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.

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…

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?

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?

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.

Maybe you’re having a hard time with the idea that just because it involves sex, it can be a crime just as much with the rapist-in-the-bushes scenario.

What makes it rape is not coercion and violence and dark streets and shotguns, but the absence of consent. This can mean that she refuses and you go ahead anyway, or she’s in no condition to say either yes or no, and you go ahead anyway.

Which is why having sex with a woman who’s so drunk she’s throwing up is rape. That’s why putting something in her drink is rape. That’s why fucking a sleeping woman is rape. Are you sensing a theme here?

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.

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.

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.

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.