actions when drunk, and I agree but I don't think that in this particular scenario that all the blame rests with Person B. Girlfriend says that Person B should not have let themselves get to such a state that they would propose sex to a person who could not consent. I say that is not only a double edged sword for Person A but is completely unworkable in a real life situation, since Person B could be too drunk to know if Person A is too drunk to consent.

TL:DR
If 2 people get it on and both are too drunk to consent, who is to be blamed?
Girlfriend says the initiator.
Genghiz says the blame should be shared. Maybe not evenly.

The term "Victim blaming" came up and I told her to go and ****.

magicbastarder

Genghiz Cohen wrote: »

I told her to go and ****.

this is clearly lack of consent on her side.

Kiwi in IE

If a person regrets having consensual sex while they were drunk that is their problem. It is not rape or sexual assault unless it was non consensual.

I don't think people should be held responsible for others level of intoxication. What is the blood alcohol level when consensual sex becomes rape? I don't agree with this sort of lack of personal responsibility at all. Obviously if a person is unconscious they are unable to consent and in that case it would be rape.

A lot of people can drink a lot and still appear quite capable. It cannot be assumed that levels of intoxication can be accurately judged by others to the point where they may be criminally liable if they don't get it right.

I don't believe that a person who has verbally consented to sex and has not at any point asked the other party to stop, has any right to wake up the next day, wish they hadn't done it and cry rape. It is wrong and it potentially minimises the seriousness real rape and sexual assault to put this sort of carry on in the same catagory.

Sycopat

Genghiz Cohen wrote: »

Girlfriend says that Person B should not have let themselves get to such a state that they would propose sex to a person who could not consent.

By this logic, should not person A be held responsible for letting themselves get into such a state they could not give consent, or where they would consent if proposed to? Wouldn't that be considered victim blaming? I imagine some variant of that point is what led to the accusation of victim blaming, but it's the same logic afaics. I don't agree with it, but blaming only one side for getting too drunk when both parties are too drunk strikes me as irrational.

While I'm inclined to agree with the proposition that a person may get into a state where they are not able to enter into a contract, I think it should apply in cases such as the proposed to both parties equally. Person A is too drunk to consent, but so is person B. Who proposed the contract is irrelevant if neither can consent to it.

As such either both are guilty or neither of them are. I'd lean towards neither in the proposed case. People make mistakes all the time. Occasionally mistakes with terrible consequences. But when two people make the same mistake it is inherently unfair to blame only one of them for it, and unnecessary to criminalize both.

MagicMarker

IMO, in the case of inebriation, for it to be validly thought of as rape the victim must be too drunk to give consent but the rapist must also be sober enough to recognize that the victim is too drunk to be able to give consent.

Otherwise, imo, it's not rape. In which case no one in the OP's scenario is to blame.

dharma200

So if the rapist is drunk he is not a rapist? Because he was unable to a certain that the other was too drunk to give consent.... Don't quite get you... That means anyone who is drunk can say, I was drunk.. And that's that....

oldrnwisr

Genghiz Cohen wrote: »

If 2 people get it on and both are too drunk to consent, who is to be blamed?
Girlfriend says the initiator.
Genghiz says the blame should be shared. Maybe not evenly.

The term "Victim blaming" came up and I told her to go and ****.

I would say, like Sycopat has stated that either both or guilty or neither are. In fact, I would go so far as to say that both are and are not guilty. On one hand, both are innocent in that neither lack the capacity to give consent. On the other hand, both engaged in the consumption of alcohol to the point where both were incapacitated and so therefore both are guilty to a degree.

Outside of an abstract hypothetical, it is unlikely that such a case would be successful. The defence of diminished responsibility is not altogether accepted in Ireland, however it is provided for as a defence to murder under the Criminal Law (Insanity) Act 2006. However, in a rape case, the prosecution would have to show that the defendant exhibited recklessness with respect to consent. If the defendant were incapacitated due to alcohol, it is difficult to see how the mens rea could be established.

drkpower

One problem about this debate is that many people start from the premise that being very drunk equates to a lack of capacity. It doesnt. This perception causes a problem because it makes people fear that they could be criminalised for doing something that we have all done at some stage; gotten really drunk and had sex with someone who was also really drunk. But the reality is much different. For someone to lack decision making capacity, they would really need to be effectively unconscious or in such a bad state that the other party (even if they are very drunk themselves) will definitely know that they are in no condition to be having sex with.

So, being drunk/very drunk/very very very drunk does not equal lack of decision making capacity. One's capacity to consent must be completely eroded before one can be said to lack decision making capacity. Those with significant psychiatric illnesses and psychological disabilities have been held to possess sufficient capacity to make significant medical decisions (certainly involving more complexity than a decision to have sex).

So to answer the there OP, yes there is a point of inebriation where a person can no longer give consent and enter into any kind of contract but that point is quite far along the scale and, in my view, it would be patently obvious to the other party if they had gotten to that point. Unless of course, that other party was also so far gone that they also lacked decision making capacity.

Genghiz Cohen

oldrnwisr wrote: »

I would say, like Sycopat has stated that either both or guilty or neither are. In fact, I would go so far as to say that both are and are not guilty.

Quantum Guilt.

Love it.

Genghiz Cohen

Kiwi in IE wrote: »

If a person regrets having consensual sex while they were drunk that is their problem. It is not rape or sexual assault unless it was non consensual.

Meow, the prerequisite was that you must agree that there is a point of intoxication where a person cannot consent.
If you don't agree with that statement then the answer is as simple as you say.

Genghiz Cohen

drkpower wrote: »

So to answer the there OP, yes there is a point of inebriation where a person can no longer give consent and enter into any kind of contract but that point is quite far along the scale and, in my view, it would be patently obvious to the other party if they had gotten to that point. Unless of course, that other party was also so far gone that they also lacked decision making capacity.

Yeah, this is the scenario we were discussing.

I told you, we have the most boring conversations.

Sierra 117

Ah but surely you have the odd biscuit discussion to liven things up, right?

Genghiz Cohen

Oreos/Kimberly for me.
Don't care what she has, as it's probably minty and crap.

Kiwi in IE

Genghiz Cohen wrote: »

Meow, the prerequisite was that you must agree that there is a point of intoxication where a person cannot consent.
If you don't agree with that statement then the answer is as simple as you say.

In my opinion if a person can consent (eg can communicate, walk and is not unconscious) then it should not be the responsibility of another person to assess level of intoxication, and potentially be legally liable if they do not assess it correctly. I am not a sympathiser of the 'diminished responsibility' argument when the diminished responsibility is a result of knowingly taking something that diminishes responsibility.

There are of course grey areas, as with everything, but I think if both are at the same or similar level of intoxication, and have consensual sex that one regrets in the morning, then it's a case of 'oops maybe I shouldn't have drunk so much', not rape.

Sierra 117

I do find it strange that we hold intoxicated people accountable for their actions in other cases, like drink driving and fighting but not when it comes to the issue of sex and consent.

Genghiz Cohen

Kiwi in IE wrote: »

In my opinion if a person can consent (eg can communicate, walk and is not unconscious) then it should not be the responsibility of another person to assess level of intoxication, and potentially be legally liable if they do not assess it correctly. I am not a sympathiser of the 'diminished responsibility' argument when the diminished responsibility is a result of knowingly taking something that diminishes responsibility.

There are of course grey areas, as with everything, but I think if both are at the same or similar level of intoxication, and have consensual sex that one regrets in the morning, then it's a case of 'oops maybe I shouldn't have drunk so much', not rape.

I assume you mean in cases where all other criteria are met. Age for instance.

Yeah, this is what I was saying to her about the double edged sword deal. If Person A was too drunk to know what they were doing and Person B was also too drunk, why should one of them get all the blame.

Genghiz Cohen

Sierra 117 wrote: »

I do find it strange that we hold intoxicated people accountable for their actions in other cases, like drink driving and fighting but not when it comes to the issue of sex and consent.

Well this is a very niche scenario where both parties agree to the outcome beforehand.
I'm not sure you can compare this to drink driving where one person decides to do something and everyone else in the country thinks it's a horrible idea.

Kiwi in IE

I also think consistancy is hugely important when addressing these issues. If every person who wakes up to regret drunken sex potentially has a case for rape, due to the fact they were considered incapable of consent to sex because they were intoxicated, how can a drunk driver who kills someone then be held fully accountable by the same justice system?

The person who consented to sex is not responsible for their drunken actions so why is the person who drove the car?

Kiwi in IE

Genghiz Cohen wrote: »

I assume you mean in cases where all other criteria are met. Age for instance.

Absolutely! I am talking about a person who is pi**ed, but has consented, does
not withdraw consent at any time (or become unconscious after consent but prior to commencement of activities) and who is over the age of consent.

Kiwi in IE

Genghiz Cohen wrote: »

I'm not sure you can compare this to drink driving where one person decides to do something and everyone else in the country thinks it's a horrible idea.

It is entirely feasible that the whole country might consider it a horrible idea to have sex with the person that our hypothetical pi**head is about to go home with! :pac:

Genghiz Cohen

Kiwi in IE wrote: »

It is entirely feasible that the whole country might consider it a horrible idea to have sex with the person that our hypothetical pi**head is about to go home with! :pac:

Anyone standing outside Coppers for example.

But in these cases the only 2 people being directly inaffected have said yes.

MrPudding

Sycopat wrote: »

By this logic, should not person A be held responsible for letting themselves get into such a state they could not give consent, or where they would consent if proposed to? Wouldn't that be considered victim blaming?

Interestingly there are occasions where liability is attached for getting onto a particular state and not the acts carried out in that state. For example, if a person were to fall asleep at the wheel, cross the central reservation, smash into a car and kill the occupants, the law looks at this in an odd way. Criminal offences require a guilty mind, the mes rea, and an unlawful act, the actus reus. In the case of the sleeping driver he can't be liable for the crash because he was asleep. This is obviously not ideal, so the work around is the driver attracts liability, and the mens rea comes from the decision to drive when he knew it was dangerous.

I don't think this really translates well to rape, however. To me saying a woman attracts some responsibility for being raped because she was drunk is roughly equivalent to saying because she was wearing a short skirt with her boobs hanging out she was obviously gagging for it. PLease note, I am talking about non-consensual sex here, not having sex and regretting having it, two very, very different things.

oldrnwisr wrote: »

I would say, like Sycopat has stated that either both or guilty or neither are. In fact, I would go so far as to say that both are and are not guilty. On one hand, both are innocent in that neither lack the capacity to give consent. On the other hand, both engaged in the consumption of alcohol to the point where both were incapacitated and so therefore both are guilty to a degree.

Outside of an abstract hypothetical, it is unlikely that such a case would be successful. The defence of diminished responsibility is not altogether accepted in Ireland, however it is provided for as a defence to murder under the Criminal Law (Insanity) Act 2006. However, in a rape case, the prosecution would have to show that the defendant exhibited recklessness with respect to consent. If the defendant were incapacitated due to alcohol, it is difficult to see how the mens rea could be established.

I am not particularly knowledgeable about Irish law, but i would suggest that it would be a partial defence rather than a full defence. So one would not be found guilty of murder but would be found guilty of manslaughter...

I think the law in the UK on rape is reasonably good, though I think it may have some trouble in the scenario in the OP. It will be rape where the person does not consent to the sex, or, where the it is not reasonable to believe they consent. Reasonable is something that the courts will determine on the facts and may include the step taken to confirm consent.

So this covers off the unconscious victim, but there is always going to be trouble where both parties are drunk. That said, in general, voluntary intoxication is generally ignored in the UK and can't be used a a defence.

MrP

recedite

Genghiz Cohen wrote: »

If 2 people get it on and both are too drunk to consent, who is to be blamed?
Girlfriend says the initiator.

It may be more helpful to think in terms of the "active" and the "passive" person, instead of the "initiator" and the seconder (?)
The active one has the capability to see that the passive one lacks the capacity to give consent, so they are guilty.
If both are active, and consensual, no blame attaches to either when one person changes their mind later.
If both are drunk enough to be considered the passive person in the scenario, the sex fails to reach its conclusion :pac: and again no blame attaches.

robindch

Genghiz Cohen wrote: »

Quantum Guilt.

Is that what Heisenberg suffered from?

Genghiz Cohen

robindch wrote: »

Is that what Heisenberg suffered from?

Oh god Spoiler tags!
Some people haven't seen the last episode yet!

robindch

Genghiz Cohen wrote: »

Some people haven't seen the last episode yet!

I'm still in the middle of Season 3 -- Hank's just been shot up and there's just been a messy scene with a Mexican guy who's legs aren't quite as long as they used to be -- still, in terms of series arc, I think the wheels that come off are still picking up speed.

It beats Deadwood into a cocked hat as well, btw.

Turtwig

Ahh, so you're just about the bit where the lab becomes overrun with crazily aggressive spiders exposed to the meth fumes and Walt get's bitten.

pauldla

DVD player packed in after season 1. Away with your spoilers, ye scurvy dogs!

Turtwig

pauldla wrote: »

DVD player packed in after season 1. Away with your spoilers, ye scurvy dogs!

The whole thing is on NetFlix. You'd easily watch all five seasons in the free trial. (Not that NetFlix isn't worth the subscription.)

pauldla

Jernal wrote: »

The whole thing is on NetFlix. You'd easily watch all five seasons in the free trial. (Not that NetFlix isn't worth the subscription.)

Not available in the PRC, it seems. I'll try it on Youku (Chinese YouTube).

Ye might find this interesting:

China Watches ‘Breaking Bad’


http://www.tealeafnation.com/2013/09/why-millions-of-chinese-are-also-watching-breaking-bad/

MagicMarker

pauldla wrote: »

DVD player packed in after season 1. Away with your spoilers, ye scurvy dogs!

You do realise you're on the internet?

Obliq

MagicMarker wrote: »

You do realise you're on the internet?

.....which is somewhat limited in the PRC?!

Genghiz Cohen

TOR!
It's easy as 3.14 to set up.

magicbastarder

i've always found the punishments handed out for drink driving interesting.
you get caught for drink driving; fair enough, you might get a limited ban.

but if you hit and kill a pedestrian, even if it's the pedestrian's fault, the punishment goes through the roof, even though drink may not have been a factor at all.

pauldla

MagicMarker wrote: »

You do realise you're on the internet?

I yam, I figured it out ages ago. Alas, lots of blocked sites, which can be oversome with a VPN but that slows everything down to a snails pace. DVDs are dirt cheap here, anyhow: I picked BB 1-4, Iron Man 3, Star Trek Into Darkness, and that Wizard of Oz movie, for about a tenner.

Genghiz Cohen

pauldla wrote: »

I yam, I figured it out ages ago. Alas, lots of blocked sites, which can be oversome with a VPN but that slows everything down to a snails pace. DVDs are dirt cheap here, anyhow: I picked BB 1-4, Iron Man 3, Star Trek Into Darkness, and that Wizard of Oz movie, for about a tenner.

I'm sure they are all fully legal, official and licensed products.

pauldla

Genghiz Cohen wrote: »

I'm sure they are all fully legal, official and licensed products.

You know, I forgot to ask.

Hotblack Desiato

Genghiz Cohen wrote: »

TL:DR
If 2 people get it on and both are too drunk to consent, who is to be blamed?
Girlfriend says the initiator.
Genghiz says the blame should be shared. Maybe not evenly.

Possibly similar to two 16-year-olds who are too young to legally consent.
What we do there is prosecute the one with the penis.

Mark Hamill

Genghiz Cohen wrote: »

I'm sure they are all fully legal, official and licensed products.

Well they are probably made in the exact same factories as the versions we get in Ireland :pac:

Obliq

ninja900 wrote: »

Possibly similar to two 16-year-olds who are too young to legally consent.
What we do there is prosecute the one with the penis.

Crazy, isn't it? It was horrible telling my 15 yr old son that if he got it on with his (year older) girlfriend, even if it was totally consensual, and she later/her parents had a problem with that then he could be prosecuted and have a permanent sex offender's record. Felt like I was actually delivering the discrimination and telling him he was criminal for even thinking about it. :mad::mad:

Genghiz Cohen

ninja900 wrote: »

Possibly similar to two 16-year-olds who are too young to legally consent.
What we do there is prosecute the one with the penis.

The original discussion was sparked by the latest spat between A+ and Thunderfoot. We had a good laugh about putting the gender neutral question up on the A+ blogs and getting the answer "WHICHEVER ONE HAD DER PENUS WAS WRONG!!!!"

robindch

Genghiz Cohen wrote: »

[...] the A+ blogs [...]

Oh, god, are they still going?

Genghiz Cohen

Dunno, the only one of us brave enough to look has gone offline. Probably because of what he saw.

keane2097

Assuming both people are equally drunk you can't blame either logically, because in order to do so you have a contradiction where the person claiming rape is excused from lacking judgement because they were drunk, while the person being accused of rape is being held accountable despite having the exact same excuse.

MrPudding

keane2097 wrote: »

Assuming both people are equally drunk you can't blame either logically, because in order to do so you have a contradiction where the person claiming rape is excused from lacking judgement because they were drunk, while the person being accused of rape is being held accountable despite having the exact same excuse.

That isn't quite the case. The person claiming rape is considered to be incapable of giving consent. Whether that inability comes comes voluntary intoxication or a date rape drug is not relevant to the law. They are not being excused from lacking judgement. Also, why would you want to blame the person that was raped for being raped?

The person accused of rape has a positive responsibility to ensure that he has consent before having sex. It is tough, but intoxication, particularly when it is voluntary, is rarely seen as a valid defense.

Personally I find the argument that the drunk girl shares some responsibility, or culpability, for being raped similar to the argument that if a woman has sex and gets pregnant she must have the baby. After all, she knew the risk. Surely when a girl gets drunk she accepts the risk she might get raped...?

There is no doubt this law favours the woman and makes the males position weaker. But I would suggest this is the way it should be. Convictions for rape are exceedingly difficult to secure and the entire process is very difficult on the victim. Allowing some kind of shared liability, as if it was a collision. Steer. Two reversing cars in a carpark would not be helpful.

That said, a distinction must be drawn between non consensual sex and morning after regret. A rape trial would be equally harrowing for a man falsely accused. I think more education is needed to ensure both sexes understand the risks and the consequences. I was in Leeds some time ago and they had very good posters in the men's toilets. The basic principle being, if the girl is really drunk don't take the risk.

MrP

Mark Hamill

MrPudding wrote: »

That isn't quite the case. The person claiming rape is considered to be incapable of giving consent. Whether that inability comes comes voluntary intoxication or a date rape drug is not relevant to the law. They are not being excused from lacking judgement. Also, why would you want to blame the person that was raped for being raped?

The person accused of rape has a positive responsibility to ensure that he has consent before having sex. It is tough, but intoxication, particularly when it is voluntary, is rarely seen as a valid defense.

Personally I find the argument that the drunk girl shares some responsibility, or culpability, for being raped similar to the argument that if a woman has sex and gets pregnant she must have the baby. After all, she knew the risk. Surely when a girl gets drunk she accepts the risk she might get raped...?

There is no doubt this law favours the woman and makes the males position weaker. But I would suggest this is the way it should be. Convictions for rape are exceedingly difficult to secure and the entire process is very difficult on the victim. Allowing some kind of shared liability, as if it was a collision. Steer. Two reversing cars in a carpark would not be helpful.

That said, a distinction must be drawn between non consensual sex and morning after regret. A rape trial would be equally harrowing for a man falsely accused. I think more education is needed to ensure both sexes understand the risks and the consequences. I was in Leeds some time ago and they had very good posters in the men's toilets. The basic principle being, if the girl is really drunk don't take the risk.

Is this not presupposing that the man (equally as drunk as the women he is propositioning) asking for sex, would force her to have sex if she said no?
Otherwise what you have is a situation were two people are equally incapable of giving consent (just because you ask for something, doesn't mean you have given consent for it). Are they raping each other?

What if it's a drunk woman who propositions a drunk man? The man should still have known better?

MrPudding

Mark Hamill wrote: »

Is this not presupposing that the man (equally as drunk as the women he is propositioning) asking for sex, would force her to have sex if she said no?
Otherwise what you have is a situation were two people are equally incapable of giving consent (just because you ask for something, doesn't mean you have given consent for it). Are they raping each other?

What if it's a drunk woman who propositions a drunk man? The man should still have known better?

The simple answer here is that the woman can't rape the man because she doesn't have a penis to penetrate him with. So even if neither party consented only the man committed rape.

MrP

MagicMarker

MrPudding wrote: »

The simple answer here is that the woman can't rape the man because she doesn't have a penis to penetrate him with. So even if neither party consented only the man committed rape.

MrP

Are you drunk right now?

Turtwig

MagicMarker wrote: »

Are you drunk right now?

I think you're both on different levels. He's speaking about the practicality of the law and you're interpreting that as the ideal law or the way the law ought to be.

MrPudding

MagicMarker wrote: »

Are you drunk right now?

Unfortunately not.

Sexual Offenses Act 2003 wrote:

Section 1 Rape

(1)A person (A) commits an offence if—
(a)he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,
(b)B does not consent to the penetration, and
(c)A does not reasonably believe that B consents.
(2)Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.
(3)Sections 75 and 76 apply to an offence under this section.
(4)A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life.

Granted, this is the uk law, and I am not 100% sure of the Irish law (though it is likely to be similar), a woman quite clearly cannot rape a man in law. Not can a woman rape another woman.

Of course I it is possible for a woman to have non consensual sex with a man, it just does not qualify as legal rape, similar to how an abortion is murder.

MrP

Genghiz Cohen

MrPudding wrote: »

Unfortunately not.



Granted, this is the uk law, and I am not 100% sure of the Irish law (though it is likely to be similar), a woman quite clearly cannot rape a man in law. Not can a woman rape another woman.

Of course I it is possible for a woman to have non consensual sex with a man, it just does not qualify as legal rape, similar to how an abortion is murder.

MrP

It's similar here but I believe that the "he" and "with his penis" are left out here. I woman was up on charges of "Digital Rape" for using her fingers to penetrate another woman in a nightclub bathroom a few years ago.

There is the term "Forced Penetration" in the US also.