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On Rape, Impairment, and Consent

PostPosted: Mon Aug 31, 2015 7:45 pm
by Carnie
A disclaimer to begin. The train of thought that led to this post was kicked off by one small component of something that somebody somewhere said that is 99% bullshit. As such, I'm deliberately refraining from saying what that thing was which first got my thoughts in gear. I'm not even mentioning it for the purpose of explaining that/why I don't agree with its conclusions, ideas, or reasoning; I'd prefer to just not talk about it all. If you think you know what inspired this – which I think some people might be able to guess, hence this disclaimer – please do not bring it up; both because that is not what I want to talk about, and because I do not wish to be accused of “agreeing” with somebody whom I most definitely do not agree with and who I consider to be full of several kinds of shit. Critique what I'm saying here on its own merits, not for its similarity to something somebody else said. In other words, don't say Hitler Ate Sugar.

Second disclaimer: If you think I'm sounding far too much like a logic professor and/or like a Vulcan here, that is because I'm taking extensive lengths to draw attention to the fact that what I'm presenting is a contradiction that I can't resolve, in an effort avoid being called a bigot and dismissed as such.



This is a case of finding myself with multiple premises, each of which I can't help but agree with in isolation, but which I can't figure out how to resolve with one another. I'm trying not to get lost in rumination here more than I need to so I'll cut straight to the point, or points as it were.

The basic subject here is the concept of a person having been raped on the basis that, when they had sex, they were too drunk to be capable of giving consent. (In the interest of saving words, for the rest of this post assume that whenever I say “drunk” I mean “too drunk to consent, by contemporary legal standards.”) To be clear, I definitely agree with this in theory; the problem comes later. So, to start with, we have the premise that if someone has sex while drunk, then they have been raped because they could not consent.

Now, in cases whether the other person is NOT drunk, this is fine and dandy. The problem arises when both parties are drunk. If a man is guilty of rape if he has sex with a woman who is, for any reason, incapable of giving consent, then is he still guilty if he is drunk when he does it? The second premise in this conundrum I've found myself in is that yes, of course he is; because being drunk does not excuse you from committing crimes. It doesn't excuse you if you steal, kill, or commit any other crime while in that state, and it likewise doesn't excuse you from rape – including rape of the from “having sex with someone who is incapable of consent.”

A corollary to this second premise is that the question of whether there is a difference between “drunk enough that you can't give consent” and “drunk enough that your responsibility for committing rape (or any other crime) is affected” in a non-issue; because, as we've just established, no degree of drunkenness is an excuse for committing rape (or any other crime).

The third premise, is that how an allegedly-raped party feels about the matter after the fact has no bearing on whether or not they have in fact been raped. That is to say, it's not true that “It's only rape if you actually regret it”; rape is defined by what occurred in the course of the act itself, not by what happens or is felt afterwards. (And, it certainly doesn't matter what the parties felt or wanted beforehand, because “No Means No.”)

The problem, then is the following: If, when a man and a woman have sex and both are drunk, the man has committed rape because the woman was too drunk to consent, why is she not also guilty of raping him?

This conclusion would appear to follow directly from the first two premises; the reason I brought in the third premise is to establish that which party (the man or the woman) is more likely to feel dissatisfied with the situation afterwards, or beforehand (or even during, since being drunk supposedly renders such things void), is irrelevant to whether or not rape has occurred.

Phrased another way, the idea that being sufficiently drunk makes a person incapable of giving consent essentially implies that it is a crime to have sex with someone who is drunk; and thus, weirdness arises when you consider the scenario of both people being drunk.

Put in more strict logical terms, those two premises imply that if both are drunk, both are guilty of rape. The premises seem solid and the logic appears valid, but the conclusion seems clearly false. How to resolve this? Is the conclusion in fact true? Is one of the premises in fact false? Is the logic in fact not valid?


Apart from proposing that the conclusion IS in fact true, and that both should be guilty of rape, the other obvious potential solution to this is that neither is guilty. Both ideas have their problems; something I want to bring up though is that this has similarities to another situation in which a person is supposedly not capable of giving consent – statutory rape. Now, it has always seemed obvious to me that, in cases where both parties are below the age of consent, neither one should be considered guilty of a crime; and that the alternatives, that both are guilty or that only one party is guilty, are both absurd. And, I definitely agree that a 30 year old having sex with a 15 year old is a crime, and that a sober person having sex with a drunk person is a crime. But, I could not honestly say that I feel equally comfortable with the idea that in the case of both parties being drunk, neither has committed any crime.


I'll head off some predicted responses early. As with what I said above, all of these preemptive counter-arguments are my thoughts and reasoning at this current time. You may feel free to disagree with any of them and explain why, just as you are invited to question the premises, logic, or assumed falseness of the conclusion above and explain why.

One more thing first, as this applies to everything I'm going to say below (and everything I said above): I am presenting a logical conundrum/paradox, something which I cannot in intellectual honesty figure out how to resolve. Stating that one particular premise which you believe in must be true, and that everything else must follow from that, is not a reasonable response because contradicting premises are the whole issue here. Do not seek to “condemn” my raising of these questions without providing a solution to the contradiction.


It's different because one person is a man and the other is a woman.
I fundamentally disagree with this for two reasons. First, the general concept of gender equality, eliminating double standards, and “Yes, it is in fact possible for a woman to rape a man, to say otherwise is lunacy.” Second, because saying that the man is assumed to be consenting by default because “men want sex” is, as I see it, exactly the same as the “she actually really wanted it” argument, which is definitely bullshit.

This is just a stupid “Men's Rights Activist” trying to reverse blame and victimhood in cases of rape.
That's not what I'm trying to effect at all. I'm not claiming that men being raped all over the place is a serious unaddressed problem, I do not believe that men being raped all over the place is a serious unaddressed problem, and I'm certainly not “looking for justice for all those men who have been accused or convicted of rape when they were in fact wronged themselves.” What I am doing is pointing out a seeming logical contradiction in the way law and society views rape, and seeking a solution to that contradiction; what, if anything, should actually be done about that is a question for after a solution to the contradiction has been determined, and a question which I am making no attempt whatsoever to answer at this moment.

Suggesting that the woman should be guilty of rape too is just another case of victim-blaming.
No, because of a subtle but vital distinction. I am not contemplating whether the woman should be condemned for “being a slut,” for having sex too freely, or for allowing someone to have sex with her. Rather, I am contemplating whether she should be condemned for having had sex with somebody else who did not give consent, and who was therefore raped – or more precisely, somebody for whom it can be said that they did not give consent as surely (or as unsurely) as it can be said that she did not give consent and was therefore raped.


The floor ist thine. Discus.

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Re: On Rape, Impairment, and Consent

PostPosted: Tue Sep 01, 2015 4:35 am
by luislsacc
This is a question that I have debated and thought of quite deeply. FYI, I am a law student, so the nitty gritty questions like this really are what interests me.

The Penal code in my country, Portugal, has an article that pretty much brings what I find a very nice solution, but for assault, and not rape - Penal Code article 144º nº3a) The court can (as in, it is possible, not mandatory) not give punishment (regardless of whether it passes a sentence or not) if there has been reciprocal injury and it was not proved which contender assaulted first.
There was a case we studied where two older ladies supposedly insulted and hit each other, and it was taken to court, where the judge tried to talk them out of it by sayint that by insisting on prosecuting their adversary would only mean equivalent jail time for them. When neither gave up, regardless, the judge used the above article, and convicted each other of simply paying for one another's hospital bills.

This is my proposed solution to your conundrum, both parties are guilty of rape, neither is punishable for it because there was reciprocal action.

If it makes it any easier to digest think of it like this - each rapist was punished by being raped, and therefore doesn't require further punishment from the State.

Re: On Rape, Impairment, and Consent

PostPosted: Tue Sep 01, 2015 7:32 am
by yomikoma
I'm concerned that someone who has deliberately gotten someone else drunk in order to have sex with them can then claim to have been drunk as well, escaping punishment.

I know it would be hard to prove, but you could say that it's only rape if the victim would not have consented if they were sober.

Re: On Rape, Impairment, and Consent

PostPosted: Wed Sep 02, 2015 4:56 am
by kd7sov
I see no reason why they shouldn't be considered equally guilty, all other things (such as why they're drunk) being equal.

On a related note, it's occurred to me to wonder whether "future consent" is a thing - that is, if one person says "you may have sex with me later tonight", and they're drunk later tonight, does that hold?

Re: On Rape, Impairment, and Consent

PostPosted: Wed Sep 02, 2015 11:17 am
by MysticWav
I find fault with your premise. That the feelings before don't matter. Is it really true that one cannot consent in advance to have sex in a state where consent is not possible to give during? While such a thing certainly would be unwise, I don't see it is as morally impossible. This is not to say that consent in advance overrides consent in the moment. And consent in advance should certainly be more explicit when such scenarios are contemplated. For a good analogy of this consider surgery. That is essentially someone cutting me open with consent in advance despite the fact that I can't give consent during. For actual sex examples you might consider couples with an ongoing understanding or people with certain kinks/fetishes.

I'm also curious about the band of drunkness. I don't have any experience with alcohol (I like how my brain works currently and have no desire to chemically alter it, and no need to in order to enjoy life). Is there a state where one is both unable to give consent and still able to participate in a sex act? Most of the times when I think about non-consent drunkenness the image in my mind is of someone unable to walk, move their own body effectively, or form coherent thoughts necessary to string together a sequence of steps. It's obviously difficult to imagine /two/ such people successfully pulling sex off.

Re: On Rape, Impairment, and Consent

PostPosted: Thu Sep 03, 2015 7:42 am
by yomikoma
Coming back to this to clarify -

If two people with no particular inclination to have sex drink a lot and end up having sex, I can see it being a "both sides guilty" situation.

However, I think the most common case is that Alice wants to have sex and Bob doesn't (or hasn't clearly indicated one way or the other). Alice says "let's both drink a lot!" Then when they're both drunk, drunk-Bob "consents" and drunk-Alice hasn't changed her mind. Clearly Alice is in the wrong here, despite the fact that they're both drunk when they actually have sex.

MysticWav, moderate amounts of alcohol can indeed change your inhibitions without making you totally incompetent.

Re: On Rape, Impairment, and Consent

PostPosted: Thu Sep 03, 2015 8:39 am
by Deepbluediver
I can totally understand the issue you are having, Carnie. Whenever I discover contradictions in my personal philosophy it bugs me until I can resolve them. And this certainly is a bit of a pickle. If you want to throw more wood on the fire, what about same-sex relationships? If you really think gender matters, then take gender out of it and ask yourself how you would then resolve the situation.

I'm not sure we can come up with a set of rules that are perfectly applicable 100% of the time- that's why we have laws on the books but guilt or innocence (technically not-guilt) and punishments are still largely based on the judgement of people- juries and judges.

Two thing that's probably important are the circumstances of what was happening at the time, and the relative levels of impairment of both parties. If two random people meet up at a singles bar, spend the whole night talking and drinking, then go back to one of their apartments or hotel rooms or whatever, that's a scenario where claiming you didn't want sex after the fact seems highly suspect. If someone gets drunk at a baseball game, they probably weren't there to find a hookup.
Also, if one party has had half a glass of wine and the other has had 7 shots of tequilla, that's not an equitable situation. You might not have a responsibility to care for a total stranger who's gotten themselves impaired in some manner, but you probably do have a responsibility to not make their situation worse.


What this leads to is maybe we should be thinking about a new aspect of law for cases where someone claims to have been injured by someone else, but where they were also a party in getting themselves into the situation in the first place.
If I'm walking down the street and a sinkhole opens up beneath me and I fall and break my leg, I might sue the city because "breaking a leg" is not a reasonably expected outcome of walking down the sidewalk. If I go rock-climbing and fall and break my leg, no one is responsible for risking themselves or putting forth a cost to come to my aid, because falling and injury ARE reasonable outcomes of extreme sports.

By the same token (IMO) going out and getting falling-down drunk is a high-risk activity and your impairment is a logical outcome of your actions. It's like driving at 90 mph on the highway- we don't put a limiter in your car, but we will ticket you. If you are an adult who is supposed to be responsible, and instead at like a child to the point where someone else has to take care of you or needs to come clean up your mess, maybe there should be consequences of that.

Re: On Rape, Impairment, and Consent

PostPosted: Thu Sep 03, 2015 5:30 pm
by crayzz
To be clear: "Too drunk" generally means not knowing who, what, when, or where (i.e. being to drunk to keep track of what you're doing and the context in which it's done.)

"If two random people meet up at a singles bar, spend the whole night talking and drinking, then go back to one of their apartments or hotel rooms or whatever, that's a scenario where claiming you didn't want sex after the fact seems highly suspect."

I will never get over the phenomenon of people believing that wanting to spend alone time with someone without fucking them is so amazingly rare that we need to deeply consider the possibility that they are liars (based on literally nothing else), despite the act in question being a facet of many, many, many social interactions

Re: On Rape, Impairment, and Consent

PostPosted: Fri Sep 04, 2015 10:01 am
by Tem
crayzz wrote:To be clear: "Too drunk" generally means not knowing who, what, when, or where (i.e. being to drunk to keep track of what you're doing and the context in which it's done.)

"If two random people meet up at a singles bar, spend the whole night talking and drinking, then go back to one of their apartments or hotel rooms or whatever, that's a scenario where claiming you didn't want sex after the fact seems highly suspect."

I will never get over the phenomenon of people believing that wanting to spend alone time with someone without fucking them is so amazingly rare that we need to deeply consider the possibility that they are liars (based on literally nothing else), despite the act in question being a facet of many, many, many social interactions


Welcome to the brave new world, where women never enter a man's apartment or hotel room without a chaperone. Oh, wait, that is not so new, is it? Has quite the Jane-Austen-esque feel about it, doesn't it? Well, suits me just fine, I love Jane Austen.
But don't complain that women don't want to be alone with you, guys. Don't you dare complain. Except to the men responsible for it, that is.

Re: On Rape, Impairment, and Consent

PostPosted: Sat Sep 05, 2015 8:49 am
by Deepbluediver
crayzz wrote:I will never get over the phenomenon of people believing that wanting to spend alone time with someone without fucking them is so amazingly rare that we need to deeply consider the possibility that they are liars (based on literally nothing else), despite the act in question being a facet of many, many, many social interactions

If I want to spend time alone with someone, I generally don't want to be blacked-out drunk when it happens. But maybe that's just me.

My point was less about if one party says "no" to sex in which case it should most definitely be respected, than if they save "yes" or are ambiguous and then claim they strongly objected to it LATER, after they sober up. The original question, if you recall, is what happens when BOTH parties are to drunk to give consent- is one of them more culpable than the other? And in this VERY SPECIFIC SITUATION, I would be hard pressed to agree that one side is at fault for injuring the other.


Edit: Think back to my other example- if you're not ok with the possibility of falling and breaking your leg, don't go rock-climbing. If you're not ok with random one-night stands with strangers, then asking people to not get drunk to the point where they can't object doesn't seem like a terribly high standard. That's called personal responsibility.