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

[peruvianskys]

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.

But there are laws in most industries forbidding the creation of a contract between a sober person and a drunk person. You can't get a loan or a tattoo, for example, if you're not in a clear state of mind.

I think the thing that bothers me here is that it seems like people are trying really hard to justify having sex with drunk people in a way that comes dangerously close to "Let's see how close I get get to rape without actually doing it." Even if it isn't rape, if you know it's probably not what she would like to remember the next morning, or if you think it'll hurt her or cause problems, then shouldn't you just be a decent person and refrain? Rape is a serious issue, but if more guys just put the emotional and physical health of the stranger they're going after in front of their own sex drive, like a decent fucking person, it would be almost completely eliminated.

tl:dr don't be a dick.

 

[balanovich]

Oh, yes. It's rape, at least as far as the US judicial system is concerned. If someone lets you have sex with them while under the influence, then decides when sober that they wouldn't have done so if sober, it's rape. It's a horrific gap in the legal system, in my opinion, because it doesn't matter if you're drunk, too.

No, definitely not in the US. The "victim" has to prove that he made her drink for that purpose.
Your consent is valid even when intoxicate. Maybe not under the influence of illegal drugs...

Not as I recall. It makes a twisted sort of sense, too. You can't give any sort of reliable consent while under the influence of alcohol (contracts, legal proceedings, etc), so it would stand to reason that 'consent' given for a sexual encounter would be moot if the giver decides afterward that they wouldn't have given it if not inebriated.

And, in an unexpected drawback to an otherwise excellent legislative move some time ago, you can't cite a person's sexual history as evidence in a rape case. In other words, if the OP's situation happens to you, and you have a veritable conga line of witnesses that show the 'victim' was the community bicycle, it's irrelevant. As far as the court is concerned, if she's accusing you of rape, it doesn't matter if she slept with half the jury. Prior promiscuity is inadmissible.

Don't get me wrong, though. Invalidating such evidence was still a good thing. OP's situation is ridiculously specific and highly unlikely to ever actually happen (and if she genuinely considered it to have been 'rape,' she's statistically not likely to ever report it, much less have enough evidence to start a trial) to someone. Prior uses of that line of evidence was almost exclusively to argue that the victim was promiscuous, and therefore the act was probably consensual. It was a legal move that argued that "She was asking for it," not using physical evidence from the scene or anything, but by establishing that the victim was a floozy.

So...yeah. If I remember consent laws right (which I might not be), then OP's hypothetical scenario kind of blows. But at the same time, it's hypothetical.

So if I go to Vegas and gamble my lose my house away, I can come back and ask the casino my money back ? I was extremely drunk,and on camera...

The army owns your ass even if you signed up totally wasted ? .. but they are a particular branch of assholes.

What about all the business deals that are signed after a business lunch where there was wine ?

Maybe there is a point where your consent is invalid, but there has to be a line. If you want to use alcohol to invalid your consent, I expect you have to prove you were THAT drunk. And if you want to go further and accuse someone of abusing you in that state, I hope/think, you have to prove that he knew you were to drunk to think.

 

[JCBFGD]

People must always accept responsibility for their actions, unless, of course, they have some sort of mental handicap. To say anything else is irresponsible and ridiculous. "Sir, you killed 14 people. You're under arrest!" "Oh, but, officer...I was drunk! I didn't mean to kill them!" "Oh, okay, you're off the hook, have a nice night!"

The woman said yes before the sex happened, so it's not rape. Doesn't matter if she regrets it now. (For all you "feminists" out there, I would of course say that the same applies to men.)

Now, I'd have to say there's a grey area if someone were to buy drinks for another with the intent of screwing them. Yes, they're putting that person into a state of mind where they become less inhibited, but that person is also willingly accepting the drinks. If I were a judge and that was brought to my court, I'd probably drop the rape charge and just charge the person with attempted rape.

And it goes without saying, roofies are rape. If they're put into an alcoholic beverage, regardless of whether or not someone's already drunk, it's rape. Open-and-shut case there.

 

[minuialear]

If both the guy and the girl are drunk then BOTH parties (according to you) now lack the faculties to decide whether or not it's a good idea to have sex, to consent to it. So how in the name of all that is holy is it ONLY the GUY'S fault if they do end up having sex?

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.

What are you getting indignant about? I specifically mentioned that this applies for both genders. Multiple times throughout each of my posts. You're going off on a tangent that has absolutely no basis in what I've said.

 

[OuroborosChoked]

I'm shocked at the poll results, here. I am seriously frightened that 82-ish% of you don't understand consent. If I was female, I would be terrified.

Consent can only be given by people of sound mind and body. If you are drunk or similarly impaired (stoned, injured, mentally incapable of understanding what's going on, etc.), your consent cannot be accepted.

If one is sober and one is drunk, it is on the sober person to be responsible... whatever that may entail. Someone being drunk is NOT a free pass for sex. EVER. Even if they are insisting. PERIOD.

If this is someone you just met, you don't know how much alcohol it takes to impair them. Maybe they've never had alcohol before... maybe they're on some kind of medication that severely lowers their tolerance. If you're not sure, DON'T SAY YES. Again, even if they're insisting. EVER.

This isn't rocket science, people.

 

[minuialear]

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

AS NON-LIMITING EXAMPLES, if you live with someone and have seen that they haven't been drinking all day, {i]chances are[/i] they will not be intoxicated should you decide a couple hours from then to ask them for sex. If you work with someone and they didn't take a swig from their whiskey flask halfway through your 8-hour work day, chances are they aren't intoxicated. And so on. The point is, when you're at a party with alcohol (or a bar, etc), and you walk up to some dude or chick you've never seen before, there's a good chance they're drunk, and it's a cop-out to decide to sleep with them "cause they don't seem all that drunk," but then to argue that the other person shouldn't have gotten drunk if they didn't want sex. BOTH parties (ought to) have an obligation to act like rational human beings. Same thing if you're at work and you do see that male co-worker taking shots, and you try and bang him after your shifts or done, or if you live with a girl and she decides to start partying at 11 in the morning.

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

I'd love to see you actually provide a counter-argument, or some semblance of a position that isn't merely idiotic snarkasm or insults. Let's see how that goes.

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

Nope, looks like that's not going to happen. Bummer.

Note the fact that I said "would-be victim" and "would-be assailant," in order to indicate that I was specifically talking about instances where the sexual act could and would be classified as rape. Note that the context of this entire thread would have made that obvious, as well. Reading's not one of your strengths, is it?

 

[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.

But there are laws in most industries forbidding the creation of a contract between a sober person and a drunk person. You can't get a loan or a tattoo, for example, if you're not in a clear state of mind.

I think the thing that bothers me here is that it seems like people are trying really hard to justify having sex with drunk people in a way that comes dangerously close to "Let's see how close I get get to rape without actually doing it." Even if it isn't rape, if you know it's probably not what she would like to remember the next morning, or if you think it'll hurt her or cause problems, then shouldn't you just be a decent person and refrain? Rape is a serious issue, but if more guys just put the emotional and physical health of the stranger they're going after in front of their own sex drive, like a decent fucking person, it would be almost completely eliminated.

tl:dr don't be a dick.

To the underlined question: refrain??? What an odd choice of word. I don't know why one would even want to have sex in that situation, so what's to "refrain" from? I also don't understand what it has to do with the topic, as that situation is not at all the one being discussed. I'm surprised, and a little disturbed, that you seem to consider them related.

 

[Char-Nobyl]

So if I go to Vegas and gamble my lose my house away, I can come back and ask the casino my money back ? I was extremely drunk,and on camera...

And...? Gambling at a casino doesn't require any sort of given consent. If you're of age and in a casino, you can gamble. If your logic was anything resembling true, why would they serve drinks at casinos?

The army owns your ass even if you signed up totally wasted ? ..

Erm...no. No, they don't. Do you honestly think that joining the military is something you can do while heavily intoxicated? Find a recruitment station, sign your name on the dotted line, and you're given a deployment date?

but they are a particular branch of assholes.

Know what? I'm just going to ignore this. It seems fitting that someone making wild assumptions like this would also think that the US Army would actively seek to shanghai someone into service because they showed up to a recruitment center drunk.

What about all the business deals that are signed after a business lunch where there was wine ?

Oh, of course. Those business deals. Humor me for a moment, though: name one from the past decade. Because it sounds like you're imagining a scene from any movie that features a character working for a corporation 'sealing the deal' with another group, but forgot the line that usually comes at the end: "I'll get the paperwork over to you tomorrow."

It's not always in those words, of course, but the message is the same: absolutely nothing has been agreed upon except what the proposed contract will say. That discussion you alluded to? It was discussing the terms of the agreement that would then be put into contract form. Both parties still have to sign it, and neither is under a legal obligation to do so.

Maybe there is a point where your consent is invalid, but there has to be a line. If you want to use alcohol to invalid your consent, I expect you have to prove you were THAT drunk.

...how? Unless you're going to hook a flux capacitor up to a breathalyzer, I don't see how you could retroactively determine how drunk a person was at a past date.

And if you want to go further and accuse someone of abusing you in that state, I hope/think, you have to prove that he knew you were to drunk to think.

You know what? In a perfect world, there would be a way to provide concrete evidence of intent for every alleged crime. But this isn't a perfect world. There are only two pleas I know of that work for defendants who didn't know they were doing anything wrong, they're both mutually exclusive, and they both only work once.

You can plead 'guilty' but without willful intent/knowledge of the law. Despite the famous Roman phrase, ignorance is a defense, but only if you can prove that you had no intention of doing anything illegal and could not have reasonably been expected to know that said act was illegal. This, obviously, is rather difficult to prove.

The other is a bit more straightforward: you didn't know what you were doing was a crime because you are insane in such a way that prevents you from being able to distinguish between right and wrong.

 

[iblis666]

if a person gets drunk they should take all consequences including drunken sex

 

[minuialear]

-snip-

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.

Both parties would be able to make a sexual assault and/or rape charge, in instances where both are equally drunk. This happens all the time (i.e., the law doesn't require that one person have to be the assailant and another to have to be the victim; both can be victims in instances where it's clear that both were equally lacking in an ability to make rational decisions). In instances where one is more drunk than another, or one was intoxicated before the other, etc, someone is still more in control of their faculties than another, and therefore has more ability to shoulder responsibilities over his or her actions. And again, the reason I'm focusing on the imbalanced aspect moreso than the pretty cut-and-dry equally intoxicated aspect, is because of the frequency with which people in this thread (again, not necessarily you, but the thread as a whole) use arguments similar to yours to justify habits of not acquiring proper consent before sleeping with people.

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)

And I'm not saying that a dude or chick who gets drunk doesn't have some hand in putting his/herself in danger of one of these situations. I'm saying if people are going to use the "if (s)he didn't wanna have sex, (s)he shouldn't have gotten drunk" argument, it's just as valid to turn that around and say "if the girl/guy you wanted to have sex with was more drunk than you were, was drunk before you were, etc, why did you continue to try and have sex with her/him?" In this thread there is a lot of people hinting at some dangerous opinions about what it means to give consent, and how much responsibility someone has in actually making sure they have consent, which is what I take issue with.

 

[mike1921]

Since you're asking in regards as a poll and thus aren't asking as a question of legality, no I don't think it is at all. I would consider it rape if someone under the drinking age was purposely given booze by someone so they could have sex but I think it's a big slap in the face to real rape victims to act like it's the same thing as having consensual sex with a drunk chick. If you're over 21 it's your responsibility to handle your liquor, if a sober person could be expected to deal with the consequences of purposely getting drunk and then going in a car than they could be expected to deal with the consequences of having sex.

 

[Pearwood]

Edit: To prevent anymore misunderstandings, this is in regards to UK law. Only a man can be charged with rape.

I'm pretty sure that's not true, a quick Google search gave me a story from 2001 where an 18 year old girl was arrested for rape. Here's a slightly more reliable citation from the Home Office, page 9 for comments on male rape. [http://www.homeoffice.gov.uk/publications/crime/call-end-violence-women-girls/government-stern-review?view=Binary]

On topic it's all down to the circumstances. If you intentionally get someone drunk then yes, even if you know she only wants to because she's drunk then yes. Otherwise no. It's such a mess legally though chances are it'd be thrown out unless there was a really good lawyer or there's something else to build a case on.

It's silly how people believe that all a woman has to do is say she was raped and straightaway she has somebody arrested, that isn't how the world works. I'm sure that's what many convicted rapists have said but I know who I'd believe out of someone who the courts found no reason to doubt the testimony of over someone who the courts found to be guilty of a horrible crime.

 

[Daystar Clarion]

Edit: To prevent anymore misunderstandings, this is in regards to UK law. Only a man can be charged with rape.

I'm pretty sure that's not true, a quick Google search gave me a story from 2001 where an 18 year old girl was arrested for rape. Here's a slightly more reliable citation from the Home Office, page 9 for comments on male rape. [http://www.homeoffice.gov.uk/publications/crime/call-end-violence-women-girls/government-stern-review?view=Binary]

On topic it's all down to the circumstances. If you intentionally get someone drunk then yes, even if you know she only wants to because she's drunk then yes. Otherwise no. It's such a mess legally though chances are it'd be thrown out unless there was a really good lawyer or there's something else to build a case on.

It's silly how people believe that all a woman has to do is say she was raped and straightaway she has somebody arrested, that isn't how the world works. I'm sure that's what many convicted rapists have said but I know who I'd believe out of someone who the courts found no reason to doubt the testimony of over someone who the courts found to be guilty of a horrible crime.

Yes. A 2001 case, which precedes the Sexual Offences Act 2003

http://www.legislation.gov.uk/ukpga/2003/42/contents

I know what I'm talking about. I didn't waste 4 years studying law at university.

 

[ms_sunlight]

I know what I'm talking about. I didn't waste 4 years at university.

I did. Still, even I knew that.

 

[inquisiti0n]

Of course its rape. A person willfully getting drunk or unwillfully getting drunk isnt able to give willful consent to anything if they are drunk.

Now if you agree to have sex and THEN get drunk well then thats prior consent so you are fine.

Now do you personally believe that, or are you just citing what the law is?(in certain areas)

If the former, please tell me why the law doesn't protect drunk people who gamble. Or instead, let's say I get drunk and during that time, decide to give all my life savings away to a charity. Can I get that money back once I sober up under the pretext of "a drunk person isn't able to give consent?" The law has to be consistent, so if they cover for drunk people engaging in sexual activities, why stop there? Plenty of people gamble when drunk and end up making bad decisions they wouldn't have made if they were sober.


As for your second point, how would a man who's being charged of rape prove that the girl involved agreed to have sex prior to getting drunk?

 

[Char-Nobyl]

I'm shocked at the poll results, here. I am seriously frightened that 82-ish% of you don't understand consent. If I was female, I would be terrified.

Meh. I've been on an uphill battle so far. Just resign yourself to the knowledge. It's easier that way.

If this is someone you just met, you don't know how much alcohol it takes to impair them. Maybe they've never had alcohol before... maybe they're on some kind of medication that severely lowers their tolerance.

To be honest, mate, those last two bits are a lot less relevant to the situation at hand. The "never had alcohol before" defense reminds me most recently of the group of girls who assaulted someone on the street while drunk (and screaming racial slurs, no less), then claimed inexperience with alcohol as their defense and got a light, suspended sentence. It was a travesty of justice, and I don't like using that phrase in situations that don't merit it.

Similarly, the medication thing? That's the drinker's responsibility, mate. I've been on medication that affects alcohol consumption, and it warns you right on the bottle about that sort of thing. Even if it doesn't use those words exactly, it's pretty much always under the umbrella of "operating a motor vehicle or heavy machinery." If a medication cautions you about taking it and then driving/something similar, it'll probably play hell with your alcohol tolerance. The side effects are right on the bottle: you're the one who's supposed to be taking precautions.

If you're not sure, DON'T SAY YES. Again, even if they're insisting. EVER.

This isn't rocket science, people.

...you went from making very legitimate, legally-grounded points to advice that reminds me of all those anti-drug PSAs from the 80s and 90s. Making wild assertions about what might be happening and how you should NEVER EVER DON'T PERIOD CAPSLOCK, which failed on a galactic scale when D.A.R.E. tried it, and I see no reason it would work any better here.

 

[Pearwood]

Yes. A 2001 case, which precedes the Sexual Offences Act 2003

http://www.legislation.gov.uk/ukpga/2003/42/contents

I know what I'm talking about. I didn't waste 4 years at university.

Actually the Home Office publication I linked was dated this year. This backs me up as well, a 2010 paper where the terminology has been made gender neutral. [http://www.cps.gov.uk/legal/s_to_u/sexual_offences_act/#Reasonable_belief_in_consent] Sorry to be linking quite boring papers, I just got a little interested if what you're saying is true.

 

[Char-Nobyl]

If the former, please tell me why the law doesn't protect drunk people who gamble.

Because gambling doesn't require any expression of consent other than showing up and gambling. There's no contract to be signed, nor is there an implicit need for consent as the case would be for sex.

Or instead, let's say I get drunk and during that time, decide to give all my life savings away to a charity. Can I get that money back once I sober up under the pretext of "a drunk person isn't able to give consent?"

If you signed some sort of contract, then yes, you're out of it. But that being said, you probably wouldn't be in the contract in the first place because companies (charities included) know that drunk people can't make legally binding agreements.

The law has to be consistent, so if they cover for drunk people engaging in sexual activities, why stop there? Plenty of people gamble when drunk and end up making bad decisions they wouldn't have made if they were sober.

I've seen the gambling analogy a couple of times, and here's one of the biggest flaws I see in making it a parallel to this situation: every time it's used, you always "lost your life savings" or something like that.

You didn't wake up in the executive suite noticeably richer than when you showed up. If you woke up with a hangover and had a briefcase with, say a quarter million dollars in it, with a complimentary letter from the casino you won it from, would you take it back, outraged that they let you gamble while drunk?

See, you're not upset about the gambling part. You're upset about losing. That's the byproduct, not the action itself. If someone 'gives' their consent while drunk and then has problems with it when sober, do you really think it's because they were dissatisfied with the quality of their drunken sex? Because that's the parallel you're presenting.

As for your second point, how would a man who's being charged of rape prove that the girl involved agreed to have sex prior to getting drunk?

Witness testimony, physical evidence taken from the location, physical evidence on the people involved...the list goes on. Plenty of routes to take.

 

[Daystar Clarion]

Yes. A 2001 case, which precedes the Sexual Offences Act 2003

http://www.legislation.gov.uk/ukpga/2003/42/contents

I know what I'm talking about. I didn't waste 4 years at university.

Actually the Home Office publication I linked was dated this year. This backs me up as well, a 2010 paper where the terminology has been made gender neutral. [http://www.cps.gov.uk/legal/s_to_u/sexual_offences_act/#Reasonable_belief_in_consent] Sorry to be linking quite boring papers, I just got a little interested if what you're saying is true.

What? It's the same Act, nothing has been changed.

(a) A 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

Penetration of the mouth is included.

Rape is still a crime of basic intent, and drunkenness is no defence.

 

[th155]

No. It is not rape, however, there will be severe social repercussions for doing so. I highly doubt the intoxicated party will appreciate what you did when they sober up.