irishda said:
Taking the issue entirely separate from the issue of rape, people need to focus on logical (and legal) consistency of definition.
If a person can become drunk enough that they are no longer "willful" -- that is to say, they can no longer be trusted to give dependable statements about their wishes or intents -- then the law must be consistent about this. We'll call this state "incapacitated" for now.
That said,
if a person engages in criminal activity while drunk, they are not excused from their crimes (provided they were not made drunk without their knowledge, which can serve as a mitigating circumstance). If I get drunk and rob you, I'm responsible for robbing you.
But on the other end of things, when two drunk people (both falling under the above definition of "incapacitated") engage in sex, there are several different ways this can occur.
1. Party A propositions Party B. Party B refuses. Party A continues regardless. This constitutes illegal activity -- ie, Rape -- on the part of Party A.
2. Party A wants to proposition Party B, but Party B is unconscious or passed out. Party A takes this silence as a "yes" and goes about his/her business. This constitutes illegal activity -- ie, Rape -- on the part of Party A.
3. Party A propositions Party B, and Party B says yes. In the morning, Party B cites being incapacitated and claims consent was not duly given. This is where a lot of people seem to have the question of whether or not illegal activity took place.
4. Party A propositions Party B, not knowing that Party A has already been drinking heavily that evening. Party B accepts. In the morning, Party B makes it known to Party A (or the authorities) that he/she was incapacitated and consent was not duly given. This is another situation that raises a lot of questions.
It seems to me that #1 and #2 are clear-cut rape scenarios. But scenarios #3 and #4?
For Scenario #3: If Party B's judgment can be so impaired that his/her "Yes" cannot be taken as binding, how can an equally-drunk Party A's judgment to receive that "Yes" at face value be considered binding? It displays an inconsistent handling of the terms and conditions being considered.
For Scenario #4: We can often tell someone they "should have known," but that's not so simple. Some people mask the physical effects of intoxication very well. Some people don't recognize them well in others. This creates a very uncomfortable grey area.
Could this be grounds to charge someone? Perhaps, depending on the circumstances. But a conviction would predicate upon being able to prove Party A knew, beyond any reasonable doubt, that Party B was incapacitated. Beyond that, it would require knowledge of conversation details that occurred most likely behind closed doors, coming back to the he-said-she-said. It would be next to impossible to get a conviction in a situation like this, because our legal system is designed to keep people from being convicted of crimes based on our own hindsight and feelings toward the victim.
When we remove our own passion from the situation, something our legal system is specifically designed to do, it becomes impossible to tell what really happened. The only way someone can definitively say rape occurred in such a case is by imposing feelings, thoughts, and above all
intentions into the mind of Party A due to understandable sympathy for Party B.
It is our tendency to view such situations as "a rapist being let go." However, if the law fails to convict the accused, he/she is
not a rapist in the eyes of the law. That is a separate judgment reached in the court of public opinion. To the law, this was a grave misunderstanding between two people due to the impaired judgment of both parties, or the impaired judgment of one and incomplete information made available to the other.
(Incidentally, this is why so many ad campaigns focus on
preventing oneself from being in these compromising scenarios. Even in those cases where it
is rape, a conviction is next to impossible... so clearly the better solution is for
both sides to work toward avoiding any situations with so much ambiguity.)
Now, I know that's what you were getting at toward the end of your post. I agree completely. I was just hoping to frame the questions being raised in a dispassionate way, so that folks could understand what people seem to be asking and why. To me, it's just a thought experiment -- I avoid drinking with strangers for this exact reason (not rape, but the idea that trouble can occur when I'm not fully prepared to avoid/handle it) -- but I can understand how many would have trouble distancing themselves from the issue to view the considerations objectively.
