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[Morrigi]

The problem with the above is that people are both knowingly and willingly getting drunk, and are thus responsible for their own actions while drunk. If you're 17 years old, you can't decide to have been 20 beforehand.

[Reelya]

@GavJ: Yet we hold drunk people to an adult's legal status. It's not very consistent to treat only the drunk people you want to as children, and everyone else is held to an adult's legal consequences.

Unless you can explain to me how you're making the determination of which drunk people get treated as adults and children in some objective way rather than an arbitrary "because I said so" way.

Basic scenario: two separately and equally drunk people meet. One says "let's have sex", the other says "ok then". Are you holding that the first one is a rapist, or not? Are they both held to have a child's ability to make decisions or not?

A child is not charged for having sex with another child of the same age, so if you're using that analogy as the basis of the legal decision, then how can you determine a "guilty party" out of these two? By your "drunk = child" logic they should be treated as two children having sex, which, like mutually drunk non-forced sex, makes no sense to charge as statutory rape because it's silly to say they raped each other at the same time.

[GavJ]

The problem with the above is that people are both knowingly and willingly getting drunk, and are thus responsible for their own actions while drunk.

You are responsible for your criminal acts, yes. You are not responsible for acting in a way that makes you more likely to be a victim (that would be the "deserved it for wearing a miniskirt" argument).

Which is why I said earlier in the thread that if two people have willing sex with each other when both of them are too drunk to be making normal decisions, they are both acting criminally and they are both also acting in a way that makes them more victimizable. But only the first of those is something they can be punished for. So ... allow them to both be punished for it. BOTH should simply be liable to be guilty of rape (if their partner presses charges only. Screw the DA doing it by himself crap, that shouldn't be a thing).

Crimes don't cancel each other out in any legal system I've ever heard of, so this is the only logical conclusion that I can see. Same as 3 pages ago.


Another way of writing the same thing:
Partner A: Drank liquor, knowing it could make them act criminally, also that it could make themself an easier victim.
Partner B: Drank liquor, knowing it could make them act criminally, also that it could make themself an easier victim.
Crossed out ones are victim blaming and don't count. Remaining ones are liabilities, and don't cancel each other out either, because that's not a thing in our legal system.
Conclusion: both have liability for valid rape charges.

[GavJ]

Anyway obviously a lot of people aren't going to agree about that, and I don't really care to defend it further, because I have no emotional investment in that double rape thing. I am just following it to the only logical outcome I see.  But if you want to say it cancels out anyway, as a new precedent, whatever.


More importantly:

For situations where one person is drunk only, still cogent enough to say yes, though, and not cogent enough to be reasoning better than a minor, this does make fine sense and is a valid threshold for determining rape.

Because in that case, there's no ambiguity or weirdness, since the drunk person can't possibly be construed as raping anybody, as their partner is not similarly inebriated. So the ONLY thing they did is make themselves an easier victim, which amounts to the miniskirt argument against them alone.

[Phmcw]

Gavj, you're responsible for all your actions while drunk. Period.
That's not a question, that's not open to debate, that's the law.

http://www.nolo.com/legal-encyclopedia/lack-capacity-to-contract-32647.html

[Glowcat]

Umm... in your link:

However, if a party is so far gone as to be unable to understand even the nature and consequences of the agreement, and the other (sober) party takes advantage of the person's condition, then the contract may be voidable by the inebriated party.

In the late 19th century, Mr. Thackrah, a Utah resident and owner of $80,000 worth of mining stock, went on a three-month bender. Mr. T's fondness for alcohol was well known, and a local bank hired Mr. Haas to contract with the inebriated Thackrah. Haas did the deal, getting Thackrah to agree to accept $1,200 for his mining stock. When he sobered up (a month later), Thackrah learned that Haas had turned over the mining shares to a local bank (apparently the real culprits in the scheme). Thackrah sued Haas. The case went all the way to the U.S. Supreme Court, which ruled that the agreement was void because the bank and Hass knew that Thackrah had no idea what he was doing when he entered the contract. The bank had to return the shares to Thackrah, less the $1,200 he had already been paid.

So clearly it's more comma, or perhaps semicolon, than period if only one party is drunk. Though I doubt both parties being drunk should merit legal sanction even while it could still involve personal accountability.

[Rolan7]

If you think drunk people shouldn't screw each other, then please make that case.  But calling consensual sex "rape" is nonsense, and leads to particularly ridiculous concepts like "mutual rape".  It lumps actual rape in with consensual sex.

"Your definition is wrong because it would lump my definition in with things that aren't my definition"  Uh, yeah. that's the point. I don't agree with what you're calling rape, and I am INTENDING to lump additional things in, because I think additional things are rape than you do.

I'm using the dictionary and common definition.  You're unilaterally redefining the word just to apply it to (incredibly popular) behavior you don't agree with.  If you were to somehow succeed, you'd only be making a lot of party-goers "rapists", which would do a lot of damage to the stigma of actual rape.

It's about consent and has always been about consent. Consent, IMO, implies RATIONAL consent. "Yes" by itself is meaningless if the person isn't in a state to realize the consequences.

By choosing to drink, they're signing off on everything they do and say while drunk.
If they didn't choose to drink, but ended up drunk, something criminal is going on and they didn't actually consent.  IF the partner knows they were manipulated, then the partner's a rapist.  Whoever manipulated the person is also a rapist, arguably, and certainly a vile criminal.

That's exactly the same reason why we make sex with children illegal. [/b]They can say yes all they want and occasionally might mean it quite sincerely, but by not yet being able to comprehend all the ramifications or consequences at a sufficiently rational level, we do not consider this consent.

A person who is drunk (as in, into the realm of not their normal decision making state) should be treated with the same logic -- they are rendered incapable of making proper considerations of consequences due to an artificially inhibition lowering drug, and thus their "yes" should not be considered consent any more than a child's.

Specifically, since "child" in most places for consent = as old as 17 years old, the amount of drunkenness that should be illegal to have sex with is the amount that renders the average adult with equivalent decision making ability as a 17 year old, or less. Which is way the hell less than blackout levels.




Edit: if you disagree, then I think you should be obligated to explain why we shouldn't lower the age of consent by your same logic. For example, if you think all the way to near-blackout "don't even know your own name" is the level at which it becomes rape, then basically you're saying that you have to be so drunk as to be dumber than a 3 year old who can easily tell you their name. Yet before that, you're saying they are fine to give consent? If so, do you think we should lower the age of consent to 3? If not, why not, if 3-year-old levels of rationality are sufficient to give consent?

It's very simple.  Adults who drink have chosen to become stupid.  Thus adults they're still responsible for the stupid things they do, to themselves or others.  Minors don't choose to be naive, they simply are (assumed to be).

You've made decent arguments that people should, to be on the safe side, refuse sex with people who are particularly drunk.  I respect that, and agree it should be a factor in practical decision making.  If someone's gotten themselves drunk and is making bad decisions, it's likely unwise to be involved.  I think most of us agree on this point.

Why is it unwise for personal decision making of "everyone involved" and yet ridiculous to suggest that it be made more explicitly into law? Things that are wise for everyone and that affect people other than yourself (including possible harm) are precisely the sorts of things that make great laws.

Uh, hm.  That's very political.  Basically I don't think my personal judgement should be codified and enforced as law to protect people from themselves.  Most laws protect people from each other, not from themselves, and that's how it ought to be in my opinion.

Also it's a single factor out of many, and depends a lot on the amount of intoxication.  It's not good law material at all.

Edit:

Umm... in your link:

However, if a party is so far gone as to be unable to understand even the nature and consequences of the agreement, and the other (sober) party takes advantage of the person's condition, then the contract may be voidable by the inebriated party.

Actually, yeah, I'm changing my position a little.  There IS a point where people don't even know what they're doing, even if it's their fault they're drunk.  At that point it would be taking advantage...

[Phmcw]

Umm... in your link:

However, if a party is so far gone as to be unable to understand even the nature and consequences of the agreement, and the other (sober) party takes advantage of the person's condition, then the contract may be voidable by the inebriated party.

In the late 19th century, Mr. Thackrah, a Utah resident and owner of $80,000 worth of mining stock, went on a three-month bender. Mr. T's fondness for alcohol was well known, and a local bank hired Mr. Haas to contract with the inebriated Thackrah. Haas did the deal, getting Thackrah to agree to accept $1,200 for his mining stock. When he sobered up (a month later), Thackrah learned that Haas had turned over the mining shares to a local bank (apparently the real culprits in the scheme). Thackrah sued Haas. The case went all the way to the U.S. Supreme Court, which ruled that the agreement was void because the bank and Hass knew that Thackrah had no idea what he was doing when he entered the contract. The bank had to return the shares to Thackrah, less the $1,200 he had already been paid.

So clearly it's more comma, or perhaps semicolon, than period if only one party is drunk. Though I doubt both parties being drunk should merit legal sanction even while it could still involve personal accountability.

The exeption is if one party knowingly took advantage of the drunk party. In this case if they used more reasonable terms, they'd have gotten away with it (no one in his right mind would sell 80 000$ worth of stock for 1200$).

[GavJ]

Yes, having sex with somebody when you don't know if they would otherwise agree is taking advantage of them.

The exeption is if one party knowingly took advantage of the drunk party. In this case if they used more reasonable terms, they'd have gotten away with it (no one in his right mind would sell 80 000$ worth of stock for 1200$).

It does not say that in the quote, sorry. The only qualification is that he didn't know what he was doing.

If you want to add your own interpretations, Ginsburg is probably retiring very soon. I suggest you seek her position.

I'm using the dictionary

Alright, let's use the dictionary (emphasis mine):

Rape:
1: the unlawful compelling of a person through physical force or duress to have sexual intercourse.

Duress:
1: Threats, violence, constraints, or other action brought to bear on someone to do something against their will or better judgment.

By choosing to drink, they're signing off on everything they do and say while drunk.

As just provided by Phmcw's helpful link, that is not the case law.
You are held responsible, like I said earlier, for your criminal actions or torts (there are none if your partner is sober).
You are NOT held responsible for simply making yourself an easier victim.

Saying that you should be held responsible for being an easier victim is literally the exact same argument as the "she deserved it for wearing a miniskirt" one. Compare this to criminality "she deserved to be attacked, for shooting at me" and suddenly it's quite reasonable.  There is a distinction between the two.

[Neonivek]

or other action

Other action I don't think means what you think it means.

Drugging someone so they are basically forced to have sex with you (lets say because you give them a hormone overload) isn't duress.

I'd agree it is rape, but I'd never agree it is Duress.

Duress is a lot like "Under stress". Where there is no stress there is no duress.

But to me it is that either the definition of Rape is limited... OR that we need a new word to describe these other crimes.

[GavJ]

It really isn't. Duress is force, threats, blackmail, or just clever manipulation of circumstances - anything that increases the power of coercion or funnels somebody at higher than base rates toward what would not be their favored outcome normally (i.e. their sober, awake, calm, collected, non-leveraged opinion)

Stress is one of many ways to do that, but is by no means necessary for the term. You can be calm as a cucumber, and be chess-moved into a corner and just go "oh well you've constrained me down to one option I guess I'll take it" *shrug*  == duress.

If you want to just say "under stress" and nothing else, the word for that is "stress"

[Neonivek]

It isn't just "under stress", asking someone to PLEASE have sex with you... isn't duress. It is stressful but it isn't the degree.

Duress is a degree of stress or worry.

No one even needs to do anything to you in order for you to be under duress either.

[GavJ]

It's not the asking them that is duress 
It's the artificial inhibition lowering from drugs.
Note that the definition does not require that the source of duress be the rapist.

And no, just repeating that duress = stress does not make it so. That's just simply not what the word means. Please provide references of it requiring stress.

(and no this discussion is not just all hinging on that one definition that mentions duress. It's a legal term too and is used in other wordings of a subset of state sexual assault laws, for example, like California's (penal code 261))

It's also just an excellent word for covering what I think SHOULD be reasonably included in laws.

[Neonivek]

I am trying to explain that duress isn't an umbrella term for everything that could possibly supersede normal rational actions.

HOWEVER!!!

http://legal-dictionary.thefreedictionary.com/duress

It does INDEED also list what drugging someone to do what you say is called.

As for saying "but the dictionary" may I add that the dictionary definition you got didn't necessarily agree with you it just was incredibly vague.

[GavJ]

Yes I agree it's vague, which is enough. The concept does not clearly exclude or include this sort of particular situation.

Which makes it a perfect area for discussion on a forum about whether it should clearly include it. I believe it should, because the concept of consent in the first place is outright silly IMO if it doesn't depend on sober, un-coerced, etc. baseline conditioins.

Disagreeing by just saying "well that's not rape though the end" is not very productive is the ultimate point. It's well within the vagueries of the term, so we should turn to discussion of what it SHOULD be, and how SHOULD consent be defined in a way that would make any sense if it didn't require things like sober, un-coerced conditions?