On Rape, Impairment, and Consent

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Re: On Rape, Impairment, and Consent

Postby yomikoma » Wed Sep 09, 2015 10:07 am

I'm rearranging your post as well, let me know if I lose any meaning.

Deepbluediver wrote:
But you shouldn't have to assume that everyone you meet will take advantage of you if you dare to drink.

I feel like this is reaching into the topic of acceptable risk. Think about my rock-climbing example, or any outdoor activity for that matter. No matter how well I prepare and try to take into account every factor, there is a non-zero chance that something will go wrong and could be injured. I undertake only those activities for which the risk is acceptably low that the benefit outweighs it.
You can judge your social activities by the same standard. I certainly don't think everyone I meet is going to take advantage of me, drunk or sober, but I drink less when I'm at a bar then when I'm at a party with just a few close friends. If necessary, expand the idea of a "designated driver" to a "designated make-sure-we-don't-do-stupid-shit person". The idea is that everyone knows their own limits and acts of their own accord to minimize risks for a level that is acceptable to them, and they don't push the responsibility for their well-being off onto strangers.


You keep coming back to examples like rock-climbing and drunk driving, where the environment is dangerous. I feel like there's a big difference when the environment is made of other people. It can't be illegal for a mountain to be a mountain, or for a car to be a car (until they're smart enough to make their own decisions). The way a mountain acts is already set and is not amenable to legal change. When the dangerous environment is other people with their own legal responsibilities, I think the situation is different. And I don't think you should be prosecuted for other people acting illegally, or have a crime that you're a victim of be ignored because you "should have known better". Should we say that lynching victims should have known better than to be in the south in the 1860s while black, so there's no point in prosecuting their murderers?

Saying that it's an unchangeable law of nature that men will have sex with drunk women puts men into the role of mountains, unthinking things that will always act according to standardized rules. As a man, I hope my gender is not so hopeless.

The "designated don't-be-stupid" person is a great idea, but in their absence we need to make it clear that if you can't see consent when you're drunk, you're the one who needs to not get drunk.

And I'm not saying "oh, trust that all strangers will have your back." I know that it's risky to trust people, and sometimes you will get hurt. But when that does happen, even if I took the risk, I want to know that they'll be prosecuted. If not, there's no reason for people to get better.

I don't mind holding someone responsible for choosing to drink. If you drink so much that you can't tell whether your partner is consenting, that is and should be a crime. And sure, if both people are too drunk to consent, then they've both committed a crime.
...
If a woman and man both can convince a jury that they had sex they wouldn't have consented to sober, send them both to jail.

That seems like it's far harsher with regards to killing social interactions between the genders than anything I've suggested.
I don't really want Big Brother looking over everyone's shoulder all the time, micro-managing their lives. What I want is for people to take responsibility for their own actions and self-regulate. If that means a few people get a little less drunk in public, I don't consider that to be a bad thing.

I'm not looking to kill off drinking or socializing or even casual sex; all I'm envisioning is people limiting themselves to 4 or 5 beers instead of an entire 12-pack.


That would be great. I'm concerned about providing incentives to get there. There is already an incentive for people who don't want to be taken advantage of when they're drunk - it's called "getting taken advantage of". What are the incentives for the person on the other side to improve their behavior?

But I don't think "well I was drunk too!" should be a get-out-of-jail card for someone who should have known better.
...
And the "wouldn't have consented to sober" bar looks different for men and women in the current culture, so ignoring that isn't justice.

Some cultures think honor-killings are ok, too; it's not a good bar in my book to set your standards too.
Let me ask again though- if cultural assumptions are different, would a man be justified in forcibly stopping a woman from drinking if he feels she's had enough? Why or why not?
In the case OP laid out for us, both people are equally incapable of making good decisions. Therefore I don't hold one of them more responsible for the other for bad outcomes of said decisions.

What's the point of the honor-killing mention? Just to say "current culture could be terrible so let's ignore it"? I'm also not sure why you think I would think a man would be justified in forcibly stopping a woman from drinking.

I'll admit I've gotten a little off from the OP discussion. I'm not particularly opposed to the idea that both sides are guilty, all things being equal. My concern is that it would lead to an epidemic of men who get women drunk to have sex with them saying "well I'm also a victim" and either getting away with it or getting their victim sent to jail as revenge for prosecuting.

I want to treat everyone who is supposed to be an mature adult the same. You seem to want to treat woman like children, with all privileges and no responsibilities. That's usually a recipe for disaster.

That's not my intent. I'm trying to optimize for what I think the real world is like. There are situations where men and women have drunk sex and then disagree about whether it was consensual. I think there are more examples of women actually feeling violated than examples of women lying about their consent later. I think there are more cases where a man keeps ordering drinks until a woman "consents" than the reverse. Given those beliefs, assuming that women aren't lying in the lack of other evidence seems like the best way to go. If you have different beliefs then I can see how you would come to different conclusions.

I can also see how you might feel like it's unfairly the responsibility of the man (assuming a heterosexual encounter) to disengage when both people are drunk and want to have sex. I feel like this is a reasonable response to the greater power that men have in our culture - lack of shame for sexual activity, increased peer pressure power, etc. - as well as the usual imbalance in strength and ability to get pregnant. If you don't agree that there's a power imbalance, I can see how you think the responsibility imbalance is unfair.

If we go that far we should just outlaw alcohol (again).

Banning alcohol didn't really work, and I'm not usually for punishing the many for the bad actions of the few. I have wondered though, in other contexts, if we shouldn't have something like a license requirement to purchase and consume alcohol.
We do that already to some extent, but it's almost entirely based around age alone, which is a terrible way to measure maturity. Although the alcohol industry is large, I suspect is has relatively little other benefit for society, compared to something like driving a motor-vehicle. As much as I'm opposed to fascist overstepping of government authority, maybe we should implement a system where you needed to take a course to get your drinking-license and if you accumulate to many points for violations you lose it.


Totally in agreement with all of this. :D
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Re: On Rape, Impairment, and Consent

Postby Deepbluediver » Sun Sep 13, 2015 9:39 am

Edit: I realize that this response is kinda long, because I'm going line-by-line for a lot of it. I've tried to summarize what I feel is the most important part here at the top, if you just want to focus on that.

If your interest is in the "real world" consequences instead of just having a philosophical debate, how exactly do you picture this playing out in a real court of law? Do we not have trials for rape, and simply treat an accusation as a declaration of guilt? Do we try to find juries that are biased against men from the start? And if so, by how much? Do we hold a show trial and simply have the Judge instruct the jury to return a guilty verdict? Do we change the standard of evidence from "beyond reasonable doubt" to something more like that in a civil case, "more likely than not"?
And what do we do then for cases where both parties are of the game gender?


yomikoma wrote:You keep coming back to examples like rock-climbing and drunk driving, where the environment is dangerous. I feel like there's a big difference when the environment is made of other people. It can't be illegal for a mountain to be a mountain, or for a car to be a car (until they're smart enough to make their own decisions). The way a mountain acts is already set and is not amenable to legal change. When the dangerous environment is other people with their own legal responsibilities, I think the situation is different.

Personally I think that things like rock-climbing are no more dangerous than a night out at the bar, PROVIDED YOU TAKE PROPER PRECAUTIONS for both.
But if you're goal is protection, then you can't rely on the law alone to be your shield. It might avenge you if you've been injured, but it can't stop you from being hurt in the first place- it's always going to be reactionary. The only one who can be pro-active in protecting you is you.

And I don't think you should be prosecuted for other people acting illegally, or have a crime that you're a victim of be ignored because you "should have known better".
....
Saying that it's an unchangeable law of nature that men will have sex with drunk women puts men into the role of mountains, unthinking things that will always act according to standardized rules.

Ok, but how do you KNOW that someone was acting illegally? You can't claim that all women are the same either; some of them are ok with casual sex. Are you saying that as a precaution no man should ever have sex with a drunk woman? Or that all woman have to be 100% sober when they have sex?
If I go out to singles bar- when is it OK to go home with someone? Should women start wearing armbands or something to designate who's down for casual sex and who just wants to be friends?

I was out at a bar last week- one of the guys I was with ordered an entire pitcher of beer; I stuck to just 2 glasses. Not drinking to the point where you are incapable of rational decision making doesn't seem like a high bar to meet. It certainly seems easier than sorting out in court who was how drunk and who did/didn't provide consent.
Unless of course you just assume that the male is always guilty- that would make it easier, though justice might suffer.

As a man, I hope my gender is not so hopeless.

And yet you want to inscribe in law that men always want sex, and women always don't.

Should we say that lynching victims should have known better than to be in the south in the 1860s while black, so there's no point in prosecuting their murderers?

Being black or white or male or female isn't a choice. Being drunk is.
People can choose not to have sex, and they can choose not to drink. They especially shouldn't choose to drink to the point where they always say "yes" to sex if that's something they wouldn't do when sober.

The "designated don't-be-stupid" person is a great idea, but in their absence we need to make it clear that if you can't see consent when you're drunk, you're the one who needs to not get drunk.

So what's different about that than saying "if you always say "yes" to sex when you're drunk, you're the one who needs to not get drunk" too?
As I keep coming back to, it seems like you're putting the responsibility for one person on the strangers around them.

And I'm not saying "oh, trust that all strangers will have your back." I know that it's risky to trust people, and sometimes you will get hurt. But when that does happen, even if I took the risk, I want to know that they'll be prosecuted. If not, there's no reason for people to get better.
....
That would be great. I'm concerned about providing incentives to get there. There is already an incentive for people who don't want to be taken advantage of when they're drunk - it's called "getting taken advantage of". What are the incentives for the person on the other side to improve their behavior?

Presumably most people aren't sociopaths- they don't WANT to hurt others. At least that's my belief.

Why does only one side of the party have to improve their behavior though? I'm looking to hold both people to the same standard- that's equality. You want to hold people to different standard; that almost inevitably leads to larger problems down the line.

I want BOTH sides to improve their behavior, which in this case means they both get less drunk in public.

What's the point of the honor-killing mention? Just to say "current culture could be terrible so let's ignore it"?

No, to point out how bad things can get when you starting treating one class of people different than another. That's a rode I don't want to even start going down.

I'm also not sure why you think I would think a man would be justified in forcibly stopping a woman from drinking.

Because you're making men more responsible for the behavior of a woman than the woman is. I want to actually encourage the culture to change. You seem to want to change the law, and not in a good way (IMO).

I'll admit I've gotten a little off from the OP discussion. I'm not particularly opposed to the idea that both sides are guilty, all things being equal. My concern is that it would lead to an epidemic of men who get women drunk to have sex with them saying "well I'm also a victim" and either getting away with it or getting their victim sent to jail as revenge for prosecuting.

Yeah, the original question was supposed to be what happens when BOTH people are to drunk to provide consent (or make good decisions). All other things being equal, why is one party more at fault than the other?

Also, "men who get women drunk"- what does that mean? Do they hold them down and inject alcohol directly into their veins? It's still a woman's choice to drink or not. Unless you're telling me that all women are fragile delicate flowers in perpetual fear of the male gender, and will do what they say?
(I don't think so)

If you want to empower an given population, you should make them MORE responsible, not less. Making men responsible for not-having sex with women is going backwards- it's chivalry all over again. It says that, according to the law, one population needs more protection than the other. That might be ok with children, but we're ALL supposed to be mature, responsible adults.

That's not my intent. I'm trying to optimize for what I think the real world is like. There are situations where men and women have drunk sex and then disagree about whether it was consensual. I think there are more examples of women actually feeling violated than examples of women lying about their consent later. I think there are more cases where a man keeps ordering drinks until a woman "consents" than the reverse. Given those beliefs, assuming that women aren't lying in the lack of other evidence seems like the best way to go. If you have different beliefs then I can see how you would come to different conclusions.

So what other areas of law should we make a double-standard for to "optimize for what the real world looks like"?
I'm of the opinion that the law should treat everyone equally, and you work to change the real world. As you pointed out earlier- people are no mountains. They can change and pick and choose their behaviors. We should encourage people of both genders to be more responsible, not less, but we also don't want to try and use the law like a bludgeon to coerce people into following whatever moral code the people in government want to dictate to them.
It has to be a balance.

I can also see how you might feel like it's unfairly the responsibility of the man (assuming a heterosexual encounter) to disengage when both people are drunk and want to have sex. I feel like this is a reasonable response to the greater power that men have in our culture - lack of shame for sexual activity, increased peer pressure power, etc. - as well as the usual imbalance in strength and ability to get pregnant. If you don't agree that there's a power imbalance, I can see how you think the responsibility imbalance is unfair.

If it's a CULTURAL power imbalance then you should look to correct it via the culture.
The law doesn't generally concern itself with other power imbalances though, at least not to this degree. For example, it provides a lawyer to anyone accused of criminal misconduct. It doesn't provide the same high-cost legal team that a person who's independently wealthy can afford though. Nor does it ever assume that one party is lying and the other is telling the truth before you even walk into a courtroom.

How exactly do you picture this working out? A judge ordering a jury to find for the plaintiff in all rape cases where drinking is involved? If you're concern is adjusting the law to compensate for the "real world", then you need to take into consideration all the real-world effects.

Also, it doesn't explain how you are supposed to rule in case where both people are of the same gender- do we just go back to the old way of "he-said, he-said" when we can't put a nice little bow on things of "the man is always guilty"?

Totally in agreement with all of this. :D

*GASP* THAT BE UNPOSSIBLE!!! We can't agree on something! We're supposed to be bitter enemies, each one so convinced of the righteousness of his own argument that we are unwilling to take a single step towards the other side!

Here's where I feel we might diverge again though- would you classify getting to drunk to legally consent to sex, and then having sex anyway, as risky behavior worth getting points against your license? Does your response change if it's based on the person's gender?
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Re: On Rape, Impairment, and Consent

Postby luislsacc » Mon Sep 14, 2015 11:13 am

First off, as an interesting point on the whole apointed lawyer thing humorous englishman.

Second, the reason I thought, way back at the start, that treating them both as guilty is the better course of action is because I envision a justice system overseen by a court of judges (it's common here for more serious trials to have several judges presiding upon them), and not the whole circus of getting a jury together to deliberate - the jury system in the US is one of the most silly things I've seen in the penal system. That so many cases end in some form of guity plea really speaks to something wrong in the system. Now, because that's not how it works, at least over there, letting them both go as innocent is probably the most efficient way to get things done.
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Re: On Rape, Impairment, and Consent

Postby Deepbluediver » Tue Sep 15, 2015 2:41 pm

luislsacc wrote:Second, the reason I thought, way back at the start, that treating them both as guilty is the better course of action is because I envision a justice system overseen by a court of judges (it's common here for more serious trials to have several judges presiding upon them), and not the whole circus of getting a jury together to deliberate - the jury system in the US is one of the most silly things I've seen in the penal system.

"Trial by a jury of your peers" is pretty ingrained with the American justice system- you're not likely to be able to remove it without a lot of backlash.

You do get some different odds for civil cases, usually in the form of arbitration which can theoretically be quicker and cheaper than a court case, and can have the case ruled on by experts as opposed to lay-people. I've often wondered how we might implement some sort of system of professional jurists, for either criminal or civil cases, that could be a balanced between your average pulled-off-the-street civilian and someone requiring a full legal education.

That so many cases end in some form of guity plea really speaks to something wrong in the system.

Why do you say that? There are a lot of potential criticisms you can make, but it's not clear what specific aspect you don't like here, or what you're trying to imply.
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Re: On Rape, Impairment, and Consent

Postby MysticWav » Wed Sep 16, 2015 2:41 pm

Any law too complicated for an ordinary citizen to understand, and thus judge, is too complicated to expect an ordinary citizen to obey, and should thus be rewritten. :)
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Re: On Rape, Impairment, and Consent

Postby Deepbluediver » Sat Sep 19, 2015 11:39 am

MysticWav wrote:Any law too complicated for an ordinary citizen to understand, and thus judge, is too complicated to expect an ordinary citizen to obey, and should thus be rewritten. :)

A good sentiment. The problem as I see it is that most laws want to try and be absolutes, but we don't live in a world of true absolutes.
You start with something as basic as "thou shall not kill", and then you need to start defining the issue for self-defense, law enforcement, the justice system, military action, etc.

I fully support trying to simplify laws and regulations, and I oppose the over-criminalization of our society. Thus far most people who have tried to so just that (and there aren't many) haven't been terribly successful.
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Re: On Rape, Impairment, and Consent

Postby Nepene » Tue Oct 20, 2015 3:34 am

MysticWav wrote:Any law too complicated for an ordinary citizen to understand, and thus judge, is too complicated to expect an ordinary citizen to obey, and should thus be rewritten. :)


Personally I think the governments should commission cartoon artists to animate most laws and make a publicly available searchable database of laws, so anyone can search the laws and see a visual representation of how to behave. There should be a much firmer set of rules on what is required for a crime to be punished- willful knowledge that it's wrong either by being told or by harm being obvious harm to others being required for a crime to be punished and a strong reliance on that. Ignorance of the law should be a good excuse, and a large effort should be made to educate all.

That would make the laws on drunk sex clearer. They tend to have fairly clear standards- you can't have sex with someone if they can't walk or speak or string a sentence together. Pictures would make it much easier to understand.
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Re: On Rape, Impairment, and Consent

Postby gaeila » Thu Jan 26, 2017 10:23 pm

Has no one here read much Shakespeare? Or had that much real-life experience with alcohol and physiology?

Re alcohol and sex: “It provokes the desire but it takes away the performance. Therefore much drink may be said to be an equivocator with lechery: it makes him and it mars him; it sets him on and it takes him off.”
---Wm. Shakespeare, Macbeth

In other words, IF a guy is JUST as drunk as a drunk woman who is not capable of consenting to sex (and thus, sex = rape), it is HIGHLY likely said guy is not going to be able to get it up enough to actually perform a sex/rape. He's just going to really need to urinate, and then pass out. That last bit also pretty much goes for the woman, too.

Almost by definition, if the guy also is too drunk for consent, he is also too drunk to achieve or maintain an erection.

So yes, if a guy has sex with a woman who is too drunk to be capable of consent, he very probably has committed rape.

It doesn't matter if they drank exactly the same amount of alcohol; a woman is almost always smaller, and thus the same amount of alcohol makes her drunker than the average man.

Geez, guys. Think about how things actually work in the real world.
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