Is this rape?

[Ser Scot A Ellison]

Stego,

[quote name='Stego' post='1736077' date='Mar 27 2009, 14.47']Two drunk people fumbling at each other in lust is not rape.

FFS, people.[/quote]

No, that wouldn't be rape. But the problem we are grappling with is whether someone who is fall down drunk has the capacity to consent to sex. At a minimum, targeting anyone because they are drunk is incredibly bad form on the part of the person doing the targeting. If the person lacks the capacity to consent, it is rape.

[eta]

The problem with my belief that such an action is rape is evidentiary. It's difficult to prove someone lacked capacity to consent because it almost always comes down to "he said" v. "she said" regarding the circumstances surrounding whether the victim lacked the capacity to consent.

[TrackerNeil]

Now that this is over, perhaps Mr. Bacon will learn that it's probably best not to f*ck people drunk enough to not be fully aware what they're doing.

[Shryke]

And who says he wasn't drunk out of his mind too?

[Ser Scot A Ellison]

Shryke,

[quote name='Shryke' post='1736121' date='Mar 27 2009, 15.10']And who says he wasn't drunk out of his mind too?[/quote]

And we come full circle. If being drunk means you lack [i]Mens Rea[/i] to commit a crime how can we hold drunk drivers criminally responsible for their actions when they get into a car and kill someone else but don't recall getting into the car?

[Shryke]

[quote name='Ser Scot A Ellison' post='1736127' date='Mar 27 2009, 14.15']Shryke,



And we come full circle. If being drunk means you lack [i]Mens Rea[/i] to commit a crime how can we hold drunk drivers criminally responsible for their actions when they get into a car and kill someone else but don't recall getting into the car?[/quote]

Then why are you assuming HE'S the rapist and not her?

[Quijote Light]

[quote name='TerraPrime' post='1736088' date='Mar 27 2009, 13.51']Exactly.

As I said before, all men should just slam down 5 vodka shots and go to town. We can start editing out all the rape laws in our books now.[/quote]
Why not just do away with the shots entirely and just carry around a chloroform soaked rag and some duct tape, because that's obviously what Stego is saying. :rolleyes:

Scot,

Unfortunately in this case, we really don't have the evidence to determine if there was a crime commited. It's quite possible that what occured here was mutual drunken sex.

Everyone seems to be looking at blacking out as synonimous with passing out, when the two are not the same. I have blacked out as a result of drinking, and been informed the next day that I was coherent and ambulatory for as long as two hours of the period of which I have no recollection.

I think its kind of sad that some people keep trying to drag this thread back down to the level at which it started, when it seemed to be taking a turn for the better last night. All this bullshit just keeps interfering with what could be an interesting and helpful dialogue.

[Ser Scot A Ellison]

Shryke,

[quote name='Shryke' post='1736144' date='Mar 27 2009, 15.29']Then why are you assuming HE'S the rapist and not her?[/quote]

I'm saying he was not raped because he has memory of the evening before and indicates he consented. As I said above the problem with the capacity argument is evedentiary, it is difficult to show a victim lacked capacity to consent.

QL,

I understand the evedentiary problems. I simply believe that Mr. Bacon, at best, made a very poor choice to have sex with the alleged victim who was extremely inibriated. Just not a good idea.

[Shryke]

[quote name='Ser Scot A Ellison' post='1736153' date='Mar 27 2009, 14.37']Shryke,
I'm saying he was not raped because he has memory of the evening before and indicates he consented. As I said above the problem with the capacity argument is evedentiary, it is difficult to show a victim lacked capacity to consent.[/quote]

So how does this jive with your drunk driving analogy? It's not a crime as long as you get REALLY drunk, cause then it's not your fault?

[Quijote Light]

[quote name='Ser Scot A Ellison' post='1736153' date='Mar 27 2009, 14.37']QL,

I understand the evedentiary problems. I simply believe that Mr. Bacon, at best, made a very poor choice to have sex with the alleged victim who was extremely inibriated. Just not a good idea.[/quote]
Agreed that it is not a good idea. But you seem to be working under the premise that he had not drunk enough to impair his judgement as well. This is a pretty messed up situation, what with the only testimony available that pertains to the sex act being from the accused.

[Black Dow]

[quote name='Ser Scot A Ellison' post='1736059' date='Mar 27 2009, 14.39']Shryke,

What I don't understand is how anyone would believe jumping a super drunk woman, or man for that matter, [i]isn't[/i] rape.[/quote]

That depends on your definition of 'super drunk'.

If super drunk rises to the level of substantial impairment, then sexual conduct on the super drunk person is rape in my state, depending on the [i]mens rea[/i] of the defendant. But the cases I am reading show that substantial impairment is a very difficult condition to show. It's beyond ordinary drunkenness. It's beyond shitfacedness. It's basically either being passed out or totally incoherent.

Speaking from my own perspective, I get drunk fairly often. I do like my drinks. And I get to the state that most people would call 'super drunk' perhaps a time or two a month. I would estimate that I could count on one hand how many times I have been so obliterated that a sexual act upon me would legally be deemed to be rape- that I would meet the definition of substantially impaired.

BTW- I am reading some suggestions from the feminist perspective (if I interpreting correctly) that because a man has a penis and has to put it somewhere, that he has greater exposure to be charged against a drunk female, than the female has to be charged for having sex with a drunk male.

That's absolutely incorrect at least in my state. The law makes [i]no[/i] distinction between gender for this offense. A woman who seduces a substantially impaired male is [i]every bit[/i] as legally culpable as a man who seduces a substantially impaired female. Now, as a practical matter, if it's hard to find a jury to convict the guy who takes advantage of the drunk girl, rest assured that it's exponentially harder to find a jury to convict the woman who takes advantage of the drunk fellow. But the legal standard is exactly the same, regardless of gender.

[Ken Stone]

I don't understand how she can contend that a: She didn't remember anything and b: she didn't consent to sex. If she didn't remember how can she claim she didn't consent? If she can say with conviction that she didn't consent than clearly she remembers something.

[Black Dow]

[quote name='Quijote Light' post='1736147' date='Mar 27 2009, 15.32']Why not just do away with the shots entirely and just carry around a chloroform soaked rag and some duct tape, because that's obviously what Stego is saying. :rolleyes:

Scot,

Unfortunately in this case, we really don't have the evidence to determine if there was a crime commited. It's quite possible that what occured here was mutual drunken sex.

Everyone seems to be looking at blacking out as synonimous with passing out, when the two are not the same. I have blacked out as a result of drinking, and been informed the next day that I was coherent and ambulatory for as long as two hours of the period of which I have no recollection.

I think its kind of sad that some people keep trying to drag this thread back down to the level at which it started, when it seemed to be taking a turn for the better last night. All this bullshit just keeps interfering with what could be an interesting and helpful dialogue.[/quote]

Yes. A blackout doesn't really tell you how drunk you were. It can be an indicator. But there have been times when I've been flat-out obliterated, puking drunk, slobbering like Vargo Hoat, and have a near-perfect recollection of everything that happened on that very night. On other occasions, I have had no more than a 6 pack and can't remember a damned thing that I was doing the night that I drank it.

And that's just me speaking. Some people blackout almost everytime they drink, even if they are not unusually drunk, while others can drink to the near point of death every time and never have a blackout.

[TerraPrime]

[quote name='Quijote Light' post='1736147' date='Mar 27 2009, 14.32']Why not just do away with the shots entirely and just carry around a chloroform soaked rag and some duct tape, because that's obviously what Stego is saying. :rolleyes:[/quote]


As long as the man is drunk, then it's okay.

[Arlingzen Bill]

[quote name='TerraPrime' post='1736170' date='Mar 27 2009, 15.57']As long as the man is drunk, then it's okay.[/quote]

Its always okay if the woman is on top.

[Shryke]

[quote name='TerraPrime' post='1736170' date='Mar 27 2009, 14.57']As long as the man is drunk, then it's okay.[/quote]

Wait, so if their both drunk, it's the man's fault?

[mormont]

Since a lot of this thread is now going back over ground already covered, and most of what's left isn't very constructive, and it's on page 19 anyway: I'm just going to close this one. I have no doubt we'll return to the general topic sooner or later, but no direct sequel threads please - I think we could all do with a break.