UPDATE: I’d just like to remind commenters — especially new commenters — that there are many women who read this blog who are sexual assault survivors. Some of these women have been assaulted after drinking, under similar circumstances to the ones presented in the case below. I’m generally pretty lax about comments, but I will not tolerate comments that could potentially add to the grief, stress, or myriad other emotions that sexual assault survivors may experience. This is an important issue to discuss, but I ask that we all please do so respectfully, and remember that we’re talking about the very real experiences of real people. This is not just a hypothetical. Please keep that in mind when posting a comment. If comments become abusive, I will delete them and ban the user who left them.
Red Stapler sends on this article about a recent decision in the UK holding that “where the complainant has voluntarily consumed even substantial quantities of alcohol, but nevertheless remains capable of choosing whether or not to have intercourse, and in drink agrees to do so, this would not be rape.”
I’m really of two minds on this one. I think any standard which says that any alcohol consumption makes it impossible for a woman to give meaningful consent is overly broad and paternalistic. But I do think there’s something to be said for an inability to give meaningful consent if you’re intoxicated.
As far as I can tell from the Telegraph article — and I haven’t read the actual decision, but if someone gets ahold of it I would love to — the judge is saying that a woman can be very drunk and give consent, and that it’s only when she’s drunk enough to not be able to give consent that it’s rape. Which sounds reasonable enough, until you consider the practical application of such a flimsy rule. What counts as “drunk enough not to consent”? Too drunk to talk? Too drunk to fight back? The woman in this case apparently feels that she was too drunk to choose to have sex, and yet the judge says that she did choose, and her consent was meaningful.
So who decides whether she was too drunk to consent? In this case, the woman filed a rape charge — obviously she is under the pretty strong impression that she didn’t consent to sex. She was drunk enough to be throwing up, and only remembers coming to and finding Benjamin Bree having sex with her. Again, I’d need to read a transcript of the trial or at least the actual opinion to get the details, but it sounds like Bree’s argument is that she had indeed given positive consent — that is, she didn’t just stay silent, but actually said yes. Given that, it becomes harder (though certainly not impossible) to argue that he should be convicted of rape. (For the record, I do think anyone who has sex with someone who’s so drunk that they’re puking and passing out cannot reasonably believe that they have consent to sex, and are therefore committing sexual assault. But that’s not a particularly popular or common view).
I’m not very familiar with UK law, but at least in the US there are things other than rape law which require meaningful consent, and where intoxication implies that meaningful consent cannot be given (certain contracts, etc). I think it’s fair to require that, like in contract law, if a reasonable person would have understood the other person to have been too intoxicated to make a fully-informed and voluntary decision, then the consent is not meaningful. It’s not as simple as a black-letter rule that drinking alcohol = no consent, but I think it recognizes the fact that women are not rendered helpless by alcohol consumption, and at the same time may get to a point where they’re so intoxicated that they cannot agree to sex. So it would trust women to make a sexual agreement in the same way that the law trusts people to make (some forms of) more formal contractual agreements, while still punishing those who take advantage of people who are unable to meaningfully consent.
It’s not an ideal model for sure, and it raises some tough questions (like what happens with both partners are so intoxicated that they can’t meaningfully consent), but it would be better than the ruling just handed down. I think. But maybe not. Thoughts?
Ugh. Anyone who has ever had a “brownout” (woken up the next day and not remembered what happened during the drunken night before, even though they never passed out) knows that it is possible to be too drunk to give meaningful consent without being too drunk to talk– or get belligerent, or dance around, or any of a number of other things.
… and so I like the idea that a “reasonable person” clause of some sort makes more sense than a blanket “alcohol = no consent” rule.
I think it’s definitely quite difficult. In general, I think it’s a bad idea for more than a small amount of alcohol to mix with sex between people who don’t already trust one another, but that’s not really a solution for the law.
Ultimately, it seems like if one party is intoxicated, the other party can say consent was given and there’s no case. Or you can just decide that intoxicated people can never give consent. I’m inclined to lean more toward the latter, simply because sexual assault is so underreported and people (men especially, obviously) are so careless. Sleep it off and then have sex if either party is worried about opening themselves up to rape charges.
This has always been an odd issue for most guys I know. Personally, i’d always go with the safe choice. Most guys I know would pretty much agree that if a girl is stumbling, puking, or passing out, you’re pretty much a fucking rapist if you go for it. On the other hand, I know of girls who seem to use alcohol as an excuse to be “whores.” In saying this, I mean having sex with multiple partners at the same time or in the same night when they “normally” wouldn’t do such things. And yes, I would call my guy friends who do this stuff “whores” too. I had 2 friends go to jail for this exact situation. A girl willingly came to the hotel 2 guys were at and had sex with both of them while they all got drunk. She lived with her parents and was in college at the time, and when she didn’t come home that night they grilled her on what happened and she claimed she was so drunk she didn’t know what she did.
Keep in mind she came to the hotel on her own free accord and was having sex regularly with one of the guys.
It’s really a shitty subject because all lines are completely arbitrary. From high school, I remember all of the guys in class flipping out when we learned that a woman can call rape after the fact if she decides she wasn’t making the right choice when intoxicated. But considering the reality, everyone I knows caters to this fact and are especially cautious when dealing with drunk girls. I’d rather have the law as it is and err to the safe side for safety’s sake.
In my circles, you’re pretty much a douche if you even get to the point where there’s a question of consent.
The only time I’d say it’s ok to have sex with a drunken girl is if she’s literally begging, but if you’re into plastered girls begging people to f’ them… you’re a lame in my book.
Good motto: If you’re questioning the act, it’s probably wrong, and possibly illegal.
One thing about the previous comment about “brown outs.”
I just don’t buy stuff like that. I have partied with the best of em, and while I do know a few guys who go on pill+booze benders that qualify as blackout status… I believe most everyone knows what they’re doing when they’re drunk, they just don’t give a shit. It takes a special kind of addict and/or junkie to hit the levels of the unconscious conscious.
It seems like it’s just on big agreed upon cop-out for justifying idiotic behavior.
I suppose it would be too much to ask that they be worried about opening themselves up to committing rape, whether or not they realistically need to worry about being charged, much less going to jail.
Not that there is anything wrong with the rest of your comment.
Uh huh. Why do you do that?
People react to alcohol in very different ways. One college friend of mine would get extremely quiet when drunk and would become extremely agreeable. She’d say yes to anything. If you knew her, and knew how she spoke and acted sober, it was pretty fucking clear that she wasn’t thinking clearly – but if you didn’t know her, she didn’t even seem very drunk. She seemed tipsy, at most.
I always think of her when questions of drunken consent come up. In a way, she’s the worst-case scenario – someone who doesn’t seem as drunk as she is; someone who it would be reasonable to assume she was thinking more clearly than she was. (Pardon my grammar…)
I really, honestly think that the only way to combine sex and drinking and be 100% safe is to agree to the sex first. Barring that, as far as I’m concerned, if you’re too drunk to drive, you’re too drunk to consent to sex, and anyone who’d sleep with you is either a rapist or themselves too drunk to consent.
I think part of it is that when we think of rape we culturally have a very specific picture in mind, thus if the rape doesn’t fit that picture, then it isn’t considered rape.
Hey ether… just because it hasn’t happened to you, doesn’t mean it hasn’t happened.
I didn’t bring it up as a thought exercise. I personally have had 2 brownouts in my life– nights when I drank (only drank, no pills were involved) so much that the next morning I literally had holes in my memory. But I didn’t pass out. I was conscious, I was talking (in one case, I was trash-talking). Nothing big happened, I had friends who got me home okay, but some people do have brownouts.
And I used to think it was an excuse for outrageous behavior, too, before it happened to me. And I am far from “a special kind of addict and/or junkie”.
Um, because making youself a petri dish of sexual fluids seems like a whorish and unsanitary thing to do.
Trivializing sex to the point of doing it regardless of circumstances, or consequences, also seems pretty whorish.
But if “liberation” means f’n everything in sight.
Call me unenlightened.
But, I get the feeling your just looking to argue with anyone over anything so my explanation probaly holds little value.
I sense a banning.
Fair enough, it just seems people often use this excuse as an easy out for bad behavior.
Especially when hooking up with ugly people is a part of it.
For what, exactly?
Kind of how men have long used intoxication as an excuse to have sex with women who they know cannot consent?
But this is problematic too, especially if we think that a person has a right to change their mind about consent. If I go out with my boyfriend and, before we drink, tell him that I’m ok with having sex, and later we get in a fight and I decide don’t want to sleep with him that night, I’d rather not have him be able to have sex with me anyway if I’m too drunk to properly say no.
Exactly like that, they also use it as an excuse to have sex with horribly ugly women.
That’s why I said I don’t buy it.
I can be approaching pass-out status and still know if what I am doing is wrong.
I haven’t really heard many “sorry I raped you, I was drunk defenses.”
Although there’s plenty of that “that wasn’t consensual, I was drunk” accusations.
Still, like I said, i’d rather have a man defending himself in a court of law then women trying to denfed themselves from brute force.
ether,
You don’t need to be an alcoholic to black out… in fact, being inexperienced in the ways of drunkery helps a fair lot. One of my first nights out, I had 2 shots of whiskey and 2 beers (that I can remember), and woke up at home (I hadn’t driven out to the party) in my bed (with no televisions/stereos in the room at all) surrounded by every remote control in the house and batteries. I don’t know if somebody drugged me or if I just bit off more than I could chew… but whatever happened, there’s no way I’m accepting your unsupported claim that it’s extremely uncommon, or a peculiar affliction of the severely alcoholic.
Exactly like that, they also use it as an excuse to have sex with horribly ugly women.
Oh, thank god, you’re just a troll! I thought someone was seriously pushing that bullshit.
Jill – good point. (Sorry if I’m incoherent today; I’m on cold meds, which make me really loopy.)
To me, a no is always a no, even if drunken. “No” takes immediate priority over “yes”. What I meant to say was that the only safe “yes” was one given before drinking commenced.
Oh! I thought you were using “whore” as insulting slang for “prostitute,” or misogynist slang for “woman,” like most English speakers do, which is why your comment made no sense, since you weren’t talking about prostitites and you claimed to be talking about both sexes. Now I know you”re just concerned with other people’s personal hygiene, even when it isn’t in any way your business. Gotcha.
Ether – the one time I ever drank, I had two beers. I remember the rest of the evening as something witnessed from afar, like I was a disconnected observer tethered above my own head. I can easily believe that someone might forget what they did while intoxicated; one more beer and that’d probably have been me. As it was, I had to sit there and review the events of that evening with my brother (this had been an evening with family) just to figure out if I’d remembered everything correctly.
Um, Dennis, you claim is supported by a personal anecdote.
Link me a fucking study if you’re gonna start assailing me for “unsupported” claims.
I gave you my opinion and accepted another poster’s opinion that it does occur.
I backed down, to an extent, and tried to rephrase my opinion to imply it doesn’t occur as often as people use it as an excuse.
And douche, i’m not a troll, I comment when I feel, and don’t talk shit or start arguments for no reason.
In fact, I only usually comment on issues surrounding misogyny and Islam, when they are posted on here.
This particular topic has always interested me because even avergage, non political guys struggle with this issue.
I don’t know what’s so trollish about stating the obvious:
Men use drunk stupors as an excuse to save face with their friends after having sex with ugly women.
Feminist sycophant.
No, when I call a male friend a whore it is because he has taken sex to the same level as a whore (be it male or female, apparently you don’t see the irony in assuming all whores to be female while presenting yourself as a feminist) meaning, sex has been reduced to an act of virtually no spiritual or emotional value. It is reducing sex to a selfish need, whether it be selling your self respect for money, or a quick orgasm.
If you want me to say I mean he’s acting like a whorish woman, you’re taking my comments wrong.
And actually, it is my business if my friends are whores, maybe I have a problem being associated with people who have no respect for themselves, or others, but that’s just me.
Apparently you feel it’s none of your business, which speaks volumes on your moral outlook.
:)
I’ve “brownouted” quite a bit. I wasn’t an alcoholic or junkie though. Just a university student.
My friends love to regale people with the story of one night in the Dominican Republic, when I was drinking pina coladas unknowingly made with 151 proof (instead of regular rum). I apparently could barely walk after about two hours, but as they tried to get me out of the bar, we crossed the dance floor, and suddenly, I was up! And dancing! Shaking my booty across the floor! And then we reached the other side, and I shlumped again and they had to drag me to a cab. “RKMK,” they like to giggle, “maybe she couldn’t walk, BUT SHE WAS STILL DANCING.”
I, however, have no memory of this whatsoever. Though I’m glad I was at least entertaining, and lucky enough surrounded by good friends when it happened.
And, of course, in less extreme circumstances, its a safe rule that while I’m out, that last little bit from 2 to 3 o clock gets at least a little fuzzy.
I’m thinking of how bars close on election day. We entirely ban the sale of the substance for a day because of its potential effects on one’s decision making. Or open bottle laws, by which it’s illegal to have proximity to alcohol while driving, regardless of whether or how much you’ve consumed. But when it’s sex – and 99 times out of a hundred, it’s concerning how much a woman had to drink rather than a man – puking and passing out aren’t enough to prove that one’s judgment might have been compromised.
It seems strange that the too-drunk-to-remember thing is easily used against someone who says she was raped – something along the lines of “if you can’t remember saying no, what makes you think you didn’t say yes?” – to much less debate than the idea that too drunk to remember = too drunk to consent. After a while, it gets hard not to think that at least some people (and I’m getting particularly concerned about British judges) are really interested in protecting the ability to get away with rape.
wow ether, judge much?
The more you post, the more clearer it is that you are conflating THE world and YOUR world.
Maybe in your world the word “whore” is free of gender. But it is not historically free of gender, and to others in the world it is not free of gender– otherwise “man-whore” and “man whore” would not have entries at http://www.urbandictionary.com
So how about a daily mantra? Something like, “Everyone else does not experience the world as I experience the world. My experiences and opinions are not de facto facts.”
Whoa. I didn’t mean “more clearer”, I meant “more CLEAR”. Oopsie.
The decision in full.
“Apparently you feel it’s none of your business, which speaks volumes on your moral outlook.”
morals=sticking your nose in other peoples business? makes perfect sense with the anti gay and anti sex laws all those republicans are trying to pass!
i stopped teasing my freinds with the “whore” business in like, high school. lets just hope this person still is
Dude, you’re the one who made the claim that:
Which would mean that it’s up to you to support it.
Uhh, to be clear, I’ve got nothing against open container laws, I think they’re great. Bars closing on election day strikes me as somewhat less urgent and so not as enthusiasm-worthy, but I’m fine with that, too.
ether, how are you respecting your friends by going on the internet and calling them whores to a bunch of strangers while airing your criticisms of their sex lives? Also, I recommend looking into the etymology of the word “whore” before claiming that it’s anti-feminist to recognize the inherently misogynistic meaning of it. Here’s a very basic start.
Yup. I can’t fathom it otherwise.
You want the right to fuck a girl while she’s drunk? You want to rape her, not “have sex” with her. If she were sober, I doubt you’d be interested.
That’s what runs through my mind every time a guy complains about how “unfair” it is that he can’t take advantage of a drunk woman.
Ahh, I see, next time i’ll say:
“Gee Bobby, you sure are devaluing sex to the point that it no longer carries any value beyond the orgasm itself. You’re acting like someone who would trade sex for something as simple as a six-pack or crystal-meth.”
Or, I could just call him a whore.
Are you suggesting we simply remove “whore” altogether? Wouldn’t want anyone to think the word might be used as it’s defined.
I should have just posted under “ethel,” pretended I have a vagina, and I wouldn’t be getting attacked by all when essentially, I agree with the feminist position that drunken consent is not consent.
Pretty ridiculous.
Jill
“I believe”
based upon personal experience and observation, which apparently to you and Dennis, would support my claim as long as it is voiced.
I always thought beliefs based on anecdotal BS weren’t supported claims.
I stand corrected.
I never confuse my beliefs with known facts.
And in fact, as soon as another poster immediately expressed disagreement with my belief I acknowledged it was possible.
Scroll up.
Because having a vagina automatically excuses rape apologist rhetoric.
Oh, I don’t know. If you were a girl acting like a total punk, instead of a guy acting like a total punk, you might still get told off. I, for one, did not assume that you were male (although your use of the word “douche” as an ad hoc was a tip-off). Your behavior is kind of aggro today.
I absolutely think it should be dropped from common usage. It’s nothing but a cheap, misogynistic insult. Why the hell are you so defensive?
We’re disagreeing with you, not attacking you. We’re disagreeing with you because we think several of your points are wrong, not ’cause we think you’re male.
As for your last comment, funny, I thought you were insisting no one ever forgets what happens while they’re drunk, and that women use alcohol as an excuse to cut loose. Yup, you’re sure sharing our position.
“Are you suggesting we simply remove “whore” altogether?”
thatd would be be pretty nice
and actually, i did think you were a woman for some reason.
By the way defenestrated, I loved the thesaurus offering of “fancy woman” as a synonym for “whore”. Fancy!
…your point, ether?
that* ugh i hate stupid proof reading mistakes.
I have a friend who once drank so much he still has no memory of drinking that night. The only way he knows is because he called someone who brought it up with him months after the fact. He was pretty shocked to discover it had happened. So, yes, stuff like that happens.
And, yeah, I agree with Jill that this is a really tricky issue. Especially when you get into things like, if a girl is very drunk, able to stumble upright and talk mostly but clearly not thinking clearly, is a guy who’s with her and ALSO really drunk really as culpable if he takes her “yes” at face value? Make no mistake: if a guy is sober, or tipsy, this makes him an asshole. But, if a guy is also pretty plastered, he probably won’t have the judgment to think “hey, maybe I should check if she is capable of giving reasonable consent.”
Alix:
Are you outright denying people use alcohol as an excuse for their behavior?
That’s the point i’m making.
Other than that, what other points are you disagreeing with?
I’m defensive because so far i’ve been labeled a misogynist and troll because I used the word whore to describe whorish behavior.
Ether
For those of us who have been raped during a brownout your comments are incredibly demeaning and just add to the stigma of the whole ordeal. Thanks for that.
The key phrase here is “as culpable”. I’d make the argument that if someone is impaired, they can argue some variation on diminished capacity. I’ve discussed this a little bit on my blog. My turn of phrase for it is the inadvertent rapist.
You know the only people I’ve ever heard using alcohol as an excuse?
Men who rape women.
Women who have sex and know that their fundamentalist family will beat the shit out of them for it.
I deny that it’s as widespread as you’d like me to believe. I deny that it’s a significant enough problem to make a dent in this case. I deny that it’s even important enough to be brought up in a discussion of raping drunk women.
What part of “whore is a misogynist term” do you not fucking understand? You come to a feminist site, throw around a misogynist term, keep insisting that women use alcohol as an excuse to do things they wouldn’t otherwise, and you wonder why we think you’re a troll?
Red Queen, sorry for your traumatic event but I could care less about a victim shield when arguing a simple point…
I asked Alix and will ask anyone else who disagrees…
Are you outright denying people use alcohol as an excuse for their behavior?
Did you not just read my post like 5 posts agos where I COPIED from another previous post showing ACCEPTANCE that it does occur.
Jesus Christ.
I simply stated I don’t believe “brownouts” are as common as they’re used as an excuse for bad behavior.
I mean I even said “most everyone” knows what they’re doing in my original post.
I never even denied brownouts exist.
Evil fizz – So a really drunk man who fucks a drunk woman still raped her, but is not as culpable as a sober man who fucks a drunk woman because his judgement was impaired? (I’m trying to see if I’m understanding what you’re saying.)
And I believe exactly the reverse. Thing is, who the fuck are you to judge? I suppose you have some magic way of knowing when people do forget and when they’re just “excusing bad behavior”?
No wonder you don’t believe “brownouts” happen. I doubt your friends would tell you if they did.
Alix:
I don’t believe you.
Plain and simple, you must live a sheltered fucking existence if you’ve never seen people do all sorts of crazy things while drunk.
I mean even something as simple as someone smoking pot who never does, or smoking cigarettes who never does, or someone getting naked…
You’ve never seen anyone do things at a party or club and then say they only did it because they were drunk later?
BS.
I’m from California, my experiences are obviously far different then yours.
About “whore”… It’s easy to attack someone for using the term when you take it entirely out of context. On its own its definitely a misogynistic term, but in the context of what I was discussing it was clear I never meant it in that fashion. I apologize if the word itself offends everyone and i’ll be sure to keep that in mind.
But, I won’t apoligize for the way its use was intended, i’ll only apologize for being ignorant of the heated reaction to any mention of it.
Maybe I’m confused, but this isn’t what Alix said at all.
Alix took issue with your contention that “brownouts” are rare. Alix is arguing that in her/his experience, brownouts are common. People may have brownouts, do things they wouldn’t normally do (like dance on the bar or smoke pot) and then later not remember parts of the night, and may attribute their behavior to being drunk. Because they were.
I really don’t get how saying “people have brownouts” is the same thing as saying “People never do crazy things while drunk.”
Alix:
Apparently you’re not even reading my posts at this point…
“No wonder you don’t believe “brownouts” happen. I doubt your friends would tell you if they did.”
#48
” simply stated I don’t believe “brownouts” are as common as they’re used as an excuse for bad behavior.
I mean I even said “most everyone” knows what they’re doing in my original post.
I never even denied brownouts exist.”
I didn’t say people don’t do crazy things while drunk. I’m saying I’ve never seen people use drinking as an excuse.
Except, like I said, rapists and abused teens.
Oh, bullshit. So if I kept calling someone a nigger and then told you I was just using it in a particular superspecial way that I’ve defined, you couldn’t call me out for using an offensive racist term?
You thought “whore” was an acceptable term. It’s not. We called you on it; you got pissy and tried to claim you were using some special definition of “whore”. Sorry, you don’t get a free pass on that.
I should add that I’ve also seen people use the “I was drinking” excuse jokingly, in a kind of “yeah, we were out partying, and I got really silly, teehee, ’cause I was drinking” way. You have to be really kind of warped to see that as a serious excuse, though.
I think the issue here, ether, is that you’re confusing whose behavior is in question.
The drunkness of the rapist = behavior
The drunkness of the victim = not behavior
because THE VICTIM DID NOT COMMIT A CRIME.
If I use drunkness as an excuse for a crime, it’s still a crime. If I am the victim of a crime, whether I am drunk or not has nothing to do with it. If the crime committed against me is considered a crime because I am drunk, that’s what needs to be shown, not whether or not I”m “excusing” anything.
I think the other thing that gets left out of a lot of these discussions is the male anatomy. If a guy is *that* drunk that he couldn’t give consent (or recognize consent being given), there probably isn’t going to be an erection.
There are other ways to rape, of course, but the “we had sex because I was too drunk to notice she was unconscious” thing is such complete and utter bullshit.
And, sorry, in the above fake quote ‘sex’ should be in scare quotes, because rape and sex are obviously not the same thing.
Jill,
Refer to #47
Me:
“Are you outright denying people use alcohol as an excuse for their behavior?”
Alix:
“You know the only people I’ve ever heard using alcohol as an excuse?
Men who rape women.”
The problem is we haven’t defined “brownout” at all.
Is it a lack of conscious decision-making ability?
Is it a “clouded” decision-making ability?
Or is it just one big grey clusterfuck that is used however the situation requires.
That’s my position in a nutshell:
“Brownouts” are so arbitrary in themselves that it leaves it up to personal opinion whether or not the act itself was done consciously, impaired, or outright incoherently.
This problem creates a situation where brownouts and be used to justify and excuse impaired, but conscious decisions.
Ok. How exactly is this relevant to the post?
In the context of a rape apology argument? That’s exactly what raised the red misogyny flag, hon.
OK, I do have to commend you for admitting that your apology is “sorry you felt that way” bullshit. I’ve never seen that copped-to before.
Also, ditto wren #55 & 56.
…I thought it had been defined earlier as someone getting drunk and not remembering what happened the next morning. Was someone else defining it differently? Did I miss something?
Dag, wren 56/57, I guess.
That’s the part that is offensive. How many rape victims do you think have been told afterwards that they are just crying rape to excuse their bad behavior?
Don’t give me the victim shield crap.
Red Queen raises a good point. Ether, what exactly are you defining as “bad behavior”?
Do you mean as a society, or in this discussion? Because for the purposes of this discussion the definition I’ve been using is:
brownout= being drunk enough that you aren’t cognizant of what you are doing, but that may not be clear to others because you are still walking and talking. One major consequence of a brownout is that you often have memory lapses during the time of diminished capacity.
This is distinct from a blackout, in which you actually lose consciousness.
I didn’t make up the distinction myself. See here.
And Alix, you are totally still on target at #62, you didn’t miss anything.
Yep, that was exactly my point.
Okay, that makes sense.
It seems to me there’s a simple yet elegant solution to the “they were both drunk” problem: make it clear that a woman who has sex with a man who is too drunk to consent has also committed rape. Presumably, at that point, both parties would rather withdraw their complaint rather than face jail time themselves.
I’ve done things while drunk that I wouldn’t have done if I were sober at the time, but I’ve never done anything that I looked back on as wrong or repugnant. So I feel that it’s appropriate to hold drunk people responsible for not doing things that are always wrong (having sex with a woman who is saying no, e.g.) but let them off the hook when it comes to things that require a finer judgement of the circumstances (having sex with a woman who is saying yes, but is intoxicated).
Chris T:
But it’s still something that needs to be said more than it is. Right now the debate’s still about what’s rape under the law; i.e., what can a rapist get away with.
Jill:
This wasn’t how I read Alix’s comment. Rather, you’d still have to properly say yes; it’s just that if you suspect someone’s drunk, you don’t act on that “yes” if you haven’t explicitly agreed that drunk sex is all right.
ether:
Go fuck yourself, or does that constitute “hooking up with ugly people”?
Oh, and if we had a societal understanding that drunk sex without prior agreement wasn’t all right, I suspect we’d see the claim that women “use alcohol as an excuse” dry up. So to speak.
Psyche: the problem with this is that it puts on the same level the drunk person who actively engages in sex, and the drunk person who is simply unable to resist.
I wonder how to deal with illegal drugs in all of this. Women who are very drunk often lose the power to resist or participate – it seems clearly to be rape (because consent disappears and so does external conduct that looks like consent). A man in that state of inebriation is incapable of having sex with a woman – so there will be no rape.
Drugs make it difficult, because both men & women can be in states where they are not capable of consenting in a meaningful way, but they are fully capable of engage actively in sex in a way that might appear to be consensual to someone who is similarly high. Or at least, that’s my understanding. So, you could easily have both parties legitimately feel very violated .
Whore is a perfectly fine word. Now I can’t say that Tony Snow whores himself out for Bush because that insults women? “A person considered as having compromised principles for personal gain.” Sounds about right.
That would certainly be logical if the man were drunk and the woman wasn’t. If both were drunk? Well yeah either they are both rapists or neither one is.
If both are drunk and they have sex how in the world could it possibly be the man raping the woman? Because men always want sex and women don’t? Because men are naturally evil by nature? Because men always initiate? The sex of the actors shouldn’t even enter into the discussion. It doesn’t matter who is male or who is female.
—
The link posted above is interesting. (http://www.bailii.org/ew/cases/EWCA/Crim/2007/256.html) Basically the judge did not do a good job of explaining to the jury the particulars of the law, and the prosecution didn’t do a good job presenting the case.
The English law is also somewhat difficult to parse. Apparently “drunken intent is still intent”, and furthermore “drunken consent is still consent”, but there is also an acknowledgement that consent can only be given when one has the “freedom and capacity” to give consent.
Basically the legal side looks like a clusterfuck of contradictory nonsense, and the link above is critical of the way the case was handled.
Anyway Jill’s assessment is basically right (and by “right” I mean “I agree with it”) in that at some level of intoxication nothing you do or say can be taken seriously, including outright consent to something. A proper law should take that into account. If someone is clearly very drunk as this girl was, it should be impossible to enter into any sort of verbal contract.
Oh yeah – and I’ve never done drugs, so I’m talking entirely second hand here. If I’m just wrong about it, let me know. This strikes me as another reason not to do drugs.
Whore is a gendered insult. Until it is not, which will take, at minimum, decades, it is not an acceptable term. It is on par with words like “cunt” and “bitch” and “slut”, words that are rooted in misogyny and despite whatever non-gendered workaround definitions you’ve come up with, they still go back to that misogynist root.
I have had way too much drunk sex in my life. A lot of it was queer sex, but that doesn’t preclude rape. And a lot of the time, in retrospect one or both of us were getting drunk on purpose so that we WOULD consent to things that normally we wouldn’t. I don’t know whether that’s an excuse, or just a deliberate decision for disinhibition. But it worked, even though those drunk fucks were undoubtedly irresponsible. Both my partners and I are just lucky that in the aftermath, we thought “well, I didn’t mean to do that but I guess I wanted to” (and I’ve had more than one conversation to that effect) instead of “I did not want to do that, I wasn’t in control of my actions, I was coerced.”
However, here’s the thing: this is red herring hair-splitting. The woman in this case was so drunk that she was throwing up and passing out, and she woke up to find a man having sex with her, sex she had no recollection of consenting to. That’s pretty obviously a horrifying rape. It’s nothing like the scenarios described above, and there’s a line, however hazy and drunken, that obviously separates the two.
The problem is that the man in this case apparently couldn’t distinguish between the two. I have doubts about his testimony, but he claims that his victim was not unconscious, that she seemed to be recovering from being sick, that she was enjoying his sexual advances, took her own clothes off, etc. Of cousre, rapists say crap like this a lot, but on the other hand, it’s a little more unusual for two people in a situation totally lacking in consent to discuss whether either of them has a condom, and then for the guy to decide to stop when neither of them has one.
Regardless of this particular case, I appreciate the comments in this thread that point to some damning “things you shouldn’t do”:
– having sex with someone so drunk that they have been throwing up
– having sex with someone so drunk that they pass out (although maybe he didn’t realize this)
– having sex without getting verbal consent, just relying on “she seems like she enjoys it,” lack of non-consent, body movements, etc, especially when really drunk
– having sex when your own judgement is impaired by drinking and you might not be able to figure out the right thing to do
All that really needs to be said is:
The above, among other things, are warning signs that you MAY BE RAPING SOMEONE. If you think that you might be in danger of raping someone, STOP WHATEVER YOU’RE DOING IMMEDIATELY.
I mean, is it really worth it, regardless of what your libido is telling you? No, it is not.
This also reminds me of some Michael Shermer stuff about binary thinking. We assume, and a lot of the law assumes, that concepts like “consent” are binary… either you are or you aren’t. In reality, very few things in the universe are totally binary like that. There are infinite fractions between 0 and 1. So there might be cases of 0.3 consent. At first glance this might sound like an excuse for people to rape, because we’re so used to hearing this kind of excuse: “she didn’t REALLY say no, so it was ok.” But that’s bullshit too. 0.3 is a lot closer to 0 than to 1, for one thing, and even if it were 0.9 there would still be a problem.
When it comes to things like rape, you should stay the fuck out of the grey area too. If you don’t, then no two ways about it, you might rape someone — regardless of gender. We ought to be well beyond assuming that erection = consent, anymore than we buy the excuse that any kind of physical arousal = consent. (And this is important not because of men’s rights, but also because of consent in gay relationships.) Anytime you have a drunken disinhibited hookup, any time you rely on someone’s body language alone to tell you whether they’re “into it,” you’re in a grey area. That’s a risk you have to choose whether to take or not, I admit that I have taken that risk myself, and exposed others to it vice-versa. But we all ought to know that there could be consequences.
MDtoMN: no, you’re absolutely right. I’ve been on painkillers (legally!) that didn’t interfere with my libido or ability to get an erection, but probably did mess up my judgment. Certainly screwed up parts of my memory …
(I’m thinking specifically of Vicodin, but other narcotics might have similar effects.)
English appellate decisions are delivered orally in open court, and then published. They are online here,
http://www.hmcourts-service.gov.uk/HMCSJudgments/Search.do
but they are a week behind. The last case posted is from March 21. So anyone who cares to will be able to read the decision soon, probably in about a week. It will be at the top of the list or you can search by the defendant’s name – Bree.
I should have been clearer. Sex with someone saying no is always rape. Sex with someone unconscious is always rape. Sex with someone drunk but conscious and showing signs of consent is a murky middle ground depending on exactly how drunk they are. My argument is that if both partners occupy that murky middle ground, they ought both be equally held responsible.
Now I can’t say that Tony Snow whores himself out for Bush because that insults women?
Well you’re insulting prostitutes, who are routinely raped and generally don’t have much choice in being prostitutes.
I dunno, I personally find it morally squicky to go about hating on rape victims and stuff.
Oh wait, wrong thread. n/m
because both men & women can be in states where they are not capable of consenting in a meaningful way
the general feminist rule is: if you’re too drunk to drive a car, you’re probably also too drunk to drive a penis without killing a few pedestrians and then wrapping it around a tree.
And of course the responsibility is still largely on you, the driver of the penis, if you hurt someone while drungked, of course I wouldn’t put it past the UK courts to decide to prosecute people killed by drunk driving accidents for negligent drunken bumper teasing or something.
Showing signs of consent?
Personally, I like to know–beyond a shadow of a doubt–that the people I have sex with are having a fabulous time.
Why do so many people want to fuck partners who they think might be consenting? Guh. The fact that anyone would step a toe into those “murky” waters to even so much as contemplate this kind of argument just baffles me.
Wow:
#77
“I have had way too much drunk sex in my life. A lot of it was queer sex, but that doesn’t preclude rape. And a lot of the time, in retrospect one or both of us were getting drunk on purpose so that we WOULD consent to things that normally we wouldn’t. I don’t know whether that’s an excuse, or just a deliberate decision for disinhibition. But it worked, even though those drunk fucks were undoubtedly irresponsible.”
Thank you.
Yep Alix and Red Queen. Never fucking happens.
But don’t forget, I’m the rape-apologist and misogynist for pointing out what “Holly” says she used to do all the time.
I (as a female) walked home a (male) friend of mine. I’d played two games of pong ending about 1.5 hours earlier, so I was pretty much sober (I’m also a 5’10 2XX lb Irish woman, ;-) ), while my buddy, although about 20-30 lbs of muscle bigger than me, was pretty far gone from the additional 6 games he’d played in that time after I moved from Frat party to LAN.
So I walk him back to his room after he comes back to get his laptop, make sure he’s alive and well. He’s got a temper normally, but he’s an extremely happy drunk. We chatted a bit, and after I helped him to his room. At one point, he looked at me sheepishly and said “hey, uh, this may be kinda awkward with (my crush who was visiting for the LAN party) here, but would you wanna stay the night? We wouldn’t have to do anything…” Pat-pat, go to bed, dear, maybe some other time, goodnight. And laugh my way back to the LAN.
Next afternoon, I wander over to his place to see how he’s doing. Which is slightly distressed. He claims he didn’t remember anything since we left the LAN party, and apparently he drunk-texted the girl he had a crush on, telling her how much he liked her and asking her to go out with him. He didn’t know he’d done this until he got her reply in the morning.
I asked him if he remembered asking me to spend the night.
He looked up at me with this absolutely *priceless* expression: “Oh HELL no!”
(This was not a rejection of my mateable status, just the facts that a.) we’re buddies in a kinda-macho, not-fuck-buddy sense, b.) he didn’t remember this shit, and c.) well, dammit, that’s just one more stupid thing he did last night).
So, yeah, brownouts exist, and in my college-student experience, they’re pretty damn common, and it would’ve been wrong for me to have taken advantage of him at the time (even though he, literally and in something approaching a coherent sentence, asked for it).
That said… it was fucking hilarious. Or maybe I’m just a horrible person for laughing my ass off at him and his horrified expression. Either way…
And, wait, someone’s seriously arguing that “whore” isn’t gendered? Teh fuckinhell? I’ll admit I’ve used it in the sense of politicians whoring themselves and whatnot, but… even that’s problematic, and I should stop, and using it as an insult is RIGHT OUT.
And also, I basically agree with everything Holly says. I’ve seen the drunk woman in the club who can hardly stand unassisted, yet seems to be coming on to whichever man is closest to her. I’ve also been that woman, and gone home with near-strangers. Most of the times I’ve mixed sex with alcohol it’s been really fun. Immature, sure. Unwise, perhaps. Spectacularly unfun, once. But mostly, fun. There’s a reason that getting drunk and hooking up is a cliche.
I’m reminded of this exchange from The Great Gatsby
(And I should be clear, I’m speaking to a very limited set of circumstances, where both parties are drunk enough that meaningful consent is dubious, but neither has passed out or is otherwise incapable of resisting. I’m absolutely not saying that drunk girls are fair game, or that being drunk absolves a man of rape. Just that when you have two people whose judgement is highly impaired, maybe it makes more sense to speak in terms of accidents, rather than crimes, realizing that accidents can have consequences just as hurtful as crimes.)
Ether – fuck off. There’s a difference between saying “it never happens” and saying
Clearly, I now have one example to point to. Go you. My point still stands.
And I noticed you never answered my question, ether. What are you defining as “bad behavior”?
PS- you write that “the judge says that she did … consent.” It’s not clear that the judge says that. The question that the judge – the three judges, actually, as the appellate court sits in panels – the question they ruled on was, did the trial court judge properly formulate the question (the legal standard) in putting the case to the jury. The appellate court decided that that the trial court had formulated the question incorrectly, which meant that the jury verdict was not reliable, and so the conviction was overturned.
What is not clear from the newspaper article- or any of the articles that I could find on google news- is why the court decided not to order a retrial. They held that a retrial would not be “in the interest of justice,” but that does not necessarily mean that they decided that only a not guilty verdict could have been reached by a fair jury. Perhaps when the opinion comes out it will be more clear why a retrial was not ordered.
Jill writes that the victim “remembers coming to,” which implies that the defendant began to have intercourse with her while she was unconscious, which would certainly be rape. Holly says that the defendant claims that the victim took her own clothes off. Holly, what are you reading? I couldn’t find anything with that level of detail. But the Telegraph article that Jill links to says:
“At the start of the trial, the prosecution claimed that M was so drunk that she was effectively unconscious. In the light of the evidence, the jury was asked instead to conclude that M did not in fact give her consent.”
This is a polite way of saying that the evidence at trial did not support the allegations made in the prosecution’s opening statement – that is, the evidence did not support the claim that the victim was either actually or “effectively” unconscious.
For what it’s worth, which isn’t much, two of three judges on the appellate panel were women.
Meh, this is moronic.
Yes, some people do drink exactly because it lowers inhibitions. That is certainly true, and it is silly to deny that. On the other hand, this is just monumentally stupid:
Have you ever been really fucking drunk? LOL. Do you think the science of what happens when you have a ton of alcohol in your bloodstream is just fiction?
Really drunk people have no fucking clue what they are doing, that’s essentially the definition of being really drunk.
Sometimes people use being drunk as an excuse, sometimes they don’t – I fail to see how that is relevant here. Did that happen in this case? Doesn’t look like it.
And the contention that drunk people virtually always know exactly what they are doing and are simply looking for an excuse is very much a blame the victim mentality. Under that logic someone who gets really drunk and is raped was simply looking to get raped from the outset…
Dude, you’re being called a rape-apologist and misogynist because you didn’t say what Holly said.
Unless you really think the following are equivalent in rape-apologism and misogyny:
and
And that’s not even discussing the fact that, y’know, the rest of Holly’s post is, like, rational ‘n anti-any-question-of-rape ‘n stuff, and yours is, uh… not so much.
Lessons to learn:
1.) Consensual sex is a happy happy thing. Having lots of it, if you want, isn’t bad so long as you stay safe and have fun.
2.) Whore is a misogynistic term. And derogatory. And your usage of it contradicts lesson 1.
3.) If your concern is more with the potential of rape CHARGES than the event of rape OCCURRING, you’re gonna get called out on pro-female blogs.
4.) No one knows if you’re a man or a woman on the internet unless you let them know. I thought you were a woman too for a while.
5.) There is thoughtful, rational, and reasonable disagreement, and then there’s fucking trolling. I don’t care what your points are, frankly, as you are presenting yourself poorly and in a most troll-esque fashion.
Bloix look here:
Oops..er:Look Here
You know, you can be walking and talking after someone slips you a roofie, too, but not remember why you woke up in a strange hotel room without your clothes.
Random, thank you for the link. This is to the original opinion of two weeks ago – not to Monday’s decision that there will be no retrial. But it is pretty interesting:
“by the end of the evidence, the prosecution case against the appellant had changed. The jury were no longer invited to conclude that M had been unable to consent to intercourse because she was unconscious, rather, the prosecution accepted that the gaps in her recollection were probably the result of intoxication, and lack of memory, rather than unconsciousness. The prosecution case, therefore, was not that the complainant lacked the capacity to consent, but that she did not in fact consent to intercourse.”
But then the judge gave jury instructions that included the option for the jury to decide that she had been unconscious – something the prosecution had already abandoned. The appeals court said that this was a mistake that required a reversal of the conviction.
I would guess that the reason there will not be a retrial is that the victim gave contradictory evidence at trial that showed she really cannot remember what happened. This is a serious problem with any case in which the complaining witness is drunk – not only rape, but assaults and muggings – how reliable is a witness who has memory loss?
Alix:
This is my last post on this thread.
#81 hasn’t been posted because it needs moderation, I said…
“And just to clarify, bad behavior doesn’t have to be rape… one example of bad behavior blamed on alcohol:
My buddy had unprotected sex on the floor of the bathroom in a club with some beast. He swears to this day he would have never done it if he wasn’t plastered, blah blah, blah, but I know he’s full of shit… I can just look at his exgirlfriends.”
Bad behavior can be doing things that one would normally find morally repugnant. Obviously rape exceeds bad behavior beyond measure, but I wasn’t inferring using alcohol as an excuse to rape. There is no excuse for raping anyone. I was inferring that alcohol is used as an excuse to get fucked without people looking down on you. Then in hindsight, deciding it really wasn’t your intention and claiming you were raped.
Also, if I present myself poorly, I could give a shit less.
Any differing opinion is met with the most extreme of accusations and name calling, so if you’d scroll through the thread, you can se how my tone reflects the amount of respect I was given.
I mean even after explaining myself, people are saying i’m “blaming the victim,” when in actuality someone falsely accused of rape IS A VICTIM. But yes, if someone uses alcohol as excuse to call rape when in fact they new good and well what they intended, then yes, fuck that “victim” and their perversion of what consitutes victimhood itself.
For all the talk of equality, you all sure enjoy your stranglehold on victim status.
I never defended rape, drunk-fucking, or coercing someone into sex. I simply said people can use alcohol as a scapegoat, and even mentioned a specific instance where I knew people who were falsely accused of rape.
But keep flogging the air. I know self-righteous indignation is the heart of modern liberalism. That’s why I left.
Oh, fuck off, ether. You and your rape apologism are banned.
:)
God, can we talk about the case now that that smarmy bastard has been banned?
I do so love those guys who expend so much energy screeching about what a terrible terrible thing it is to be falsely accused of rape, yet don’t know a single person who has been falsely accused.
Ether, dude, you weren’t inferring anything. You were implying a whole lotta misogynistic shit, but you weren’t inferring anything.
We, on the other hand, have no trouble inferring that you are an asshole.
Also, I promise that I won’t think less of you if, whilst sober, you go and get fucked.
In fact, why don’t you go get fucked?
Score.
Two things:
1 – anyone who doesn’t think brownouts are common makes me think he or she hasn’t been around many drinkers. I regularly experienced them when I drank heavily in college — so drunk I had no or virtually no memory of what I did, but sober enough not to pass out. All of my five friends I’m hanging out with have had similar experiences.
2 – Psyche’s point about joint responsibility is dead on. In particular, on New Year’s Eve I had sex with a woman who the next day claimed she didn’t remember coming to my apartment, though she did remember the sex. The saving grace is (1) I had to stop making out with her to go throw up I was so drunk (stop on two separate occasions); (2) I was *way* too drunk to get erect / have penile sex; (3) I went down on her at her request, which certainly is an affirmative request. So… yeah. I don’t think any of the above qualifies as rape, or if it does, we’re both guilty. And she clearly didn’t mind since we dated for four months after this.
The fact that the victim has no idea what actually happened says to me that she didn’t have the capacity to give consent. That speaks to her being very drunk.
Again the English law is very murky, it does some have idea that you need to have the capacity to consent to actually consent, but it isn’t clear what that actually means and it doesn’t seem like the prosecution did anything with that. The prosecution sounds rather poor overall.
It seems like a better tack would be to say “look, I was so fucking drunk it doesn’t matter *what* I said!” It really doesn’t matter what happened, other than that the girl was clearly drunk enough to not have capacity to grant consent.
If you can establish that she was very drunk I don’t really see why her personal recollection matters much at all unless she was actively initiating.
—
Now I do have a bone to pick: (crosses fingers that nested blockquotes come out right)
Oh come on now! I say Tony Snow whores for Bush and now I’m insulting rape victims! It is *far* too easy to be called a rapist or some sort of apologist around here!
This is sort of a pet-peeve of mine, but people are far too quick to pull out the rape card, which really insults people who are *actually* raped. It may be wrong to say that “Tony Snow whores for Bush” but bringing rape into *that* discussion just waters down what rape actually is.
In the 90s we had to listen to people who were “verbally raped” or “felt like they had been raped”, like rape is some sort of catch-all for whatever ails you. Similar to how we call everyone a Nazi these days. They take away your GameBoy at school – they’re a Nazi! Kind of makes you forget that Nazis were actually killing vast quantities of people and not just requiring hall passes and school uniforms.
Rape is serious business, not a goofy rhetorical device you can throw into any argument to punch it up. It’s irresponsible to try to link anything and everything to rape just because rape carries a lot of weight, especially in such an offhand, dismissive manner.
Seriously, insulting prostitutes (by comparing them to Tony Snow I guess) is the same as “hating on rape victims”? No. Just no.
Not the point. Do you call Tony Snow a cunt, too?
How often do we have to explain the concept of a gendered insult? I certainly hope we don’t have to explain why feminists find gendered insults wrong.
As for the first part of your post, I agree, with this especially:
And yet somehow, it always gets spun as her being unreliable, not incapacitated.
She is unreliable, it just doesn’t matter. The other people around established that she was blitzed, the court doesn’t have to take her word for it. If she is completely wrong about what happened that still doesn’t really matter – the only part that matters is that she was unable to give meaningful consent because she was really drunk, something that seems obvious and uncontested.
Anyway as far as my bone to pick, don’t conflate two different issues. Yes, whore is a gendered insult, and we can debate whether or not that is appropriate, but my issue is specifically with the fact that someone is equating my use of whore to “hating on rape victims” which is an absurd stretch that shows a disgregard for how serious rape is, reducing it to a lazy rhetorical device.
Saying something like “I’m a whore for Choloclate Chip Walnut Cookies” is quite a bit different from “I hate rape victims.” The first statement is not in the same universe as the second one.
Absolutely.
Ok, then. Sorry ’bout that; I’m still a little jumpy after ether up there.
I’m a longtime lurker, hesitantly putting my foot in the water here because this specific topic is particularly relevant to my experience as a college student.
I’m a guy, and went (am wrapping up currently, actually, after a one-year dropout break) to a small liberal arts college that had an environment strongly encouraging binge drinking as a normal social activity. I’ve had sex while too drunk to sign a contract, and have had sex with women similarly drunk. In one case, when both of us were that drunk, I was accused of rape.
In retrospect, I wish the sex hadn’t occurred, and regret initiating it. But it’s hard to see it as rape (granted, I have a pretty big bias in this particular instance). I had explicit verbal consent, and talked to her about in the morning. She regretted the sex, as did I, but didn’t seem to consider it nonconsensual at the time.
We had a falling out a few weeks later, and I learned a long time after that that she had begun telling friends I was a rapist, detailing the events in question more or less accurately.
It’s just a really murky area. While I consider my actions regrettable, I don’t consider them rape. And I think I would be uncomfortable with a hard and fast definition of rape that hinged on inebriation without other factors eliminating the possibility of consent.
Jill wrote:
It seems to me that there’s a disanalogy here, and that it may be hard to figure out how to deal with rape cases by considering what it takes to consent to a contract. Suppose A gets drunk and signs a contract that requires meaningful consent to be legally valid with B, maybe A agrees to sell B a house. Now, the next morning, when it comes to light that A contracted to sell a house to B, A could argue that the contract is void. It has no legal force, because–due to A’s intoxication–A could not meaningfully consent. But this doesn’t mean that B did anything wrong. The remedy in the case of drunken house selling isn’t necessarily to punish B (though I’m sure you could imagine a case where B would be legally culpable in some way, perhaps if B had drugged A), it’s just to not respect the contract between A and B. If the deed had already been transferred, then A could argue that B should be required to give back the deed.
Rape is unlike this in two ways. First, there’s no deed that you can give back. If A got intoxicated and B raped A, the harm is already done, and no simple property transfer can erase that harm, the way giving the deed back can effectively erase the harm in the house selling case. This leads to the second difference, which is that rape cases involve criminal penalties, and other contract cases generally don’t. Perhaps because in the house selling case, the harm is so easy to erase, we don’t think there’s a need to punish B for contracting with A–we just make B give the property back. But if B has sex with A while A is intoxicated, questions of criminal penalties arise, and they’re not easy, as Jill’s initial post makes clear.
I think my point is this. Looking at what it takes to consent in certain other areas of law and trying to apply that to rape, may not be all that helpful, for the following reason. In contracts, the point of determining whether consent was given is usually to figure out how property should be allocated after the putative contract was made–should the contract be respected and should property be allocated according to the terms of the contract, or should the contract be considered invalid? In rape cases, the point of determining whether consent was given is to figure out whether a crime has been committed. It’s not obvious to me that the same sorts of considerations will apply in both cases, or that arguments about what it takes to consent in one case will have easy application to the other.
Incidentally, this isn’t an argument against Jill’s position–I’m pretty sympathetic to the compromise she suggests in her initial post. But I like the position because it seems to be a sensible way of dealing with a messy issue–not because it’s consistent with contract law.
Re: the taking her own clothes off thing, it’s in the link someone posted above. At least it’s in his account of the story, but now that I look at the more detailed version of it, it’s pretty sketchy. This is what it says, and I’m sorry, this is likely to be triggering for some people:
I just want to say, the thing that really bothers me here is… “encouraging by moans” and other body language is SO far from being okay as a real sign of consent, especially from someone so drunk that they’ve been throwing up. On the other hand, a discussion about condoms makes it seem a lot more like both parties know what they’re doing well enough to make prudent decisions, even if it’s at the wrong time.
However, the real problem is that he just did not give her an opportunity to say yes or no explicitly, or even ask her if she was OK. Even if she was drunk enough to brown-out, and therefore the whole situation is in the problematic “grey zone,” having a short conversation about whether she was OK to do what they were doing would have moved things much further towards 1.0 consent. And you know, sometimes you have a conversation like that with someone and you realize, even though you are really wasted yourself, that this person is WAY too fucked up to make any kind of decision, and you put them to bed or get them home instead. That’s responsible.
Unfortunately, we’re talking about college-age kids here and nobody teaches girls or boys about how to be responsible in these situations. It’s all socialized like ether said — “considering the reality, everyone I knows caters to this fact and are especially cautious when dealing with drunk girls” and not really taught.
The other thing in this case is that British definition of rape is kind of wonky. For one thing, rape requires a penis AND penetration, which is messed up; I guess anything else is “just” sexual assault? :( Also, it’s only rape of person B by person A if B does not consent, and the A does not reasonably believe that B consented. “Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.” So to some extent, the discussion about whether drunk people can consent is a little moot. It has to do with whether your partner can TELL that you’re drunk, specifically drunk enough to impair your ability to give consent, which is a huge grey area. If this guy had asked the girl if she was OK, if she had nodded or said yes, and he reasonably believed she was recovered enough to make decisions like that, then at least under British law it’s not rape. The guy’s story above is clearly angled towards showing that he’s a nice guy who had a reasonable belief that his partner was consenting. Of course, it’s almost certainly exaggerated in that direction if not outright lying; but another problem in this case was that the victim was totally unreliable, so whose account is the jury supposed to use?
I don’t know if I agree with the way the British law works, it falls into this binary either/or thinking that I was talking about before. Either it’s rape, or it’s not. When in reality, if someone is drunk enough to be really messed up, then there is at least some shadow of possible rape present. But that’s the way laws generally work, not with gradients of grey but in bands of black and white.
B took advantage of A’s obvious intoxication to get A to sign away the house. That’s not doing anything wrong?
And once again, an analogy to women’s bodies as commodities. Thanks much.
Another thing about education. Apparently these two people were well-educated enough about the importance of protected sex that they both had a lightbulb go on over their heads during this encounter that said “he should be using a condom” or “there’s no condom, we have to stop.” Sure, it was a little too late (after he had already penetrated her) but if it hadn’t occurred to her and resonated with him, he probably would have continued to have sex with her and probably ejaculated inside of her. All of this “remembering about condoms” happened despite being really, really drunk.
So here’s the thing. Yay for education about condoms. WHY are we not all educated about rape in the same way? These light bulbs should go on over people’s heads (mostly young men’s heads) about potential lack of consent, too. Messages about condoms have gotten drilled into a lot of people’s heads because they were understood politically and institutionally to be Really Really Important For Saving Your Life. Of course, this required a lot of work and fighting by liberal and progressive individuals and organizations, so that the response to the AIDS crisis would be more than “you put your galoshes on when you go out in the rain, right?”
Well, it’s about time we understood that similar education about consent is also Really Really Important For Preventing Rape, and stop acting like rape is something that only shadowy bogeymen in alleys do to girls who aren’t careful or modest enough, just like we all had to stop acting like HIV was something that only happened to gay men and heroin addicts.
Saying something like “I’m a whore for Choloclate Chip Walnut Cookies” is quite a bit different from “I hate rape victims.” The first statement is not in the same universe as the second one.
saying “tony snow is a whore” is in a different universe from “i’m a whore for chocolate chip”, and you only tried to defend the use of “whore” in a conversation that was responding to ether’s use of the term as a general term for anyone who ever has sex – one presumes he was jealous – so, well, context matters.
Apparently
remember though that she can’t remember what actually happened so we’ve just got his word on how consenting she was – and I’ve heard of rape victims asking for their attackers to put on condoms because after a point, the best you can do during an attack is damage control, so that doesn’t mean she consented either.
Regarding brownouts:
I have had brownouts simply from being too damn *tired*. Frequently, I lay my baby down in her crib next to my bed at night, and wake up the next morning to find her in my bed, nursing. Unless she is much more talented at climbing down cribs and up into beds than her wakeful behavior would indicate — and she just got down crawling recently — I am obviously waking up at night, picking her up and putting her in my bed, but I don’t remember it. And I don’t take *any* drugs but birth control pills.
So I find it impossible to imagine that people don’t have drunken brownouts frequently. If you can forget waking up, walking across a room, and carrying a baby, just because you’re *tired*, I’m sure you can forget a lot more because you’re drunk.
Zuzu,
Go back and read my post. I never said that A’s intoxication was “obvious” anywhere, and that was intentional on my part.
B certainly could have done something wrong, if it was obvious that A was intoxicated when A consented to the contract. But that wasn’t built into the example. It could be that A’s intoxication wasn’t apparent, in which case B wouldn’t have done anything wrong. See post #7, by Alix, for an example of how this could happen. If Alix’s friend were to buy a house while drunk, while Alix’s friend would probably have a good claim to nullify the contract, I doubt that the person who contracted to sell the house would be criminally liable. But I’m not saying that rape should be treated the same way as contract disputes. My whole point was that because non-consensual sex is relevantly different in a number of ways from non-consensual house-selling, we shouldn’t automatically expect that best legal solution will treat them similarly.
As for the criticism that I’m comparing women’s bodies to commodities, it was Jill who made the analogy to contract law–a body of law that involves inter alia the allocation of property–in the first place. If you think that there’s something wrong with drawing the analogy, attack Jill, not me. I was suggesting that, even though I agreed with Jill’s position about how these cases should be treated, that analogy was inapt.
If anyone cares, there is a Wikipedia article on the subject. It’s not referenced there, but I remember reading another paper which suggests that the way memory works while you’re really drunk is the same way that it works while you’re asleep or nearly so. The paper specifically had some evidence that people who forget what happened while they were drunk or on the sleep-waking boundary, had better recall of these events if they went into that state again. There was a hypothesis about there being “another memory bank” of sorts that memories go into when you’re drunk, which is difficult or impossible to access while you’re awake. So Alara, you might actually getting up to get your baby if you had a few beers. This kind of thing has happened to me before — I’ve had phone conversations in the middle of the night that I totally didn’t remember the next day — but I haven’t had much luck improving recall with booze. Go figure!
The other thing that might be important to note here is that alcohol-related amnesia might not be related to the quantity of alcohol consumed. Instead it seems there might be links to how fast your blood alcohol level goes up, and possibly to genetic factors as well. Also, you can’t necessarily tell if someone is in this state, because people can carry on conversations, do complicated things, and then not remember any of it later (I’ve seen this in other people myself, at least according to their later account). However, apparently they might have some symptoms of anterograde amnesia — they can remember events in the last few minutes, but not something that happened an hour ago.
The “drunken real estate transaction” is an interesting one, but I think that drunken tattooing might be a bit more on-the-mark. I don’t know about all states, but in Georgia, a reputable tattooer won’t ink a drunken customer. There are a lot of reasons for this, among them being the fact that drunks bleed like stink, but a large part of it is that a drunk can’t legally consent to having that permanent change made to his body or to signing the necessary waivers. If a drunken fratty comes in looking for body art, and the tattoo artist does it, said fratty can sue when he sobers up and realizes what happened the night before. Moreover, if he suffers infection or injury as a result of the tat, he can sue for that, too, because all of the waivers he signed that night are invalid due to his drunken state. That’s why most good artists won’t ink if they merely suspect that you might be tipsy. If that’s a legal standard we can maintain for something as relatively minor as body art, why should we maintain a lower standard for something as potentially significant as sex?
As for the brownouts, I’ve personally been known to carry on lucid, wide-eyed conversations while completely sober – but completely asleep. It’s become a point of comedy in my family, but it’s also kind of scary, because only someone who knows me well would be able to tell, in some situations, that I’m not wide awake. If someone woke me up in the middle of the night and initiated sex, I might go right along with it and even say “yes,” and then wake up in the morning with no memory of it whatsoever – and a feeling of violation associated with being raped. Would the fact that I seemed to consent make it not-rape? Because I can guarantee in that situation that I would not have been capable of making a conscious decision, which would negate consent, no matter how well-meaning my partner had been. And I can guarantee that the next morning, “But you said yes!” wouldn’t make me feel any less like I’d been raped.
ACG,
I’m curious, if you get tattooed while drunk, and then sue afterwards, do you have to prove only that you were drunk, or also that the tattoo artist should’ve reasonably expected that you were drunk?
I think it’s pretty obvious that someone is drunk when they’re PUKING.
(sorry, should’ve posted this in 115. Consider this as the next paragraph in the previous post) If it’s the former, then that seems inconsistent with the approach Jill suggests in her original post, and closer to the drinking alcohol = no consent standard. If it’s the latter, that seems more like what Jill is suggesting. If to win the suit against the tattooer, you need to show not only that you were in fact drunk, but that a reasonable person would have realized that you were incapable of making an informed decision, then that sounds like what Jill is proposing as a standard for rape cases.
It’s not at all obvious to me which is better, and I can see reasons to prefer either. Even though the reasonable person test seems better able to acknowledge the complexities of a situation than the straight alcohol = no consent rule, on reflection, I might prefer the alcohol = no consent rule. With the reasonable person test, you inevitably get into murky questions about just what evidence was available to the putative rapist, and whether the putative rapist really should’ve realized that the victim was drunk. This makes it very hard to meet a reasonable doubt standard. Maybe we should prefer the strict rule, broad and paternalistic as it is, because it makes it possible to convict rapists. It also sends potential rapists a clear message– be very cautious about attempting to initiate sex with people who seem like they may be drunk (be like the tattooers in Georgia ACG mentions, who are very careful about tattooing people they even suspect to be drunk), because you won’t be able to claim that you didn’t know they were drunk as a defense.
While the strict rule would classify some cases that intuitively seem not to be rape as rape, and classify some people that seem not to have done anything wrong as criminals, maybe it’s still, on balance, the best rule. Though I expressed sympathy in post #106 to Jill’s suggestion that a reasonable person test be used, I am of two minds, as I worry that a test like the one she proposes would make it very hard to obtain convictions in cases that really are cases of rape.
in response to zuzu’s post 116,
I didn’t say anything about puking in the example I was talking about. Perhaps you thought I was defending the accused in the actual case that was just ruled on in the UK? I wasn’t, I was talking about a hypothetical real estate transaction, and I did not stipulate that the party selling their house was puking.
I think we’re splitting hairs. It doesn’t look to me like this case was a close call.
That said I do think there’s a muddy middle where a reasonable person would incorrectly conclude that a drunk truly wanted to have sex. I also think that it would be nice if this were really the biggest rape problem we as a society have.
It would be great to say that people shouldn’t have sex with anyone who’s been drinking but people do go out looking to party (drink/use drugs) and hook up.
I think the system should be (but isn’t) set up to discourage men from pushing the limit while still protecting the rights of the accused.
I wonder if instructing the jury to convict if they conclude the victim was too drunk to consent that that the defendant should have reasonably known this would help?
Not necessarily. People can vomit from various illnesses, or from eating something that disagrees with them. I’ll occasionally have a sour stomach, where I’m feeling fine, eat something (that I normally don’t have problems with), then suddenly feel sick, eventually vomit, and then feel 100% fine once that’s over. It would be quite inaccurate to judge my competence based on puking.
That’s the tricky thing with intoxication – external symptoms don’t necessarily indicate incompetence until a person is actually passed out – there are people who can appear quite drunk while not having drunk much at all, or while being mentally alert, while others will seem coherent while actually quite out of it. Even a blood alcohol test doesn’t necessarily show decreased judgement – “too drunk to drive” has as much or more to do with slowed reflexes and decreased coordination as it does with mental confusion.
I don’t know of a good solution for this. Particularly since someone who, say, came to a party late, might not know if or how much another person has been drinking. Even “alcohol=no” falls apart at that point.
Will someone (Jill? zuzu?) give me some references to contract law and legality of contracts signed while drunk? I hear the “acquaintance rape = contractual misunderstanding” analogy a lot, and some references would give me good ammunition for making the case that “legally intoxicated sex = crime.” Thanks.
Maybe, but I think that folks should err on the safe side. (Besides, even if you feel 100% fine at the moment, and are totally sober, you just vomited – you really want to get with someone who isn’t concerned about that?)
If I show up at a party late, and find that someone’s all over me but I can’t tell how much they’ve been drinking, I’m not going to do anything sexual with them at that point. I’ll flirt, I’ll reciprocate nonsexual physical affection (kissing, cuddling), I’ll probably try to exchange contact information so we can meet again and see if there are sparks, but unless I know they’re sober or we’ve discussed it in advance, nothing’s gonna happen.
Apparently it’s not reasonable to expect that behavior from others, though.
Agreed 100%.
Fine. I hate rape victims. Let’s have at it then. In a thread where I argued that someone should be guilty of rape *clearly* I hate rape victims because I called Tony Snow a whore for Bush.
That’s indefensible logic. Well played.
My understanding is that they’re not automatically void, but that they’re voidable; IOW, if you come to your senses, read the contract, and are okay with the terms, you can just act as if nothing happened. But if you see that you signed away your house for a pack of Bazooka Joe, you can sue to get out of it on grounds of intoxication, because you couldn’t possibly have consented to such a one-sided deal.
(Disclaimer, I only read about the first 90 or so comments)
This whole thing is very confusing and creates many issues for me. I will commonly have wine with dinner and if taking someone on a date, she’ll often have wine too. I’m not trying to get her drunk (I’ll get drunk first), I just like how it tastes with the meal. So, if she says “Yes” after dinner, is it consent? Personally, I’d judge it on a case by case basis. There are some people who I know wouldn’t feel it, and other’s who wouldn’t remember a thing with that much (or little) alcohol. If someone has alcohol, I just am far more careful and cautious, but to claim that any alcohol at all invalidates consent is just ridiculous.
Which brings me onto the topic of personal responsibility. If I drink and drive, crash into another car because I didn’t look before I turned, it’s my fault, not the sober driver’s. If I drink and get into a bar fight, it’s my own fault. If I drink to the point where I can no longer take care of myself, it’s my own fault. Drinking to the point you lose control is an action that you take. (I’m assuming that no one is forcing the alcohol on you or slipping you a mickie, that’s different.) The only times that I’ve been truly drunk have been when I’ve been with people who I trust fully because I know that I won’t be in control.
Yes, it is the other person’s responsibility to recognize that someone is drunk and not have sex with them. It’s also the responsibility of someone to recogonize that the other person is drunk and not get into a fight with them if they can help it (or to keep them from getting behind the wheel of a car). But it boils down to a simple thing: If you drink to the point where you are no longer in control, that is your choice and your action. Yes I’ll do my best to take that into account (and I hope that everyone else will as well) but it is fundamentally your actions and your responsibilities.
I don’t either. But I don’t know anyone who has been accused of rape at all. I think those guys on the Duke Lacrosse team were falsely accused.
And I know a lot of people who have hooked up in situations of heavy intoxication, where these issues would have come up, if someone had made an accusation.
Personally, I think rape is a crime of violence, and I disagree with definitions that don’t include violence, or the threat of violence. The division is very key, and I think many will disagree with me, because there are schools of feminist theory that would define much of the ordinary process of sexual interaction between men and women to be inherently violative, and many men would define rape as an extraordinary act of violence. At the risk of being lumped in with your friend Ether, I fall squarely in the latter camp.
Rape is an act of violence. It is not a misunderstanding. It does not happen by accident. It does not happen as a result of people misreading signals.
I am not advocating a resurrection of resistance requirements. I am not advocating a statutory requirement of a very high level of force, or an overt threat. However, where a woman does not make her unwillingness clear in an unambiguous way, it is very difficult for me to imagine a situation where I could convict under a system that places no burden of proof on a criminal defendant, and requires prosecutors to prove that a crime of violence occurred beyond any reasonable doubt.
A lot of people have bad sex. A lot of people have unsexy sex. A lot of people have drunk sex. I am not prepared to lock people up for any of these things.
I don’t think there is any level of voluntary intoxication that precludes the possibility of consent, where a person behaves in a way that would otherwise clearly be considered consenting if the woman were not intoxicated.
I think it’s kind of demeaning to expect the man to be the level head and require him to tell the woman that she is “too drunk.” I mean, even if you impose some arbitrary standard, like she’s throwing up drunk, how drunk do you think this guy is if he’s still ready to get it on with a woman who smells and tastes like vomit?
And I would also disagree with Jill’s contract-law analogy. Sex is not a contract, the consequences of a rape accusation are not the same as the consequences of a contract being held unenforceable, and, most importantly, alcohol is a part of the typical sexual courtship ritual in American culture, but it is atypical for parties to a business contract to transact while intoxicated.
If, for example a real estate broker met a woman in a bar, and he sold her a house, and then they had sex in the backseat of his car, I think the agreement to buy the house might be voidable because of her intoxication, but intoxication would not void her consent to sex.
- having sex without getting verbal consent, just relying on “she seems like she enjoys it,” lack of non-consent, body movements, etc, especially when really drunk
I think sex without verbal consent is OK, if you’re both sober, and the non-verbal consent is active and involves real enthusiasm, particularly if this is taking place with someone with whom you’ve already had verbal consent to sex in the past (so you already know and trust each other well and are good at communicating with each other non-verbally).
So, my husband wouldn’t absolutely have to get an explicit verbal “yes” every time, but in the improbable counterfactual event that he had sex with me while I was passed out drunk, it would still be rape.
Other than that quibble, I agree with everything on your list.
If I remember bar study correctly, a voidable contract doesn’t have to be unconscionable.
I think the difference between a void and voidable contract is that a void contract is unenforcable. That’s like a contract to commit a crime.
A voidable contract can be enforced. For example, if an intoxicated person sells his house, and later the buyer wants out, the buyer can’t claim the contract to be void because of the seller’s intoxication. However, if the seller wants out he may be able to get out of the contract on grounds that he was intoxicated when he made the agreement. I think the buyer would have to know of the seller’s intoxication to make the contract voidable.
Also, a big difference between rape and finding a contract to be voidable is that there is no concept of fault implicit to finding a contract to be defective.
A contract with a minor is voidable regardless of whether the other contracting party was aware of the partner’s minority. However, reasonable misapprehension of a minor’s age is a defense to statutory rape.
You seem to be missing the part where crashing your car while drunk is a crime, but being robbed while drunk, or raped while drunk, is not.
zuzu,
I’m talking personal responsiblity primarily, legality second. The laws should reflect personal responsiblity. I don’t drink and drive not because it is illegal but because I risk injury to myself and others. That is a choice that I actively make. When I drink enough that my decision making is significantly impaired (by my definition of significant) I make sure that I am in a situation where I am safe and surrounded by people who I trust. I make this decision before I have that extra beer (or possibly before the first). I am responsible for my own actions, always. If I’ve had too much to drink and do something stupid, I did it, not the alcohol.
And while my analogy isn’t perfect, your’s doesn’t take into account that getting robbed isn’t an action you take (nor is getting raped) but saying “Yes, I want to have sex” is an action that you take (leaving duress out of it since that is a side topic). Rape is horrible and I’ve come close to castrating some people who have hurt my friends. I’m just stating that a person must be responsible for their own actions and giving consent is an action.
There is a civil remedy for assault, and you could meet that with the kinds of lower standards many commenters are talking about, e.g. victim most likely did not consent, and the assaulting party knoew or reasonably should have known that the victim did not consent or was not capable of consent.
However, lack of consent is an element of the crime of sexual assault/rape, so any attempt to lower the bar for showing lack of consent (e.g. alcohol consumption = no consent; slurring speech = no consent; no express verbal “yes” = no consent) is simply not going to comport with constitutional standards for criminal intent. That’s a U.S. perspective of course. It also renders the contracts analogy (which is a vague standard in itself) irrelevant to the rape issue.
Fine. I hate rape victims.
the issue was “don’t call people whores as a generic insult”, but no no, sorry people dared criticise those almighty patriarchal word choices, it’s obviously soooo important to you that the entire rest of the world should have known better than to dare risk your almighty cockfencing style textual wrath.
Jeezus.
If I drink and drive, crash into another car because I didn’t look before I turned, it’s my fault, not the sober driver’s.
If you’re sober and hit a pedestrian who happens to be drunk (because that’s not actually illegal, like being a woman who drinks too much), what the courts will say will depends on what the drunk pedestrian was doing – if the drunk throws themselves into your path it’s not your fault for hitting them – it’s manslaughter or death by misadventure (which is how I want to die, born to misadventure, live by misadventure, die by misadventure) or accidental death or whatever rather than murder and public endangerment.
If however the pedestrian isn’t doing anything that causes you (sober) to hit them, but you just decide to swerve onto the sidewalk because you really like the feel of a pedstrian hitting the front of your hood, you’re a maniac, a murderer and have broken innumerable other laws. And the same goes if they stagger at bit and almost fall in front of your as you’re driving along – you’re not allowed to run them over because they almost threw themselves into the path of your.
“Is the woman who is drunk, actually doing anything that makes it next to impossible for a sober man to not sleep with them” is then the standard that I’d go with – we take it as given that the rape did occur because the victim has pressed charges, the issue is now whether he’s truly culpible for it.
Or to put it more succinctly – was she asking for it, to a degree that would constitute “making an offer he could not refuse”.
Which I would personally consider to require a bit more than a bit of moaning and rolling over after he give her a quick groping (which is sexual assault in and of itself surely?) combined with asking for a condom near the end of the encounter.
not a murderer actually, because that requires afore thought, homicide then.
How about the “personal responsibility” of the person who rapes the puking-drunk woman?
You know, it’s nice that you think that rape can be avoided by surrounding yourself with people you trust, but considering that the vast, vast majority of women who are raped are raped by men they know and trust — husbands, friends, boyfriends, the like — I would say that that’s not working out too well.
Ah, but you see, in many cases, including the one in the UK cited here, moaning or other noises were used to show consent. That’s not exactly affirmative, enthusiastic consent, is it?
Lack of consent is an element of the crime charged, but if a defendant is going to claim the victim consented, so that therefore it wasn’t rape, that’s an affirmative defense in most cases and he’s going to have to prove that. Moreover, if the lack of consent is due to lack of capacity or impairment, the prosecutor usually has to prove the impairment, not how the impairment manifested itself.
No way – lack of consent is an element to be proven by the state BRD. In most states, the state can simply show that the victim was not mentally capable of consenting (due to intoxication or other reason) and that the defendant knew or should have known that.
Now that’s just ridiculous. Alleged victims do not have a right to be believed – they do have the right (more or less, through the proxy of the State) to present evidence and have the matter decided by a jury.
If a woman gets horribly drunk and gets behind the wheel of a car, she’s held responsible for this action despite the fact that she’s drunk, and is legally liable for the consequences. So it should be with the decision to have sex- the burden should not be placed on one or the other of the two if the woman consents to sex while drunk.
The major problem comes in trying to later prove that consent was given while drunk- it then could very easily become a he said, she said scenario with little way to verify what actually happened and who agreed to what, especially if one or the other of the “consenting” adults was so drunk that they have no memory of what actually happened.
It just seems irresponsible to me that a person should become so drunk that they lose their ability to meaningfully deal with a situation, and then want to have their responsibility in that situation absolved on account of their drunkenness. Most of the time, getting drunk is a voluntary choice. You should have to live with the consequences of that choice.
Right, and THAT’S when the defendant has to make a showing that the victim consented by presenting evidence to overcome the presumption that the prosecutor created by showing that the victim was incapable of consent. How that is done is up to the individual, but in this case (and I have no idea if it worked the same as in the US), the defendant presented evidence that the victim moaned in a meaningful way.
Lack of consent = element
Presence of consent = affirmative defense.
I am not talking someone is puking, passed out or anything like that. I am assuming that at least with the people posting here, the person in question clearly is not capable of making decisions for themselves so the other person definitely has responsiblity and should not go ahead with sex. (This definitely doesn’t clear the assaulted of responsiblity, they still got themselves smashed in a situation when they shouldn’t have. Though, as you’ve pointed out, most rapes are performed by people known by the victim. If I’m drinking heavily around someone who I think should be trustworthy and they turn out not to be, I’ve taken reasonable precautions and there should be little to no fault on me).
What I’m talking about is the gray area where there is alcohol involved by the person may be capable of consent. Are my dates after two glasses of wine capable of consent? Well, it depends on the woman. If I don’t think that they are (which is obviously a judgement call on my part) I won’t do anything. If they know (or even suspect) that they can’t answer the question of concent reasonably with two glasses of wine in them, they really shouldn’t have that much on a date. There is no way for me to know exactly what their mental state is no matter how hard I try. How can I be expected to always make the right decision if there is no way for me to have the information. The only person who has that information is the drinker.
To draw in a related example. One of my good friends smokes pot from time to time. An effect on her is that she gets extremely horny. She knows this and therefore will only smoke pot around people who she either trusts not to take advantage of her OR around people who she decides that she wants to have sex with (and she makes this decision before she lights up). One of the reasons she never smoked around me is because she didn’t know whether or not she wanted to have sex with me. Since I knew that she wasn’t sure, if she had lit up, I wouldn’t have taken advantage of her.
And to make one other thing clear. I am talking about clear unambiguous consent along the lines of:
“Yes, I want to have sex.” not moans, groans, or not fighting back.
I don’t understand. If it was really proven that the victim was incapable of consent, how could anyone prove that she did consent?
Perhaps the affirmative defense is that he reasonably thought she was able to and did in fact consent?
That seems like a reasonable enough standard, but I would take that level of intoxication to be quite high. And the defendant can testify, pretty much, to anything she did that could indicate consent – like the moaning etc. – and he only has to do so to a lower-than-BRD standard.
My point is that there are inherent difficulties in using the current system. But a cure does not present itself easily, especially if you intend to repect certain guarantees that all citizens enjoy before they can be branded as criminals and locked up. There are horror stories from both sides of the coin.
How do you define “smashed in a situation when they shouldn’t have”? Out in public at a bar with their friends? At a frat party with guys they think they know? One interesting thing about sexual assault is that we’re always willing to pass judgment after the fact — asking why she was drinking, why she went there, why she did that.
I’m fairly conservative in my personal life. I don’t drink heavily, I don’t go to frat parties, and I can count the number of times I’ve gotten so drunk I’ve thrown up. But I’ve been in many, many situations which, had I been assaulted, the peanut gallery would have been able to list 100 things I did wrong. I live in New York City, and I walk home alone in the dark all the time. I drink in public. Sometimes I wear low-cut shirts. I’ve been alone in a room with a man I did not want to have sex with. I’ve kissed men I did not want to have sex with.
Men are 150% more likely than women to be victims of violent crimes. Sixty-two percent of violent crimes against men happen at the hand of a stranger; 63 percent of violent crimes against women happen at the hand of someone they know. Men are more likely than women to be involved in violent crimes when there is alcohol involved. Ninety-nine percent of rapes are perpetuated by men. And yet it’s women who are admonished for drinking in public, who are warned against walking home alone at night, who we think “should have known better.” How many times have you heard men being warned against standard public socialization because “something might happen to them”?
Sorry, but a person does not invite violent crime upon themselves just because they drink, or because they’re intoxicated. If I’m out drinking with a male friend and we go back to my apartment, and the next morning I wake up and my computer and my wallet are gone, the conclusion is that my “friend” is a thief and an asshole. Yeah, I was drinking, yeah, I let him into my apartment — maybe I even let him check his email. Maybe I offered him $10 for a cab ride home. Is it at all my “responsibility” that he stole my stuff?
If not, then why is it my “responsibility” for being raped?
Nothing is proven until the jury rules. The prosecutor puts on a case. One of the things that the prosecutor must do is to provide sufficient evidence to meet all the elements of the claim.
Theoretically, a defendant in a criminal case doesn’t have to do anything, because the state has the entire burden of proof. So often they don’t put on their own witnesses and just poke holes in the prosecutor’s evidence through cross-examination. A lot of defendants never take the stand.
But if the defendant is going to raise a defense — consent, or alibi, or that the rape was done by some other guy — he’s got to prove that part of his own case, and he has to bring forward enough evidence to convince the jury that she consented, or he was somewhere else, or this other guy raped her, not me.
You can’t compare drinking and driving or drinking and fighting to drinking and being raped.
In the first two you are the actor and initiator, in the last you are not. They are not analogous situations at all.
The analogous situation would be if you got drunk and then initiated sex with someone, in which case you probably won’t get much sympathy. (Although a reasonable person would still hopefully recognize you were sloppy-drunk and say no) Or more accurately, if you got drunk and forced yourself on someone.
It’s good to keep out of situations where you can get into trouble but failing to do that doesn’t mean you deserve or are at fault for what happens next. Getting really drunk may not be smart but it doesn’t mean anyone can do anything they want to you. By your logic (Greg R) I can run around beating drunk people to death with a crowbar and that’s their fault.
No, that wasn’t the issue at all. Your dishonesty is showing. The issue, as I pointed out multiple times, is specifically in equating the use of the word whore with hating rape victims. That is what I took issue with and I made that clear.
If people want to critique my use of “Tony Snow is a whore for Bush” they can feel free, but to claim that makes me a hater of rape victims is beyond stupid and diminishes the significance of actual rape by using it as a lazy rhetorical device.
Someone can disagree with you without being a rapist – amazing I know.
And can I ask where you guys are all coming from? I see a lot of unfamiliar commenters, and I’m just curious who’s linked to us.
Also lets not besmirch a good bout of drunkeness! I agree with what Jill wrote above, other than to say that how often she gets drunk is not relevant at all. Even if she gets rip roaring drunk every night it doesn’t mean that crimes against her don’t count or something silly like that.
If someone is perpetually drunk and keeps having terrible things happen to them they should probably wise up, and as their friend you should probably point out that it would be safer to stop getting drunk all the time. That said crimes against them are still crimes.
There is always more you can do to make yourself safer, but the impetus isn’t on the victims. Hey, you could just never leave your house!
To be clear, I didn’t intend to imply that how often I get drunk is relevant at all. I’m just pointing out that the safety standard is impossible to meet — if you’re sexually assaulted, it ends up being a backward-looking process to figure out what you did wrong. I’d be willing to bet that there isn’t a single person reading this blog who, if they were female, could have survived a sexual assault, relayed the details of the story, and not had someone (even in their head) critique what they did wrong to invite violence onto themselves.
…and you’re more likely to be the victim of a violent crime in your own house or in the house of someone you know than anywhere else! So even if you stay home, you’ve still fucked up.
I follow “Me and My Red Stapler”.
The big question is “Was consent given?”
Wearing sexy clothes, being in bad neighborhoods, walking to your car at night, lieing on the floor puking. None of these can reasonably be considered consent. At no point are you saying explicity “I want to have sex.” “I want someone to take my money.” “I want someone to kill me.” These are things done to you. And you will never find me saying “They were asking for it” or “They deserved it” in a situation like that.
Looking at someone and saying “I want to have sex with you” is an explicit action. If you tell someone that you want to have sex with them and they then have sex with you that is your responsibility. And yes, you are (literally) asking for it. How is the other person supposed to know that you don’t really want to have sex if you’re telling them that you do? Should they ask you if you’er drunk? That doesn’t work. I’ve talked to people barely conscious who claimed that they were completely sober. Other people (as noted above) give no outward signs that they’ve had anything to drink.
Thanks for clarifying, Greg. I was just a bit perturbed at the “responsibility” comment.
But yes, this is the difficult heart of the issue — what to do when someone says “yes” but is obviously impaired. As I said in the post, I fall back on the “reasonable person” standard. At the same time, I can see the value in the alcohol = no consent simply for clarity and consistency. That way we all know the law, and if we break it, there is not an excuse.
Jill wrote:
I was just a lurker that voiced my opinion, since this actually pertained to a situation I’d been in personally.
Jill- I’m a guy who reads this blog regularly, but I generally keep my mouth shut because most of what I have to say would probably sound trollish and I have no interest in disrupting other people’s conversations. (Sometimes I do say mildly troll-y things.) But I’m also a lawyer who knows something about US and UK law and this time I thought I might contribute something of interest. I didn’t arrive via a link.
PS- I took Sifu Tweety on over at The Poor Man about AutoAdmit and wound up getting the Editors to tell me Good Day twice. I suppose I was feeling more trollish than usual that day, but damn it, I was right. You chimed in on that thread and made my point much more politely than I had done.
Jill, can you read the ruling and get back to us? I have read it and it addresses many of your comments and seems quite sympathetic to your line of thought. Most of your comments are tangental or mistaken because they’re based on second hand reports.
The courts view is that alcohol is irrelevant. There’s no hard and fast rules – and can’t be any – because there are not hard and fast rules about how alcohol effects people; this woman, for example, was puking, had memory loss, but was also sober enough to legally drive.
What they say matters is simply consent. If you’re drunk and capable of understanding the situation and making a decision, you can give drunken consent. But they recognise you can also be drunk and not capable of understanding the situation and making a decision, in which case you can’t give consent. Deciding which state the complainant was in is a matter for the jury based upon their understanding of the situation. That strikes me as very close to your reasonable person who thinks someone’s “too intoxicated to make a fully-informed and voluntary decision.”
I know you’re hypercritical in the post of ‘What counts as “drunk enough not to consent”?’ but you could aim the same rhetorical questions at ‘What would a reasonable person count as too intoxicated?”. As far as I can see they’re pretty much the same.
The largest problem in my mind is that a lot of drunk women who are raped don’t give any kind of consent, but their drunk status is used against them. When I was assaulted, there was no way I could have consented, since I was sleeping, but still that I had consumed alcohol a few hours before the attack was deemed relevant. Not sure why.
I very much agree with Jill’s last comment which sums it up nicely. We’re still left with this weird dilemma though, especially if we want to play it safe with the alcohol = no consent rule.
As has been pointed out in a bunch of different ways, in our culture alcohol is very much a part of courtship, acquiring a hookup, getting laid, whatever you want to call it, regardless of your gender or sexuality.
For those who agree that “to play it safe, alcohol = no consent” is a good guideline… does this mean our culture should change? Should we all stop getting drunk and having sex? Putting aside the fact that this is unlikely to change… do we actually want it to?
Like I said earlier, I’ve had plenty of drunken hookups, many of them regrettable. But the next time I have sex with someone, it’s more likely than not that I’ll have had a drink or two… not enough to be staggering, but definitely enough to disinhibit at the crucial point of someone saying “hey, wanna go back to my place?” or dragging me into the bathroom to make out. (Although I have to say, usually by the time I get back to someone’s place or my place, the booziness is mostly gone. I don’t drink that much.)
Wow, you got some big buncha commenters!
While I appreciate the linky love, it is actually
Me and My Red Stapler Against the World that you are looking for.
Jesus tapdancing Christ.
I moan quite a bit while I’m puking, and after…because IT FEELS LIKE SHIT.
For those who agree that “to play it safe, alcohol = no consent” is a good guideline… does this mean our culture should change?
Definitely our culture should change, but how we deal with alcohol is just part of it. Minimalist notions of what sort of consent is OK (any slight sign that someone might be consenting, as opposed to someone actually being enthusiastic) are a bigger part.
Should we all stop getting drunk and having sex? Putting aside the fact that this is unlikely to change… do we actually want it to?
Well, personally, I think the less drunken sex, among people who haven’t established consent before the drinking started, the better, so, yes, I’d actually want it to. Of course, my own experience is more along the lines of repeatedly refusing drugs that someone wanted to give me so I’d have sex that I really didn’t want to have.
I can add that under Canadian law, the mistake of fact defence (ie “I thought she was consenting”) can’t be used by a defendant where:
– they were mistaken because of self-induced intoxication
– they were reckless or willfully blind about consent
Also, to claim mistake of fact, the defendant must be able to show that they took reasonable steps to determine if the person (woman) was actually consenting or not, and they must have reasonable ground for believing that she consented.
The case law has said that belief that silence, passivity or ambiguous conduct constitutes consent provides no defence.
But then no one will go to university.
There’s quite a number of ways that “moan” could be interpreted in that sentence. This is coming from a court document, I’m presuming. Not a romance novel. You probably aren’t going to see anything so descriptive as to describe the type of moan, or whether it was throaty and lust filled or bloated and bile ridden.
Bertson: how about when consent is explicitly given, but later said to be given while too drunk to consent, in Canada?
ugh, that’s an ugly sentence.
Um, no, not for those reasons but because het sex not infrequently involves penetration. Do the mechanics really need to be laid out here? Yeah the sex shouldn’t matter, but if you’re pinned down by someone who’s bigger than you and you can’t get him off you or get out of the situation it kind of does. maybe it’s just me, but some of your posts seem to be more theorhetical, based in some ideal world where things were as egalitarian as they should be, than grounded in reality.
Question, Is this directed at the rapist or the victim? Because if by some odd twist you’re talking about the victim’s responsibility to avoid beiung criminally assaulted, it kinda sorta seems to suggest that a guy can run around sticking his penis wherever he likes and if he just happens to run into you when you’re also drunk and not coherent enough to successfully fight him off, tough luck on you and your inability to meaningfully deal with the situation.
Right. If you commit a crime, let’s say a crime like drunk driving where your car oh, let’s say, enters the body of someone else, being drunk isn’t an excuse, nor is “hey if the victim hadn’t been there I wouldn’t have hit her, and why was she crossing the street, maybe she was drunk.” You can’t have your responsibility in that situation absolved because of your drunkeness. You should have to live with the consequences of your choice to commit a crime.
Good thing, then, that R. Mildred isn’t a court of law, and therefore has the right to believe or disbelieve whatever she wants. I know that when someone tells me he’s been the victim of a crime, I make it clear that I reserve all judgment on the matter and can’t offer any normal human sympathy, regarding him as nothing more than a likely troublemaking liar until the matter has been decided by a jury. I don’t understand why I don’t have too many friends these days.
Where do you get “affirmative, enthusiastic consent”? All these political constructs are completely alien to what people do when they want to have sex.
It is not ordinary to stop making out to ask “May I touch your breast now?” or “May I stick my fingers in you now?” That kind of stuff would probably kill the mood.
Usually, it’s pretty clear what’s on the table, and if I err in judgment or try to push it too far, she’ll tell me so. This is the way it works. This is what people do. And this is why guys are so apprehensive of concepts of rape that seem as though they would create dangerous situations for men who have no intention of forcing sex on an unwilling partner. I would not draw the rape distinction at the line between “enthusiastic consent” and “acquiescence.” To send a guy to jail, I think her unwillingness would need to be evident to a reasonable person.
In this case he says she was moaning and kissing him, and tearing her clothes off, and that she asked him if he had a condom. If that’s true, consent seems pretty clear cut.
“If people want to critique my use of “Tony Snow is a whore for Bush” they can feel free, but to claim that makes me a hater of rape victims is beyond stupid and diminishes the significance of actual rape by using it as a lazy rhetorical device. Someone can disagree with you without being a rapist – amazing I know.”
WTF? Nobody called you a rapist (I know, I know, “it’s far too easy to be called a rapist around here”–what a cliche). If you actually read her post before trivializing and doing everything but calling her a hysterical woman who makes crazy analogies, you’d see that she said that the general practice of using the word “whore” as an insult is degrading and dehumanizing to sex workers who are rather likely to be actual rape victims. Which would seem to be an interesting point and good food-for-thought if one’s own defensiveness didn’t enter into and perhaps dominate the equation.
Thanks, good to know, will try to keep that in mind
Dan,
‘Ordinariness’ is not sufficient to presume a practice is acceptable. I mean seriously. We’re going back to John Stuart Mill’s 19th century standards of argument, here. “That’s just how it is” is not a valid justification for a practice (ie, a negative conception of consent), that is harmful. And since it severely hampers our ability as a society to effectively combat rape culture, yes, it’s harmful.
And as an aside, if you can’t think of mood-enhancing ways to ask for and/or confirm consent, then I’d suggest you perhaps need to try at being a more imaginative sexual partner.
Holly:
Speaking for myself: absolutely, the culture needs to change.
I’m sorry, but this argument (and the related one here, about women who expect their partners to be “aggressive” without prompting) always strikes me as “I don’t care if other people get raped so long as I don’t have to tell my partner what I want.” I think if there’s ever going to be any talk of women’s responsibility with respect to these issues, it’s not about what rape victims did wrong but about owning your sexuality instead of taking the path of least resistance.
Personally (as in, I have no data to back this up), I think that if our culture moved away from the idea of alcohol as “social lubricant” (not to mention “alibi”), it might change people’s drinking habits, but it wouldn’t change the rate of consensual casual sex all that much.
I don’t see why this idea isn’t suggested more. If you think someone’s drunk and can’t meaningfully consent to sex, give them a few hours to sober up.
Dan:
Most people *do* give “affirmative, enthusiastic consent” when they want to have sex.
The Antioch Strawman strikes again.
No, it’s not ordinary to stop making out entirely in order to ask permission in stilted language. It *is* ordinary to tell your partner what you’d like to do to them or have done to you – ever hear of “talking dirty”? It’s not a mood-killer to ask “is this okay?” or “how does that feel?”
This is the “better to ask forgiveness than permission” argument, and it’s bullshit that stems from the fear that, if he asks, she’ll say no.
No, these guys are apprehensive of concepts of rape that they feel would impact their chances of getting laid. The stranger with a knife? That’s bad, of course. (“Let me walk you home.”) The guy with roofies? Bad. But when you get down to the guy who simply keeps pestering a woman for sex, or the guy who’s just too “grabby,” or the guy who preys on drunk women, and the shields go up. Because when you get into those areas, guys who may honestly believe they have “no intention of forcing sex on an unwilling partner” have to confront the idea that they may have been doing just that.
Can we EVER talk about these situations in terms of what’s right and wrong, not how much can someone get away with without getting arrested? Is saying “just don’t fucking do it” subject to the rules of criminal jurisprudence now?
i was going to say the same thing, ariella.
whether or not you can put someone in jail for rape isn’t really relevant to whether or not you did, in fact, rape someone. the current social policy of just assuming you can do what you want and someone will stop you if they don’t like is clearly not helping end rape.
no one’s saying to stop making out to ask politely if you can fondle a breast. how hot would it be for someone to whisper in your ear what they want to do and refuse to do it until you say okay. and if you don’t, they stop everything. not only is it hot for the obvious reasons, but it’s hot because you know he won’t do anything without your consent. which makes you want to consent.
Where do you get “affirmative, enthusiastic consent”? All these political constructs are completely alien to what people do when they want to have sex.
Maybe in your world, but in mine most guys actually want enthusiasm from their partners. Sometimes they even take the time to ask what’s going on, if they see that the consent they’re getting is less affirmative and enthusiastic than what they expected.
It is not ordinary to stop making out to ask “May I touch your breast now?” or “May I stick my fingers in you now?” That kind of stuff would probably kill the mood.
And nobody ever says “I want to fuck you” before fucking you; it would just kill the mood totally.
I mean, in real life, it’s highly unusual that sex would be taken to the point of any sort of penetration, without the woman both having given some verbal indication that she wanted it, somewhere along the way in the process, and having shown active/em> physical signs that she’s interested.
Rats; there was a typo, and you may need to close that tag.
What really gets to me every time this topic approaches is the number of guys trying to formulate a logical argument for why they should be able to continue taking advantage of drunk women.
They always try to make it out to be a seriously grey area, that has more to do with misunderstanding rather than what I believe to be the real problem: trying to coerce sex out of someone who is not 100 per cent with it.
How about this: stop targeting drunk women for sex .
The reality is not that a woman gets drunk, initiates sex with you and then cries rape beause she regrets it. It’s men initiating the sex, pushing, trying to get as much out of a woman as possible, and trying to then justify it.
I got extremely drunk one night, the next morning I was at home in bed, still feeling somewhat drunk and like i’d been hit by a truck. I felt awful and yet my boyfriend, who was also my flatmate, kept trying to have sex with me. I didnt have the energy to fight him off, nor to tell him I didn’t want to have sex with him, but he kept pushing and pushing. Don’t try and tell me that this is not a disgusting way to behave. Don’t try and set it up so that there is some confusion when it comes to alcohol, no one with the slightest bit of decency would be trying to have sex with someone in that state.
The problem does not rest with the women who have drunk too much, but with the man who believes sex should take the form of anything other than affrimative, enthusiastic consent on the part of the woman.
Good lord, you must be a lousy lay.
Though I think this brings up a point that jfpbookworm mentioned above: we are conditioned, in this culture, not to talk explicitly about what we want. Women are not supposed to ask for what they want (and aren’t supposed to tell people no). So you get courts buying arguments like, “Your Honor, she really wanted it, she moaned and moved her legs!” And you get people like Dan, who can’t imagine a world in which, “Hey, baby, do you want me to put my fingers in your pussy?” would be anything but a mood-killer. And a whole lot of fumbling and hoping that this time he’ll hit the spot I really like, but my God, I can’t actually ask him to move two inches to the left!
Which, incidentally, is a Dawn Eden concept: she can’t possibly ask her perfect fantasy man to move two inches to the left, because he’ll know how to satisfy her innately and immediately, because he’s perfect and her soulmate and will know everything about how to please her without having to be told.
Well, in that case, assuming the prosecutor could prove that she was too drunk to give consent, mistake of fact would likely be a good defence, subject to the requirements I listed above.
That kind of stuff would probably kill the mood.
‘Probably’ suggests to me that Dan has no idea whether or not “that stuff” would kill the mood.
Hey, Dan? Try talking during sex, instead of just sticking your hand down your partner’s jeans and hoping she doesn’t squawk. You might like it.
You people are just fabulous.
Sincerely, not sarcastically.
Not only do I enthusiastically agree with the reactions to Dan’s comment, they have left me in stitches. : )
Dan, can you elaborate on all these schools of feminist thought that define sex as rape?
I think it is SO COOL that so many men that post here have made a lifelong study of the various forms of feminism. It must be amazing to have such a level of expertise in a subject! But you have to understand that the rest of us would like to learn, too, and we haven’t had the opportunity to make such an exhaustive study, so why can’t you share your knowledge? It’s only fair. Why it’s safe to say that all I knoiw about feminism I learned from bumper stickers and Rush Limbaugh, can you believe that? And I’m kind of embarassed about it because I’m not so sure they’ve given me an accurate view–do I know all I need to know? Can I be sure? Please,educate me.
Y’know, pausing, making eye contact and asking “Are you okay with this?” is all good with this woman. Kinda sweet and sexy.
As for the choice to get drunk, sometimes there isn’t a choice made. I had a really scary “brownout” because of a medication that, in a very few people, can affect how fast your body metabolizes alcohol. Basically, it meant that my system didn’t clear out the drinks like it normally would so I got really drunk on far less alcohol than would normally do so for me.
I didn’t mean to get really drunk (I had planned to drink and took suitable precautions as to transportation etc.). If someone had raped me that night, even accepting the patently ridiculous argument that women choose to get drunk and therefore must accept the consequences, how does that apply when you genuinely get drunk by accident?
For the record, because I didn’t remember anything from that night and woke up undressed in my room with ripped-up stockings, I was directed to take my clothes in a paper bag to the emergency room and find out whether I’d been raped or not (turns out I wasn’t). Try that for kicks sometime.
There were always a serious equal protection issues involved with these consent laws. If both people are drunk, and sex occurs then it is by default a crime of rape for the man, but not for the woman. That is a clear violation of equal protection under the law. These laws were never really designed to prevent sober men from taking advantage of drunk women, they were designed to outlaw casual sex. They almost never restrict themselves to cases where only one party is drunk, which would be needed to avoid the obvious legal challenges these laws will always incur. Do not be shocked if many of these laws are struck down upon reaching the supreme court, even though that isn’t the case here, because they are unconstitutionally vague or fail an on-their-face equal protection test. They more or less declare that women are not at all responsible for their actions while drunk, yet men are completely and utterly responsible for their actions while drunk. In no other legal setting is anyone ever considered to be in a state of reduced responsibility while inebriated.
These laws were always created to get around a jury’s input. Make it a crime for drunken party sex to occur, and jury’s have no choice but to convict on rape. It prevents a real defense from being made and forces a default-guilty verdict without the prosecution having to prove that a rape occured. I hate to break it to you, but we have a constitution and you can’t set it aside just because you want to. Not even to get around sexism, or racism. If you want convictions, you have to get them under our laws.
Also, you all seem to fail to understand the effects of alcohol. It does not force you to do anything you don’t want to do, it merely makes it more likely that you will do something you want to do at that particular moment, without regard to future consequences. That’s an important distinction, and what that doesn’t seem to be made here. The primary danger of alcohol with regards to rape lay in it’s weakening of motor control, thus making a drunken target more susceptible to predators.
Yeah, physics is a bitch, innit?
Rape is a penetrative crime. It makes sense that the person with the ability to penetrate will come under greater scrutiny than the one who can be penetrated.
Well, good of you to inform the little ladies how getting drunk really works, but thanks anyway. Curious, though, how your understanding of how getting drunk just happens to comport with the idea that women are liars.
Under Canadian law, a crime committed while the perpetrator is intoxicated is still a crime (whether that’s murder, rape, hitting someone with a car, or shoplifting). It’s not about casual sex. It’s about culpability.
Being raped is not a crime, despite the way some people may think they can put the victim on trial for her “bad choices.” If you think that just because a girl moans or doesn’t try to push you off, she’s wanting to have sex with you, you’re pretty stupid, especially in light of what you know is the law.
That’s like saying that if a girl is compliant because you dropped a pill in her drink, she must want to have sex with you. I mean, the drugs just made her less inhibited, right? She wouldn’t say yes to something she wouldn’t want, would she?
Yes, I know, in one case, the rapist caused her intoxicated condition and he didn’t in the other, but in either circumstance, taking advantage of someone whose judgment is impaired and whose ability to give consent or resist your actions is compromised is still rape.
Beating a drunk guy to death outside a bar is still murder, too, even if he didn’t fight back because he was too smashed to say “don’t hit me with that bat.”
Is it? Thats… well, sad. I would have thought this was a floor of the issue, not outside the room entirely. I want to think any male of normal intelligence is going to get this. And if they proceed anyway, they know damn well what they are doing. I have no reasonable doubt that a man who proceeds with sex with a woman he can observe to be passing out and/or seriously ill from alcohol consumpsion is not aware that he is raping her. He may think its okay to rape her, which is awful enough on its own, but he cannot consider the circumstance to be normal sexual intercourse. He just can’t.
Yeah, he’s probably drunk, too. Too bad. Is drunk driving not a crime because those who commit it are drunk? Zuzu’s right. Rape is about penetration. While I will grant that it is theoretically possible for a man to be legally (and morally) raped by a woman where he is still the one penetrating her, this is such a functionally different action than what we are discussing here that it is has no relevant basis in a discussion about rape of persons under the influence of alcohol. Here, the rape is committed by the person who takes the active step of penetrating another person. That is not a step that can be taken passively.
You’d think so, but it wouldn’t. Because *I* didn’t think so and went ahead with the whole asking and waiting for the woman to signal her desire for me to continue. I ask. Always. And even if I’ve been with a woman for years I still always ask before having sex. Always. And I’ve had sex a few times, so I think its safe to say that it doesn’t “kill the mood”. Given that this is the same lame-ass excuse given for not wearing a condomn, I have very little faith in the male notion of what will “kill the mood”. The mood would only be killed for the man and only if he is incapable of adapting to a slightly different circumstance. If you make it part of your standard opperating procedure, it’ll never mean a damn thing.
No, that isn’t what she said. Do you think everyone here is too dumb to scroll up? Instead of poorly summarizing what she said why not QUOTE what she said?
“I dunno, I personally find it morally squicky to go about hating on rape victims and stuff.”
Here is some food for though: equating “Tony Snow is a whore for Bush” to hating on rape victims trivializes what it means to be a real rape victim and trivializes what it means to genuinely hate rape victims.
Lots of criminals are in jail and lots of people in jail are raped, does that mean calling someone a criminal is hating on rape victims too? Lots of prostitutes wear shoes, so I guess calling Tony Snow a whore also besmirches anyone who wears shoes. Or has feet.
If you want to argue that I genuinely hate rape victims feel free to do so. Otherwise keep your serious yet totally moronic accusations to yourself. Claiming that I hate rape victims is not “food for thought” or “an interesting point.”
What a cowardly argument. If you have something to say just say it. Go ahead. “Random Observer 3 hates rape victims.” You have overwhelming proof of that right? An airtight case if I ever saw one.
If you are going to make a serious accusation at least be up front about it.
One of the sexiest things a man has ever done is touch my face, look me in the eyes, and ask “may I kiss you now?”
One thing that really bothers me about how these discussions always go is that people keep pushing it towards the greyest area they can come up with. So now we’re talking about a woman who is drunk, may be having memory loss, but appears fine, is walking in a straight line, and appears to enthusiastically request sex. What an incredibly rare phenomenon.
If you can’t tell the difference between drunken confusion and enthusiastic consent, something is seriously wrong with you.
And Greg? Fuck off with your personal-responsibility bullshit. Sometimes people drink. Me, I got drunk with a man I had known for a decade. He was a leftist political activist, a self-professed feminist, and a good friend. I chose to drink; I knew I would get drunk. I didn’t mean to be quite as incapacitated as I ended up, but I knew it was a possibility and I thought that I’d be okay around this trusted friend. I don’t remember consenting to sex; I don’t remember the initial penetration; I do remember drifiting in and out of consciousness with him on top of me. *That* is the kind of thing that actually happens. With “nice” men, with men who think they’re good guys, because of the stupid ways we frame sex, consent, and rape in this culture.
Also, not every drunk man is impotent, and I believe it’s possible for a sober woman to take advantage of a man who cannot consent. I think it’s much less common than the reverse, but I know at least one man who claims it happened to him. Plus, all kinds of sexual assault are wrong, not just penetration. But the remedies are the same: if there’s any lack of clarity that the person you’re with is enthusiastically consenting, stop.
It seems every time I relate my personal experiences with rape on this blog, the conversation comes to a screeching halt. I’m just telling the story because I think it’s relevant, not to claim victim status as a rhetorical hammer. Feel free to argue with me; I’m not that thin-skinned.
Though if you tell me it was my fault that a man was penetrating me while I was *obviously* not capable of consent, expect to get an earful from myself and others.
I never claimed to have made a lifelong study of feminism. However, I majored in political theory in college, and I read, among other things “Intercourse” by Andrea Dworkin, which, as I read it, expanded the definition of rape to include all sexual intercourse between men and women.
Expanding the definition of rape has been a major component of feminist legal reform as well, and that has led to some very positive reforms, like the abolition of the requirement of resistance by the victim, as well as some that I disagree with, such as rulings that have effectively eliminated the requirement that rape be accomplished by “force,” by finding the element met by the fact that sexual intercourse occurred.
I think rape is properly defined as an extraordinary crime of violence in which a man achieves sexual intercourse with an unwilling woman through violence or the threat of violence.
Well, you’d be defining it too narrowly, then.
I don’t think consent is an affirmative defense. Since the victim’s unwillingness is a necessary element of the offense, suggestions by the defendant’s counsel that there was consent would be an attack on the prosecution’s evidence of a necessary element.
In fact, your definition, seeing as how it depends on being “extraordinary” and involving violence or the threat of violence — as opposed to merely the absence of consent — says a lot about how you would like to think about rape as something separate and apart from your everyday activities.
After all, it doesn’t necessarily take violence to have sex with a woman who’s asleep, or who’s been drugged, but if she hasn’t consented, it’s still very much rape. Same thing with a woman who’s only agreeing to sex because you have some kind of power over her — you’re a prison guard, or you’re an adult and she’s a child, or you’re her sergeant.
I am not interested in combatting “rape culture.” I don’t think there is any “rape culture.” I think rape is a crime of extraordinary violence, and I find rape and rapists abhorrent. I think that the culture finds rape abhorrent. Therefore, I think any sexual act that could be considered ordinary is not rape.
That would only apply in jursidictions where rape (ie penatrative intercourse) is a separate offence. In Canada, it falls under the general provisions of sexual assault, mainly because of the lobbying of several feminist coalitions in the mid-80s who thought that “rape” was too narrow a category (or so I remember off the top of my head- better-educated people can correct me if I’m wrong).
I asked my Crim prof this, but didn’t get a very good answer: obviously a man having sex with a woman who can’t give consent is sexual assault; similarly, a woman having sex with a man who can’t consent would also be sexual assault. But what if they’re both too drunk to consent?
Ordinary is a dangerous word, Dan. Many women are ordinarily raped by their husbands but accept it because they feel unable to say no within the confines of their marriages. Many women ordinarily acquiesce to sex acts with men who hold some sort of power of their lives (economic, social, physical, whatever). These acts are performed ordinarily all across the country, likely by a woman you know.
What they do may look very much like ordinary sex on the surface. She doesn’t fight back. She doesn’t scream no. She just shuts herself up inside and prays for it to be over once again. But hey, it’s an ordinary part of a lot of women’s lives, so it’s not rape, right?
There are a lot of women who get raped and never say no, not even in a whisper. There are a lot of women who are raped and never have a bruise. It’s still rape if you don’t say yes, even if you never really get to say no.
Why don’t you try answering the valid criticisms of your position? If you slip someone a drug and have sex with them while they are knocked out what do you call that? Simple question.
I suppose you can say “sexual assult” or something like that but then you are just arguing semantics – in that case you should just pretend that whenever you read “rape” you read “rape & sexual assault” instead if that fits better with your private redefinition of rape.
I assume you find sexual assault also abhorrent?
Ah yes, for Dan you see, rape is only an act done by the psycho stranger in the street who drags the innocent lady into an alley and (of course) beats her as well. This scenario means he can sleep at night because he’s not one of those. Which also leaves him free to rape as many women as he wants, as long as he doesn’t beat them, it’s all good.
I really, really hate the idea that consent cannot be withdrawn once sex has started. This whole discussion brings to mind a scene from Body Heat (1981, William Hurt and Kathleen Turner). It’s a movie about guy (Hurt) who’s picked up by a married woman (Turner); she convinces him to help her kill her husband. Turner’s character is portrayed as the archetypal hot young wife who just wants her older husband to die already so she can have his money. Hurt’s character, who’s supposedly a very smart lawyer, isn’t responsible for what he does, because his conscience has been undone by The Thrall of Teh Pussy. Fairly misogynistic stuff.
Anyhow, Tuner and Hurt’s characters are bonking furiously throughout the whole movie, and there’s a lot of near-violent scenes that could feel like rape scenes, but don’t, because of the “enthusiastic consent” that we’ve all been talking about. Hurt throws a chair through a window to get to Turner after she locks him out of her house, but when he approaches her, she throws herself into his arms. There’s another scene where they’re having rough sex and her face is buried in the pillow – she’s making gasping noises (camera is only on her). Off camera, you hear Hurt say, “Are you all right?”, and Turner says, very clearly, “Don’t…stop.”
I don’t know why this got stuck in my mind after reading this thread. I guess my point is that, if consent was hot in the ultra-misogynistic 80s, it shouldn’t ruin the mood now, either.
Yikes, Dan, any act that could possibly be considered “ordinary” is inherently not rape? No matter what it feels like to the person experiencing it? Even if (as in the case of sex with a puking drunk woman), a substantial portion of the culture does consider it rape? Even if (as in the case of a woman who’s sufficiently intoxicated to be unable to give consent) it actually legally qualifies as rape?
I’m sure glad enough people disagree with you on that one that we’ve been able to get laws passed on formerly considered “ordinary” things like marital rape.
The fact that Dan is throwing around words like “affirmative defense,” yet pretends that the definition of rape is still male-on-female PIV intercourse, suggests to me one of our little AutoAdmit friends has wandered by.
I, for one, am glad that I live in Canada where sexual assault as a legal term covers any non-consensual sexual act. The whole rape/not rape debate becomes much less relevant that way.
Oh, and in the Canadian criminal code, intoxication or the belief that consent has been given when it has not are not valid defenses. Also, engaging in a sexual act with a person considered unable to give consent is also sexual assault. Under current Canadian law, not only does no mean no, but only a clear yes actually means yes.
This “rape is for other people” mentality is precisely what breeds a culture of rape, Dan. You want to see rape as just something other people do. Something monsters do. You want to see it as an “other”. You want to displace yourself from it. You’re wrong. There is no other way to say it. You are wrong, and your attitude is frankly dangerous because it acts to excuse and condone rape.
Rape isn’t always like it is in the movies. Its not a crime exclusively committed by scary looking ethnic people wielding knives. Sometimes, that is what rape is. But to suggest that this is all that rape is… well, that’s just burying your head in the sand. And regretably the wrong head.
Rape is an awful and horrific action, but sadly it is far more ordinary than you would care to confront. A lot of rapists don’t believe they are rapists. Under your standard, this would seem to prove their innocence. The mere act of thinking of yourself as ordinary would absolve oneself. It doesn’t. A lot of people don’t think they need to get consent. They figure as long as they are pushed away, its okay. They regard their sexual conquest as a right. No, they didn’t rape that woman. She wanted it. Really. They want to think of themselves as different from the “monsters” who commit rape, but they aren’t. Those people think their victims wanted to be violated too. They felt that their needs and desires supercede those of other people. They felt justified in subjegating another person to their whim and will.
“Ordinary” rape is anything but. It is a still a horrible and senseless crime. But it doesn’t necessarily look the way you think it should. Maybe a man threatened his girlfriend to put out. Maybe a man got his date wasted and figured she couldn’t say no. Maybe a man saw an opportunity with a drunk woman at a party passed out. They don’t think of themselves as violent monsters. They don’t wear signs that declare their horrible intentions. But to deny their existence? To claim that their crimes are by definition not rape? That is horrific and insulting.
I’m sure you can keep coming up with exceptions for every scenario thrown at you, but the exceptions here prove that the rule is a folly. Rape can be “ordinary”. It can look a lot like consensual sex is you look at it broadly enough. But they are still really fucking easy to distinguish.
If she says yes, its sex. If she doesn’t or can’t or says no, its not.
I would have thought this was a simple enough definition. How isn’t it?
I, for one, am glad that I live in Canada where sexual assault as a legal term covers any non-consensual sexual act.
While the specifics vary from state to state, there is no US state of which I’m aware that uses Dan’s definition–which is pretty much the old Anglo-American common-law definition (Dan omitted the “not his wife” part).
Jill, I agree with your basic analogy to contract law but there are at least a few key differences that come to light when you extend it. As you said,
But in contracts, the law is concerned about the rights of both parties. Let’s say A sells his house to B while A is drunk. In determining how drunk A had to have been to void the sale, the law considers (as it should) B’s right to the house as well. But in the analogous rape case, B has no right to have sex with A. Since there’s no need to balance both parties’ rights, it makes sense to adopt a stricter rule.
Thank you BStu. You put that perfectly. As long as everyone thinks rape is only committed by “inhuman monsters” we won’t be able to really address the causes.
The story I told: I didn’t prosecute. I haven’t even talked to the guy and explained how I perceive that evening. In fact, I stayed friends with him for a while as it took me some time to process and interpret it. Because he’s a nice guy. Because he would never do that. Because, all in all, there are still things I like about him, and our relationship is complex.
dan,
if you think andrea dworkin was saying that all male/female sex was rape, you are a rapist and you are responsible for our rape culture.
Therefore, I think any sexual act that could be considered ordinary is not rape.
Yes, well, it’s nice to know that you can decide whether a woman has given consent or not.
(no, that’s not “normal” buddy)
Where’s all the “but you can’t know people’s intent!” guys when they’d be vaguely useful…
Misunderstaning Dworkin = rape?!?!
Anybody notice how often guys who think they know all about feminist theory (and are thus qualified to explain to the confused women what they should think) only seem to have read Dworkin and/or MacKinnon? I mean, like David, I too majored in political theory, and yet Dworkin was certainly not the only feminist theorist I ever had to study. In fact, I’d say she and MacKinnon were pretty small potatoes in terms of assigned texts.
Is there some university out there that only men go to, where poli sci is All Dworkin, All the Time?
I suspect you misunderstand the point. I read the point a it is not that misunderstanding Dworkin is itself rape, but that those who would misunderstand Dworkin are those who rape. Or at the very least minimize and dismiss rape. As I see it, there are two types of people who claim that Dworkin said that all male/female sex is rape. Those who know damn well she didn’t say that and who are lying to condemn the conclusions she does suggest to the obscurity of misrepresentation. Or those who read it and conclude that a misogonistic and oppressive sexual conduct is the only sexual conduct worth considering, Simply put, they are the persons Dworkin is talking about and they respond by announcing their offences as “ordinary” and thus Dworkin must be attacking the ordinary and so they characterize thusly. Either camp promotes a culture of rape by coddling the criminals and insulting the victims.
Actually, I guess there is a third type. Those who never read any of it and are just parroting anti-feminist talking points.
Can we agree to reserve the word “rapist” for people who actually commit rape?
Repeating a popular but incorrect quote does not make one a rapist. I said above it is far too easy to be called a rapist here, this is another illustration of that.
There is a fairly gigantic difference between raping someone and repeating an erroneous quote. It is impossible to be a rapist by simply *thinking* anything.
Don’t be ridiculous. Strawman University politics classes also include readings of Mein Kampf.
In my opinion, this tends to support rather than refute my point.
They’re the fringe. Dworkin represents the most extreme position, which I don’t think I misunderstood. There are more moderate reformers, who I mentioned above, who have altered rape statutes to include forcible sexual violations other than penetration, which is a good reform, have eliminated the element of resistance by the victim, which is a good reform, and have reduced the degree of necessary force to the point where proof that the act was achieved is sufficient to satisfy the force element in some jurisdictions. I think that’s not such a good reform.
Obviously, if you violate an unconscious person or you drug somebody, that’s rape as well. I did not mean to overly narrow my definition to eliminate those cases. But in the case of a conscious adult woman, even one who is voluntarily intoxicated, I don’t think there can be rape without the presence or threat of physical violence.
No, Dworkin is announcing ordinary conduct as rape. Rape is, in fact, for other people. Violent people. They don’t have to be strangers, and they don’t have to be, as the poster above suggested, “ethnic” (I’ve been accused of being a racist rapist. My goodness!). But they have to be willing to overcome a woman’s unwillingness by force.
Incidentally, trying to achieve social reform through the criminalization of ordinary sexual activities is what religious conservatives want to do to homosexuals. So as far as I’m concerned, both poth political fringes are about the same.
btsu said it better than i possibly could have.
dan. what is impossible for you to understand? “ordinary” conduct IS rape. it doesn’t matter if you can be sent to jail for it or not. it doesn’t matter if other people call it rape or not. it doesn’t matter if the person doing the raping considers it rape or not. if the woman in question is not fully consenting, she is being raped.
if you read intercourse and saw your own sexual behaviors being held up as examples of rape, congratulations, you are a rapist and you are responsible for our rape culture. you are the reason why so many women simply submit instead of arguing.
Trying to backtrack or not, Dan? What constitutes a valid “threat” in your scenario? How many hurdles are you going to place in front of a victim so she can prove she was scared enough to pass your sniff test?
I’m still amused by the fact that having an opinion on a book makes someone a rapist.
As opposed to say, actually raping someone.
—
If a person (not just woman) submits instead of arguing that may be bad but it isn’t rape. In that case you are asking the rapist to be a mind-reader.
Do you think a man has never performed oral sex on a woman when he didn’t really feel like it?
It is quite true that a wife refusing sex regularly may find herself divorced and in financial trouble, so she has a lot of incentive to submit without arguing. My parents are divorced, and living with my mom we had a fair amount of financial issues for the typical reasons. Mom had not worked regularly in the past 20 years, was overqualified for some basic jobs but not experienced enough for other things. Getting divorced when the kids were younger would have been even more difficult. So she put up with a lot of shit that she really should not have put up with.
The solution to that is doing things like giving divorcees who have devoted their time to kids instead of career building a greater share of the post-divorce split.
Calling anyone and everyone a rapist is not a good solution, nor is it in any way constructive. Partners in relationships do things they don’t really feel like doing on a regular basis, and that is not a problem in itself. The problem is for some married women ending the relationship has some pretty severe implications.
I think there are a few cultural memes that are at least partly to blame for this so-called “gray area confusion.”
The first is the reinforcement that men’s sexual “conquests” are a status symbol for them. The second is the reinforcement that woman are supposed to resist and they are to be belittled and chastised if they don’t. Put these two together, and you have a culture in which men are given to the idea that “resisting is all part of the game.” Wink-wink.
It produces a rather sick culture that often pits sexual partners against one another even in a completely sober, consensual context. The “I am less of a person if I don’t vs. I am less of a person if I do” incompatibility is ripe for exploitation and abuse.
Beyond that, many men I have spoken with and corresponded with still fail to appreciate the real physical harms their uncontrolled sperm can cause a woman’s body. They do not see themselves bestowed with the primary moral agency to prevent this harm. Even when confronted with the undeniable conclusion that it is the uncontrolled male sperm in the woman’s body and not the egg in the man’s, they still perceive the primary moral agency of prevention of harm to be the woman’s.
One possible way to assist in addressing this “gray area” of sexual consent, is to have these memes be abandoned in favor of a) sexual interaction is not a status symbol for men and b) women’s consent to sexual interaction does not equate to immorality. Thus, men would not feel such social pressure to push their limits and women would feel comfortable to express openly their sexual desires. This question of “does she mean yes” wouldn’t be viewed by some with nearly such wiggle room, and men would be less compelled to consciously or subconsciously override women’s objections or lack of consent in search of a “maybe” drunken signal to proceed.
Men also need to view themselves as the primary moral agent in preventing their sperm from resulting in physical harm to a woman. This is not said to suggest that if men control their sperm, no harm done. This is an adjuvant to prompting men to take more responsibility for how they behave and to reflect more on their actions and intents when initiating sexual interaction.
Until then, I drink alone.
I would say one that is an unambiguous threat from the perspective of a reasonable person. There’s an idea that’s definitely in the theory on rape that a woman can be so intimidated that she will become paralyzed with fear, and acquiesce, or even act is if she is participating and initiating sexual acts.
While the elements of rape traditionally included a requirement that the victim resist, that is clearly outmoded; no other crime requires action on the part of the victim to satisfy its elements. However, her lack of consent and his criminal intent remain elements, and if her lack of consent is not reasonably apprehensible, then it’s very difficult to prove either element.
I am not going to pursue the logic of victim blaming. Regardless of the surrounding circumstances, regardless of her degree of intoxication, regardless of any decisions she’s made leading up to that moment, her express lack of consent should is proof of the consent element, and his decision to continue onward is proof of his intent. At that point, if I were on the jury, I would lock him up until his balls rot out from under him, with no hesitation whatsoever.
But if she claims she was too scared to even say “no,” then there needs to be something justifying that suggests a basis for that fear. The argument here is that we require proof of enthusiasm rather than proof of nonconsent. I view acquiescence as consent unless the acquiescence was prompted by some reasonable threat. If the guy might have stopped if the woman had said “no,” then there is no case for rape.
Regardless of the merit of your position, I think it’s completely repugnant to appropriate victimhood to further a political cause, and it’s slanderous to try to paint those who disagree with your worldview as criminals. I think it is incredibly cynical, and harmful in that this politicized idea that everybody gets raped makes it more difficult for real victims to seek justice.
That last paragraph just earned you a sincere FUCK OFF!
Political cause, my ass. This is about people you immature, piece of shit. You’ve spent a lot of time analyzing yourself into a corner and then trying to backtrack your way out — and that is what you came up with. Who the FUCK do you think you are to lecture anyone about how difficult it is for “real victims” to seek justice.
Every post you’ve made has been an exercise in victim-blaming, you idiot. Every woman who’s tried to explain experience to you has been blown off with tired excuses and ever-moving goalposts.
Perhaps you missed this — posted at the top of this thread:
Don’t waste your breath, Tricia. He won’t get it. He CAN’T get it, because if he did, it would turn his whole worldview askew. Why do you think he’s tying himself into knots frantically trying to justify himself?
Dan, do you need some extra brain cells? I’d be happy to assist!
My best friend’s boyfriend raped her numerous times. He would try to have sex with her, she’d be like ‘no, I really don’t want to,’ and he’d look at her and say, ‘Yes you do.’ She’d try to tell him no a few times and when he wouldn’t listen, she’d stop trying. As far as I know/recall, he never hit her or threw her on the ground or pinned her down or tried to physically injure her. It’s still fucking rape, though. And he’s a pretty normal kid in every other respect — good to friends and family, gets good marks in college, has a steady job, a quiet and tactful man in social situations. Except he’s a rapist. Oops.
How many times would she have had to tell him no? Would she have had to try and push a man off of her who is twice her weight? If you say someone, ‘No, I don’t want to fuck you,’ FIVE TIMES, I think this is pretty unambiguous, even if the guy is NOT BEING ‘VIOLENT.’
How is having a penis that you explicitly did not want in your vagina NOT VIOLENT? It hurts. Your vagina/cervix reacts with pain half the time when something foreign is in there. Someone is breaking your personal, physical boundaries.
Oh fuck, whatever.
I know, I know, feeding the trolls is a waste of garbage. But, damn, he and RO3 have gone beyond the pale of insensitive, misogynist assholery in this thread.
Me (with less obscenity): Discussing the legal definitions of rape, should not run over the actual experiences of rape victims with a tank… and then go back and forth a few times just to make sure they’re flattened.
What fucking arseholes. I can’t believe how disgusting men are. When it comes to rape they’ll try as hard as possible to get out of examining themselves properly and realising *they* have probably raped and/or abused women. Instead, they blame the victim. It makes me so fucking sick.
He isn’t a rapist, he’s just annoying. It’s now rape to beg for sex from your girlfriend? Give me a break! He kept asking, and she consented because she preferred to have the sex rather than have an argument about not having sex, or to continue listening to him whine about it until he got bored and gave up, or to have him leave her because she wouldn’t have sex with him.
If she’d held her ground, if she’d made it clear to him that it was out of the question, he probably would have dropped the issue. Rape law is not about protecting women from social pressures. It’s not about protecting women from annoyance. It is about protecting women from violence.
The power differential that society has a legitimate interest in regulating is his use of his physical size and strength to achieve his objective over her continuing objections.
And it doesn’t serve victims in any way to try and mess with the definition of the term until you can slap the label on almost all straight men. All it does is rob women who legitimately are victims of crime of sympathy, and dampen public condemnation of men who really are rapists.
How is it not bad for victims of real crimes for other women to claim victim status because their boyfriends bother them for blowjobs?
Capitulation is not consent.
You really have a problem with the concept ofconsent. And since you’re showing a remarkable lack of sensitivity in this thread, I’m putting you in modded status until Jill can decide if you’ve broken the conditions she set for this thread.
‘No, I don’t want to fuck you.’
‘No, I don’t want to fuck you.’
‘No, I don’t want to fuck you.’
‘No, I don’t want to fuck you.’
‘No, I don’t want to fuck you.’
And he sticks his cock in her anyway.
She never ‘gave in’ or said yes. He just did it.
Where was the ‘she consented anyway’? Where the FUCK did you get that?
I hope this piece of shit is banned, and I really want to know why no-one did about 30 comments ago. :(
What about if it goes on for an hour? You keep saying “No” for an hour, and he keeps arguing with you. Is that damn clear enough? I would think so. Yet, still, the argument continues. So you finally give in because you know that the only acceptable answer is “Yes.” [Yes, this has actually happened to me more than once. Not with the same guy either, because believe me, the first time it happened was the last time I saw that guy.]
Not that I expect you to get that. It’s OK for a man to continue to pester a woman non-stop knowing full well he’ll wear her down eventually, because, hey, finally she just gave in, and all that matters is that precious little “Just get it over with already.” Her actual wants? Totally irrelevant.
Guys who think like you are the reason I stopped being alone with men I wasn’t related to and wasn’t already willing to have sex with. That way, no chance I’d be worn down and feel like crap afterwards. And even if I was stuck with some asshole who didn’t give a shit about what I actually wanted, it wouldn’t matter then, because I’d want what he wanted.
from the perspective of a reasonable person
Like I said, zuzu, I think this is one of the AutoAdmit boys trolling. He keeps throwing in the legal lingo as if it means something.
And is it some how not an act of violence to be penetrated against your will?
Jesus Christ what did I say exactly?
If you were not paying attention, throughout this thead I stated that the woman in the subject probably had a valid rape case.
Just because someone disagrees with you on something does not make them a “misogynist asshole.” I even challenged Dan’s view of rape as violent. I challenged Ether and his moronic blame the victim tirades as well.
Not everyone who disagrees with you on 20% or so of your points is a misogynist or some fucking rapist. Seriously it is really frustrating to largely agree and the times you don’t agree suddenly you hate all women or hate rape victims.
Honestly I want to understand but I just don’t:
Why not walk out the door and never come back? That is the part I have trouble with.
As I pointed out before, in a marriage walking out may mean financial ruin. In a somewhat casual relationship what prevents you from just leaving? If there is no threat of violence or threat of financial ruin why not walk out?
This may sound cynical but in a relationship people do things they don’t like all the time, it’s a cost-benefit analysis. Maybe performing oral sex or going to a romantic comedy is something I don’t really feel like doing but it helps out the relationship so it’s worth it.
If it gets to the point where I feel literally *raped* why not just end the relationship?
Maybe the male perspective is different but really it is hard to understand. From my persepective when you say:
My natural respons is: who the fuck cares what the acceptable answer is? I don’t want to have sex so I won’t – end of discussion. I’m free to leave so fuck it I’m gone.
Again I want to understand but I just don’t, until someone explains it better. Why doesn’t the person under pressure just end the relationship right then and there?
Ok, this is my fault for failing to follow this thread closely for the past couple days. Dan is gone. Sorry I didn’t do it sooner.
Rape is the fault of the rapist, and comments defending rape are the fault of the commenter. I love and admire your willingness to admit when you’re wrong or acknowledge legitimate criticism (e.g., the injured doggie comment), but feminist bloggers need to stop apologizing for not being cyborgs whose conscious minds are constantly dominated by their blogs.
Jeff, you’re right. I was a bit angry before but your comment really put it into perspective for me. I’m sorry, Jill et al. :\