Some hopeful news from The New York Times.
Thousands of sexual assaults that occur in the United States every year are not reflected in the federal government’s yearly crime report because the report uses an archaic definition of rape that is far narrower than the definitions used by most police departments. […]
“The public has the right to know about the prevalence of crime and violent crime in our communities, and we know that data drives practices, resources, policies and programs,” said Carol Tracy, executive director of the Women’s Law Project in Philadelphia, whose office has campaigned to get the F.B.I. to change its definition of sexual assault. “It’s critical that we strive to have accurate information about this.” […]
The definition of rape used by the F.B.I. — “the carnal knowledge of a female, forcibly and against her will” — was written more than 80 years ago. The yearly report on violent crime, which uses data provided voluntarily by the nation’s 18,000 law enforcement agencies, is widely cited as an indicator of national crime trends.
But that definition, critics say, does not take into account sexual-assault cases that involve anal or oral penetration or penetration with an object, cases where the victims were drugged or under the influence of alcohol or cases with male victims. As a result, many sexual assaults are not counted as rapes in the yearly federal accounting. […]
Greg Scarbro, the F.B.I.’s unit chief for the Uniformed Crime Report, said that the agency agreed that the definition should be revised and that an F.B.I. subcommittee would take up the issue at a meeting on Oct. 18.
“Our goal will be to leave that meeting with a definition and a mechanism,” Mr. Scarbro said. But he noted that law enforcement agencies would have to support any change.
Slate has more on the activists, both from feminists and police departments, who have been lobbying the FBI for this change. And the Feminist Majority Foundation has an email form letter you can use to help keep the pressure on. (Hat tip.)
This will be good news, but only if they don’t go overboard with the alcohol issue. oh , noes, she’s slightly tipsy! He’s slightly tipsy! Well, who cares about him? Raaaaaaaape. Most states don’t use that as their law, consent to sex isn’t negated by alcohol, consent for sex is negated by situations such as unconsciousness.
I agree with what I have read of the rest of it, they might even make it possible to rape men, the FBI is apparently 80 years behind on this issue.
Clarence @1: I know we’ve had the conversation before about the difference between mens rea and ability to consent. I suppose we could have it again, if you’re actually interested in why the law looks at things that way instead of carping about how bitches lie about rape cuz they had one goddamn Cosmo.
This IS very, very good news. It’s unbelievable that they haven’t updated the definition before.
The magazine?
More on point, it would be nice if they recognized men the right to not consent, and to not *always* be assumed to be the initiator of sex.
Schala @3: The drink.
The new definition will eliminate the view that a male cannot be raped.
mythago:
The law does not uniformly look at it “that way” if by that way you mean that alcohol negates consent. Indeed, I don’t believe the law should look at it that way, it’s a travesty that it does do so in the states in which that is the law, it’s a double travesty when said state (Ohio, I believe is one, or maybe I’m getting it mixed up with Michigan) has such a law and does not look into the state of the man’s intoxication as well.
So hopefully the FBI will stick to the more traditional definitions in terms of rape and alcohol.
Actually, all states “look into the state of the man’s intoxication”, if by that you mean, do they consider whether or not the accused was too drunk to be able to be guilty of rape; proving intent is part of most crimes. (That’s mens rea.) If you’re talking about some states only considering whether a female victim (but never a male victim) was too drunk to consent, it certainly would be a travesty.
mythago:
Actually mens rea is not a universally accepted legal standard in rape cases anymore.
http://wings.buffalo.edu/law/bclc/bclrarticles/4%282%29/kinports.pdf
More to the point, what I’m referring to is a situation in which the woman is inebriated but still able to physically function and talk. She either gives consent to sex or even initiates (due , I suppose to the inhibition removing affects of large amounts of alcohol) sex, and the man is then later prosecuted for rape EVEN IF he was inebriated himself at the time.
One can’t argue that a man is responsible for his drinking and thus his consent or participation in sex is valid but that a woman is not responsible for her actions while drunk.
But some laws are very much written that way. I don’t want the FBI buying into that theory.
http://www.informationliberation.com/?id=12517
Clarence, your link goes to an article about Wisconsin sexual assault law. But if you actually read the law in question, it’s clear that mens rea is very much part of the law regarding intoxicants.
I don’t believe that there is a single law, anywhere in the US, in which “alcohol negates consent,” which makes it sound like if someone drinks a drop of beer and then consents, the consent doesn’t count legally. Wisconsin’s law (which is the example you chose) seems quite reasonable.
Can you link to a real example of a state law which is written in such a way that “alcohol negates consent,” rather than having to be so drunk that the person is actually incapable of consenting? (And I’m sure we’ve all seen people who are not drunk enough to be unconscious, but too drunk to stand, to act, or to know what’s going on around them.) Because I’m not convinced that this is a real problem, frankly.
Ampersand:
The mens rea part is a separate issue, and has nothing to do with Wisconsins law. I merely brought it up to reply to something that mythago assumed(“…proving intent is part of most crimes” when , in fact as my law article shows there has been exceptions to that in recent years) in her previous post. Since you misunderstood the reason I brought it up, you worried about it for no reason.
As for the state in question it now lists alcohol as a “date rape”drug.
Here’s the relevant part of the law in question. It’s under the 2nd Degree sexual assault heading; Wisconsin law does not refer to “rape” anymore so this in effect is part of their 2nd Degree rape statue.
Has sexual contact or sexual intercourse with a person who is under the influence of an intoxicant to a degree which renders that person incapable of giving consent if the defendant has actual knowledge that the person is incapable of giving consent and the defendant has the purpose to have sexual contact or sexual intercourse with the person while the person is incapable of giving consent.
What is the definition of “can’t give consent”? Can’t talk or move? That’s a state just under unconsciousness, you’d literally have to carry this person somewhere to have sex with them, in that case. Stumbling around? Slurred speech? At what point does this law kick in?
I don’t think there should be an exact definition of “how drunk do you have to be to be incapable of giving consent” because alcohol affects people differently. Your balance might be completely shot, but you can still talk intelligibly, or you might be able to let someone lead you somewhere without being really aware of who they are or where you’re going.
If someone wakes up the next day feeling that they’ve been taken advantage of, or doesn’t remember the sex at all, they were probably too drunk to consent.
I know it’s fuzzy, but if you have sex with someone who’s trashed out of their mind, you’re taking the risk that they aren’t with it enough to actually consent. If they don’t seem to understand what you’re saying, or they’re not talking intelligibly, that would be a pretty good clue. (If that’s true but they’re initiating sex, I guess they’re consenting, but the other person might not be.)
I think this can apply equally to both genders. If a guy is really drunk, and a woman takes his pants off and has sex with him, when he’s not with it enough to consent, that’s rape.
Essentially, I think that you’re responsible for your own actions no matter how drunk you are, but you’re not responsible for things that are done *to* you.
KellyK:
I appreciate your post because it is respectful and logical.
That being said, you don’t understand how it interacts with mens rea, above.
It’s a fundamental principle of American law (and English law, 99 percent of our laws are based on old English “Common law”) that for the state to make something a crime it has to be explicitly spelled out what is being criminalized. Otherwise , you risk making someone a criminal by mistake or even ignorance. Saying that “ignorance of the law is no excuse” doesn’t apply in this case, because if the law is too vague it is impossible to know what is being criminalized.
If I’m a juror I’m not sending someone to jail for years just because someone can’t remember whether or not he or she said no and rather regretted who they woke up with.
I’ve literally been searching the web (I’ve even found a presentation for prosecutors and victims advocates and read that , it took me half an hour as it was long and consisted of several presantations and two papers) and I still can’t find out exactly what “can’t give consent” means in terms of alcohol in Wisconsin. Everything I’ve seen either ignores the issue and focuses on rape generally, or mentions the law and then dances around what it means in practice.
This looks ripe for abuse.
Clarence @13: Your link says nothing about mens rea and you keep ignoring the part of the Wisconsin law that addresses your concerns: if the defendant has actual knowledge that the person is incapable of giving consent .
In other words, to convict somebody of raping a drunk person, the prosecution must prove, beyond a reasonable doubt, not only that the accuser was drunk but that the defendant actually knew (not, should have known; not, whether a reasonable person would have known) that the accuser was so drunk that s/he could not consent. That’s actually a fairly tough thing to prove, and it’s likely to be useful only in those cases where the rapist actually caused the victim to become intoxicated, e.g. by spiking a drink, or where the victim was unconscious.
@12, that is not what mens rea means. Mens rea means the intent required to commit a crime.
http://www.nolo.com/dictionary/mens-rea-term.html
Mythago:
My first link in post seven DOES INDEED say quite a bit about mens rea. Now unless you want me to quote it for you, I suggest you clarify which post you were talking about.
As for mens rea itself it literally means “guilty mind”. You have to INTEND to commit a crime to have mens rea.
Your response didn’t really address that. The question rephrased, is “how drunk does she have to be before she can no longer consent”? UNTIL YOU ANSWER THAT QUESTION (caps for emphasis) you can’t really defend against an accusation that you had the knowlege that she couldn’t consent. She was tipsy..don’t you know that tipsy means she is not thinking clearly? Surely this proves you KNEW ( you admit you knew she was tipsy and slurring speech) that she couldn’t consent?
She was drinking? Don’t you know that alcohol is a date rape drug? You knew this girl had alcohol in her system, that alcohol lowers inhibitions, thus you knew she couldn’t meaningfully consent!
In short, that is the problem with the law as currently written. It has NO TARGET to aim at. There are no standards as to what constitutes meaningful consent when alcohol is present, hence the prosecutor can bring the charge anytime he or she feels like it.
Mythago:
Oh, I think you were misreading my post, no. 12 to Kelly, above.
I was not redefining mens rea, I was explaining how having a vague law impacts on mens rea because its hard to have a ‘guilty mind’ when you don’t know you are committing a crime. In short, make a law vague enough, you basically throw mens rea out the window.
Clarence @16: No, I was not misreading your post. It is not at all hard to have a “guilty mind” when you don’t know you are committing a crime. You are conflating ignorance of the law with ignorance of what you are doing. “I didn’t know it was illegal to take things that do not belong to me” and “I didn’t know that bicycle I took was yours; I thought it was mine” are very different things.
The problem is that you don’t want to acknowledge that no matter how low we set the bar for ‘too drunk to fuck’, it only affects a defendant who actually knew the person was too drunk to fuck. And the prosecutor has to prove that beyond a reasonable doubt. “The victim was tipsy and slurring his words!” “But I asked him if he was okay and he said he was absolutely fine. He even recited the alphabet backwards to prove it.”
As for how drunk is ‘too drunk to fuck’, again, the prosecutor has to prove that. And it cuts both ways. If there’s no clear standard, then there’s no way to say “Aha, I have proved that the accuser had X beers and weighed Y pounds, therefore passed the ‘really fucked up’ test set forth in Foo v. Bar and as a matter of law was incapable of consent!” Look at the Greg Haidl rape case in Orange County – which hung a jury once, and on the second trial the jurors had to go through the video of the unconscious victim almost frame by frame to answer the question of whether she was really unconscious. You know, because she might have just been faking when the boys put a lit cigarette in her vagina.
And I’m not sure why you think it’s horrible for alcohol to be a date-rape drug. Do you believe it is impossible to put more alcohol into a drink than a person believes it contains? If people use a drug recreationally it can’t be used unwittingly?
You’re throwing around a lot of anger here and you don’t appear to consider that there could ever be an application for this law other than “lying bitch has one drink and calls the cops because she had second thoughts in the morning”.
Alcohol is absolutely a date-rape drug, and there are videos out there which describe exactly how to use it as such. How, for instance, to get more alcohol into a drink than someone expects. The one I saw at a sexual assault seminar awhile back described a method which was trivially easy and tripled the amount of alcohol in a wine cooler.
Clarence:
Even if that is true, that’s not what the law you cited does:
So there are several elements there, which must all be proven beyond a reasonable doubt to sustain a conviction:
1. Has sexual contact,
2. with a person who is under the influence of an intoxicant to a degree which renders that person incapable of giving consent,
3. the defendant had actual knowledge that the person was incapable of giving consent,
4. the defendant had the purpose to have sexual contact with the person while the person was incapable of giving consent.
That’s a very difficult set of elements to prove. Proving actual knowledge, especially of things which can reasonably be disputed in almost all circumstances, is notoriously difficult.
Years ago, in the state of New Hampshire, the crime of Conduct After Accident required the state to prove that the driver knew he had been in an accident. The state routinely lost cases where someone backed into another car with a crash and then drove away without looking. Heck, that crash could have been anything! Maybe he didn’t even hear it! The radio was up! He was deep in thought about his job or the fight with his partner!
It wasn’t until the law was changed to read “should have known” instead of “knew” that the state was able to argue successfully that a person who casually backed into a car, crushed a headlight assembly, set off a car alarm, and then drove away, should actually be guilty of a crime.
In the case of the specific elements above, the defendant is in much less danger of a wrongful conviction than he would be in most cases.
Grace
Grace:
1. Has sexual contact,
This is not as hard to prove as you think; indeed it’s often conceded right off the bat. Pretty much any “he said, she said” case is not going to be arguing whether there was sex or sexual contact.
2. with a person who is under the influence of an intoxicant to a degree which renders that person incapable of giving consent,
Whatever that means beyond the obvious such as unconsciousness or otherwise total incapacitation.
3. the defendant had actual knowledge that the person was incapable of giving consent,
Once again, was the “victim” drunk? You will find plenty of feminists to argue that fact invalidates consent. And at that point, are you are trying to do is prove the defendent knew she or he was drunk. Oh, and the defendent being drunk him or herself isn’t a defense. So in cases where both are smashed we are supposed to treat one mental state as being passive and confused and the other as being active and capable of planning.
4. the defendant had the purpose to have sexual contact with the person while the person was incapable of giving consent.
Well, they had sex. Or at least the defendent had sex willingly. Wouldn’t the very act itself be proof of this?
This isn’t as hard as you are making it out to be. No, I don’t believe any prosecutor is going to use this law when an alleged victim has one drink or something like that. No, the cases where this is dangerous to liberty are of the type where the alleged victim is drunk to any obvious extent. Some prosecutors will “roll the dice” on such things, and some injustices will result, and all because we don’t want to have a brightline role which I propose as follows: Any sex you have while drunk is assumed consentsual legally in the same way that normal uninebriated sex is unless one of the following elements is present:
A. You were unconscious
B. You couldn’t speak or move though you were conscious.
C. The alcohol was surreptiously administered
By the way, Grace, was “conduct after accident” a crime that had its own constituency groups like rape does? Were there monitors in court to try and make sure that a prosecution takes place? Or was it just a poorly written law?
Mythago, Grace:
I use “date rape drug” in the sense of something which specifically exists to render a victim incapacitated or unconscious. To my knowlege its illegal to possess most of the “date rape drugs” you hear about from the sexual assault organizations and in the news (though usually in context of panics which turn out to have no merit). Alcohol can be abused and used in nefarious ways, sure, but it’s a legal drug and pretty much everyone in the culture knows what it does and some of the dangers of it.
clarence @20: Rohypnol does not exist specifically to render a rape victim unconscious. It is a medication manufactured by Hoffman-LaRoche, a legitimate pharmaceutical company, and used in Europe and other countries as a sedative and anesthetic. GHB is a recreational drug. By your definition, neither of these drugs are ‘date rape drugs’. If you are instead going by whether it is illegal to possess the drug, then you do know that it is illegal for people under 21 to drink alcohol, so by that definition it would be a ‘date rape drug’ when used by minors.
Your bright-line rule doesn’t protect as well as you think. Imagine a party where A “surreptitiously administers” a single shot of alcohol in B’s orange juice, B takes a swallow and says “Hey, this is spiked!” and drinks no more of it. C, on the other hand, pours himself several drinks in a row and ends up staggering-into-walls drunk. He’s apparently conscious, and he can talk, although he responds to questions with nonsense answers and is babbling incoherently about this car he used to own back in high school.
If A then has sex with B and C, by your definition, B is incapable of consent even though he has consumed almost no alcohol, is not inebriated and is conscious, walking, talking and capable of operating a motor vehicle, while C is fully capable of giving consent because he is not unconscious and is able to speak and move. For that matter, A could tell the police “Sure, I knew C was fucked up and had no idea what I was doing to him,” and there would still be an element missing because you don’t count C as inebriated.
Mythago:
Even assuming it wasn’t a crime to spike a drink , you’ll note my brightline rule only applied to situations where one was drunk. B, in your example, was never drunk.
My brightline rule does not require all 3 elements to be present. Provided the victim is drunk ONE of the three would be enough.
We could modify the language to say “speak coherently”
It’s true that my definition of date rape drugs was incomplete but only because I didn’t mention what the only purpose to serve those drugs in drinks was. They have no legitimate medical use being placed in someone’s drink. More to the point, in the US at least, GHB is a controlled, illegal substance.
http://www.deadiversion.usdoj.gov/drugs_concern/ghb/ghb.htm
Illegal drugs that tend to cause unconsciousness or incapacitation when administered to a person would be date rape drugs. Alcohol is a legal drug, and it’s a rare person incapacitated by a single shot.
clarence @22: How does your bright-line rule define “drunk”? If B feels mildly buzzed from his swallow of the spiked drink, is he “drunk” for purposes of this rule until the feeling passes? Is he only drunk if he could be arrested for DUI?
Also, why should we care if the drink was “surreptitiously administered” or not? Either B is drunk enough that he can meaningfully consent, or he isn’t. How is he more or less drunk depending on whether he consumed it on purpose?
And what’s “speak coherently”? Oh sure, Your Honor, he was slurring his words and stuff, but I could understand him, so that’s “coherent”, right? Or are we going to assume that the first time the ‘s’ changes to ‘sh’ that it’s hands off?
There is no legitimate medical use for putting vodka in orange juice that I’m aware of, either. I don’t see how that matters as to whether it’s a date-rape drug.
Hey, legal stuff! Fun!
Capability is a bit like pregnancy: either you’ve got it or you don’t. Capability can be impaired, restricted, lessened, increased, and modified by as many words as you can choose. But only when capability does not exist at all does this actually kick in.
In fact, the complete lack of capability comes up twice: once as something that has to be proven objectively true (“victim [was] incapable of giving consent”) and again as something that has to be proven subjectively true (“defendant had actual knowledge that the [victim] was incapable of giving consent”)
Proving incapability is damn hard, as is almost every other “prove a negative” type of thing. It’s possible, if you can prove that they’re unconscious. But that’s about it.
I might also note that there’s a big degree of mushiness in pretty much every rape case, given the unfortunate reality of the evidence. It’s pretty much impossible to write a rape standard that creates a bright line rule, because people are different and varied and impossible to make in a bright line rule.
So what ends up happening is that you write a rule like this one, where even with the wiggle room involved it’s still rape. It’s so hard to prove incapability of consent, and it’s so hard to prove actual knowledge of it, that when you combine the two and convict someone, they’re almost definitely a rapist.
And although folks don’t like it: “almost definitely” is as good as it gets. You can probably create an “innocent accused” hypo for almost any statute, but it’s not possible to attain perfection.
Hmm. Maybe I should link to a few false rape cases (where either the evidence appeared to be against rape or there was a confession as to making up the story) and show just how easy it can be sometimes to convict somebody of rape. It’s already , as shown by Troy Davis most recently, way too easy to send someone to death. Given that thousands of rapists (and alas, some non-rapists) are sent to prison each year and that the conviction rate is near 50 percent for those that go to trial , it’s not THAT hard, at least in the US.
Mythago:
How do we define drunk when someone gets behind the wheel of a car?
Same standard. And BAC, at least, can be measured, hell, it can even be calculated roughly based on the type of drink, the weight of the intoxicated person, and the sex of the intoxicated person.
Drunk is drunk, so you should be excused for what you do behind the wheel of a car? Hey, you CHOSE to drink. Oh wait, someone fed you alc without you knowing it? Forget I said anything.
“Coherent” is at the minimum understandable, I’d actually go with a role that the sentences had to make sense, words should be in normal sentence order, that sort of thing.
This stuff has been hashed out a long time in terms of college drinking codes, drunk driving and flying laws, and etc. It’s not that subjective. It’s not perfectly objective (hey, let’s agree very few human laws are) but it’s not based on pure subjectivity like the current law.
“you do know that it is illegal for people under 21 to drink alcohol”
It’s illegal for them to buy alcohol. I’ve never seen anyone enforce the “don’t drink alcohol” in homes, parks, workplaces, etc when it is offered to a minor (as long as it’s not a little kid).
And the same goes for cigarettes.
When it became illegal for minors to buy cigarettes (when I was a teen here), I was still able to smoke in public places, including my own high school grounds, as early as 12 years old. The police didn’t come, although it was evident I smoked.
Oh dear. That would mean if I had two or three frozen margaritas at Chevy’s with dinner, I would be incapable of giving consent, even though I would be conscious, could speak and could move quite well. I’d be tipsy, certainly, but I wouldn’t be incoherent or banging into walls, though I shouldn’t drive. Is this the standard you think is appropriate to determine whether someone having sex with me is a rapist? Do you expect men to go around with pocket Breathalyzers? And yeah, your ‘coherent’ standard is ridiculously subjective – ‘that sort of thing’? Really?
Drunk is drunk, so you should be excused for what you do behind the wheel of a car?
Sorry, this makes no sense. Have you been drinking? I asked why Ms. Tipsy if deemed to be able to consent to sex with me if I told her “Hey, I put four shots of vodka in this” before she drinks her Cosmo, but is deemed not able to consent if I lied and said “Don’t worry, this has almost no alcohol in it”.
And of course there’s the “sex with me” problem. If A spikes B’s drink, is C a rapist for having sex with B? Would the answer depend on whether C knew that B’s drink was spiked? How is C supposed to guess how B got drunk?
As gin-and-whiskey pointed out, there’s always going to be subjectivity. The bright-line rules even you are proposing make no sense. The Wisconsin law has *very* stringent requirements for what is ‘too drunk to fuck’.
As for false rape convictions, nobody has denied that those happen. But would you suddenly change your opinion if we linked to anecdotes about rapists using the ‘bitch was drunk’ defense to get off scot-free? Hell, an NYPD officer just managed it.
Clarence says:
October 2, 2011 at 11:21 am
“tipsy & slurring speech” /= “incapable of consent.”
“lowered inhibitions” /= “able to meaningfully consent” /= “incapable of consent.”
“Knowing that someone was drinking” =/ “having actual knowledge that they were incapable of consent.”
“meaningful consent” /= “incapable of consent.”
Obviously, you’re ignoring the statute here. But I’m not trying to just point that out for snark value. It’s not that your changes are just moving goalposts; they matter.
As it happens, defining “consent” is something that the courts have been doing for ages. It happens in estate cases; in rape cases; in theft cases; in cases involving fraud, undue influence, and the like; in civil and criminal and probate and family and juvenile courts. It happens all the time.
As a practical matter, the proof of consent and analysis of consent is much more advanced and simple to describe than the proof and analysis of mens rea.
More to the point, your suggested “improvements” to the law are anything but. So you’re concerned about inaccuracy, hmm? OK, let’s use BAC as a measure of consent. great!
Fine….
Except, that is, that some people can have a very high level of BAC and have the ability to consent (they may have degraded reflex skills, but who cares?) So you buy a guy a drink in a bar, without knowing that he pounded a double at home first. Three drinks later you and he have a detailed political conversation and end up in bed and, whoops, you’re a rapist. (Or are you suggesting that we take BACs for people on an hourly basis while we’re sleeping with them? “Hold on, honey, before we lose the undies can you recheck your BAC?” Um, no.)
And, of course, there’s the tiny issue that BAC degrades over time, in varying amounts depending on the individual. you can’t take a BAC at 11:00 AM in a police station and figure out what your BAC was at midnight, in the middle of drinking. You can’t even do it if you know “about how” many drinks you had, unless you do more testing and also know the time you drank them, what you ate…
Your protests just don’t make sense.
Your protests just don’t make sense.
As Clarence said in his very first post, he is primarily concerned with the question of men being falsely accused of rape simply because the woman consumed alcohol. This is a valid concern. The problem is that he is refusing to acknowledge that the law is stringent enough to address those concerns – that Wisconsin did not say “oh yeah, if she’s tipsy, raaaaaape” (and wow, way to show exactly how serious one thinks rape really is, i.e., not at all).
I’d like to bring the discussion around to the point that was raised early about when both people involved have been drinking. Let’s say Jill and John, both of age for sex and drinking, are at a party where a keg of beer was available and both availed themselves of it thoroughly and independently. Jill’s wasted. John’s wasted. They end up in a bedroom and have (pretty sloppy) sex. Can Jill claim later that she was raped because she was incapable of giving consent even though John was in a comparable state?
But that definition, critics say, does not take into account sexual-assault cases that involve anal or oral penetration or penetration with an object,
Why didn’t “carnal knowledge” include these? Or is there a legal definition of “carnal knowledge” elsewhere that excludes them?
RonF @31: We’ve been over this. It’s the difference between mens rea and consent. It’s much, much harder to prove that you were so drunk that you could not form the intent to commit a crime. If this bothers you, imagine somebody arguing that they are not guilty of stealing your car and crashing it into a tree because they were too drunk at the time to know they were stealing.
Both Jill and John could claim they were raped. Whether either them are guilty is something that would be sorted out in the legal system, but “only the female can be raped” is precisely the standard we’re trying to get away from.
At common law ‘carnal knowledge’ mean PIV intercourse. Oral and anal sex were sodomy, which until recently was a crime under Anglo-American law even between married heterosexuals.
I agree that the “but what if they’re BOTH shitfaced?” question is an important one, which too often gets pushed aside. Some groups (often fairly radifem groups) seem to use a non infrequent implicit assumption that “hetero sex while mutually shitfaced” >> “rape of the female.”
You usually can’t self-medicate yourself out of mens rea. But I’m not so sure that a conviction would withstand constitutional scrutiny if (a) both parties were shitfaced; (b) both parties consented to the degree possible while shitfaced; and (c) only one party was accused of a crime.
I want to know specifically and precisely what too drunk to consent means.
Unless this can be put in plain and understandable English, then both Gin and Whisky and Mythago are blowing smoke.
I’ll point out for Gin and Whiskey’s benefit that “standards of consent” vary by state and are often all over the place.
I’ll also point out to both Gin and Whiskey and Mythago that we somehow manage to prosecute drunk drivers, despite the alleged difficulty of proving someone was drunk.
It seems that you are both perfectly happy with a system in which given the exact same set of facts presented in exactly the same manner Jury A comes to one conclusions, Jury B comes to another. Play the Legal Lottery!
Clarence @35: gin-and-whiskey already addressed your first paragraph. I can’t help but notice, though, that you keep demanding other people address your arguments while ignoring the fact that those arguments have already been dismantled.
I’ll also point out to both Gin and Whiskey and Mythago that we somehow manage to prosecute drunk drivers, despite the alleged difficulty of proving someone was drunk.
That is because we define ‘impaired driving’ as having a certain BAC. We don’t look at whether a driver was actually slurring his words, or coherent, or weaving all over the road. If the steadiest driver on the highway is obeying every law and handling her vehicle competently, but is stopped at a checkpoint and has a BAC of .20, she will be charged with DUI and probably convicted.
The problems of applying a “BAC regardless of actual impairment” standard to sexual consent have been pointed out to you at length (including the problem of making the definition of rape broader). The conflict between your view of “drunk” (slurring, unconsciousness, inability to move) and “too impaired to operate a motor vehicle” (BAC of .08 regardless of actual impairment) has also been pointed out. You have ignored this and repeatedly propose a standard that doesn’t even make sense internally.
As I said, this is probably because you’re not really approaching this from a position of reason; you are reacting emotionally to ‘lying bitch has one drink and cries rape’ and that’s about it.
Mythago:
That’s because I feel you both are ignoring the plain text of the law and my repeatedly asking for clarifications. Assuring me that you “know” that this law makes it hard to get convictions doesn’t do any good, because I’ve seen rape convictions ..hell, death penalty convictions..on oral evidence alone.
And some of your arguments are rather ill-thought out. Who says we have to have the SAME BAC as they tend to do with “drunk driving”? Also the BAC standards have been tightened repeatedly over time because the groups that exist politically to deal with that issue really don’t want anyone having the slightest bit of alcohol in their system at all when they get behind the wheel of a car. The founder of MADD, for instance, quit the group when it basically became a prohibitionist organization.
The point is you can:
A. Measure BAC directly
B. Compute it indirectly
All you basically seem to be doing to me is looking for tiny little loop holes in anything I say to try and tighten the law up a bit, whilst claiming that the law in question is not subjective.
These kind of arguments are not impressive.
If I ever get the power to determine any of these laws, I’m not sure I’d go to you to get any input. Neither of you seem to be able to tell me what you want in regards to alcohol and sex.
As far as this law goes, I think I could pretty much sell it to a jury as criminalizing all drunken sex, and I think that’s why the prosecutors were so happy dappy in that article I linked to. They know when they’ve been given more “discretion”.
Assuring me that you “know” that this law makes it hard to get convictions doesn’t do any good, because I’ve seen rape convictions ..hell, death penalty convictions..on oral evidence alone.
If you’re complaining that courts convict on flimsy evidence, then it doesn’t matter what the law says. The law could be exactly as you describe it in @19, and a jury could say “Well, gee, she *said* she was conscious but she couldn’t move a muscle and this guy was cackling ‘Hahaha bitch, I spiked your drink,’ so clearly that meets all of the elements.” I don’t know where you’ve “seen” these convictions you’re talking about, but are you really trying to tell me that in those death-penalty cases that the problem is that the law itself was too vague? Because that’s not what you’re saying here.
Who says we have to have the SAME BAC as they tend to do with “drunk driving”?
Uh, you did, in @26.
If I ever get the power to determine any of these laws, I’m not sure I’d go to you to get any input.
Of course you wouldn’t. You don’t like to be told you’re wrong, you’re pretending that huge contradictions in your arguments are ‘tiny little loopholes’ – by the way, you’ll get a good laugh complaining in court about ‘tiny little loopholes – and you continue to ignore the fact that up until this new law passed, courts have been dealing with “consent” in all kinds of contexts for a very long time.
If you have an excellent bright-line definition of consent, by all means publish a law review article and get the kudos you will deserve. You don’t, and you’re all over the place here, because you can’t find a way to codify your “lying bitches” problem into law.
Mythago:
Could you kindly stop putting words in my mouth? “Lying bitches problem” (your own words, not mine) You don’t have a problem when people lie?
As for #26, you misunderstood me. You don’t have to be “drunk” to be convicted of violating alcohol and driving statutes. Indeed, that’s one of the common complaints about alcohol laws – that the current laws are way too stringent.
You clearly need to learn not only about drunk driving statutes but also about intoxication in general. It’s not a state that is impossible to define.
And the argument isn’t consent in general – though Gin and Whisky seemed happy to try and assure me that all the kinks in that concept have been worked out, I’ll at least accept theres a great body of law that often provides some guidelines – no, the question here is what level of alcohol use invalidates consent? Despite all your whining and personal attacks and putting words in my mouth you have yet to answer this question. Do try to stay on topic, or I think I shall be ignoring you in the future.
Everyone on this thread, please try and dial down the tone of your comments a few notches. Thank you.
Heck, I could even accept there could be more than one answer to this question:
What level of alcohol use invalidates consent?
We could say that unconsciousness always invalidates consent. Makes sense to pretty much everyone I suppose.
We could say there is no need for a level if someone is unknowingly given alcohol or is somehow forced to drink it.
We could have more than one answer depending on circumstances, but so far Mythago and G&W have refused to spell out any answers at all.
no, the question here is what level of alcohol use invalidates consent?
It’s right up there in the law, as has been pointed out umpteen times, if the person is so intoxicated that they cannot give consent. Not “if their inhibitions were depressed so they might have thought better of it if they were sober”. Not “if they had a couple of drinks”. Not “if they were not making complete sentences or something like that.” Incapable.
Your only substantive objection to the Wisconsin law has been that you have “seen” cases where someone was convicted on flimsy evidence. That’s a non sequitur. It doesn’t mean that the legal standard is insufficiently stringent.
(Also, this is a written medium. When you say something and deny having said it, or angrily ask who ever said such a thing, it’s pretty trivial to go back and point to it – for example, your opening comment in @1.)
There’s no rule here that you have to respond to me, or for that matter, to anyone. But if you’re trying to do something other than express your anger at the Wisconsin law, as you did in @1, then you might consider whether you are making a persuasive case for your point of view.
Mythago:
Putting words in my mouth and thoughts in my head is neither a fair strategy nor a wise one.
You don’t even know what my main objection is to vague laws. You assume its false accusations as a matter of course and if you could get away with it, you’d probably also accuse me of believing all women lie, and not counting on men lying in similar circumstances.
And if my answer “right in there “in the law perhaps you could give a specific example of what would run FOUL of the Wisconsin law? It should be trivially easy to do if the law is so clear. I will of course take “unconsciousness” off the table (and I’m not going to insult your intelligence by spelling out why) , however being unable to move or speak or unable to remember your name as examples would be fine.
Of course then the question arises why they didn’t explicitly spell whatever it is out, but at least one could see what you were thinking this law meant.
If you can’t answer the simple question of what is “right there” in that law that would expose one to prosecution than you’ve lost the argument. Surprise me.
Heh, on second thought, rereading your last parapraph of your previous post, it occurs to me that maybe “incapable” means tied and gagged. Can’t give consent if one can’t speak. Why didn’t I think of that. Now the law is so very clear! So long as he or she is rendered incapable due to injury or restraint of giving consent then the fact that they were drunk um..hey, wait..no…that’s not what the law means. Clearly it’s tying alcohol use and consent together somehow but I’ll be dammed if I can see how. Dang, guess your argument fails.
Clarence:
I assume that false accusations (or, more to the point, false convictions) are your concern, because it’s a concern you yourself have brought up several times in this thread.
Please take some responsibility for your own part in this thread. If false accusations and convictions aren’t one of your primary concerns, then the problem here is that you’ve written in a way that misrepresents what your concerns are. That’s not Mythago’s fault.
Now I’m very confused about your view — not because I’m hostile to you, but because you’ve made me confused with what you’ve written. Earlier this thread, you were writing as if concerns about false accusations/convictions were an extremely major reason, and probably the main reason, for your concern with “intoxication” provisions in sexual assault laws. Now you seem to be implying that it’s not a major concern, and certainly not the main reason.
Just to clarify, are false accusations/convictions one of the primary reasons for your concern about “intoxication” provisions in sexual assault laws? Yes or no, please.
* * *
Just a couple of comments ago, I asked everyone on this thread — you included — to tone back the aggression and sneering. You have not done so. If you don’t think you’re willing or able to listen to my requests, then I’ll ask you to take some time off from posting comments on “Alas.”
(I agree that Mythago has also not acted perfectly in this thread — for instance, you were in the right to request that she stop characterizing your views using the phrase “lying bitches.” However, she has seemingly stop using that phrase in this thread; you haven’t altered your behavior.)
Clarence @43: All I can go by is what you’ve said here. In your first comment you seemed to indicate your concern that a man could be convicted of rape solely because the woman was ‘tipsy’. Later you argued that the law was hopelessly vague, but in support of that you claim in @37 to have “seen” false convictions in death-penalty case, but that these convictions were based on ‘oral testimony alone’. Assuming this is true, what that means is that you are talking about convictions based on weak evidence – not that the law in those cases was so vague that you could easily argue that defendant’s actions fell under it.
By “run foul of”, do you mean, a specific instance of something that would clearly be sexual assault, or something that clearly would not be sexual assault? If the latter, here’s a pretty simple example: A does tequila shots with his buddies at a house party. He then walks into the living room, grabs a beer and begins chatting with B, who is also drinking a beer. A and B go into a bedroom. B doesn’t notice that while he’s unzipping A’s pants, A’s tequila shots have had their effect and he passes out. B takes A’s penis into his mouth, gets no reaction, and realizes for the first time that A is unconscious, so he stops.
Do B’s actions run afoul of the law? No. It is undisputed that we have sexual contact (oral sex) with a person who was incapable of giving consent (A was unconscious). But it is also undisputed that B did not have actual knowledge that A was incapable of consenting, and B didn’t mean to have sex with an unconsenting A. There is no crime.
I’ve never seen anyone enforce the “don’t drink alcohol” in homes, parks, workplaces, etc when it is offered to a minor.
Schala, the plural of “anecdote” is not “data.”
http://www.google.com/search?q=providing+alcohol+to+a+minor+at+home
Parents have gotten arrested and sued for providing alcohol to their kids and others’ kids. Kids get arrested and charged for underage possession for just being in the presence of alcohol at parties, mostly in college towns where there is a significant problem between the students and the community and a history of issues with over-consumption, but I personally taught court-mandated alcohol education classes with 48 students a week, 50 weeks a year, 90% of whom were under 21, around 1/3 to 1/2 of whom were cited in a private residence, easily half of whom were in public places like parks or on sidewalks, many of whom did not even physically possess alcohol at the time but were suspected of being drunk and either given a sobriety test or breathalyzed.
Clarence –
The law deals with ambiguous issues of competence and consent all the time. Was Grandma competent to sign that new will that gave all her Florida property to Drunken Cousin Billy? Is this particular minor competent to consent to her own abortion without notifying her parents? Is this other minor competent to request emancipation from his parents? Should this mother be allowed to retain custody of her children and make decisions about their care if she has symptoms of schizophrenia? Is this man competent to refuse to consent to the medical care his doctors have recommended? Is this woman competent to stand trial, and if so, can she waive her right to a court-appointed lawyer and represent herself? Can this person with a developmental disability meaningfully consent to marrying and having sex?
Competence and consent are fundamentally ambiguous concepts, in part because they are a product of so many complex factors (just to name a few: functional IQ, education, functioning in one’s native language, functioning in the dominant language, physical health conditions, mental health conditions, the impact of injury or normal aging processes, socialization, acculturation, trauma or the lack thereof, underlying personality features, economic vulnerability, physical vulnerability, degree of dependence/independence, chronological age, relative emotional maturity, one’s own cultural norms about maturity/responsibility, the dominant cultural norms about maturity/responsbility, qualities of relationships with significant others, current exposure to mood-altering or consciousness-altering substances, effects of prescribed medications, interactions of medications, individual moral frameworks in comparison to the dominant culture’s moral framework, etc. etc.). There is also not a clear, simple, universally agreed upon standard of competency, nor objective psychological measures of competency – there is no “Smith-Jones Measure of Adult Competency” test battery you can give someone and have a clear answer of where that person falls relative to other people.
This is why competency hearings of all kinds can be quite complicated and protracted, with different actors arguing different evidence supporting or detracting from perceived competency.
In the case of alcohol use, because alcohol is so quickly broken down by the body, using some kind of objective measure like BAC as a way of establishing its effects must be done in a timely fashion. The difference between drunk driving and rape reporting is that in the case of the former, an officer suspects, stops, assesses, and possibly arrests an offender at the moment the offense is taking place, while in the case of the latter, arrests in medias res almost never happen. No one gets a phone call the day after they’ve been out partying saying “your passenger last night made a report that you were driving drunk. Come down to the station so an officer can take your statement.”
And unlike evaluating someone who’s in the middle of a psychotic break, or degenerating from Alzheimer’s, or asking to get emancipated at 16, or seeking to represent themselves in court, the state of being drunk is an unstable, rapidly-changing state that also resolves relatively rapidly. Talking to me today is of no use in establishing what state of mind I was in last night during our game of beer pong.
Then we complicate things further due to the fact that alcohol affects different people differently, it affects women different at different times during their cycle, different types and combinations of alcohol affect people differently, it matters what you’ve eaten and how fast you drink it and what you mix it with and what kind of activity you’re doing… Physical systems (aka “bodies”) are complicated, and an objective measure would fall far short of being adequate here.
Really, I’ve run into this objection about “ambiguity” dozens of times (see also: taught alcohol education classes for years). I would start talking about alcohol and consent, and some of the men in the room would FLIP OUT when I made it clear that yes, having sex with a person who is incoherently drunk could be prosecuted as rape and is almost certainly a Very Very Bad Idea, no matter what your gender or the gender of your partner, and no, I cannot write you a formula for how you can Always Be Protected From Rape Accusations (other than “don’t have sex.”
They would argue and rage and complain at me, and I would patiently explain to them that ultimately, if they preferred not to be in a situation where they might have sex in a way that someone else would label “rape” later on, they could take steps like 1) moderating their drinking in order to be able to access their decision-making faculties, 2) practice giving and getting clear, explicit consent for sexual activity – I would even suggest ways for consent to be sexy rather than a turn-off – and 3) choose partners who, to the best of their knowledge, drank moderately, in situations where most people were drinking moderately. I would suggest other ideas too – set yourself a limit in advance, so you don’t have sex if you’ve had more than some pre-set number of drinks, or you don’t have sex with someone unless you’ve both agreed to stop drinking for a couple of hours, or if you decide to hook up with someone, agree that you won’t go beyond second base until next morning.
These harm reduction strategies were often very objectionable to these men, because they boiled down to: in order to be safest, you probably have to sometimes decide not to have sex that you want to have, or you have to decide not to have drinks that you want to have. Saying “no” to either impulse was deeply upsetting to this particular type of guy (and boy was it hard not to look at the women and other men in the room and say “these dudes? Remember them. Never party with them. Never have sex with them. Never let your friends have sex with them. Because they believe they should always be entitled to get whatever they want, when they want it.”)
Very, very few women (I would say about three women in the entire two years I taught) had a similar reaction. I gave them similar advice, and I did explain about women-as-perpetrators, men-as-victims, and about same-sex rape of both women and men. But women did not, openly anyway, seem to share the same feelings of entitlement.
Elusis:
I thank you for your effort, but would it surprise you to know that I am not only fully aware of every fact that you stated in your rather long comment there , but I have never had drunken sex or sex with someone even slightly intoxicated?
Oh, occasionally I”ve been to bars with friends, I’ve been to house parties, I’ve helped more than a few people out of the house or into bed when they were incapacitated by drink, but I’ve never been the one being helped, indeed, I go whole years sometimes without drinking. See my dad had a problem with addiction and I spent lots of my childhood and young teenage years wondering from bar to bar searching for him to get food money, and then a few more years trying to help him through therapy.
I’m in no danger from this law or any law like it, heck about the only law that might get me is if they ban sex and alcohol altogether , I suppose it’s possible I’d have sex with someone at a party who had one or two without necessarily even knowing it.
As for the rest, the LAW ITSELF is not supposed to be so vague that one doesn’t know when one is violating it.
Elusis:
About Schala: I know you don’t know this, but she lives in Canada. I doubt she has to worry about what the American “justice” system does very much. I hope that clears up any misunderstandings between you.
Mythago:
My concern in this thread has been with how we define rape (sexual assault in Wisconsin, a separate category of crime in most other states) and the affect of a law that is too vague to understand on mens rea.
You might notice I have went again and again to the fact that I want you to define a crime for me that clearly runs foul of this law. Your example fails the test as an example because it simply deals with someone passed out, and not only do we all agree that you can’t consent when you are passed out, but to my immediate recollection so does every state in the Union. I’m looking for something else, because if the only way to violate this law is when someone is passed out then all they had to do was write a law against sex when someone was passed out -heck, they could even throw in “sleeping” or “in a coma” as well.
Clarence @50: The mens rea is already addressed, because the defendant must actually know the person is incapable of giving consent, and they must intend to have had sex with a not-capable-of-giving-consent-able person. Again, you appear to be saying that mens rea means the intent to break the law, rather than intent to do the evil act. That’s incorrect.
As for ambiguity, Elusis and g&w have already gone over this; ‘consent’ and ‘competence’ and similar ambiguous concepts are something that are part of all kinds of laws, not just sexual assault. You can’t have a bright-line rule. You can have a very strict standard, which the Wisconsin law does: it’s not impaired, or tipsy, or more likely to have given consent than without alcohol, but incapable. Any defense attorney with two IQ points to rub together will say that if the accuser was able to string two words together, he was not incapable of saying “no”.
As for the A and B example, you asked me for an example of behavior that would run afoul of the law; I gave you a very simple one, and now you’re complaining.
Mythago:
“You can have a very strict standard, which the Wisconsin law does: it’s not impaired, or tipsy, or more likely to have given consent than without alcohol, but incapable. Any defense attorney with two IQ points to rub together will say that if the accuser was able to string two words together, he was not incapable of saying “no”. ”
Assuming this reading of the law is correct -which I doubt, based on how similar ambiguous laws have went in the past, but for the sake of argument – then the law would appear to be next to useless, basically only covering situations such as unconsciousness or force that don’t necessarily have anything to do with alcohol at all. In short, the law does nothing.
Or else my reading is correct and the law is so broad as to mess with mens rea because just about any sexual behavior taken when a person is alcohol impaired could be held against you.
It all depends on how you read it. That is the very definition of a poorly written law.
As for your example I specifically told you ahead of time that I wouldn’t count situations involving unconscious people, you bring in a hypothetical involving an unconscious person, and then you complain that I won’t accept your example?
Edited to add: I might specifically mention I assume Wisconsin had , prior to the passage of this law, as one of their elements of sexual assault -or at least rape law- that consent could not be obtained with an unconscious person. If that was not the case, this law would appear to close that gap, but it could simply be reworded to be explicit about that.
Clarence @52: your false dilemma makes no sense. As you say, it is possible to be conscious yet incapable of consent. The law would cover those instances. And I really don’t know what you mean when you say “mess with mens rea”.
If the hypothetical bothers you, sure, we can change it. One of A’s buddies thought it would be hilarious to drop a roofie in the tequila. B doesn’t know this. When A and B go into the bedroom, A is conscious but alternates lying still with his eyes open, thrashing around and babbling. Is this rape? If either A is capable of consent at all, or B didn’t intend to have sex with an incapable A, then, no. That is, it could be that A is in fact capable of consent but B had no idea at all that he was, and only found out when C rushed in and said “We gotta get A to a hospital, somebody drugged him”. It could also be that B knew about the roofies and secretly hoped that would knock A out, but A actually bounced back from the drugs and was capable of saying no. Then, still no rape, because you have to have each and every element present.
As in Elusis’s post, it appears that you want a bright-line rule of “if a person has a BAC of thus-and-such, or does X, Y and Z, you may assume they are capable of consenting despite having consumed alcohol”.
Great. Is this a two way street? Because *I* want you to answer some questions, too.
I’m not sure if you’re literally incapable of imagining someone who is too impaired to know what is going on, but not unconscious. Think back to your college days.
For example, someone who can’t understand who you are, where they are, what is going on, is probably incapable of consent. Someone who is tripping on acid and who thinks you’re a giant Ewok is likely incapable of consent. Someone who is so fucked up that all they can do is sit there and drool and try not to puke, and who won’t even notice if you touch them, is incapable of consent.
Add a person who knows that they can’t consent but who deliberately has sex with them anyway and, voila, rape.
So: Can you please explain a situation that bothers you? You’ve alleged that the reading is much broader than that; can you illustrate with an example, please? If we had a specific example of a BAD OUTCOME (in your view) it would make it much more possible to discuss this.
Or if you’d like we can round up a few lawyers and get them in the thread. Would you be willing to listen to some experts?
Gin & Whiskey:
I’m not sure I should worry about your “experts” if you can’t be bothered to read the thread. I’ve specifically mentioned a few ways that one could be conscious but incapacitated myself, in several of my posts on this thread. Heck, I’ll just refer you to posts 19 and 43.
“For example, someone who can’t understand who you are, where they are, what is going on, is probably incapable of consent. Someone who is tripping on acid and who thinks you’re a giant Ewok is likely incapable of consent. Someone who is so fucked up that all they can do is sit there and drool and try not to puke, and who won’t even notice if you touch them, is incapable of consent.”
Well, doh. That’s why why I asked questions earlier in the thread (and got no answers) concerning slurred speech, physical paralysis, etc. Now I see you are finally trying to spell out what I couldn’t get someone to be explicit about before.
Except, that I’ll be darned if anywhere in the law it spells out these common sense type of examples. Which is the whole problem for me in terms of how this law is written.
As for the example you requested it’s pretty straight forward as well:
1. A and B are have both consumed too much alcohol. Both are slightly intoxicated, enough so that both will have hangovers in the morning. During the act, B is capable of talking coherently if a bit slurred and not only agrees to sex with a yes, but in fact, asks for it. No one much notices when A and B leave the scene to go to the local Notell Motel because neither is obviously drunk to total incapacitation from a distance. B slurs a goodbye to a friend. Both can walk, if a bit shakily. The next day B honestly can’t remember whether they consented to sex with A or not but finds that this person is not their usual type and so is suspicious. B goes to the police, and after some consultation decides to press charges.
Now assuming this makes it to trial B will have at least one witness to testify that B was exhibiting drunken behavior -slurred speech, and A testifies as to B’s slurred assent to sex. Neither A nor B denies that sex occurred even though A admits to knowing that there was slurred speech and general uncoordinated movements. The fact that A was as drunk as B (which fact might be explicated by the bartender, A has no friends there) isn’t a defense even if it could be proven. In short, it would seem to be provable (esp since A’s intoxication can be discounted) that A knew:
1. That B was exhibiting drunken behavior such as slurred speech, crappy, uncoordinated movment
2. B had been drinking (A’s drinking is irrelevent) enough so that one might doubt B’s ability to express consent.
3. That A intended to have sex with B in this manner. Did not A claim that after the slurred consent they went ahead and had sex?
4. Of course it will not be argued that they never, in fact, had sex.
I see all the elements present to convict.
Of course I view it as morally grotesque the way it deals with issues of similar intoxication, but that’s a whole other kettle of worms.
This is really good “don’t respond in kind” practice for me. :)
That’s generally how laws work.
We CAN’T spell out every situation. There are infinite situations.
We CAN use hard generalities when we are dealing with very hard factors like “$$ in a bank account” or “are you over 18” or “is the car registered.”
But it’s not doable when we’re dealing with soft factors like “knowledge” or “consent” or “level of intoxication.”
Let’s say you include all of those “common sense” examples above. What conclusions should people draw from the fact that you only addressed two or three of the infinite possible scenarios? What conclusions should people draw when the situation is entirely different? What conclusions should people draw when your scenario is mostly applicable, but incomplete? What conclusions should people draw if your scenarios aren’t 100% consistent–which they won’t be, since they address humans?
Let’s say that you think this makes common sense:
“Someone who is tripping on acid and who thinks you’re a giant Ewok is likely incapable of consent.”
It only seems perfectly clear if you don’t try to apply it. Who gets to decide? What’s the standard for “tripping on acid?” How do you tell if the trip is bad enough to qualify? Etc.
In the long run, it becomes apparent that the tripping on acid example is actually LESS useful than the “incapable of consent” example. It’s too specific, and it doesn’t have any other handy definitions elsewhere in the law, and it’s unlikely to have the benefit of years of court decisions analyzing what it means.
Moving on:
Er, how?
” B was exhibiting drunken behavior such as slurred speech, crappy, uncoordinated movment…one might doubt B’s ability to express consent” \= “B was, beyond a reasonable doubt INCAPABLE OF CONSENTING”
I put that in caps because the words mean something. You keep acting like you’re quoting the statute, and you keep using other words. Either you’re being deliberately deceptive, or you’re trolling.
mythago:
Hm. So why should that person be held accountable? In fact, one could argue that if someone has a BAC of, say, .20 then they couldn’t form an intent to break the drunk driving laws and thus shouldn’t be held accountable for that, either? Would it be because when they made the sober decision to drink enough to get drunk they should have been aware of the consequences? That’s an actual question, I don’t know the answer. If that is the answer, though, then in a drunk sex situation that argument starts to open up what is commonly termed “blame the victim” – if you didn’t want to get raped you shouldn’t have gotten drunk at the party/worn that kind of clothing/walked late at night in that neighborhood. All arguments that I hold invalid from the viewpoint of the law and immoral from the viewpoint of the other person involved in the sexual act iff that other person was sober.
Agreed. And not just with the FBI but in any juristiction. So let me ask this – can anyone tell me in cases where a young woman had drunk sex and then later claimed she was raped, how often is the defense of “I was drunk too” a) raised and b) successful? And are there even any cases of the opposite situation – where the guy was drunk and a woman took advantage of him – even ever brought? Of course, of ancient days we know that for men alcohol increaseth the desire but stealeth the ability, but even so ….
Would it be because when they made the sober decision to drink enough to get drunk they should have been aware of the consequences?
Yes.
you can’t usually self-medicate yourself out of mens rea. if you deliberately drink enough to do stupid things and if you intended to drink, then you’re responsible for the stupid things.
If someone slips alcohol into your punch and if you get drunk without intending it, then you can escape responsibility.
Clarence, under North Carolina law, if you drink yourself into near unconsciousness (your A and B categories) and someone has sex with you, it isn’t rape. Wisconsin law is rightly broader than NC law, and covers drinking yourself into near unconsciousness. Incapacity to consent is, as g&w says, a very high standard. You agree that Wisconsin law should make it a crime to have sex with someone who is barely conscious from drinking. That is what the law does.
[Deleted a bunch of stuff about how tripping people frequently legitimately consent to sex and are perfectly capable of not consenting to sex.]
RonF,
If you are so drunk you are incapable of consenting, you are incapable of actively engaging in sex. If two people are incapable of consenting, they are incapable of having sex with each other. So two people are never so drunk that they rape each other by incapacity to consent. Even if you can manage to actively have sex while incapable of consenting, that would mean that both people committed rape, not that neither person committed rape, so being drunk to the point of incapacity to consent is not a defense against having raped someone who was drunk to the point of incapacity.
If you have a standard of diminished capacity to consent, then you can have scenarios where two people with diminished capacity to consent have sex and either of them can call it rape, but I know of no jurisdiction where diminished capacity to consent makes sex rape.
I suppose that if two people drug each other’s drinks in order to commit rape and then have sex (I think there are jurisdictions in which actively tricking someone into a diminished capacity in order to have sex with them is legally rape, but I’m not sure of that), that either one can call it rape, but I doubt that ever happens. Anyway, in that case both of them should be prosecuted for (at least) attempting to rape the other one, since they both had evil intent.
So let me ask this – can anyone tell me in cases where a young woman had drunk sex and then later claimed she was raped, how often is the defense of “I was drunk too” a) raised and b) successful? And are there even any cases of the opposite situation – where the guy was drunk and a woman took advantage of him – even ever brought?
I can only speak anecdotally, but in cases I’ve covered as a reporter or that my colleagues have covered, the defense has always been “she wanted it,” and the victim’s drunkenness is used to imply or outright say that she is an unreliable witness, isn’t remembering correctly, etc. My guess is that defense attorneys don’t think “I was drunk too” is a very good defense, given that people commit all kinds of crimes (especially assault and its relatives) while drunk and are still criminally liable.
I can remember one murder case in which a man stabbed his wife to death and tried to argue some sort of temporary insanity/incapacity based on how drunk he was. I think the defense was trying to get the jury to go for a manslaughter verdict, instead of murder, but I can’t remember how it all turned out or even, really, the details of the legal arguments. It was a long time ago.
I can think of a few cases of men raping/sexually assaulting other men in which the male victim was impaired and cases were brought. The defense was similar – “he wanted it” and “he’s not remembering it correctly.”
In all of these cases, the victim’s impairment was only one element of the crime. In some cases, the victim passed out and woke up to find the person on top of them. When they resisted or tried to push the person off, they either didn’t stop or didn’t stop right away. In other cases, both parties had been drinking, but the accusation was of a straight-up forcible rape.
The issue that always has seemed difficult to me with alcohol and sexual assault isn’t whether the suspect/perp is also drunk but rather the distinction between blacking out and passing out. Someone can be up walking and talking but later remember nothing.
I think it would help to think about incapacity negatively. Incapacity is a lack of capacity. If you have the capacity to say, “Yush, I wunna fuuuu” you have the capacity to consent. If you have the capacity to pull someone to you and actively engage with them sexually, you have the capacity to consent. If you can answer the question, “Does this feel good?” you have the capacity to consent. You may have a seriously diminished capacity to consent, but you are still actively forming the thought, “I want to have sex” and translate that thought into actions. If you have sex with a drunk person in WI and they actively participate in consensual sex with you, they were not incapable of consent. If they reach a point where they are just kind of lying there or moving ineffectually, if they reach a point where when you say, “Is this good?” they can’t answer, and you realize they’ve reached that point, and you keep having sex with them, then (rightly) under Wisconsin law you have committed rape.
Oh, and that’s why the “I was really drunk at the time” defense becomes viable. If you are really, really drunk and you start having consensual sex with someone who is also really, really drunk, and then the other person lapses into incapacity to consent, then you can try to use your extreme drunkenness as an argument for why you didn’t realize that they had lapsed into semi-consciousness. The Wisconsin standard is not that a reasonable person should have had knowledge that their partner was incapable of consent, it is that they had actual knowledge and intent to have sex with an incapacitated person. If you meant to have sex with your consenting partner and didn’t notice when they stopped being able to consent, you have not committed rape under WI law.
Charles S:
Except that Wisconsin law specifically excludes drunkeness as a defense, even though in YOUR example, I think it would be fair to consider it.
G&W:
It’s possible to convict for the simple reason there is no standard by which you are measuring consent. Thus it is totally up to the jurors (or Judge if a jury trial is waived)If the definition of consent varies even a little among jurors this could be construed as taking advantage of an intoxicated person, and there you have your conviction.
See the problem here is you keep going to how hard it might be to prove that A knowingly had sex with a person who had so much alcohol they could not consent, but not only is consent fuzzy , but you’ve also got a fuzzy target as to what constitutes true lack of ability to consent. I’m sure you know as well as I do that more than one legal scholar has argued that real consent cannot be obtained when someone is even the slightest bit drugged. Now, you might say well, Wisconsin has lots of case law that deals with issues of consent, but the real question is if that law is settled in terms of consent and alcohol. This law would seem to suggest the answer is “no”.
If the law gave examples we might at least know what it was aiming for, instead of having to guess.
Schala:
It does not surprise me to hear this and I’m sure that it’s true in your own experience, but this sort of thing varies extremely depending on jurisdiction and local mores. In my jurisdiction, I have certainly arrested people for providing alcohol to minors, and also arrested minors for possessing tobacco. Both are pretty routine, if not all that common.
Grace
RonF:
Just for clarity: the original post was talking about how crimes are classified in the FBI Uniform Crime Reports (UCR), not how they are classified for purposes of prosecution. The UCR purports to collect data from every jurisdiction in the United States, though some jurisdictions simply refuse to report, because it costs time and money and there’s no immediate payback. There are a number of problems with the UCR and the NIBRS standards which define how such data is gathered, though the rape definition is probably the most egregious.
For instance, a couple can be legally married under state law, but their relationship cannot be coded properly in the NIBRS system if they are of the same gender.
Grace
RonF @57: The problem is that the required intent is not intent to break the law. It is intent to commit the act which breaks the law.
To try and avoid conviction for stealing your car, I would have to argue I was so drunk that I could not form the intent to break into your car, start it up and drive it away. Which, given that apparently was capable of exercising the gross motor skills to do all that before the freaking tree jumped right in front of me, Officer, is kind of a tough sell.
Clarence @64: Well, anything’s possible. But what you’re arguing is that we should treat rape laws specially and different than all other laws. As Elusis and g&w have correctly pointed out, we have buckets of laws – civil and criminal – that have non-bright-line standards, like ‘consent’, ‘knowledge’, ‘reasonable’, ‘competent’, and so on. Those laws do not (and really, cannot) come with a book-length list of examples to cover every possible situation. Yet you are arguing that when it comes to rape, that is the one law where we can never, ever allow a jury to weigh what the standard is.
(Interestingly, Catherine Mackinnon also believes that rape is ‘different’ and should be treated differently than all other laws – in her view, having a lower standard of proof. I don’t think she’s right either.)
@56 beat me to it, but your example did not actually refer to the elements of the Wisconsin law. And regarding consent, the standard is that the prosecution (not the defendant) must convince all twelve jurors, beyond a reasonable doubt – not ‘any doubt’, not ‘but legal scholars might argue’, not ‘it is possible that’, not ‘might doubt’, but reasonable doubt – that B was not merely high, or impaired, or slurring, but actually not capable of consenting to sex. Since B, in your example, was not only able to talk coherently (if slurred) but both said yes and affirmatively asked for sex, where is the “reasonable doubt” as to whether B was incapable of consenting?
Except that Wisconsin law specifically excludes drunkeness as a defense,
Good. Where is that specified?
I wonder if that applies in relation to a law that requires “actual knowledge” rather than a “reasonable person” standard? If actual knowledge is required and you don’t have that actual knowledge because you were unobservant, and you were unobservant because you were drunk, you still didn’t have that actual knowledge.
Clarence: if you’re not going to actually respond to my comment, just object to its length, then I’m not sure what purpose this discussion has. Your de-rail about what you personally have or have not done has absolutely no relevance to your objection to these laws, or to the applicability of my reply, which seems to have had absolutely no impact on your objection to the lack of a hard bright line whatsoever, despite the fact that we are talking about an area of law that is much more complex than how many sheep one can legally carry in one’s omnibus or the number of printing presses one can legally operate in a city-owned swimming pool and therefore relies on more abstract and contextual concepts.
And I responded to Schala because this thread was largely about US law, and in any case, anecdotes are still not data.
This may be in the law, and maybe I just missed it, but I looked, and have been unable to find this.
Where is this specified?
—Myca
(1) Is being incapable of consent really a standard quite like the reasonableness of force or knowledge of fraud? I think with force or knowledge in a particular case we could argue the pros and cons back and forth, based on objective threats or what is objectively known, and get somewhere. Could we do that with capacity to consent? It seems much more a personal reflection of what kind of mental state you think is appropriate.
(2) “Any defense attorney with two IQ points to rub together will say that if the accuser was able to string two words together, he was not incapable of saying “no”.” But the actual standard is incapable of consent – i.e. not being able to legitimately say yes – so just because someone’s capable of saying no doesn’t matter. And the idea that someone can consent if they are merely physically capable of saying yes is totally bogus. It’s a much more complicated concept involving knowledge, and someone’s reasoning or emotions.
(3) What’s the difference between being incapable of consenting and not consenting? Specifically, is there anything that could fall under the first case that wouldn’t fall under the second. That seems to be to be important as to whether this is just making it easier to convict people who are already guilty of rape under a different clause, or extending what’s considered rape.
The previous definition of rape was extremely vague and allowed for many different loopholes around what actually consists of “rape.” A more clear definition is most certainly needed. The question exists though, could rape be something different to different people? We all know that forcible actions toward a female against her will is considered rape, but there are many gray areas such as coherency and if it’s actually consent or not. How would we be able to define coherency in a particular situation? I’m not saying a man taking advantage of a girl who is intoxicated is right in any way whatsoever, but at what level is it considered rape? A more in depth meaning of rape is necessary for deterrent purposes, but every situation is different, and that should be taken into consideration.