Blood Alcohol level to determine ability to consent? MOD Note in Post #1

orubiru

hatrickpatrick wrote: »

I agree with a lot of that, but I still say that a free yes means yes, just as no means no. Yes doesn't become no just because someone's judgment is impaired - any decisions I make when I've impaired my own judgment through my actions (taking pills, booze, whatever) are still my decisions and I bear 100% responsibility for them. I don't accept and never will accept the paradigm that someone who initiates a sexual encounter can still be a victim if it later transpires that they were off their face and had regrets - all that does is turn what is already a social minefield into an even worse one.

I've been having a great week and this subject really gets me down which is why I haven't responded to arguments, will get back to everyone who's quoted me next week once the good weather has once again been replaced by sky-pissing.

I agree with you on that one. If the accuser has outright said "yes" then I do not think that we can say "well, they were drunk so it doesn't count".

There would have to be other evidence.

I was really talking about someone being unable to consent.

Yes, it is a very depressing subject.

One eyed Jack

ShowMeTheCash wrote: »

Someone is a little angry!

Who? I haven't seen anyone angry here? In fact the discussion has been quite civil? I went back over the thread now just to be sure, and nope, couldn't see anyone expressing any anger or animosity towards anyone?

Penis jokes original

Thank you, I place more value on original thought than popular opinion.

It's not like anyone has agreed with my portrayal of how you make your points or argue.... Oh wait they did!

You on the other hand seem to place more value on popular opinion than original thought.

Blah blah strawman, blah blah no point, blah blah...

Well if one person places more value on original thought in a discussion, and another person places more value on their opinion being more popular, it should come as no surprise that poisoning the well seems like a more effective means of gaining approval for your opinion, but it doesn't do much to further discussion on an issue.

As for me claims, what is my claim?

ShowMeTheCash wrote: »

The concern around this law is:

"Once police determine that a woman is intoxicated, they would consider any sex as unconsented and thus rape. Conversely, the new rule could effectively gut the ability of the accused to argue consent."

You have been arguing that this could not happen for the majority of this thread.

You and others have made this claim, but you have yet to present any evidence to back up your claims. The onus is on the person making the claim to present evidence for their claims before I have anything to refute. Otherwise you're just begging the question, without providing any means as to how you arrived at your conclusion.

Let me guess I should go familiarise myself with something?

I don't expect you to familiarise yourself with every legal system in the world overnight, but it'd be helpful for yourself at least (and for the purposes of this discussion) if you were to familiarise yourself with Irish and UK legislation regarding capacity to consent, because as I mentioned previously, it's clear you simply don't know what you're talking about, and it's also evident that you wish to remain that way.

I'm happy for you, which is why I ignored your posts for the most part, and I truly hope that you never have reason to be on the receiving end of the issues surrounding capacity to consent as you'll have to familiarise yourself very quickly in that case.

You have not refuted anything.
You have tried to site parts of the document that clearly do not support your statement... I am beginning to wonder if you can comprehend basic English?

I think you'll find it is you who has cited part of a blog, which wrongly infers a zero tolerance policy, which cites a newspaper I wouldn't wipe my arse with, which wrongly infers from a report that the proposal only applies to women who make a complaint of rape.

You need no longer wonder when the facts are staring you in the face, yet you refuse to question your own prejudices. The problem here certainly isn't my comprehension of english, but rather one of willful ignorance on your part.

Cold War Kid

orubiru wrote: »

Yeah, that's like looking at a recent Madrid vs Barcelona match in Madrid and saying "check out how many fans Madrid have compared to Barcelona!". One Eyed Jack is the "away team" on the thread. Less likes is understandable.

Yes, must say I agree that the number of thanks/likes is a rather poor yardstick to use for measuring of a point's validity. And I'm mostly not in agreement with OEJ on this thread.

ShowMeTheCash

One eyed Jack wrote: »

Who? I haven't seen anyone angry here? In fact the discussion has been quite civil? I went back over the thread now just to be sure, and nope, couldn't see anyone expressing any anger or animosity towards anyone?


"What the fcuk has that got to do with anything?"

OK if you say so :rolleyes:

One eyed Jack wrote: »

Thank you, I place more value on original thought than popular opinion.

I was being sarcastic the minute someone give the "penis ego" analogy it's usually a sign they have nothing better to say.

One eyed Jack wrote: »

You on the other hand seem to place more value on popular opinion than original thought.

This where you have managed to get yourself into a tail spin and have frankly backed yourself into a corner.
You think you are going against the grain with an unpopular opinion, your not!

I am not expressing an opinion, this is basic logic.
Thus far the proposed change to legislation is a recommendation, it is not finalized and is not law.

I have read the entire proposal, I have read every link you posted.
There is vagueness around the term "intoxicated" what does that mean?
The current law quite clearly states that consent cannot be assumed. The proposed law is worded around the premise that at a certain level of intoxication consent cannot be given. The proposed law is suggesting we somehow try and draw a line in the sand where at a certain BAC level a woman cannot consent to sex.

One eyed Jack wrote: »

Well if one person places more value on original thought in a discussion, and another person places more value on their opinion being more popular, it should come as no surprise that poisoning the well seems like a more effective means of gaining approval for your opinion, but it doesn't do much to further discussion on an issue.

You are not a champion of the unpopular opinion you are coward.
Post after post I see people making points to your nonsense and you ignore it and start posting obscure wiki links like above.

Earlier you said you refuted the following statement

"Once police determine that a woman is intoxicated, they would consider any sex as unconsented and thus rape. Conversely, the new rule could effectively gut the ability of the accused to argue consent."

By posting the link to the entire document, be specific? What specifically refutes this concern?

One eyed Jack wrote: »

You and others have made this claim, but you have yet to present any evidence to back up your claims. The onus is on the person making the claim to present evidence for their claims before I have anything to refute. Otherwise you're just begging the question, without providing any means as to how you arrived at your conclusion.

Myself and other have not made a claim we have raised a very real concern with a proposed change to the current legislation you on the other hand refute that there is anything to be concerned about, it is really that simple!

I find your stupidity amazing, you have manged to try and make someone questioning the logical conclusion to a proposed legislation change into this complex "the onus is on you" scenario.

One eyed Jack wrote: »

I don't expect you to familiarise yourself with every legal system in the world overnight, but it'd be helpful for yourself at least (and for the purposes of this discussion) if you were to familiarise yourself with Irish and UK legislation regarding capacity to consent, because as I mentioned previously, it's clear you simply don't know what you're talking about, and it's also evident that you wish to remain that way.

I'm happy for you, which is why I ignored your posts for the most part, and I truly hope that you never have reason to be on the receiving end of the issues surrounding capacity to consent as you'll have to familiarise yourself very quickly in that case.

You are not educating anyone.. But let me educate you in the above post you have made the following statements.


You on the other hand seem to place more value on popular opinion than original thought. - Prove it?

You and others have made this claim, but you have yet to present any evidence to back up your claims. - Have we? I asked this in the last post but again you ignored it what is my claim? Prove it?

Familiarise yourself with Irish and UK legislation regarding capacity to consent, because as I mentioned previously, it's clear you simply don't know what you're talking about - What specifically have I got wrong? Also this is as vague as it comes... Be specific if you are making a point what you getting at? Any idiot can come out with "Go famillarise yourself with......" you however seem to say it a little more than most!

One eyed Jack wrote: »

I think you'll find it is you who has cited part of a blog, which wrongly infers a zero tolerance policy, which cites a newspaper I wouldn't wipe my arse with, which wrongly infers from a report that the proposal only applies to women who make a complaint of rape.

You need no longer wonder when the facts are staring you in the face, yet you refuse to question your own prejudices. The problem here certainly isn't my comprehension of English, but rather one of willful ignorance on your part.

Let me try and be clear as all you seem to do is avoid the core question and muddy the water with complete idiotic waffle and nonsense.

The popular concern and it this is not a claim is that the proposed legislation opens a very real concern of and I will post it again:

"Once police determine that a woman is intoxicated, they would consider any sex as unconsented and thus rape. Conversely, the new rule could effectively gut the ability of the accused to argue consent."

If you do not think this is a real concern show why?

I gave a very real scenario about two people meeting when drunk which again you completely ignored.

You ignore why this is a concern and dance around people's responses, you somehow think you are some legal authority but are coming across very narrow minded and frankly uneducated.

dr.fuzzenstein

One eyed Jack wrote: »

War and Peace

ShowMeTheCash wrote: »

Ulyssus

I'm not reading all that sh*t, I don't even know who is for what anymore.
If you guys could keep your rambling to less than 100000 words per reply, that would be great. Can I get a Hell Yeah!?

One eyed Jack

dr.fuzzenstein wrote: »

I'm not reading all that sh*t, I don't even know who is for what anymore.
If you guys could keep your rambling to less than 100000 words per reply, that would be great. Can I get a Hell Yeah!?

I'll do my best

ShowMeTheCash wrote: »

Let me try and be clear as all you seem to do is avoid the core question and muddy the water with complete idiotic waffle and nonsense.

The popular concern and it this is not a claim is that the proposed legislation opens a very real concern of and I will post it again:

"Once police determine that a woman is intoxicated, they would consider any sex as unconsented and thus rape. Conversely, the new rule could effectively gut the ability of the accused to argue consent."

If you do not think this is a real concern show why?

This is the wording of the proposal -

Proving that the complainant did not consent and the defendant did not reasonably believe that the complainant consented, is the key issue in many rape cases. The Sexual Offences Act 2003 states, ‘a person consents if he agrees by choice and has the freedom and capacity to make that choice.’ Today, many cases investigated by the Metropolitan Police Service involve a complainant who is incapacitated by alcohol or drugs. The legislation, unlike the corresponding legislation in Scotland, does not address the issue of self-induced intoxication and it has been left to the Court of Appeal in the case of Bree to clarify the situation. Following this review it is recommended that consideration is given to amending the Sexual Offences Act 2003 to incorporate the principles set out in Bree so that the impact of severe intoxication from substances including alcohol is embedded in the legislation and that a powerful social message is established.

This is the headline of Johnathan Turley's blog -

English Dame Proposes New Rule For Rape Cases That Women Cannot Consent When Intoxicated

And this is his claim, what you call 'concern' -

Once police determine that a woman is intoxicated, they would consider any sex as unconsented and thus rape. Conversely, the new rule could effectively gut the ability of the accused to argue consent.

How did he derive that conclusion from the proposal? Well, when your source is the Daily Mail -

Courts 'should assume women can't consent to sex when drunk': Rape report's controversial proposal

Women should be able to automatically claim they were raped if they have sex when intoxicated, a controversial report concluded yesterday.

Dame Elish Angiolini called for a legal change so a woman would be considered incapable of consenting if she had been drinking heavily.

In her wide-ranging report on rape, the experienced barrister said the Sexual Offences Act should be amended to clarify the law on consent where alcohol is involved.

Lawyers in crown courts currently cite previous rape cases where copious amounts of alcohol have been involved to support their case.

Judges and juries then use their common sense to decide if an accuser really was incapable of consenting to sex.

But now Dame Elish, a former Lord Advocate in Scotland, has called for a woman’s incapacity to consent to be ‘embedded in legislation’.
In practice, this would mean imposing an alcohol limit above which women would be considered incapable of consenting.

Police would be asked to carry out blood tests on alleged rape victims to establish the level of alcohol in their bodies. They would then calculate how affected she was at the time.

If judged to be drunk, the woman would not be regarded as being able to consent to sex.

This would make it virtually impossible for a man accused of rape in this situation to claim he believed she had said yes.

However, it could also open the way for prosecutions of men who have drunken encounters with wives or girlfriends as well as arguments over medical evidence and levels of intoxication.

Dame Elish’s call comes after the country’s top prosecutor said the legal system should move beyond the concept of ‘no means no’ to recognise situations where women may have been unable to consent.

Now, if you happen to believe that it is a is a real concern, you need to show why this is a real concern, with evidence, and not just based on your particular gut feeling which is not based on logic. It is a belief, and your opinion is based on that belief, which you expect me to take at face value without any evidence and without question? That is something I simply cannot do in this instance.

Can you present evidence for your concerns without muddying the water with idiotic waffle and nonsense?

ShowMeTheCash

One eyed Jack wrote: »

How did he derive that conclusion from the proposal?

Let's look

Proving that the complainant did not consent and the defendant did not reasonably believe that the complainant consented, is the key issue in many rape cases. The Sexual Offences Act 2003 states, ‘a person consents if he agrees by choice and has the freedom and capacity to make that choice.’ Today, many cases investigated by the Metropolitan Police Service involve a complainant who is incapacitated by alcohol or drugs. The legislation, unlike the corresponding legislation in Scotland, does not address the issue of self-induced intoxication and it has been left to the Court of Appeal in the case of Bree to clarify the situation. Following this review it is recommended that consideration is given to amending the Sexual Offences Act 2003 to incorporate the principles set out in Bree so that the impact of severe intoxication from substances including alcohol is embedded in the legislation and that a powerful social message is established.

I have highlighted the word capacity.

You see it makes mention of Bree?

From the same document:

Capacity to Consent
89. Capacity to consent may be affected by a mental health condition or a learning disability and is particularly relevant when a complainant is temporarily intoxicated by alcohol or affected by drugs.
The Sexual Offences Review36 in 2000 recommended a non-exhaustive statutory list of circumstances where consent was not present, to include, ‘Where a person was asleep, unconscious, or too affected by alcohol or drugs to give free agreement’.
90. The reference to alcohol and drugs was not included in the Sexual Offences Act and it was left to the Court of Appeal in 2007 in the case of R v Bree37 to clarify the law in relation to their effects.
91. The Bree judgment refers to loss of the capacity to consent and states that, ‘If, through drink (or for any other reason) the complainant has temporarily lost her capacity to choose whether to have intercourse on the relevant occasion, she is not consenting, and subject to questions about the defendant’s state of mind, if intercourse takes place, this would be rape.

So can we agree what this is saying? That if Bree is intoxicated she and I quote "has temporarily lost her capacity to choose whether to have intercourse on the relevant occasion".....


Why you cannot see that:

Once police determine that a woman is intoxicated, they would consider any sex as unconsented and thus rape. Conversely, the new rule could effectively gut the ability of the accused to argue consent.

Is a concern, I mean I think you are just refusing to accept the concern out of sheer belligerence!

osarusan

ShowMeTheCash wrote: »

You see it makes mention of Bree?

From the same document:

Capacity to Consent
89. Capacity to consent may be affected by a mental health condition or a learning disability and is particularly relevant when a complainant is temporarily intoxicated by alcohol or affected by drugs.
The Sexual Offences Review36 in 2000 recommended a non-exhaustive statutory list of circumstances where consent was not present, to include, ‘Where a person was asleep, unconscious, or too affected by alcohol or drugs to give free agreement’.
90. The reference to alcohol and drugs was not included in the Sexual Offences Act and it was left to the Court of Appeal in 2007 in the case of R v Bree37 to clarify the law in relation to their effects.
91. The Bree judgment refers to loss of the capacity to consent and states that, ‘If, through drink (or for any other reason) the complainant has temporarily lost her capacity to choose whether to have intercourse on the relevant occasion, she is not consenting, and subject to questions about the defendant’s state of mind, if intercourse takes place, this would be rape.

So can we agree what this is saying? That if Bree is intoxicated she and I quote "has temporarily lost her capacity to choose whether to have intercourse on the relevant occasion".....

You see the sickening thing about all this is that you have quoted Bree - you actually went to the report, and cut and pasted that part, and used it to make your conclusion that "if Bree is intoxicated she and I quote "has temporarily lost her capacity to choose whether to have intercourse on the relevant occasion"....."
(which is not an accurate interpretation of the sentences you quoted)

However, while cutting and pasting, it would have been impossible not to have read the very next sentence from the report, which is this:

However, where the complainant has voluntarily consumed even substantial quantities of alcohol, but nevertheless remains capable of choosing whether or not to have intercourse, and in drink agrees to do so, this would not be rape

Can you explain why you decided to leave out that part?

ShowMeTheCash

osarusan wrote: »

You see the sickening thing about all this is that you have quoted Bree - you actually went to the report, and cut and pasted that part, and used it to make your conclusion that "if Bree is intoxicated she and I quote "has temporarily lost her capacity to choose whether to have intercourse on the relevant occasion"....."
(which is not an accurate interpretation of the sentences you quoted)

However, while cutting and pasting, it would have been impossible not to have read the very next sentence from the report, which is this:
Can you explain why you decided to leave out that part?

No I read it and I am glad you pasted it

This is essentially the crux of this argument, how do we discern between lost capacity and remaining capable of choosing?

How exactly do you legislate for that?

osarusan

ShowMeTheCash wrote: »

No I read it and I am glad you pasted it

So you have read it, but chose to leave it out. Why?

ShowMeTheCash wrote: »

This is essentially the crux of this argument, how do we discern between lost capacity and remaining capable of choosing?

That sentence about Bree (which you are glad I posted) indicates that a person can have drunk plenty and still be considered to have the capacity to consent.

How do you reconcile that sentence, which you read, with your argument, which you have made many times on this thread, that the proposed rule means that "Once police determine that a woman is intoxicated, they would consider any sex as unconsented and thus rape"?

dr.fuzzenstein

One eyed Jack wrote: »

Now, if you happen to believe that it is a is a real concern, you need to show why this is a real concern, with evidence, and not just based on your particular gut feeling which is not based on logic. It is a belief, and your opinion is based on that belief, which you expect me to take at face value without any evidence and without question? That is something I simply cannot do in this instance.

Can you present evidence for your concerns without muddying the water with idiotic waffle and nonsense?

Personally I think it is right to be concerned. It is hard to show any specific details, since this is a proposal and not yet law.
The worry obviously being that if said legislation were to be enacted and a specific blood alcohol level identified, it would mean "If you sleep with someone and they have X amount of blood alcohol level, you have committed rape". If that person complains about you, there is no defense.
This would obviously be an idiotic bit of legislation that would criminalise half the country every weekend.
I'm pretty much of the mind that if some foam at the mouth, rabid lobby group has an idea and sets about foisting their agenda on the rest of the world, it is good to get the opposing viewpoint in early, otherwise some scary stuff would just be whipped through by lobbygroups before we even know it.
A good, common sense piece on this subject:
http://www.safercampus.org/blog/2010/07/when-drunk-sex-clearly-is-rape-and-more-thoughts-on-alcohol-and-consent/

ShowMeTheCash

osarusan wrote: »

So you have read it, but chose to leave it out. Why?

I did not choose to leave it out I just did not add as I would not consider the statement concerning. I would argue it is common sense?
The part I added is specifically the reason for concern....

osarusan wrote: »

That sentence about Bree (which you are glad I posted) indicates that a person can have drunk plenty and still be considered capable to consent.

Agreed

osarusan wrote: »

How do you reconcile that sentence, which you read, with your argument, which you have made many times on this thread, that the proposed rule means that "Once police determine that a woman is intoxicated, they would consider any sex as unconsented and thus rape"?

Because of the recommendation given.

"The impact of alcohol and other substances on capacity to consent is embedded in legislation."

In one hand they give a case where the capacity of consent cannot be given and then in another they give a scenario where capacity to consent can be given.....
How can we legislate around this? Really how are we going to do it?

osarusan

ShowMeTheCash wrote: »

Because of the recommendation given.

"The impact of alcohol and other substances on capacity to consent is embedded in legislation."

So, let me get this straight - you read this recommendation:

"The impact of alcohol and other substances on capacity to consent is embedded in legislation."

and (knowing what it said about Bree and the possibility of capability to consent remaining while intoxicated) came to this conclusion:

Once police determine that a woman is intoxicated, they would consider any sex as unconsented and thus rape

How did you reach that conclusion?

Day Lewin

The New Courtship

"Darling, will we? would you? oh lovely! Thank you! Hurray!

But first blow into this.

Not that - at least, not yet - this. Take a deep breath and exhale completely.

(Or else give me a specimen of your urine; but it's not really my thing, to be honest.)"

ShowMeTheCash

osarusan wrote: »

So, let me get this straight - you read this recommendation:

and (knowing what it said about Bree and the possibility of capability to consent remaining while intoxicated) came to this conclusion:



How did you reach that conclusion?

Are you being deliberately obtuse?
There are no conclusions to draw from this only what has been said and concerns from what has been said.

I said this before but for your benefit I will said it again.
It is concerning the vagueness around what this legislation would be.

And to answer the above as you are only looking at half the argument.
How do we determine when alcohol has diminished your capacity to choose?

When is drunk too drunk? How will this be measured? More importantly how will it be enforced?

I have changed it for you.

Once police determine that a woman is intoxicated (where capacity to choose is removed), they would consider any sex as unconsented and thus rape.

dr.fuzzenstein

Well, going back to this.

Men must prove...

...that a woman consented to sex...

While the rest of the article tries to be more gender neutral, but this sets the groundrules. All men are evil, pervert rapists and all women are helpless victims who by their very nature are incapable of looking after themselves or protect themselves against those evil men.

Alison Saunders said rape victims should no longer be “blamed” by society if they are too drunk to consent to sex

No mention of gender, but the tone has already been set by the above. There does not seem to be a figure of what "too drunk" is. I can only hope it's not a specific figure, because that would be too crude a tool to determine rape.

osarusan

ShowMeTheCash wrote: »

It is concerning the vagueness around what this legislation would be.

Let's not kid ourselves that you were concerned about the vagueness in the statement I've quoted. You have been arguing that it was quite clear what the proposed law meant, which was this:

Once police determine that a woman is intoxicated, they would consider any sex as unconsented and thus rape

There is no vagueness about the above, which is what you said, more than once, that the proposed law would mean.

ShowMeTheCash wrote: »

I have changed it for you.

Let's look at the new inerpretation:

ShowMeTheCash wrote: »

Once police determine that a woman is intoxicated (where capacity to choose is removed), they would consider any sex as unconsented and thus rape.

Here is the old one:

Once police determine that a woman is intoxicated, they would consider any sex as unconsented and thus rape

The adding of (where capacity to choose is removed*) makes an absolutely fundamental difference, don't you think?




*(where capacity to consent is removed) is what I imagine you mean to say.

ShowMeTheCash

osarusan wrote: »

Let's not kid ourselves that you were concerned about the vagueness. You have been arguing that it was quite clear what the proposed law meant, which was this:

I did not say this, this was from a report by a reporter in the mail someone else posted it - But I was agreeing with the concern outlined by the reporter.

osarusan wrote: »

There is no vagueness about the above, which is what you said, more than once, that the proposed law would mean.

And? I never said I was being vague, I am saying what the proposed legislation as proposed is vague.

osarusan wrote: »

The adding of (where capacity to choose is removed*) makes an absolutely fundamental difference, don't you think?

If you are so smart explain how you would distinguish between the two being they are sooooo fundamentally different?

At what point in your mind does someone slip from just being too drunk to losing the capacity to choose?

osarusan

ShowMeTheCash wrote: »

And? I never said I was being vague, I am saying what the proposed legislation as proposed is vague.

And what I am saying is that for somebody who thinks the legislation is vague, you had no problem making an interpretation (or supporting an interpretation) that was quite explicit: intoxication = no consent.

You had no problem supporting the interpretation despite reading the comments from Bree saying that a person can still consent even if intoxicated.

I do not understand why you were making or supporting that argument, or share that concern, when the wording from Bree should have told you it was way too simplistic.

ShowMeTheCash wrote: »

If you are so smart explain how you would distinguish between the two being they are sooooo fundamentally different?

intoxicated = no consent

and

intoxicated to the point that they aren't capable of informed consent = no consent

Do you think it is difficult to distinguish between the two in terms of what the report actually suggests?

Do I think it is difficult to distinguish between the two in terms of legal standards? It might be difficult, but it is important to try and do so, for sure.

ShowMeTheCash wrote: »

At what point in your mind does someone slip from just being too drunk to losing the capacity to choose?

That is a very good question. One which completely depends on the individual, and also on the day (might by more or less affected by alcohol after food/when tired, etc).

It cannot be determined (conclusively enough for a legal standard of prosecution for rape) purely by back calculation of BAC, as far as I am concerned.

ShowMeTheCash

osarusan wrote: »

And what I am saying is that for somebody who thinks the legislation is vague, you had no problem making an interpretation (or supporting an interpretation) that was quite explicit: intoxication = no consent.

Dear lord this is becoming futile!
Read back the term "intoxication" was in reference to BAC testings as in if they managed to come up with a BAC number to which the obscure level between drunk and not able to consent could be derived.

This was a hypothetical proposal as it is not clear from the report how they will go about ascertaining this.
It was argued if BAC testing was used to make this determination then yes intoxication = no consent. Do you dispute that?

osarusan wrote: »

You had no problem supporting the interpretation despite reading the comments from Bree saying that a person can still consent even if intoxicated.

No, you are getting confused to how the word intoxicated is being used... Intoxicated in the sense "consent could not be derived." based on some kind of scale.

What the report said is that bree could be drinking may even be drunk the argument around intoxication was always around the point of where capacity to choose was removed. We can call it "really intoxicated" if you want?

osarusan wrote: »

intoxicated = no consent

and

intoxicated to the point that they aren't capable of informed consent = no consent

Do you think it is difficult to distinguish between the two?


That is a very good question. One which completely depends on the individual, and also on the day (might by more or less affected by alcohol after food/when tired, etc).

It cannot be determined (conclusively enough for a legal standard of prosecution for rape) purely by back calculation of BAC, as far as I am concerned.

Thank you, the "very good question" is why it is concerning. And the definition of how someone goes from drunk but able to give consent to drunk and unable to give consent and how that is measured gives the outlined statements some gravity.

dr.fuzzenstein

ShowMeTheCash wrote: »

Dear lord this is becoming futile!
Read back the term "intoxication" was in reference to BAC testings as in if they managed to come up with a BAC number to which the obscure level between drunk and not able to consent could be derived.

This was a hypothetical proposal as it is not clear from the report how they will go about ascertaining this.
It was argued if BAC testing was used to make this determination then yes intoxication = no consent. Do you dispute that?

We're disputing the level of intoxication. What is the actual figure that will be arrived at and will that figure mean that any man who sleeps with a woman over that figure will automatically guilty of rape?

ShowMeTheCash

dr.fuzzenstein wrote: »

We're disputing the level of intoxication. What is the actual figure that will be arrived at and will that figure mean that any man who sleeps with a woman over that figure will automatically guilty of rape?

Exactly...

One eyed Jack

dr.fuzzenstein wrote: »

We're disputing the level of intoxication. What is the actual figure that will be arrived at and will that figure mean that any man who sleeps with a woman over that figure will automatically guilty of rape?

Whatever the level of intoxication, it will not mean that any man who has sex with with a woman (or any man who has sex with another man) over that figure is automatically guilty of rape.

The BAC would only be used as a measure to establish whether or not the complainant had capacity to consent. That is it, that is all, no different than a swab test that found the presence of the defendant's DNA on the complainant would mean the defendant would automatically be guilty of rape.

osarusan

ShowMeTheCash wrote: »

No, you are getting confused to how the word intoxicated is being used... Intoxicated in the sense "consent could not be derived." based on some kind of scale.

Nope, the report clearly indicates that there is intoxication, and there is intoxication which means there can be no consent.

The confusion (or, more likely, deliberate misrepresentation) lies with posters who have argued the any intoxication = no consent = conviction line, which has no basis in the report.

We're disputing the level of intoxication. What is the actual figure that will be arrived at and will that figure mean that any man who sleeps with a woman over that figure will automatically guilty of rape?

ShowMeTheCash wrote: »

Exactly...

Is there a place in the report it says 'exactly' that?

And I mean 'exactly' that. Does it say 'exactly' that there will be a BAC limit/threshold, if a complainant is over that level, than a conviction for rape is automatic?

ShowMeTheCash

osarusan wrote: »

Nope, the report clearly indicates that there is intoxication, and there is intoxication which means there can be no consent.

The confusion (or, more likely, deliberate misrepresentation) lies with posters who have argued the any intoxication = no consent = conviction line, which has no basis in the report.

You cannot really be this obtuse can you?
The report does not talk about BAC testing either, no one ever said the report specifically said that intoxication meant no consent, what people have said is that the report implies at a certain level which is non-specific that intoxication can mean consent cannot be derived.
Sex without consent is rape...

Intoxication is a relative term you want to be deliberately entrenched in fighting a losing point that is up to you.

osarusan wrote: »

Is there a place in the report it says 'exactly' that?

And I mean 'exactly' that. Does it say 'exactly' that there will be a BAC limit/threshold, if a complainant is over that level, than a conviction for rape is automatic?

The report is just a recommendation like any recommendation people usually weigh up the pro and pit falls with said recommendation. Me agreeing with another posters concerns just means we are taking the report on its merits and trying to apply it to certain scenarios.

You are able to think for yourself aren't you?

Here is my suggestion.
Stop trying to score points, you are trying to pick at nothing and literally do not have a point.
You are mixing up what the report says vrs what people's thoughts are around what has been said.

Coming out and saying "well the report does not say that..." is just making you look silly.

We all know what the report said, most of it has been pasted on to this thread.

ShowMeTheCash

One eyed Jack wrote: »

Whatever the level of intoxication, it will not mean that any man who has sex with with a woman (or any man who has sex with another man) over that figure is automatically guilty of rape.

The BAC would only be used as a measure to establish whether or not the complainant had capacity to consent. That is it, that is all, no different than a swab test that found the presence of the defendant's DNA on the complainant would mean the defendant would automatically be guilty of rape.

Albeit this is a hypothetical.
(I change this comment as I did not know what you mean before, after reading it again it made sense.)

The argument around this is this.
The law states that consent cannot be assumed and sex without consent is rape.

Also the scenario you give is very different, unless the defendant is claiming he never had sex with the complainant whatsoever..
So the DPP would need to go above proving that first.

What you are saying is if the BAC test comes up with a level to which consent could not be given that this would only be one piece of evidence used and that all the other evidence would be considered?

Granted there would be a trail there would be a judge however the judge would look at all the evidence but in accordance with the law the judge would have no other option but to convict in this scenario.

Unless you can perhaps give a scenario where after it was established they did have sex and she was over the theoretical BAC limit where he would be found innocent?

osarusan

I think I'll leave it after this post, as we're going nowhere really.

But anyway,

ShowMeTheCash wrote: »

no one ever said the report specifically said that intoxication meant no consent.

This is completely wrong. There are posts all over this thread along the lines of 'what? if I have sex with a girl after a couple of drinks that would be considered rape?' Loads of people have understood the report to mean that intoxication means no consent.

It is important to point out that the report does not say that, and specifically say that capacity to consent can remain even after drinking substantial quantities.

ShowMeTheCash wrote: »

Me agreeing with another posters concerns just means we are taking the report on its merits and trying to apply it to certain scenarios.

The concern that 'I could be automatically done for rape if a girl regrets sex and we've had a couple of drinks' is not a concern with merit. It is unmerited and unfounded.

ShowMeTheCash wrote: »

Stop trying to score points, you are trying to pick at nothing and literally do not have a point.

Pointing out that one of the most common interpretations of the report 'sex after a few drinks could mean automatic guilt for rape based on BAC' is not picking at nothing - it is correcting a serious misunderstanding of the report.

ShowMeTheCash wrote: »

Coming out and saying "well the report does not say that..." is just making you look silly.

We all know what the report said, most of it has been pasted on to this thread.

People who make the argument above clearly do not know what the report said.

Anybody who says that guilt would be automatic based on BAC alone does not know what the report says.

Anybody who says that intoxication from a couple of drinks automatically means there can be no consent does not mean what the report says.

So lets say a girl is under the limit, she has one last Bacardi Breezer just before Johnny slips the Johnny on .... Johnny gives her the breathalyser and shes OK ...

She consents.

but wait alcohol takes a while to take effect, during the act she becomes over the limit and Johnny is a rapist.

Absolutely LUDICROUS !!!!

any claim would be tested against blood alcohol level under this proposal and consent would hinge on that-alcohol level above threshold =rape, no more questions m'lud.

This whole thread is about the fact that it would not have to be proven in law that they committed a rape if this proposed law was in effect. All that would be needed would be a BAC to show that the female was legally incapable of giving consent

If alcohol consumption becomes the benchmark for law then there is no distinction all they need do is report they had sex even if she said "I agreed to it" the police would still need to arrest him as according to the law she was raped!

Consenting adults both have a few drinks and have sex and this could now lead to a rape conviction for the guy?

but yes, in theory the BAC reading would be absolute. BAC over the threshold = man guilty of rape, regardless of circumstance with no defence.

Just look at the last one as an example - does that poster know what was written in the report?

I'll leave it to you.

ShowMeTheCash

osarusan wrote: »

Just look at the last one as an example - does that poster know what was written in the report?

I'll leave it to you.

You really are not getting this!
The last comment says "In theory he BAC reading would be absolute" the comment before say "could now lead to a rape" the comment before that says "if alcohol consumption becomes the benchmark".

People are not saying any of this is in the report they are saying based on what the report says in theory, could and if.... you are coming across literally incorrigible!

The reason people are saying any of this is because in reality proving someone was just a little tipsy vrs completely smashed in all practically would prove extremely difficult.