Poll: Is it rape if you have consensual sex with a willfully intoxicated person?

[Asuka Soryu]

Considering drunk people have also thought it was a great idea to drive with impared vision, yes. Seriously, if they are drunk enough you wouldn't trust them to drive, then you shouldn't trust their judgement either.

I highly doubt it's uncommon that people have made some stupid as hell choices while drunk they never would've done in sober.


To beer, the solution and cause to all of lifes problems.

 

[TheTim]

It's fucked up, and whoever does this shit has no value for sex, but by no means is it rape.

 

[Torrasque]

I imagine the would say that you were less drunk than they were, or that they were much more drunk than you were, and their judgement was clouded to the point of up = down, while yours was not.
Unless you can actually prove that this was the casem, then no, this cannot be called rape imo.
Provided both parties are intoxicated, they cannot be held accountable for a crime that (in my mind) requires at least one party to be unwilling.

Of course, this can also create situations where someone robs a bank when completely hammered. Would they be held accountable for their actions? In a robbery case, the bank does want to lose it's money, and the robber wants to take it's money. Almost exactly the same as rape, no?
I'll also assume that the bank tellers are all drunk off their asses, and it just happens to be a time when there are no one else in the bank except the tellers and the robber.
Would the drunk robber be blamed of raping the bank of it's money if the tellers gave him the money while drunk, and regretted it later?
I'm curious as to what you all think.

 

[Flight]

Nobody ever consents to assault. That's why it's assault and not a welcome comment reflecting your sexual prowess.

Precisely my point, good sir or madam. It never fails to astonish me how people can victim-blame so easily based on one's level of dress or intoxication - or, indeed, anything. (Not you, of course; I was just commenting in general.)

 

[crudus]

I'm reminded of my old roommate. He too was a closet misogynist. Although I'm unsure if it's because you feel the world is against men, or if it's because women don't like you, as it was in his case. Read some of the other posts on here and you'll find the answers to your questions.

An <a href=http://www.nizkor.org/features/fallacies/ad-hominem.html>ad hominem already? We've only begun. If you clicked the link I provided, then you would know that any and all of my character flaws or strengths have no bearing on the veracity of my rebuttal. Since you resorted to just trying to insult me on the first round, I am going to assume you don't have a better way to respond to my remarks. Is this true?

 

[Epic Fail 1977]

I'm flabbergasted at the number of people saying it's rape. I don't know about legally in country X/Y/Z, but in my own mind this is certainly not rape.

Consensual sex is just that - consensual. Being drunk of your own volition is (morally and often legally) not an excuse for making bad decisions. If I get drunk and decide to kill my ex, I can't later say that it was a bad decision made while drunk and expect to be legally or morally forgiven for it. Putting alcohol in your own body does not absolve you of the responsibility for your decisions. Therefore, it is not (or at least should not be) rape.

 

[minuialear]

--snip--

It is necessarily more complicated than you're making it out to be. Everybody doesn't possess the same quality for reason that you do, and an infallible eye for who is drunk and who isn't you must take that into account when talking about a population at large, especially when dealing with laws that govern that population. I'm trying to spur conversation on the complexities and shadows of the legal guidelines regarding this topic, I'm not here to point the finger at rape victims. I'm here to intellectually challenge and define the limits of these laws and the circumstances surrounding them.

Then don't have sex with people unless you can verify they're not under any influence of any drug. Can't tell if a person is under the influence? Don't know how many drinks that chick's had? Don't sleep with her. Don't know if that guy's sober enough to give informed consent? Don't have sex with him. Lacking proof that someone is legitimately able to give consent? Then don't have sex with that person.

You don't need to have "an eye" for who's drunk. You don't need to interrogate the person and try and determine how wasted they are. All you have to do is not try and sleep with people in locations and/or during situations where a person is likely to be drunk/likely to have access to alcohol (such as parties or bars), and to make sure, when you're on a date with someone new, that you avoid sex if (s)he drinks during the course of the date. If ever there is a possibility that the person could have had a drink earlier in the evening, you don't have sex. I'm not talking about not having sex depending on how drunk someone is; I'm talking about not having sex so long as there is a possibility that someone has consumed something that impairs their ability to make rational decisions. You don't need to judge someone's behavior to know whether there's a possibility (s)he drank something. That can be determined purely on the setting/circumstances, if necessary.

If someone can't be bothered to refrain from trying to sleep with his/her partner if there is any possibility that said partner doesn't have complete control over all his/her faculties and therefore can't make informed decisions, then that person deserves what comes to him/her should the other party wake up and believe (s)he was taken advantage of. You still haven't specified how expecting people to not have sex if there is any possibility of intoxication on either end (visible or possible based on the environment, etc) is an unfair standard to hold the general populace to.

Not only this, but even though one isn't pointing a finger at rape victims when one says that the above is an unfair standard, one is certainly putting more of the burden on the would-be victims to do things that don't lead to drunken mistakes, and less of a burden on the would-be assailants to stop themselves from doing things that lead to drunken mistakes. Especially considering that if the would-be assailant doesn't have to consider the fact that someone who isn't close to blackout-drunk may still be too intoxicated to make informed decisions, lawsuits would devolve into "Well I couldn't tell that (s)he was drunk, so no harm done," which ignores the fact that one still had sex with someone without that person being able to have informed consent about it. Which is still a large issue.

 

[Guardian of Nekops]

Someone who is intoxicated is not in full possession of their faculties. Therefore, yes, it is rape. When people get intoxicated, they're looking to get drunk or what-have-you; they are not consenting to assault of any kind, period.

Except, sometimes (often) the "what-have-you" they're after IS sex. I don't care what gender you are talking about, a lot of people go to bars to get drunk so that they're not so embarrassed about asking for casual, non-committal sex.

Why do you think guys buy drinks for women at bars? Why do you think women accept (and yes, act in such a way so as to be offered) free drinks from guys at a bar?

The reason, the ONLY reason for this, is because sex is on the table as an option, be it through getting a number or more directly. Now, by no means am I saying that consent should be assumed in such cases or that the woman is asking for sex from everyone at the bar, that's messed up. You can absolutely still say no, you can tease the guy and take it as far as you want and STILL say no, and that's all fine.

However, I am saying that when a lot of people (regardless of gender) want sex, they go to a bar. Getting drunk/tipsy/intoxicated to some degree and then going home with someone else they just met is the PLAN, the absolutely sober plan A that they leave the house for. People go to bars with wingmen and the female equivalent to make sure that this all goes off without a hitch... seriously. This is how sex HAPPENS for some people. Again, all genders, all orientations, as their plan A. It's practically what bars and social drinking are for, and the law completely ignores that. However, it usually works out okay for everyone involved.

Now, the PROBLEM is that in this place of horny intoxication, there are other people, impossible to differentiate from the first sort. There's the young virgin girl, out to try her first drink, who doesn't understand, isn't on her guard, just wants to try her first drink and has every intention of waking up the next day as a virgin. When she gets drunk, gets picked up by an equally drunken guy from the first group, drunkenly says "sure", and ends up losing something she was saving for someone special, yes, that's a tragedy. But here's the thing.

That tragedy was NOT engineered by the drunk guy who picked her up. That tragedy was orchestrated by the blatant difference between the law and how our society works, by an unwillingness on the part of ALL of us to admit that, "Hey, this is how our bars work, and we need to legislate to deal with it." Punishing that guy, who went to the bar with the intention of going home with someone else who had the same intentions as he did (ie, to get drunk and have sex, thereby escaping the nervousness and inhibitions that normally keep him from having a good time) is merely compounding the problem, ruining yet another life for no good reason.

So, how do we fix it? Well, we need to separate the two groups. We already do this, it's why we keep those under the age of consent out of our bars. Yeah, they also aren't allowed to drink... but I think the reason for that is because booze and sex are so closely, inexorably intertwined. We just need to go a step further.

Introduce a law allowing the following sort of contract... functioning something like a Power of Attorney granted to your drunk self, it reads to the effect of, "I hereby consent to any sexual contact that I willingly engage in while intoxicated. Any verbally or physically indicated refusal, at any point, voids this contract, as does my loss of consciousness, the introduction of any foreign substance into my drink, or my inability to stand unaided. My sexual partner must also be bound by this contract, and must appear to be approximately as drunk as I am."

Now, open a new sort of bar, called a "hook-up bar" or similar. At this bar, these contracts must be signed at the door, with a breath test, in order to enter. Nobody who is already drunk can sign, or enter. In addition to being responsible for cutting people off before they black out, the bartender/bouncers should make sure that all people leaving together look about equally drunk (or hell, test it with the breathalyzer), appear to be happy leaving together, are not too drunk to stand, and, while they're at it, take a cab home as opposed to driving.

Now, if you DON'T want to have sex, and you just want to have a few or get drunk out of your mind, you go to the other sort of bar. People aren't allowed to leave together from that one unless they came together, and women should expect not to be pestered by guys offering them free drinks, asking for their numbers, or otherwise trying to pick them up.

Sure, this requires us all to be a bit more forthright about what we want, but I think that it will prevent a lot more misunderstandings and safeguard a lot more people than what our law does now, which seems to be sticking our fingers in our ears and saying, "La la la, drunk sex doesn't happen! It doesn't! No, shut up!"

 

[Skoosh]

If the person is drinking of their own free will, then no. That's part of the risk you take getting drunk publicly, lowered inhibitions. It's very different from a rapist drugging an unknowing victim, especially if they are both drunk. If it was though, at what point? Surely one drink wouldn't count, what level is "drunk"? It isn't always obvious to tell whether someone is intoxicated, some people hold their liquor well, and rape is a very serious charge. I'm not calling someone a rapist for having sex with a consenting adult that also consented to drinking.

But yeah, willful intoxication does not excuse choices made while intoxicated. Next time don't go drinking, or at least do it at home. Of course they obviously also have to consent to the sex, but that should go without saying. Having sex with someone that's passed-out is most certainly rape, as they didn't consent to sex. It's consenting to both alcohol and sex that makes it not rape.

 

[irishda]

I'm reminded of my old roommate. He too was a closet misogynist. Although I'm unsure if it's because you feel the world is against men, or if it's because women don't like you, as it was in his case. Read some of the other posts on here and you'll find the answers to your questions.

An <a href=http://www.nizkor.org/features/fallacies/ad-hominem.html>ad hominem already? We've only begun. If you clicked the link I provided, then you would know that any and all of my character flaws or strengths have no bearing on the veracity of my rebuttal. Since you resorted to just trying to insult me on the first round, I am going to assume you don't have a better way to respond to my remarks. Is this true?

No, I just got tired of answering the same questions over and over. Although yours had the added twist of implying that only women could use what I talked about as grounds for pressing charges, many times in my replies to similar complaints I have used the gender neutral term "parties" to describe both the rapist and the raped. Occasionally I did slip into characterizing the raped as female, but only because they still remain statistically higher as the victim of sexual assault. Therefore, I believe your personal flaws (if indeed you are a misogynist) can't help but skew your view of what a female would "deserve" or "earn". If you are incapable of seeing a group as victims because you hate them, then it makes it hard to objectively judge their actions.

As for your objection of what you're accountable for when drunk, like I and others have said before: you cannot enter into a CONTRACT with another person while in an impaired state of mind. Your ACTIONS are certainly still held accountable while intoxicated, but, since you are drunk, you cannot know what your actions will involve. Therefore, ACCORDING TO THE LAW, no one can hold you as LEGALLY CONSENTING to anything you have AGREED TO DO with said person because YOU CAN'T KNOW WHAT YOU AGREED TO DO OR EVEN IF YOU KNOW WHO YOU ARE DOING IT WITH. Any and all contracts are null and void if initiated and agreed to while either party is impaired. Their consent doesn't count if they're drunk when they said it. In the eyes of the law, it's as if you never asked at all. And, most importantly, if you really are in this situation, obviously they would never have consented if they were mentally competent in the first place.

 

[irishda]

To organize this thread a little more:

ARGUMENTS FROM THE "THIS IS NOT RAPE" CAMP[\b]

1. This isn't rape because one party agreed to it, therefore it is consensual sex. The fact that the party was drunk (whether or not if they WILLFULLY got drunk themselves is an issue to some) does not excuse them from their actions, or, in this case, their agreement.

2. At a certain point, consent is considered null if the consenting party is far too intoxicated. However, it is difficult to measure at what point someone is truly too drunk to have their consent considered null. Therefore it should not be prosecutable as rape, since it was impossible for the accused party to know the consenting party was too drunk.

3. Many drunk people are getting drunk specifically looking for sex, and therefore it should be assumed that any sort of sexual tones suggests a consent, even a desire, for the accused party. If the alleged victim did not want to have sex, then they shouldn't have gotten drunk or placed themselves in an environment that suggests they do.

ARGUMENT FROM THE "THIS IS NOT RAPE IF BOTH ARE DRUNK" CAMP

1. This isn't rape because neither party was in a state of mind to recognize if the other party was mentally competent enough to truly be consenting, or even to know what was going on. Since it is impossible to determine if anyone took advantage of the other, it can't be seen as rape.

ARGUMENTS FROM THE "THIS IS RAPE" CAMP

1. This is rape because, even though the drunk party agreed to it, being "mentally incompetent" (in the eyes of the law) at the time of consent means their consent is void, as one must be mentally sound in order to legally agree to consent. It is not a question of being excused from their actions, but it is a question of if they even knew who their actions were with at the time.

2. Even though it is impossible to determine a true level of intoxication for all, since alcohol reacts differently within everyone, this is still rape, as a scientific standard can be agreed upon to fit the majority. People are then expected to err on the side of caution, with the idea being that if you're unsure if a person is above or below this standard, then you should take the safe choice.

3. It is never okay to assume anything of anyone. This is a form of "victim blame" with such notable examples as "Of course she wanted it, look at the way she's dressed" and "If she didn't want it she shouldn't have been there." You can never, ever assume someone's intentions, especially based on appearance, demeanor, or location.

4. Rape still has occurred, even if both parties are drunk, because one still took advantage of the other's state of mind, albeit while being in a similar state of mind. It does, however, make it significantly harder to figure out who is responsible for taking advantage of who, as neither is in a state of mind to remember. Charges can still be filed, but the case would be weak unless more evidence was brought to light.


Hopefully this brings a little more perspective to this thread with the reasons others have provided laid out as such. I'll let you decide which camp you feel is best from now on.

 

[Random Fella]

I didn't want to say "Yeah Obviously" because it isn't very obvious, but was the one I chose.
By law if the person that was intoxicated accuses you of rape, they do have the law on their side, and if both parties are intoxicated, like all sexual cases the man will be worse off in the case. (Not saying anything sexist but it is the same with underage and such when both parties are underage it is rape from the male)

 

[kinapuffar]

YES!

The law says it's rape.
No sane person thinks it's rape.
But that doesn't matter, because the law says it is.

Now, if the question is whether or not it SHOULD be considered rape, then the answer is obviously no.
If you drink so much you make decisions you regret the day after, you deserve no sympathy. Stop being an alcoholic, you whore. If her drink was spiked, toxscreen will show that. But if she just had too much to drink, she's responsible for her own actions.
The state doesn't exist to babysit people and make sure they don't do anything stupid. Own up to your own damn mistakes, people!

I believe voluntarily putting yourself in a state of mental incompetence, in a situation where you are fully aware of what the repercussions might be, means you give up any right to ***** and moan about it later.
If you don't agree to the terms of service, get the fuck out of the bar.

 

[Do4600]

--snip--

It is necessarily more complicated than you're making it out to be. Everybody doesn't possess the same quality for reason that you do, and an infallible eye for who is drunk and who isn't you must take that into account when talking about a population at large, especially when dealing with laws that govern that population. I'm trying to spur conversation on the complexities and shadows of the legal guidelines regarding this topic, I'm not here to point the finger at rape victims. I'm here to intellectually challenge and define the limits of these laws and the circumstances surrounding them.

Then don't have sex with people unless you can verify they're not under any influence of any drug. Can't tell if a person is under the influence? Don't know how many drinks that chick's had? Don't sleep with her. Don't know if that guy's sober enough to give informed consent? Don't have sex with him. Lacking proof that someone is legitimately able to give consent? Then don't have sex with that person.

If someone can't be bothered to refrain from trying to sleep with his/her partner if there is any possibility that said partner doesn't have complete control over all his/her faculties and therefore can't make informed decisions, then that person deserves what comes to him/her should the other party wake up and believe (s)he was taken advantage of. You still haven't specified how expecting people to not have sex if there is any possibility of intoxication on either end (visible or possible based on the environment, etc) is an unfair standard to hold the general populace to.

It's an easy enough thing to say; sober people, don't have sex with drunk people, but the reality is that most of these things happen when both parties are intoxicated to some extant. My point is that in a situation where both parties are equally drunk you can't expect one party to make a more informed decision than the other party, if either party makes a sexual advance and it's returned there's no way to expect the other party to act more responsibly. The blame in this case lies equally with both parties, like a seesaw that's balanced, but the more alcohol either party consumes lessens their blame in the matter, but neither party can ever be totally blameless in this situation as long as two things stay constant, that it's only alcohol being consumed and that the sexual advances are returned in kind.

Obviously a victim is going to have less blame, but they still put themselves in a state of being that made them more vulnerable.

I'm not saying that certain people shouldn't be able to go out safely and have fun, I'm saying that it's a sober, conscience decision when somebody takes that first drink to put themselves in a state that lessens their inhibitions and they still have to maintain some level of responsibility.(as the law mandates with drunk driving)

It's ludicrous to me that the law can say that in one way(consent) people aren't responsible for their actions while they're drunk and then turn it completely around and say they are responsible for their actions while drunk(driving).

These laws were put in place to prevent exploitation, but it's rarely so clean cut, rarely as simple as the law makes it seem. It's not always the case of aggressor and victim, nothing is ever so black and white it's almost always shades of gray.

 

[Swny Nerdgasm]

IIRC once your BAC hits a certain point you can not give consent, I may be wrong though.

 

[Epic Fail 1977]

You don't need to have "an eye" for who's drunk. You don't need to interrogate the person and try and determine how wasted they are. All you have to do is not try and sleep with people in locations and/or during situations where a person is likely to be drunk/likely to have access to alcohol (such as parties or bars)

Sorry to start this reply with what might sound like a cheap shot, but have you ever actually visited reality? Seriously, read what you just wrote and then tell me how you expect it to be taken seriously in the real world.

If ever there is a possibility that the person could have had a drink earlier in the evening, you don't have sex.

There is always always always that possibility. So according to you, nobody should ever have sex with anyone ever. Great advice!

If someone can't be bothered to refrain from trying to sleep with his/her partner if there is any possibility that said partner doesn't have complete control over all his/her faculties and therefore can't make informed decisions, then that person deserves what comes to him/her should the other party wake up and believe (s)he was taken advantage of.

I'd love to see you attempt to justify that position instead of simply stating it.

You still haven't specified how expecting people to not have sex if there is any possibility of intoxication on either end (visible or possible based on the environment, etc) is an unfair standard to hold the general populace to.

Not only this, but even though one isn't pointing a finger at rape victims when one says that the above is an unfair standard, one is certainly putting more of the burden on the would-be victims to do things that don't lead to drunken mistakes, and less of a burden on the would-be assailants to stop themselves from doing things that lead to drunken mistakes.

Wait.. "assailant"!? Wait a minute... never mind my earlier question about visiting reality, I have a new one: have you ever actually had sex?