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  1. Heraclitus
    Heraclitus December 20, 2006 at 1:04 am |

    It sounds like someone really was raped. Is there any chance they went with the statutory charge because they knew they could get a conviction?

  2. Myca
    Myca December 20, 2006 at 1:26 am |

    Word, Zuzu.

    GOD, this stuff pisses me off.

  3. Gordon K
    Gordon K December 20, 2006 at 1:29 am |

    I’ve heard a million different definitions for ‘sodomy’, from “anal penetration” to “non-PIV sexual contact”, but it seems to have almost as many definitions as “sex”. Is there a standard legal definition?

  4. cooper
    cooper December 20, 2006 at 1:47 am |

    He was also among five or six guys at the party who taped the oral sex incident, and there is evidence which suggests despite the fact the girl said the it was consensual that she was indeed impaired. In some circumstances this would make people cry out that she was a victim, in this case it appears she is not because another agenda is forthcoming.

    The guy was offered a deal at one point along with the others who participated, he refused the deal, they took it.

    I’m not sure what to think but I don’t think the injustice is as sharp as it seems. He is not just a kid giving a girl a blow-job he is a kid taking part in a gang blow job and allowing it to be filmed.

    Not really quite the same thing in my mind and he should have taken the deal.

  5. mythago
    mythago December 20, 2006 at 1:53 am |

    The problem is that the law is inconsistent. Statutory rape assumes that the minor cannot consent–we don’t want a pedophile arguing that the 3-year-old happily and willingly touched his penis, because whether or not the 3-year-old did, a 3-year-old can’t meaningfully understand and consent to sex.

    But Romeo and Juliet laws sort of ignore that, and suggest that minors can kinda sorta give consent if the other person isn’t that much older. Note that the new law makes it a misdemeanor for a 17-year-old teen to have sex with a 13-year-old; I doubt that’s really what any of us think of as sex between teen peers. (And then there’s the whole issue of consequences; is a 13-year-old any more likely to be aware of STDs and contraception when her lover is 17 rather than 20?)

    I don’t have solid answer to all of this, but the problem is that the law is trying to mash-up “too young to consent” and “teenagers can agree to sex with other teens” and not doing a very good job of it.

  6. Alon Levy
    Alon Levy December 20, 2006 at 2:12 am |

    Is there any chance they went with the statutory charge because they knew they could get a conviction?

    I don’t know – the ruling says that the act was completely consensual, but nonetheless statutory rape laws said the guy should do time.

    Is it standard practice for courts to openly say “it was consensual” even when it’s not clear whether it was?

  7. Myca
    Myca December 20, 2006 at 2:19 am |

    I’m not sure what the logic would be behind ‘declaring’ it consensual in a situation where you’re already convicting on other grounds. Couldn’t they just say “We don’t know whether it was consensual. There’s reasonable doubt, but the evidence is troubling. But hey, look: other charges!”

    I mean, it just seems like they’re making a point of saying “this was absolutely consensual sexual activity, and God knows that that’s not okay, so we’re going to punish someone for it.”

  8. Heraclitus
    Heraclitus December 20, 2006 at 2:41 am |

    What I got from zuzu’s post is that the fifteen year-old says the sex was consensual, while a different girl, a seventeen year-old, says her sex was not. So, rather than try to convince a jury that a 17 year-old who gets drunk and doles out group fellatio isn’t a big ol’ slut and therefore by definition incapable of being raped, the DA or whoever decided to prosecute the incontrovertible charge of statutory rape.

    cooper also suggested that even if the fifteen year-old says she consented, there’s evidence that she was too drunk to give meaningful consent. I dont’ know what the laws in Georgia are, but I believe it’s at least possible that rape can be prosecuted without the victim pressing charges. So I don’t know what the prosecutors thought about the fifteen year-old’s case, but it sounds like there were reasons to think at least one person was raped, and that it would be extremely difficult to get a prosecution for “regular” rape. I don’t know what they were thinking, but maybe they went for this conviction and a stiff sentence because this is what they could get.

  9. Lesley
    Lesley December 20, 2006 at 3:02 am |

    I don’t know – the ruling says that the act was completely consensual, but nonetheless statutory rape laws said the guy should do time.

    I’m fairly sure that Heraclitus was referring to the 17-year-old as having been raped, not the 15-year-old. Therefore, wondering whether or not the DA felt that the 17-year-old had been raped but he would be unable to get a conviction for that crime, so he went for the sure thing.

    I don’t know whether or not that happened, and I’m not inclined to give the DA that much credit based on how he dealt with some other cases. Having said that, the whole thing with the 17-year-old troubles me too. It does sound like she might actually have been gang-raped due to her level of intoxication. The 15-year-old was completely sober.

    The article in Atlanta Magazine linked by Publius doesn’t have very much information regarding what the tape showed about the 17-year-old (e.g., was she really intoxicated at the time). So who knows for sure. However, the article does cite a great example of rape myth rhetoric.

    Surely, they and their families believed, jurors would see that this was just a case of teenagers being teenagers. There was no ill will, no malice, no intent to commit a crime. After all, Michelle had arrived at the party tipsy; she’d been drinking Hennessy cognac that afternoon even before the party began. She voluntarily continued to drink and smoke with them. She had packed a bag, obviously with the intention of spending the night. She had also reportedly flirted relentlessly with the guys, including her old high school track buddy Genarlow. And more importantly, even Michelle’s own girlfriend, Natasha*, who’d also been at the party, told investigators that she had never heard Michelle say “no” to the guys.

    In a nutshell, she was drunk, she was flirty, and some other girl who wasn’t in the room at the time never heard her actually say “No”! Ergo, she couldn’t have been raped, the little slut.

    Wilson does not deserve 10 years in jail for what he did with Tiffany. He doesn’t deserve any time in jail for it, IMO. I’m not so damn sure about what he did with Michelle, though. That goes for the other 5 boys too.

  10. NVMojo
    NVMojo December 20, 2006 at 4:15 am |

    this is truly disturbing …the boy was raped by the system

  11. NVMojo
    NVMojo December 20, 2006 at 4:35 am |

    Please sign the petition to support the young man in his legal efforts:

    http://www.wilsonappeal.com/petition.php

    and you can read the story about what happened here:

    http://guerillawomentn.blogspot.com/

  12. Benny
    Benny December 20, 2006 at 8:14 am |

    10 years.
    For a blowjob.
    With no pevidence it was a forced 1 (rape).
    OMFG.

    Then what?
    What will become this 17 years old guy in a prison during 10 years?
    A monster, a vegetable, a sexual toy?
    Sucided?
    And that 15 years old girl?
    What will happen to her mind and libido after she realises the consequences of all this ?

    10 years, for this.
    Something is missing, you can t throw people to jail for 10 years without serious evidences.

    Maybe it s the judge’ s daughter.

  13. LizardBreath
    LizardBreath December 20, 2006 at 10:07 am |

    I’m also having trouble with the exact details, but what this looks like to me is a prosecutor stretching to put someone in jail for the apparently non-consensual activity despite being unable to prove it to a jury. Given the existence of the charge of actual rape of the 17 year old girl, I wouldn’t be surprised if what happened was that the prosecutor decided the guy was a wrongdoer, and charged him with anything he could make stick, including the consensual sodomy. This is bad conduct on the prosecutor’s part, and a bad law that should be overturned, but I wouldn’t expect the same prosecutor to be aggressively prosecuting consensual oral sex between a 15 and a 17 year-old under circumstances where there was no accusation of actual rape.

  14. Lesley
    Lesley December 20, 2006 at 10:41 am |

    The NY Times story gives more details about the older girl.

    On New Year’s Eve in 2003, Mr. Wilson and several friends rented a hotel room for a party at which they planned to have plenty of alcohol, marijuana and sex. One friend, goofing around with a video camera, captured much of the action on videotape. A 17-year-old girl reported after leaving the party that she had been gang raped. The tape showed that she was severely intoxicated.

    A second girl, 15, also attended the party, but did not drink or smoke. She had what she later said was consensual oral sex with Mr. Wilson. But according to the law, a 15-year-old is below the age of consent. Mr. Wilson went to trial on charges of rape and aggravated child molesting.

    After watching parts of the tape, the jury decided that Mr. Wilson had not raped the older girl. But it was bound by law to find him guilty of molesting the 15-year-old. Jurors said afterward they did not know that the charge carried a minimum sentence of 11 years, including 10 without parole.

    The tape did show that the older girl was severely intoxicated. The prosecutor did file rape charges. The jury just didn’t find him guilty on that charge. Georgia law does not have a provision that intoxication bars a woman from giving meaningful consent. I think we all understand the mindset that went into the not guilty finding on the rape charge.

    So, this “promising young man” had no problem “having sex with” a severely drunk girl. I agree that the Georgia law should be overturned and that the sentence he received on that charge is ludicrous. However, I have no sympathy for him. He is, in fact, a rapist. He just raped a different girl. I wish I were surprised that the media is focusing only on how unfairly he’s been treated.

  15. bmc90
    bmc90 December 20, 2006 at 10:49 am |

    Sounds to me like they went after the guy for having group sex generally. And maybe my own reaction is the desired impact. I’m going to have my husband discuss this with his 11 and 12 year old sons in the context of, look we are not interested in moralizing or scaring you, but on the other hand we don’t want to see you in jail. Unlike having one girlfriend whose family you know and who you can trust, with groups of people one person’s bad judgment can pull in everyone else (i.e. video cameras, intoxicated people, etc.). And hey, we impeached a president over consensual oral sex. He was the leader of the free world. Do you really think the 17 year old had a chance?

  16. bmc90
    bmc90 December 20, 2006 at 10:53 am |

    Lesley, I don’t disagree with you about the boy raping the 17 year old. In that kind of situation, between his age and being egged on by his peers, I’m thinking he never stopped to even wonder about whether she was capable of consenting or not. That’s why I said the warning to my stepchildren is that your judgement is not always the best in those situations, and if you want to have sex when you are that young and your judgment is underdeveloped anyway, you need to not do it in settings that will further impair your judgment and you can end up being a rapist.

  17. Frumious B
    Frumious B December 20, 2006 at 11:35 am |

    I’m having trouble with the idea that a teenager who is a minor can give meaningful consent to another minor, or to a legal adult who is only a few years older, but not to a legal adult who is a few decades older.

    I’m not making comments about this specific case or about whether the accused got a fair sentence. Just looking for input on why a 15 yr-old (say) can give meaningful consent to another 15-yr old, but not to a 25 or 35 yr old.

  18. Lesley
    Lesley December 20, 2006 at 11:51 am |

    But that doesn’t mean he should be prosecuted to the fullest extent for what he did with the 15-year-old, especially because the distinction drawn between sodomy and intercourse leads to an absurd result.

    I agree with that. The law should be changed, and his sentence under that aspect of it is ludicrous and unfair. It should be commuted or, minimally, reduced. I do have sympathy for the broader idea, just none for him specifically.

    I also don’t doubt that his race played into the sentence he did receive and the extent to which he was prosecuted under the aggravated child molestation part of the statute. I’ve read some of the other things the DA was more lenient on, so I really don’t give him much credit for prosecuting Wilson to the fullest extent for one charge just because he didn’t think he’d get a conviction on a worse charge.

    In the meantime, while everyone is submitting petitions to the Georgia Legislature, it might be a good idea to submit one that would ask for a law making sexual contact with an impaired person rape.

    I also agree with that.

  19. Dr. William Dyer
    Dr. William Dyer December 20, 2006 at 12:34 pm |

    One little thing about the result of the jury trial that gets me is that according the the articles, the jury watched the movie and were thus obligated to assign guilt. Well, whatever happen to Jury Nullification.
    In that, if there was ever a case were such a decision by a jury were to be applied it would be a case like this. When you sit in the jury box they tell you over and over that you need to determine guilt or innocence, but they never mention the abilty of the jury to question the validity of the law. This is something backed by the Supreme Court all the way back to John Jay.

  20. Jenny Dreadful
    Jenny Dreadful December 20, 2006 at 12:53 pm |

    Fruminous, I think the reason the law is set up that way is because adults are in a position of authority over children. The power imbalance makes the consent issue difficult, especially since many people who have frequent access to teenagers are coaches, teachers, and other authority figures. Those authority figures should be guiding and protecting teens, not seducing them.

  21. Thomas
    Thomas December 20, 2006 at 1:06 pm |

    Dr. Dyer, most jurors don’t know (and they cannot be told) that they can simply disregard the law. When it happens, it is a result of spontaneous outrage and emotive refusal, rather than a considered strategy to participate in the known phenomenon of jury nullification.

    Mythago, you said:

    But Romeo and Juliet laws sort of ignore that, and suggest that minors can kinda sorta give consent if the other person isn’t that much older. Note that the new law makes it a misdemeanor for a 17-year-old teen to have sex with a 13-year-old; I doubt that’s really what any of us think of as sex between teen peers. (And then there’s the whole issue of consequences; is a 13-year-old any more likely to be aware of STDs and contraception when her lover is 17 rather than 20?)

    I’m a big proponent of Romeo-and-Juliet provisions — I think that every sexual assault statute should have such a provision. I read the public policy behind statutory rape differently: I think the stuff about the ability of the minor to give consent, at least with regard to adolescents, is a fiction that really stands in for our recognition that it is important to paternalistically substitute other judgment for theirs, when the power differential in the circumstances is so great that we can’t trust them to protect their own interests. While a small child may actually have no meaningful ability to give consent, do any of us really believe that there is no sexual conduct that a thirteen-year-old can give consent to? I sure don’t. I think a thirteen year old can engage in age-appropriate sexual conduct with age-appropriate partners. What exactly that is is so highly individualized that most of the real work has to be done by parents giving their teens a framework to make those decisions (which I see precious little of …) but I think the State can draw general lines to reduce abuse. Sure, seventeen and thirteen may be coersive, but I think we all recognize that thirty and thirteen is inherently coersive. Drawing a bright line to prevent the former by frankly substituting the legislature’s judgment for that of the minor in the latter case, while allowing the minor to make her or his own call in the former case, may not be perfect but seems to me pretty sensible.

    Anyway, to the extent that legislators really think that statutory rape laws are about judging whether a girl is old enough to make decisions about sex, rather than about who she can have the sort of relationship with where she is free to make her own decisions, I think that’s the wrong approach and I advocate statutory rape laws and Romeo-and-Juliet provisions based on my analysis.

  22. Ellie
    Ellie December 20, 2006 at 1:09 pm |

    I’m not making comments about this specific case or about whether the accused got a fair sentence. Just looking for input on why a 15 yr-old (say) can give meaningful consent to another 15-yr old, but not to a 25 or 35 yr old.

    My guess is that the assumption is that two 15-year-olds both have crappy judgment while a 25-year-old might “know better” by that time and therefore use some sort of persuasion or coersion. I’m not really sure. I’ve seen no real difference in my ability to judge proper from improper over the past ten years, and certainly not magically when I turned 16 (age of consent in this state) or 18 (legal age of adulthood).

    To answer you another way, I guess it would be the reason that a 15-year-old gets charged with a juvie offense and a 25-year-old, even one who has all the judgment of a 12-year-old, gets charged as an adult. We don’t hold 15-year-olds accountable for what they say and do. We DO hold older teens and adults accountable. I don’t agree (I fucking well knew right and wrong when I was in single digits and could even make informed, rational decisions), but that’s just how it is. :(

  23. Thomas
    Thomas December 20, 2006 at 1:13 pm |

    About this case in particular, I don’t know enough to know, but it is possible that the SR conviction was actually a compromise because the jurors could not reach a unanimous verdict on his conduct with the impaired teen. If half of the jury thought he was a part of the gang-rape, or complicit as an accessory or something, and others thought that was likely the case but the State’s proof was weak, they may have all been able to agree that (1) he probably did something wrong; and (2) independently, he violated the law by having oral sex with a fifteen year old.

    That’s speculation. And anyway, that’s not really how a jury is supposed to work; but that’s what sometimes happens.

  24. Kyra
    Kyra December 20, 2006 at 1:14 pm |

    I think we’ve got two miscarriages of justice, the second being that they didn’t convict him of raping the 17-year-old. There’s something decidedly sickening and perverse about a justice system that will so overzealously protect one girl that doesn’t, in this case, need it, and at the same time do absolutely nothing for another girl who actually has a valid complaint. It switches tack so as to be insulting and demeaning to both girls.

    I am not so sure what to think about the sentence. On the one hand, even though they did convict him of rape when they shoudn’t have, it is sort of balanced by the fact that they didn’t convict him of rape when they should have, and he ends up convicted of one rape (numbers-wise), which he did commit. On the other hand, ten years is too much for an impaired-consent case—he was unvigilant rather than deliberately cruel (i.e. there’s some difference, intent-wise, between not caring/bothering to see if they really want it, and deliberately forcing someone who obviously doesn’t want it, and probably some difference effects-wise, too, but It’s too early in the morning for me to play psychologist or philosopher.)

    One thing I am sure of: In a world where the average convicted rapist (himself neither the average nor the majority of rapists, which is bad enough) gets around eight months, this is an utter insult, reminiscent of the treatment of the “rapist” in The Handmaid’s Tale.

    Watch for the neocons to turn this into “feminists can’t make up their minds.” We’ve complained and complained about the low conviction rate and low sentencing of rape, and now we get both a conviction and a big sentence and we’re complaining still—”I blasted that man dying of thirst with a fire hose for a few seconds, why’s he still complaining?”: the Rape Edition, methinks is on the horizon.

  25. Kyra
    Kyra December 20, 2006 at 1:28 pm |

    But Romeo and Juliet laws sort of ignore that, and suggest that minors can kinda sorta give consent if the other person isn’t that much older. Note that the new law makes it a misdemeanor for a 17-year-old teen to have sex with a 13-year-old; I doubt that’s really what any of us think of as sex between teen peers. (And then there’s the whole issue of consequences; is a 13-year-old any more likely to be aware of STDs and contraception when her lover is 17 rather than 20?)

    I don’t have solid answer to all of this, but the problem is that the law is trying to mash-up “too young to consent” and “teenagers can agree to sex with other teens” and not doing a very good job of it.

    The theory behind it is not that these older minors are incapable of consent the way a three-year-old is, but rather that an age difference provides a power differential that could hinder the younger person’s ability to freely choose, or feel that she could safely say no (or possess the self-confidence to say no to a much older (and from a teenager’s perspective, more impressive, formidable, perhaps intimidating) boy or man than she would to a teen her own age.

    At least, I believe that’s supposed to be what they’re trying to accomplish, protect girls from being preyed upon by older men and still give them some leeway to express their own sexuality.

    Personally, I think it needs some more wiggle room—a power differential does not automatically preclude a woman from freely consenting, in spite of said differential rather than because of it, although teen boys should be made aware of the mechanics involved in their interactions with younger girls. What I really would like to see is each case like this re-visited when the girl in question turns eighteen, and for her to consider the event and give her now-more-adult-and-competent opinion and analysis thereof, regarding whether she feels she was used or manipulated, or made the decision freely, and if she feels she was not raped, coerced, imparired, what-have-you, then the conviction be reversed and removed from the defendant’s record.

  26. Thomas
    Thomas December 20, 2006 at 1:55 pm |

    under Georgia law as it stands, being intoxicated does not mean that you are unable to give consent

    As bad an injustice as criminalizing the age-appropriate consensual sexual conduct of teens. Too drunk to understand what is happening ought to be too drunk to give meaningful consent in all fifty states. And I don’t give a rat’s ass about the argument that men can’t tell how drunk their partners are … that’s a jury question and any guy who can’t tell how drunk his partner is is always free to take the high road and say, “you’re too drunk for me to be comfortable with this.” A partner who is not that drunk and wants sex can always respond by saying, “no, I’m pretty sober and I know what I want.” If they can’t or won’t do that, they are either not really lucid or not really into it.

  27. Amber
    Amber December 20, 2006 at 3:08 pm |

    There are a lot of problems with all the laws surrounding sex offenses here in Georgia. Politicians have been using the issue as a way to grab as many votes as possible, under the guise of “protecting children” – bc who would want to look like they don’t want to protect children from the ev0l bad sex offenders? But what you really end up with are situations like this one – and the actual, dangerous sex offenders falling off the radar and just getting away with more crimes. There was a story in the local altweekly awhile back about girl who gave a guy a blowjob in high school – she was 17 at the time and he was 15 (and I remember this from when it happened, bc it was at a high school near the one I attended, same time I was in high school) – and was convicted of child molestation bc of her age. She now has to register on the sex offenders list for the rest of her life. Thanks to some of her life. She and her husband have had to move bc of new laws restricting where sex offenders can live – can’t be within a certain distance of churchs, schools, daycares, etc… she can’t find anywhere to live. I also have a frien dwho’s a lawyer who deals with a lot of cases like this. Anyway… the whole thing is infuriating, bc it’s all political and meanwhile actual dangerous criminals go unchecked.

  28. bmc90
    bmc90 December 20, 2006 at 3:10 pm |

    I think where well intentioned laws fall off the track is that they just can’t account for individual sexual sophistication, and the danger of this working an injustice is greater when people are closer in age. For example, a 15 year old who has PVI sex with 3 parters, all within two years of her age, she is on the pill, and then has oral sex with a 4th partner, also within 2 years of her age but who is a virgin who has never done any heavy petting – why the hell should her 4th parnter potentially go to jail for 10 years because she cannot effectively consent? I am not a big fan of prior sexual history being admitted on the issue of consent, don’t take this comment that way. My point is that it is hard enough to write a law that is really fair in all circumstances in the first place, but when you don’t even try, stuff like this will happen. Finally, what if the 17 year old received oral sex from a 15 year old male? Same result? I guess so.

  29. Kyra
    Kyra December 20, 2006 at 3:44 pm |

    From what it looks like, they couldn’t have convicted him of raping the 17-year-old, because under Georgia law as it stands, being intoxicated does not mean that you are unable to give consent.

    So it’s a miscarriage of justice caused by Georgia law, rather than one caused by the jury. Big deal.

  30. libdevil
    libdevil December 20, 2006 at 5:45 pm |

    In the meantime, while everyone is submitting petitions to the Georgia Legislature, it might be a good idea to submit one that would ask for a law making sexual contact with an impaired person rape.

    Given the way the Georgia legislature works, I highly doubt that any such law they passed would lead to real justice.

  31. mythago
    mythago December 20, 2006 at 5:59 pm |

    The theory behind it is not that these older minors are incapable of consent the way a three-year-old is

    But the theory behind statutory rape laws is that until you have reached a certain age, you are not mature enough to consent to sexual activity. Period. Even if you say you do, even if you enjoy it, even if you’re extremely precocious. It’s not about the minor’s competence relative to the maturity of the accused.

    Thomas, surely you don’t think that there is a magical age where teenagers are capable of engaging in sex, but are incapable of deliberately exploiting less mature age-mates.

  32. Thomas
    Thomas December 20, 2006 at 6:42 pm |

    Mythago, I certainly do not think that there is a magical age at which teens are capable of making adult decisions. Not in an absolute sense, and not relative to their partners’ maturity. Any age is arbitrary, and chosen only for easy of application; any age will be wrong, some and probably most of the time.

    However, for reasons of applicability, an age cut-off is the only alternative to saying, “we give up. Any sex partner is fine with us.”

    I’m rarely brief but I think I’m usually clear, and I think I’ve failed to get my point across here. I’ll try again:

    Even if you say you do, even if you enjoy it, even if you’re extremely precocious.

    Agreed. Statutory rape laws impose a bright line rule that does not admit of exceptions for individual experience or maturity. As I said, I think there’s no other way.

    you are not mature enough to consent to sexual activity. Period.

    Not “Period.” The rule does admit of exceptions in many places; not based on individual maturity, but based on partner age. There are two possible interpretations of “Romeo and Juliet” provisions. One is that a fifteen year old is not capable of consent with anyone, but that if the partner is also fifteen, neither of them is mature enough to be held accountable. But if that were true, then the “Romeo and Juliet” provision would not have a bottom age — and they invariably do. In some states, a fifteen year old who has sex with a fifteen year old has done nothing criminal, but one who has sex with an eleven year old could be charged as an adult for child molestation. Is the fifteen year old more mature because the partner is younger? Of course not. But the power differential is too glaring to ignore.

    Which leads to the second interpretation of age of consent laws, and of Romeo and Juliet provisions; and this is my interpretation: that the problem which is so bad that it requires the application of a bright-line, strict liability rule is adults taking sexual advantage of teens; that small children (in NY, under 11 IIRC) are protected from everyone, but that teens are protected only from those significantly older than themselves.

    And as I said before, if that’s not the analysis that’s really driving age of consent laws, then it should be. The result it produces is an age of consent statute with a Romeo and Juliet provision to protect teens from exploitation by adults, but does not criminalize the sexual learning curve among teens.

  33. AndyS
    AndyS December 20, 2006 at 7:15 pm |

    Just to clear up one apparent misconception… The NYT articles says,

    A second girl, 15, also attended the party, but did not drink or smoke. … After watching parts of the tape, the jury decided that Mr. Wilson had not raped the older girl. But it was bound by law to find him guilty of molesting the 15-year-old.

    So Wilson is doing his 10 years without parole and a lifetime of registering as a sex offender only for having consensual oral sex with a 15-year-old (if you accept that a 15-year-old can meaningfully consent). Talk about cruel and unusal punishment….

  34. Lauren
    Lauren December 20, 2006 at 7:31 pm |

    Sort of OT, but when I was fifteen my folks tried to press charges against my seventeen year old boyfriend for statutory rape. We were having consensual sex — and I was maybe a month away from my 16th birthday, the legal age in Indiana. I firmly believe that the reason they pressed charges against him was not solely because of the sex, but because he was also black. He skipped town directly after the charges were pressed against him and as far as I know was never arrested for them. I assume they would actually have to contact me if he were ever arrested.

    What terrifies me is knowing that my parents could use my legally minor status as leverage to get this young man out of my life — in hindsight there were plenty of reasons for them to not to like my dating him, but this was clearly a negative “firehose for thirst” situation. That he could be legally declared a sexual offender for having sex with a willing and eager me is not only frightening, but is also something I can NOT wrap my head around. Thankfully the statue of limitations prevents any prosecution.

  35. Lauren
    Lauren December 20, 2006 at 7:32 pm |

    Statute, not statue.

  36. Mnemosyne
    Mnemosyne December 20, 2006 at 7:49 pm |

    Jurors said afterward they did not know that the charge carried a minimum sentence of 11 years, including 10 without parole.

    I hear this pretty frequently after cases like these — why are prosecutors not allowed to tell juries the penalty for the crime the defendant could be facing?

    And, yeah, as AndyS points out — the jury found him NOT guilty of raping the 17-year-old. Whether or not he’d be found guilty of it in your home state doesn’t really matter, frankly.

  37. Jenny Dreadful
    Jenny Dreadful December 20, 2006 at 8:14 pm |

    From what it looks like, they couldn’t have convicted him of raping the 17-year-old, because under Georgia law as it stands, being intoxicated does not mean that you are unable to give consent.

    This isn’t actually entirely true. In Georgia, if you are intoxicated, you can still legally give consent. The jury reviewed the tape to see if the 17-year-old was too intoxicated too give meaningful consent, which could still have constituted a rape charge. According to this article, the jury viewed the tape and concluded that it wasn’t rape. However, on the 2nd charge regarding the oral sex with the younger girl, they had no choice but not convict him, because the law was perfectly clear. Apparently, the jury had no idea what sort of a sentence a conviction on that charge would bring, and were upset at the sentence the boy received.

  38. Jenny Dreadful
    Jenny Dreadful December 20, 2006 at 8:16 pm |

    Here is an article that shows a reaction from one of the jurors.

  39. Bitter Scribe
    Bitter Scribe December 20, 2006 at 8:29 pm |

    Mandatory sentencing laws are like zero-tolerance laws. They’re a substitute for brains, and an easy way for politicians to pander by donning the tough-on-crime mantle.

  40. mythago
    mythago December 20, 2006 at 10:17 pm |

    Thomas, the second interpretation you cite is the reason for “Romeo and Juliet’ laws–the problem is that it doesn’t mesh well with the theory of statutory rape laws in the first place, namely that minors can’t give meaningful consent to sex. So you’re saying that we judge the minor’s ability to consent based on the age of the other person. If it’s an older teen, the minor is capable of consent. If it’s an adult, then suddenly the minor magically becomes incompetent.

    Again, the theory makes no sense. If a fifteen-year-old is mature enough to understand contraception and the risks of pregnancy, who are you to tell her that she has to limit herself to boys two years older or less, and that if she picks a much older partner, we’re going to pretend she’s mentally indistinguishable from a four-year-old?

  41. Alon Levy
    Alon Levy December 20, 2006 at 11:33 pm |

    Fruminous, I think the reason the law is set up that way is because adults are in a position of authority over children. The power imbalance makes the consent issue difficult, especially since many people who have frequent access to teenagers are coaches, teachers, and other authority figures. Those authority figures should be guiding and protecting teens, not seducing them.

    Countries with saner statutory rape laws than the US indeed have separate ages for the general case and for authority figures. In Canada, the normal age of consent is 14, but rises to 18 when the older person is in a position of authority over the younger person.

  42. 1984 Was Not a Shopping List
    1984 Was Not a Shopping List December 21, 2006 at 3:29 am |

    Bitter Scribe, certainly, a _poor_ substitute for brains, as many a judge has agreed.

    >Sort of OT,

    Lauren, not so much OT–I was going to say, when I was 17, my first girlfriend was 15, as mentioned elsewhere. I understand that a line has to be drawn somewhere, but this “substitute for brains” stuff has got to stop. Neither my first girlfriend and I, nor your 17-year-old partner and the 15-year-old you, should have had the law parachuting in and chicken-squawking about it, not to mention ruining a few lives. The impaired girl in this scenario is different, but as other posters have mentioned, they’re getting the one they can get, because it’s a slam-dunk, and ignoring the fact that every last one of the prosecutors, police, judge and jury members probably (hopefully) broke the same law when they were that age.

    I’m reminded, again, of the Jane Pauley (?) interview with a Dutch lady, an authority on teen sex education, talking about the fact that Dutch teens are educated on safe sex, instead of adults trying to prevent them from having any, and they have a fraction of our teen pregnancy rate.

    I wish people would knock this stuff off.

  43. 1984 Was Not a Shopping List
    1984 Was Not a Shopping List December 21, 2006 at 3:31 am |

    >probably (hopefully) broke the same law when they were that age.

    (That is, the one regarding the 15-year-old.)

  44. Lesley
    Lesley December 21, 2006 at 8:34 am |

    In Georgia, if you are intoxicated, you can still legally give consent. The jury reviewed the tape to see if the 17-year-old was too intoxicated too give meaningful consent, which could still have constituted a rape charge.

    That’s a distinction without a difference. What zuzu said is that being intoxicated does not mean that you are unable to give consent. This means, therefore, that being intoxicated means you can give consent. Which is exactly what you said. The change in the law zuzu proposed, which I completely agree with, is that intoxication means you are unable to give consent period.

    The whole idea that there is some way that other people are supposed to determine how intoxicated you are is ludicrous. Intoxication does not hit everyone the same way. Just because she appeared to be only sleepy or intoxicated does not mean she was in any position to give meaningful consent. In my case, I would go from remarkably giggly to vomiting or passed out. There would be no apparent in-between state. That doesn’t mean that there isn’t an actual in-between state.

    As for Wilson, wow, she didn’t say no. The article didn’t seem to mention that she said yes either. And if later on she was pulled off the bed without complaint, you kind of have to wonder just what her mental state was. Are we supposed to conclude, therefore, that she wanted to be pulled off the bed? Or is it more likely that she was too drunk to really comprehend what was happening to her? I’m quite sure he honestly believes he did not rape her, because she didn’t say no. That’s part of the problematic mindset, though. The bellwether shouldn’t be “but she didn’t say no.” It should be that she actively participated. Note that I did not say that she had to specifically say yes either. I realize it might be a terrible inconvenience for a man to have to be aware enough of his partner to know whether or not she (or he) is enjoying her/himself. Nonetheless, all men are thinking and feeling human beings who are perfectly capable of rising above that inconvenience to avoid raping someone. Most men manage it on a regular basis, and I have no sympathy for those who don’t or don’t want to.

  45. Frumious B
    Frumious B December 21, 2006 at 9:19 am |

    I understand about institutional power differentials. They aren’t unique to teenage-adult relationships, though. Sexual relations between college students and professors, or between adult interns and management, or adult atheletes and coaches, are ethically murky because of the same power differential. However, none of those relationships are illegal. Furthermore, the statutory rape laws apply equally to teachers, coaches, and random adults who the teen meets at the mall or whereever.

  46. Sheelzebub
    Sheelzebub December 21, 2006 at 10:01 am |

    WRT statutory rape laws–frankly, they should be in place to hold people accountable for taking advantage of someone much younger than them. Even if the child says they wanted to (I have a couple of friends who were molested who would have said that at, say, age 11, because of the mind-fuck their assailants gave them–”you must have wanted it because you never said no,” etc.). A 25-year-old has no business fucking a 16-year-old. A 25-year-old should fucking goddamn well know better.

    Teenagers experiment together, and I’m far more comfortable with a 15-year-old and a 15-year-old or a 16-year-old getting busy than a 15-year-old and a 20-year-old (a 20-year-old, or a 25-year-old, should fucking goddamn well NOT expose a teenager to pregnancy/potential fatherhood and STDs, for fuck’s sake. They’re the grownups, they KNOW BETTER). I also see a power differential and a real problem with sex between a 15-year-old and a 10-year-old–though I don’t agree we should treat the 15-year-old as an adult in the courts. There’s too much of an age/authority differential. If I was 11 and a 15 or 16 year old kid pushed me into sex, I probably would have said that it was my fault too, since I wouldn’t have had the vocabulary or knowledge to name what had happened. Christ. Most *women* who are raped don’t call it that if they knew the guy, a lot of kids don’t get it, but are deeply ashamed and hurt by it. I think it’s easy to forget that kids aren’t where adults are developmentally. They aren’t small grownups, and the damage done to them by this shit is pretty far-reaching.

    In this case, he shouldn’t have been convicted of statutory rape. That’s ridiculous–she wasn’t that much younger than him, and this was consensual. It does burn my ass that the 17-year-old who was too drunk to consent never saw any justice, however.

  47. Sheelzebub
    Sheelzebub December 21, 2006 at 10:05 am |

    Oh, and Amber had mentioned sex offender registries. Just want to make a point–I’m completely against them. They are unconstitutional, actually trivialize sexual assault, and provide a false sense of security. Most people who rape or sexually assault others don’t get caught, and aren’t on the registries, so checking them isn’t keeping your kids safe, or yourself safe. The people who are on the registries have served their time, and shouldn’t be vulnerable to harassment and vigilante bullshit.

    If people really gave a fuck about sexual assault, we’d see far less victim-bullying and blaming a la the OC rape case and Big Dan’s. We’d see a lot more awareness about the reality of sexual assault. Instead, we’ve got a bunch of chest-beating over the boogeyman and victim-blaming. That’s bullshit.

  48. Thomas
    Thomas December 21, 2006 at 10:55 am |

    Again, the theory makes no sense. If a fifteen-year-old is mature enough to understand contraception and the risks of pregnancy, who are you to tell her that she has to limit herself to boys two years older or less, and that if she picks a much older partner, we’re going to pretend she’s mentally indistinguishable from a four-year-old?

    Mythago, you’re wrong that it makes no sense. It’s paternalistic, but I’ve said that this is unavoidable. The idea that age-of-consent is about being able to “understand contraception and the risks of pregnancy” is not one that I agree with, and the common language that a minor “cannot give meaningful consent” is, I think I’ve made clear, at least in the case of teens a fiction for a more complex idea: that we don’t believe they can stand up for themselves with an adult who can overly impress or manipulate them. If that’s what the public policy concern is, then making distinctions based on age discrepancy makes more sense than using just the age of the minor.

    If it’s an adult, then suddenly the minor magically becomes incompetent.

    By using the word “magically” as a pejorative, you don’t actually make my reasoning defective. You just show that you’re dismissing it. What I’m saying is that if we are to offer any protection to children from sexual exploitation, we have two options, both paternalistic:

    1) a particular fifteen year old may be ready for sexual activity, but we will outlaw all such activity regardless of the partner’s age (this is the more paternalistic, and it is neither what I advocate, nor what many states in fact do); or

    2) a particular fifteen year old may be ready for sexual activity, and we will not outlaw that activity because she can make her own decisions, except that we will outlaw so much of that activity as involves a significant age disparity between her and her partner out of cncern that the agency she may be able to exercise in a more equal relationship will be overcome, and exploitation occur, if her partners are adults. (That gives her more rights and freedoms; recognizes that mature enough to stand up for herself with a high school boy is not the same as standing up for herself with a thirty year old man; explains perfectly the reasoning behind the Romeo and Juliet provisions that states have; and is the approach I advocate.)

    Mythago, you keep getting stuck on the idea that we really want, or are stuck with, the fiction that this is about (without more) a woman’s understanding of risks, and that therefore there should be a line she crosses, before which no activity is permitted and after which all is. That is not the way the statutes actually work, nor on my account is that a good idea. I submit that the concern has more to do with the ability of a minor to make choices and set limits with a partner, than with her understanding of pregnancy and contraception, etc. For that reason, disparity among partners is a greater concern than absolute maturity, at least once a certain threshold is reached.

    As you say, if we really believed in the “pass the understanding threshold” model, no state would have a “Romeo and Juliet” provision, because fifteen year olds would be no better off having sex with a fifteen year old than with a fifty year old. I don’t believe that and I’m not sure very many people do.

  49. Raging Moderate
    Raging Moderate December 21, 2006 at 11:17 am |

    The change in the law zuzu proposed, which I completely agree with, is that intoxication means you are unable to give consent period.

    Doesn’t that therefore mean that if a woman is drunk, she is legally not permitted to have sex?

  50. Sheelzebub
    Sheelzebub December 21, 2006 at 11:44 am |

    Doesn’t that therefore mean that if a woman is drunk, she is legally not permitted to have sex?

    Will you cut the passive-aggressive crap for once? The change proposed was a legal acknowledgement that if anyone is impaired, they are unable to give consent. It doesn’t make them criminals for getting raped. It means that someone who has sex with them is taking advantage of the fact they are impaired.

    Contracts are null and void if someone signs them while impaired. That doesn’t make somone who signs one while impaired (i.e., drunk) a criminal. The principle of this is no different when it comes to rape.

    Sheesh.

  51. Raging Moderate
    Raging Moderate December 21, 2006 at 11:58 am |

    The change proposed was a legal acknowledgement that if anyone is impaired, they are unable to give consent. It doesn’t make them criminals for getting raped. It means that someone who has sex with them is taking advantage of the fact they are impaired.

    I’m not saying that it will make women criminals.

    I’m saying that if the law says a man is not permitted to have sex with a woman who is drunk, it is also necessarily saying that the drunk woman is not permitted to have sex.

    Do you see my point? Are you really comfortable with a law that tells you that if you are drunk, you can’t have sex?

  52. AndyS
    AndyS December 21, 2006 at 12:06 pm |

    The change proposed was a legal acknowledgement that if anyone is impaired, they are unable to give consent. It doesn’t make them criminals for getting raped. It means that someone who has sex with them is taking advantage of the fact they are impaired.

    I think I know what you are trying to say here, but it can also be read that no one can ever have legal sex while drunk — which is just not reasonable. It happens all the time between married couples, couples that have been together for a long time, and even during casual encounters. Sometimes it is what people do for fun and no one is being taken advantage of. We don’t want to go rounding them all up and charging them with rape. Somehow rape laws with regard to alcohol impairment have to add some language about manipulation and “being taken advantage of against their will.”

  53. Q Grrl
    Q Grrl December 21, 2006 at 12:06 pm |

    I have trouble believing a 15-year-old could give meaninful consent at a party with older teenagers who are actively drinking/drugging and who has apprently been witness to a gang rape on an older girl.

    I’d say “yes” quite enthusiastically if it meant only one blow-job and not a gang rape. Duh.

  54. tadhgin
    tadhgin December 21, 2006 at 12:27 pm |

    Raging Moderate said: Doesn’t that therefore mean that if a woman is drunk, she is legally not permitted to have sex?

    Sheelzebub replied: Will you cut the passive-aggressive crap for once?

    It’s a good point. Obviously a woman can consent to sex despite having drunk too much to get in a car and drive home. And who hasn’t had a drunken shag? But, that is very different from the kind of guy who has sex with a woman who is comatose.

    Ultimately the capacity to consent is a question for a jury to decide. Evidence might be how much alcohol was consumed, etc. the state saw people the woman in (was she falling all over the place in the bar etc). It’s shitty, and juries will get it wrong sometimes (because of moralizing, misogny, and all the usual reasons) but that is the problem with juries, they reflect society.

    In this case the jury seem to have decided that they don’t think the 17 year old was raped, i.e. they viewed the tape and were of the opinion she provided meaningful consent.

  55. Myca
    Myca December 21, 2006 at 12:42 pm |

    Except that she still says it was consensual, right?

    I mean, calling rape sex is pretty vile, but I’m not real wild about calling sex rape if none of the participants do.

  56. Lesley
    Lesley December 21, 2006 at 12:43 pm |

    These kinds of consent restrictions are already in place in several states, countries, and many college campuses. No wholesale rounding people up for having sex while drunk has ensued. This is because someone actually has to press charges. The state does not go around sniffing out drunken people and investigating whether or not they had sex while intoxicated.

    Really, it’s not exactly a new concept in common law that people can’t consent to something while impaired. It’s been around for a long damn time. If you sign a contract while drunk but are happy to live up to the terms of the contract, life is good. It only nullifies the contract if you claim you were impaired and it is proven that you were impaired. This is no different.

  57. Myca
    Myca December 21, 2006 at 12:44 pm |

    Ah, sorry, last post was in response to Q Grrl.

  58. Raging Moderate
    Raging Moderate December 21, 2006 at 1:24 pm |

    Lesley:

    Have you ever had sex while drunk?

    If so, doesn’t that mean that you were raped (since you were incapable of giving consent, period).

  59. Sheelzebub
    Sheelzebub December 21, 2006 at 2:00 pm |

    Do you see my point? Are you really comfortable with a law that tells you that if you are drunk, you can’t have sex?

    You’re not making a point–you’re willfully ignoring the original point and being passive-aggressive, as usual. The fact is, if you are that impaired you cannot give true consent.

    Are you comfortable with a law that states if you are drunk, you can’t sign contracts?

  60. Sheelzebub
    Sheelzebub December 21, 2006 at 2:07 pm |

    Really, it’s not exactly a new concept in common law that people can’t consent to something while impaired. It’s been around for a long damn time. If you sign a contract while drunk but are happy to live up to the terms of the contract, life is good. It only nullifies the contract if you claim you were impaired and it is proven that you were impaired. This is no different.

    Apparently, among some of the folks here, it is a new concept. I’m waiting with great anticipation for the deluge of protests against the law that makes contracts null and void if the signee says they were impaired and unable to give meaningful consent. Since, you know, it really oppresses drunk people and doesn’t give them the right to make their own decisions.

    AND BTW FOLKS–it’s already actionable in some states if someone does come forward and say they were not able to give meaningful consent due to being drunk or high, but were used for sexual purposes anyway. Someone taking advantage of their state IS “manipulation and being taken advantage of against their will.”

    Jaysus. Can we talk about rape without people throwing fucking strawmen about?

  61. Raging Moderate
    Raging Moderate December 21, 2006 at 2:25 pm |

    Are you comfortable with a law that states if you are drunk, you can’t sign contracts?

    Nope. But I’ve never heard of any such law. As Lesley noted:

    If you sign a contract while drunk but are happy to live up to the terms of the contract, life is good. It only nullifies the contract if you claim you were impaired and it is proven that you were impaired.

    I have no problem with someone consensually signing a contract while drunk, and then having it nullified the next day. The other party is not imprisoned afterward.

    I do have a problem with a person who has consensual sex with someone who is drunk being called (and possibly prosecuted as) a rapist.

    You’re not making a point

    As other comments here show, some people believe I do have a point (see comments #55, #57, and #58). You just disagree with it.

    I answered your question. Will you answer mine?

    1. Again, are you really comfortable with a law that tells you that if you are drunk, you can’t have sex?

    2. Have you ever had sex while drunk? If so, doesn’t that mean that you were raped (since you were incapable of giving consent, period).

  62. Raging Moderate
    Raging Moderate December 21, 2006 at 2:32 pm |

    AND BTW FOLKS–it’s already actionable in some states if someone does come forward and say they were not able to give meaningful consent due to being drunk or high, but were used for sexual purposes anyway. Someone taking advantage of their state IS “manipulation and being taken advantage of against their will.”

    This I agree with.

    I disagree that a person who is drunk is never capable of consent (which is how I interpreted “intoxication means you are unable to give consent period“.

    If I was mistaken about the meaning of that, I stand corrected.

    If I was correct in my interpretation, well that’s just crazy.

  63. jt
    jt December 21, 2006 at 2:57 pm |

    Apparently, among some of the folks here, it is a new concept. I’m waiting with great anticipation for the deluge of protests against the law that makes contracts null and void if the signee says they were impaired and unable to give meaningful consent. Since, you know, it really oppresses drunk people and doesn’t give them the right to make their own decisions.

    There’s a bit of a difference between saying to the holder of a contract “She was drunk when she signed that – it’s no good” and saying to a sex partner “She was drunk when she did that – now you’re going to jail.” The contract-holder isn’t necessarily committing a crime by having the drunk person sign it.

    I second what Lesley said: The whole idea that there is some universally applicable way for a person to determine how intoxicated you are is ludicrous. That is why I’d consider “sex with a consenting intoxicated person = rape” to be a questionable maxim.

  64. jt
    jt December 21, 2006 at 3:06 pm |

    That is why I’d consider “sex with a consenting intoxicated person = rape” to be a questionable maxim.

    Oh, and let me emphasize here that sex with a person too drunk to actually voice consent is clearly rape in my mind, in case anyone mistakenly thinks I’m saying otherwise. I simply don’t think it’s true that anyone who has sex with an intoxicated person has committed rape.

  65. Lesley
    Lesley December 21, 2006 at 3:15 pm |

    Lesley:

    Have you ever had sex while drunk?

    If so, doesn’t that mean that you were raped (since you were incapable of giving consent, period).

    Actually, no, I have not. I rarely drink, so the amount of times I’ve been drunk have been limited. I was everyone’s favorite designated driver in college.

    Now, if you’re driving towards getting me to say something, just state it outright. Don’t get all Socratic method on me. I’m quite capable of following leaps of logic without being led down some path step by step. Get to your final point already. Sheelzebub is right. You are being passive-aggressive.

    In fact, let me leap ahead on my own. I think most people are perfectly capable of assessing their drunken actions retrospectively (i.e., while sober) to determine whether or not they believe they were taken advantage of. Don’t you? Or do you think people are that stupid and/or irrational? If they don’t think they were taken advantage of, then there is no damn problem. The strawman is old already. Please, burn it. These sorts of restrictions only apply when someone does believe they did not give meaningful consent. Not when they do.

    Is the law perfect? No. That’s why it only comes into play when someone presses charges and claims they were too impaired to give meaningful consent. No one is claiming that all instances of drunken sex constitute rape or that the state should go around locking up anyone who’s ever had sex while drunk. Having these kinds of laws on the books just mean that some asshole can’t claim he “honestly believed” the woman had given meaningful consent when she was really just drunk. Laws tend to be black and white. None of us are actually stupid enough to think that real life is. Really, we aren’t. One more time, that’s why the fail-safe with these kinds of restrictions is that they only apply when someone sobers up and believes they were taken advantage of while impaired. Not when they don’t.

    You would think that with thousands of years of laws under our belts, we had never figured out how to deal with black and white laws vs. real-life complexities. Or is it only when it applies to sex that some people believe we can’t manage that? Let me go on record as saying that I do believe we can manage it Clap your hands if you believe!

  66. Jill
    Jill December 21, 2006 at 3:19 pm | *

    I’m saying that if the law says a man is not permitted to have sex with a woman who is drunk, it is also necessarily saying that the drunk woman is not permitted to have sex.

    Do you see my point? Are you really comfortable with a law that tells you that if you are drunk, you can’t have sex?

    That’s not true at all. Of course you can still have sex if you’re drunk, just as you can sign a contract when you’re drunk. It just means that, if an issue arises, the element of consent was absent.

    Further, most rape laws that include alcohol include it as an aggravating factor, like date-rape drugs. That is, if you have a drink with your friends and then you have sex afterwards, it’s not rape. If you’re impaired to the point where you can not consent (and this point has to be proven in court), or if your attacker used alcohol to get you drunk with the purpose of having sex with you, the law comes in. Seems pretty damn reasonable to me.

  67. Raging Moderate
    Raging Moderate December 21, 2006 at 3:26 pm |

    I think most people are perfectly capable of assessing their drunken actions retrospectively (i.e., while sober) to determine whether or not they believe they were taken advantage of. Don’t you? Or do you think people are that stupid and/or irrational? If they don’t think they were taken advantage of, then there is no damn problem.

    That mirriors my opinion exactly.

    But doesn’t it contradict your earlier statement?

    intoxication means you are unable to give consent period

  68. Lesley
    Lesley December 21, 2006 at 3:36 pm |

    But doesn’t it contradict your earlier statement?

    It might, if that hadn’t been preceded by the words “The change in the law zuzu proposed, which I completely agree with,…” Note that I was specifically talking about changing a law. Not every instance of drunken sex.

  69. Sheelzebub
    Sheelzebub December 21, 2006 at 4:18 pm |

    No, RM. You didn’t make a goddamn point. You’re being your usual passive-aggressive self. I’m not going to answer your goddamn question because you’re being disingenuous, you’re trying to attribute thing to me and others here that we never said and never thought, and trying to derail the thread with scare-scenarios. I’m not going to play your little game. It’s par the course for you, but I’m not having it.

    And JT and taghdin, that goes for you, too.

    KINDLY SHOW ME WHERE I SAID THAT IN ALL INSTANCES, BEING DRUNK MEANT THAT ONE COULD NEVER CONSENT TO SEX.
    Fucking hell. This whole thing started because Zuzu said this:

    In the meantime, while everyone is submitting petitions to the Georgia Legislature, it might be a good idea to submit one that would ask for a law making sexual contact with an impaired person rape.

    . . .in response to the fact that Georgia does not have provisions for impairment (IOW, if you’re too drunk to object, it isn’t rape.)

    You’ve all taken what was said completely out of context and spun all sorts of wack-job scenarios out of think fucking air. You all act as if cops are waiting to descend upon happy couples who are consensually fucking after a few drinks. Had you bothered to read the context, you’d see that not only will that NEVER happen, but NO ONE HERE HAS ADVOCATED THAT.

    Stop it with the goddamn strawmen. Besides the fact that you’re being deliberately obtuse, you’re trivializing rape with all of this hair-splitting and hysterical scare scenarios.

    I’m really glad that some of you scamps think this is some clever and amusing game. But to a lot of women, it isn’t a game, and we’re not amused.

  70. Lesley
    Lesley December 21, 2006 at 5:30 pm |

    some people believe I do have a point (see comments #55, #57, and #58)

    Actually, you didn’t make a point until comment #65 (maybe #64 at the earliest). Up until then, you asked a bunch of questions that were leading up to a point. Commenters #55 and #58 made their own points, which you clearly agree with. Neither one of them referenced any of your comments. #57 did and leapt ahead to what he thought your final point would be.* You were being passive-aggressive, because you weren’t actually stating your point. You were trying to get us to state it for you by leading us there with your questions.

    Socratic method might be fine in a classroom, but you are not our teacher. Neither have we asked you to teach us. I believe we’re meant to be participating in this as peers. It’s really quite patronizing when you behave in a teacher-ish way with us. And not for nothing, but it’s even more so for a man participating in a feminist forum. If you were unconscious of all of this, take this as your clue.

    *Personally, I wasn’t sure if that was your final point, or if you were also eventually going to get into “But how can we be sure she really was unable to render meaningful consent? Some guy might be unfairly convicted of rape!” thing too. In fact, I’m still not sure you’re not going to go there. You kind of alluded to it in comment #64.

  71. nik
    nik December 21, 2006 at 5:33 pm |

    That’s not true at all. Of course you can still have sex if you’re drunk, just as you can sign a contract when you’re drunk. It just means that, if an issue arises, the element of consent was absent.

    Just be careful though. If you ask someone to have sex with you while you’re drunk, that’s incitement to rape. Enthusiastically participate, and you’ve just made yourself an accessory. Being drunk doesn’t get you off the hook to either of those crimes.

    You all act as if cops are waiting to descend upon happy couples who are consensually fucking after a few drinks. Had you bothered to read the context, you’d see that not only will that NEVER happen, but NO ONE HERE HAS ADVOCATED THAT.

    People do seem to be advocating drawing a very broad law, that will make many people technically rapists, but with the aim of only using it against bad people who deserve being locked up. Can you see why that makes people uncomfortable? They’ll be a lot of ‘criminals’ who haven’t done anything wrong and are only dependent upon the good will of the authorities to avoid having their lives made hell.

  72. Sheelzebub
    Sheelzebub December 21, 2006 at 5:43 pm |

    Then I guess the laws that already exist in some states WRT consent and contracts are very bad laws.

    Since, you know, if you’d bothered to read the entire thread and the context, you’d see that no one here was advocating a law that automatically made people who had drunken, consensual sex rapists.

    But do go on and twist our words, and ignore the broader context of the conversation, since acknowledging it decimates your scenario, which has already been debunked and rebutted several times. I mean, it’s not like any of you want to listen. That’s never happened before when it comes to discussing rape.

  73. Lesley
    Lesley December 21, 2006 at 7:48 pm |

    Just be careful though. If you ask someone to have sex with you while you’re drunk, that’s incitement to rape. Enthusiastically participate, and you’ve just made yourself an accessory. Being drunk doesn’t get you off the hook to either of those crimes.

    Oddly, none of the numerous existing laws in various state and countries, or rules on college campuses state any of the above. Nor have they produced anything like that. In the real world, that is. The world where women are reasonable human beings who are capable of assessing while sober whether or not they really consented while intoxicated. Is that what makes people uncomfortable? Acknowleding that women actually know their own minds? Or is that while a man might actually be “Too Drunk to Fuck”, a woman is never too drunk to be “fucked” by some guy. The hole doesn’t even have to be conscious or living. Is it that these laws would have more negative consequences for men than for women? What with men being exponentially more likely to rape women than vice versa and all.

    They’ll be a lot of ‘criminals’ who haven’t done anything wrong and are only dependent upon the good will of the authorities to avoid having their lives made hell.

    Whereas in the real world they aren’t dependent on the authorities for anything. They’re dependent on the other person not sobering up and pressing charges for having been too impaired to consent. Because, again, in the real world the actual laws in question do not give the authorities the right to do a damn thing unless a victim wants to press charges. Is that what makes people uncomfortable? If so, maybe they need to pay more attention to their partners. A terrible thing, I know.

    Of course, since in the real world this has been said numerous times already in this very thread, I don’t expect you to actually pay attention to it this time. Continue to live in the fantasy world in which some completely different laws are on the books; laws that produce the scenarios you’ve mentioned.

  74. Raging Moderate
    Raging Moderate December 21, 2006 at 9:06 pm |

    It might, if that hadn’t been preceded by the words “The change in the law zuzu proposed, which I completely agree with,…” Note that I was specifically talking about changing a law. Not every instance of drunken sex.

    If you didn’t mean to say that in every instance of drunken sex, consent cannot be given, why did you put the word “period” in there? I understood it to mean that in every case where a drunken woman has sex, she cannot consent (period), and therefore every time a drunken woman has sex she was raped (since she was incapable of consent (period)).

    This might be a cultural thing; I’m Canadian, and when someone says “period” after a statement, it means that it is an absolute statement and is not subject to interpretation.

    Ex: Dubya is the worst president in the history of the USA, period!

    or: The White Stripes are the best band in the world, period (they are, ya know).

    I apologize if I didn’t understand that we actually share the same view on this topic.

    KINDLY SHOW ME WHERE I SAID THAT IN ALL INSTANCES, BEING DRUNK MEANT THAT ONE COULD NEVER CONSENT TO SEX.

    Again, it all stems from the word “period”. I mistakenly thought that’s what you and Lesley were arguing.

    I’m glad to see that we agree that a woman who is drunk can consent to sex without being taken advantage of or raped.

    Sorry to have raised the blood pressure here.

    Now I’m off with my girlfriend to wrap some presents, get drunk, and have consensual sex.

  75. AndyS
    AndyS December 21, 2006 at 9:22 pm |

    This thread seems to have gotten unnecessarily heated. No one has mentioned me by name, but since I made a comment along the lines of Raging Moderate’s remarks and my comment was cited by number (#55) I feel part of this. I don’t have the sense that Raging Moderate was being passive-aggressive (“as usual” or otherwise), rather that RM was pushing for reasonable clarification — as I was in comment 55.

    I’m not a lawyer so I don’t know if this is common or not, but it does seem odd that one would create a law that says if you have sex with an alcohol-impaired person you are committing rape because the impairment implies consent can not be given (“period”). It’s odd because we all know this happens all the time in cases where it is clearly not rape. The rejoiner is “well, if the ‘victim’ doesn’t think they were raped, they won’t press charges.” But it isn’t hard to imagine cases where the impaired person would use abuse this power. My suggestion was that a few more words added to the law would mitigate that circumstance. Jill’s comment, #69, seems to speak to that.

    Sheelzebub said to RM,

    Since, you know, if you’d bothered to read the entire thread and the context, you’d see that no one here was advocating a law that automatically made people who had drunken, consensual sex rapists.

    I did read the whole thread and understand that no one was advocating that. I just thought that RM made a reasonable remark about the language being proposed being too black and white — especially in this context. The jury of 12 found on viewing the tape that rape did not occur in spite of the fact that the women had been drinking. None of us have seen the tape so we can’t judge, that is, unless you think that any alcohol means no consent is possible (or is it one drink, two, …?). In addition, the guy in jail for 10 years without parole is there because of an absolutely black and white law, neither the judge nor the jury could do anything about that. So the question of black and white wording is very relevant.

  76. Lynn Gazis-Sax
    Lynn Gazis-Sax December 21, 2006 at 9:46 pm |

    Aren’t most cases of consenting sex while drunk cases where some mutual sexual interest was expressed before the intoxication started, enthusiasm continued to be expressed after the drinks were taken, and no one was anywhere near passing out? I can’t see that it would be such a terrible thing if people, when in any doubt about consent, didn’t have sex with people who were drunk.

  77. AndyS
    AndyS December 21, 2006 at 10:46 pm |

    I agree, Lynn. I just don’t think it is realistic givien the ubiquity of alcohol in our social rituals.

  78. Karolena
    Karolena December 22, 2006 at 12:05 am |

    As someone with a strong feminist viewpoint on rape issues, and, er, has had my fair share of drunken sex, I’m very uncomfortable with the idea that “being drunk = incapable of giving consent.” Since rape does mean nonconsensual sex, then having sex with a drunk person would technically be rape. The fact that women don’t press charges unless they “actually” are raped, while true, doesn’t vitiate the overcriminalization issues.

    I think the comparison to signing contracts is inapposite for two reasons. One is that (as someone mentioned) a drunkenly-signed contract is void- nobody goes to jail. But the more important reason is that alcohol and contracts aren’t tied together in our culture in the way that alcohol and sex are. Lots of people enjoy drunken sex, drink to lower inhibitions so they can have sex more freely, etc.

  79. Myca
    Myca December 22, 2006 at 12:50 am |

    Lynn Gazis-Sax said:

    I can’t see that it would be such a terrible thing if people, when in any doubt about consent, didn’t have sex with people who were drunk.

    To which AndyS responded:

    I just don’t think it is realistic givien the ubiquity of alcohol in our social rituals.

    Karolena added:

    But the more important reason is that alcohol and contracts aren’t tied together in our culture in the way that alcohol and sex are.

    See . . . this is where I think our culture is fucked up and that part of being a thoughtful member of it is rebelling against that.

    Don’t have drunken sex.

    Oh, sure, do it if you’re having enthusiastic drunken sex with someone you’ve had lots of enthusiastic non-drunken sex with before, where there’s no doubt about consent . . . but the fact that our culture links casual sex and drunkenness is not a healthy thing. Lower your inhibitions on your own, if you want to.

    I don’t think I’ve ever had sex drunk (had it on ecstasy once, though), and believe me, that restriction has never seriously posed a problem

    —Myca

  80. Lesley
    Lesley December 22, 2006 at 7:00 am |

    But it isn’t hard to imagine cases where the impaired person would use abuse this power.

    Oh man. Look, these kinds of laws already exist. In several states. In several countries. Most college campuses have these kinds of regulations. Is it possible that an impaired person might abuse this power? Sure, just like it’s possible for anyone to falsely report a crime. We still have statutes on the books. Things still have to be proven in courts of law. There has not been an epidemic of men being charged with rape.

    You want to know why things get heated? Because every time the subject of rape comes up, this kind of reasoning pops up too. How many times are we supposed to repeat the same things over and over? Perhaps you think this thread is original in its concern for the (highly unlikely) possibility that a man might be falsely accused of rape. However, it’s not. You’re dealing with women who have had to argue this time and again. How many times would you repeat the same thing before you got pissed off the next time you had to repeat it? It may be “unnecessary”, but it’s a perfectly natural response to that phenomenon.

    With respect to the “tweaking” you mentioned, perhaps you are unaware that the kind of consent restriction you are referring to already exists in almost every state. If you were impaired and the jury believes you were manipulated or coerced or were too impaired to consent, then they can convict for rape. The problem is that it doesn’t happen. It doesn’t happen because most people believe that silence = consent. So if the woman wasn’t literally unconscious and the jury has taped evidence that she was unconscious, but she was just too drunk to utter the words “no” or “stop it”, the jury will believe she consented. People also believe that women who have a drink are more likely to have sex, so the very fact that a woman was drunk negatively impacts her ability to get a conviction for rape. So women get raped, but juries, because of their misogynistic assumptions, refuse to believe and convict.

    It is far more likely that a woman will be raped than it is a man will be falsely accused of rape. Exponentially. Yet, somehow, every time we discuss ways to slightly tip the balance in the other direction, this is what happens. Some of us are more concerned about tearing down the huge mountain, not the little baby molehill. Unfortunately, many more people are concerned with the little baby molehill, because that’s what benefits men.

  81. Lesley
    Lesley December 22, 2006 at 7:47 am |

    Oh and re: alcohol and sex, I’m sure that when DUI laws were being proposed, many people felt it would be futile, given the part that alcohol plays in how we socialize. And yet, while people still go drinking, less of them now drink and drive.

  82. Sheelzebub
    Sheelzebub December 22, 2006 at 10:05 am |

    But it isn’t hard to imagine cases where the impaired person would use abuse this power.

    I should really start a blog betting pool to see when the “lying bitch crying rape card” is pulled. Since we all know that bitches lie, right? Even when it’s oh-so-civilly worded, that’s what it boils down to. And no one ever lies in any other crime. And we all know that women who are raped have all sorts of power at her disposal. Wonder Feminist Powers, activate!

    The jury of 12 found on viewing the tape that rape did not occur in spite of the fact that the women had been drinking.

    There were two other cases–one in CA and one in Chicago–where teenaged girls were passed out and gang-raped and sodomized (in CA with a cigarette, a Snapple bottle, a pool cue, and a lit cigarette–in Chicago they spat on her and scrawled obscene slurs on her body in magic marker). Both were videotaped. In Chicago, they were acquitted. In the OC, they finally got convictions on a few counts in a second trial–the first jury didn’t think she was raped, even though she was passed out. She was faking it, according to them. The defense attorneys said she was just making a porno, since she was a slut, so she was drunk, but not really passed out. Even though the pool cue action made her pee on herself.

    Sorry. What was that you were all saying again about the jack-booted cops oppressing happy, consensual and drunken couplings? I mean, these women had so much power that they were wantonly abusing with this!

    This discussion is getting heated because a few assholes have decided to ignore the fact that these laws already exist. A few assholes have decided to spin hysterical scare scenarios, ignore reality, and put words in our mouths. This discussion is getting heated because of the oh-so-civilly-worded misogyny of some of the commenters here, who hide behind passive-aggressive tactics (in RM’s case, yes, it’s his usual MO, and I’ve had it up to here with his bullshit).

    This thread is getting heated because some of the people reading this thread and posting here have been raped. It’s news to rape survivors and their friends, lovers, and family members, that they have this power they can abuse. That the police could have this power to break up drunk, consensually fucking couples willy-nilly. That certainly has yet to happen with the existing laws on the books–the same laws that Zuzu suggested for Georgia. It’s not as if those laws result in automatic convictions, even with videotaped evidence of practically comotose women and girls being violated and brutalized. (And don’t give me the line about oh! you really do think they were raped, since your fucking comments are part of a chorus of doubt and hysteria lobbed at rape survivors.)

    I mean. It’s not as if anyone gives a fuck about rape or its after affects. Better to wonder about things that haven’t happened but could! could! with the existing laws on the books.

  83. AndyS
    AndyS December 22, 2006 at 9:57 pm |

    I know this is an emotional topic — of course I do, every thinking person does. But I don’t think it propper or fair to assume the worst of people who might disagree with you at the margins. Do we all have to note our personal experiences?

    My sister-in-law was raped in the worst way. My wife was subjected on more than one occasion both as a minor and as an adult to sexual abuse. Another of my sister-in-laws was the subject of horrible sexual abuse by her husband involving a loaded shotgun. I’m not trying to find some nice neat loop hole for men to duck through. Quite the opposite.

    My thought is that if the laws regarding rape and sexual abuse were written with great care, more offenders would be caught, fewer would be able to duck through the loop holes, and more people would be supportive of such laws.

  84. AndyS
    AndyS December 22, 2006 at 10:26 pm |

    Lesley & Sheelzebub,

    Okay, sorry, I’ve settled down. I’m sorry my previous post #88 is so in-your-face. What I’m trying to say is that women (and men, I’m tempted to say the men that love them) are better served by laws that are written very precisely. The reason to write the laws precisely is not to protect men but to garner support and more easily convict men who, for whatever reason, do not acknowledge that women can say no with legal force.

    I don’t know how to say this but I think there is a big difference between a rape that involves a man jumping on a women who is out for an evening walk or a husband who produces a loaded shotgun and bends his wife to his will and a man who has sex with a women who has had a few strong drinks. Yes, I believe this last sort of man is wrong, but not wrong in the same sense as the other men. Failure to note this difference and reflect it in the legal framework is wrong.

  85. mythago
    mythago December 23, 2006 at 11:35 am |

    Andy, that’s a bit like saying that because some murder victims are killed painfully and after prolonged torture, a victim who was surprised and killed instantly with a shot to the head isn’t a murder victim in the same way, and it would be wrong for us to charge the murderer with the same crimes.

    By the way, in your #89, the law DOES treat the rapists differently. The guy with the shotgun is going to be charged with more than just rape–assault with a deadly weapon, for example. The guy who thinks a drunk woman is just one big opportunity won’t be.

    I can’t help but feel we wouldn’t be having this conversation if we were discussing men who were sexually assaulted by other men. Would there really be hair-splitting about how it’s one thing to bend a man over the bar at gunpoint, and totally different to slip a roofie into his drink first, and we shouldn’t be picking on the guy who used drugs instead of bullets?

  86. Lesley
    Lesley December 23, 2006 at 12:32 pm |

    I don’t know how to say this but I think there is a big difference between a rape that involves a man jumping on a women who is out for an evening walk or a husband who produces a loaded shotgun and bends his wife to his will and a man who has sex with a women who has had a few strong drinks. Yes, I believe this last sort of man is wrong, but not wrong in the same sense as the other men. Failure to note this difference and reflect it in the legal framework is wrong.

    The second case is treated differently in the legal framework, as mythago already pointed out. Any crime that uses a deadly weapon will be treated differently than one that does not.

    What do you see as the difference in the first and third cases, assuming that in the first case the rapist didn’t use a weapon? In both cases, no consent is given. The primary difference I see is that in the third, the woman has had alcohol. What is it about the presence of alcohol that somehow mitigates a man’s responsibility to get consent. Note I used the word mitigate, not eliminate. You’re suggesting that somehow having nonconsensual “sex” with a drunk woman is less bad than having nonconsensual “sex” with a woman that was just out for an evening stroll. Is there a rationale that doesn’t rely on rape myths?

  87. sedna
    sedna December 23, 2006 at 8:14 pm |

    I’m sorry for joining this discussion so late, but I have some issues about the concept of a law where intercourse with someone drunk is be definition rape.

    First of all, how do you define to be intoxinated? There seems to be a gliding scale from basically one glass of wine to be almost unconscious. I understand that one of the reasons for such a law is to remove the need to prove how drunk someone is, but you still need some criteria.

    My second question is who is the perpetrator and who is the victim? OK, drunk girl and sober guy is easy but drunk girl and drunk guy? Can both be persecuted? Sober girl and drunk guy? Two drunk guys? Two drunk girls? Is it who is the most drunk that will be the victim, or how does it work?

    The reason why I’m bringing this up is I am generally very concerned about a law that criminalize an activity that is commonly performed. This time consensual sex under the influence, but a similar already existing problem are the drug laws. These laws risk to be used in a very arbitrary way. Most kids will potentially be criminals but only a few will actually be charge with the crime. Who will be charged is very much depending on skin color, importance of the parents, social status etc. The argument agianst this is that such behaviour will only be a crime if the victim press charges. That means however that an activity I have been engaged in can become criminal afterwards, which feels a bit uncomforting…

    There is absolutely an acute problem in the US with the amount of rapes and abuses against women, and it is necessary to do something about it. The question is what. I haven’t really seen any good statistics about how many alleged rapists that go free (or how race and social status interacts) to know how much of a problem this is. If the major problem is that rapist go free then perhaps laws like the one discussed here, or explicit-consent laws are necessary. If, however, the main problem is that the judicial system treats these crimes arbitrary, women do not report when they have been raped, or the judicial system don’t take these crimes as seriously as they should, then other actions are necessary and these kinds of laws can even be contraproductive.

    Sorry for the bad English, it’s obvioulsy not my first language…

  88. Lynn Gazis-Sax
    Lynn Gazis-Sax December 23, 2006 at 11:19 pm |

    First of all, how do you define to be intoxinated?

    Given that these laws already exist, how about we take an actual law. Under California law, one of the conditions in which sexual intercourse may be rape is:

    Where a person is prevented from resisting by any intoxicating
    or anesthetic substance, or any controlled substance, and this
    condition was known, or reasonably should have been known by the accused.

    Now, in order to be convicted of rape because you had sex with someone who was drunk, first she has to conclude that she was, in fact, drunk enough to be incapable of consenting, and file charges, and second a jury of twelve of your peers has to be convinced beyond reasonable doubt that her state of intoxication was such as to prevent her from resisting. Which, in the Haidl case (woman gang raped on videotape while passed out drunk) proved to be a very hard bar to meet; it took two trials, the first one with a hung jury, to get a conviction.

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