Rape grey zones. "My boyfriend 'sort-of' raped me."

[crayzz]

That scenario always frustrates me, partially because its thrown in peoples faces to mock the idea that drunk people can be raped, and partially because it makes clear a vocabulary limitation.

The problem with your partner being drunk is that their consent (i.e. when they say yes) isn't being decided by a fully capable mind. A sufficiently capable mind can be trusted to make decisions for itself; an incapable mind (e.g. children, mentally ill people, drunk people) cannot. You therefore don't know whether or not you're causing them harm, because they can't be trusted to tell you what is actually OK, and what isn't.

Often times it's OK. Drunk people have been fucking for quite a while, sometimes to great pleasure (more frequently mediocre pleasure, I would think). Often times, things aren't OK. Sometimes, those not-OK things are traumatic.

If they are drunk, you don't have good reason to believe that you aren't going to do them harm. You're acting recklessly, like someone firing a gun in the suburbs on the basis that there was no one directly in front of them. When one of the plausible consequences of your action is trauma inflicted upon another person, you need a damn good reason to believe that plausibility won't happen. For instance, you could restrict your pleasure shooting to clear areas or gun courses, and you could restrict you sexual encounters to the sober minded who say they want it.

People who have sex with drunk people are acting recklessly. Both those people (as they presumably are acting with equal initiative, not one person doing all the oushing and the other doing all the acquiescing) in your scenario are acting recklessly.

[Tem]

As long as we're talking about grey-zones, to get slightly off-topic, what do you say about this situation?

Boy and girl meet at a party/ club/ boozy social event. They both get drunk, while no one person makes an effort to make the other people drink more, but they're enjoying drinking and the conversation so they end up sloshed and go somewhere where they make the beast with two backs. While both consented to sex, they were drunk at the time, so I don't personally believe they were able to give meaningful consent. Are they both rapists? Neither? Do you disagree with any of my assumptions (other than disagreeing on the basis of statistical unlikelyness of the specific situation)?

I have been told that men who are very drunk won't be able to get an erection. Also, to get somewhere where they can have sex, both people would have to be able to walk.

But assuming the situation exists as you describe it ... they're both Schroedinger's rapist. Whether they have raped someone will be known in the morning, when both of them are sober and can decide whether they would have consented while sober.
I suspect in most cases where drunk people have sex to which they both consented (I mean, really consented, not just failed to say "no") in their drunk state, they still think it was a good idea when sober. As I pointed out above, such a thing can only happen when both participants are still not too drunk to walk, so some mental capacity likely remains, if no one is taking advantage of the other's intoxicated state to pretend they're someone else or such.

We don't punish young teens for having sex with other young teens, so I don't think people who have sex while drunk should be punished on principle. However, they should not be exempt from punishment because they were drunk. If you can decide to not get into the driver's seat of a car, you can decide to not have sex with a drunk person.

[vvn]

How is one supposed to know before hand?

It's not any easier for guys than it is for girls.

I specifically commented on the article in which the girl/victim in question was in a relationship with a despicable human being/rapist. She was fully aware of this, as she had been his victim. However, she chose to continue the relationship.

I did not say "don't have sex with them in the first place", I said "stop having sex with them." The situation in the article is one where the victim knows exactly what she is getting into, and does so willingly. This sends the message that what he is doing is not only acceptable, but desirable. Nothing anyone outside the relationship says or does will send a stronger message than she is by continuing the relationship.

Stop having sex with rapists? Yeah, that'll work. Only, no, it won't because, you know, that's why they're called rapists.

Here's a suggestion for men who want to stop rape: Stop being friend with those guys.
...
If no one will hear to their complaints about not being able to get a girlfriend.

This is exactly my point. My choosing to not be friends with this guy is a very small message when compared to the fact that the rape victim is still sleeping with him. I agree he should have no male friends, but I also think he should have no female friends. Don't just tell us guys to unfriend rapists, get the girls on board as well.

If they find they can no longer get girlfriends, they will have a powerful reason to change how they behave. Much more powerful than if their guy friends don't hang out with them.

[crayzz]

I did not say "don't have sex with them in the first place", I said "stop having sex with them."

I do find it fairly annoying when I can just copy and paste what I wrote earlier.

"It might work to deter further abuse (unless there's emotional abuse involved, or if your social circles are intertwined and making a big deal out of what can be spun as just "bad sex" is likely to hurt you in other ways, or if you're depressed and have trouble functioning, or if you were abused in the past and have trouble distinguishing abusive and healthy behaviour, etc), but it really just sets up an "everybody gets one" system: every guy who can hide it well enough gets one free borderline rape that the police won't take seriously.

C'mon ladies, we told you to just not have sex with those guys."

This sends the message that what he is doing is not only acceptable, but desirable.

"Eventually, he broke up with me. He resented how I reacted to his “boundary pushing” – said it made him feel like a rapist. And held up the fact I didn’t want him to come inside of me (I wasn’t on the pill) as evidence I didn’t really love him."

Do you believe he broke up with her because he thought she found him too desirable? Your model doesn't even resemble reality. Your solution places the culpability of dis-incentivising rape on the shoulders of the freshly traumatized, and the heavily emotionally involved. That's neither compassionate nor pragmatic. It's a neat and tidy way to wipe your hands of the problem, and that's all.

[Flint_A]

Here's how I look at "two drunk people having sex":

A drunk person is considered unable to give informed consent.
An underage person is considered unable to give informed consent.
If you(as an adult) knowingly have sex with an underage person, this is legally rape.
If you(as a sober person) knowingly have sex with a drunk, this is legally rape.
If two underage people, without duress, have sex with each other...is legally...weird.

In some jurisdictions, it's rape for both. In some, the older person. In some, the male.(Assuming the sex was heterosexual.) In some jurisdictions, one or both parties get a light punishment but it's not called rape. And in some jurisdictions, it's totally fine.(Down to a certain age.)

I think two drunk people having sex with each other should be treated the same way as two underage people having sex with each other, because in both cases the argument is that they are unable to give informed consent.(But able to give some form of consent, because raping a drunk/minor is not considered as bad as raping a small child or someone with severe cognitive issues.)

I also sympathize with the fact that different places treat this issue differently, as it is a gray area.

That said, I do think that both situations need to be seriously fixed, because "winging it" is not proper legal procedure.

Personally, I'd go with lightly punishing both parties(Fine? Community service? Seminars?) because it's not behavior I want to encourage, but I wouldn't call it rape because that kind of a record destroys lives.


As for the original questions...

There is a difference between the legal definition of something and the emphatic definition of something.

Say that a foreman doesn't pay much attention to security measures, and one of the workers dies, partially due to the worker's own carelessness. Is the foreman guilty of something? Yes. Is the foreman guilty of murder, legally? Most probably not. If the worker's elderly parents go up to the foreman, crying, and scream "YOU MURDERED OUR DEAR CHILD!"; am I going to step in and admonish them to use proper terminology? Also no. You cause someone's death, you're gonna get called a murderer. Still doesn't make you legally guilty of murder though.

So, if I was a judge, I would not deem that particular case a rape. I would most certainly find several other crimes it fit, such as battery, and I would definitely throw that man in prison. If I could pin a smaller sexual offense to him so he'd be put on a sexual offender list, I'd do that as well.(That part really depends on the particular jurisdiction.) I would not, however, say he was guilty of "rape", per se. The sex was not non-consensual. The ejaculation was. Ejaculation does not equal sex.

Seeing as how I'm not practicing law, however, in casual conversation I can and will totally say "that was rape and that man is a horrible, horrible rapist".

That sorta answers the second question as well. Can you call something rape if you don't prosecute? Sure you can. You can also call it a hippopotamus if you want to. Most countries in the world have courts of law as opposed to lynch mobs, so it doesn't matter if literally everyone calls it rape as long as it is not actually decided so in a court. If you feel that a crime occurred, you have the freedom - some would also say the responsibility - to announce it.

Assuming you stay clear of slander laws, that is.

[Grimjac100]

See, I think the problem we...as a society...are running into is the problem of too-broad-definitions. Maybe not enough words. To me, rape is sexual contact without consent. Pretty clear and definite.

Orgasm inside without express permission? I personally wouldn't consider that rape. You consented to his pee-pee's presence in your vagoo. How big is the grey area? He used short fast thrusts when she wanted long and slow, so it was sort of rape? I'm not really comfortable with stretching the term `rape' to cover this.

By stretching the term to cover so many different situations, I feel it degrades the concept. Rape is a horrible ugly crime...equating possibly violent non-consensual rape with drunk thoughtless meaningless screwing just seems...wrong. Or with a thoughtless jerk ejaculating inside you when you let him ride bareback.

Sure, you can call it rape, but I'd hope you send frantic apologies to every survivor of sexual contact without consent.

[Razmoudah]

For the most part I agree with Grimjac100 here. We need to 'de-broaden' the term rape as it is starting to lose some of its intrinsic meaning. Now, as she did feel traumatized by what happened (and I say she was perfectly welcome to feel traumatized by his actions after he ejaculated) I do feel that what happened to her is a lesser relative of rape and definitely a crime. However, as she did give fully knowledgeable and informed consent to the initial sexual contact it isn't rape such as the term is normally meant or used. What the law needs is to either make rape itself include all forms of non-consensual sexual actions, with sub-types of rape for differing circumstances (sort of like how we have First Degree Murder, Second Degree Murder, and so on) or else it needs to give rape a narrower definition and create new terms for situations that don't fit it but do result in trauma.

Now, just to get myself well flamed, I do feel that not every semi-consensual (not fully consenting) situation that fails to result in trauma is necessarily a crime, but this is requiring a rather convoluted definition of trauma to properly convey.

Also, don't forget there are some women who prefer it when the guy takes a highly aggressive stance towards sex, and to a certain extent would prefer a lover like the scum-bag in the article. This also muddies up the waters quite a bit towards socially 'punishing' people like him.

[Bramble.Chappell]

Also, don't forget there are some women who prefer it when the guy takes a highly aggressive stance towards sex, and to a certain extent would prefer a lover like the scum-bag in the article. This also muddies up the waters quite a bit towards socially 'punishing' people like him.

No. There is a world of difference between a non-consensual act and someone who enjoys "aggressive" or rough sex, or roleplay. If there ever appears to be any blurring of that distinction, then something is seriously wrong with the situation.

It's not clear to me that there is any "gray area" here. She consented to one sex act, and explicitly did not consent to another. He knowingly went on to perform the latter against her will, in a way that cannot be construed as an accident or misunderstanding. The question of whether or not emotional trauma results from it is not relevant to the question of whether or not it was rape. That's not far removed from an argument of "She said no, but she really wanted it, so it can't be rape."

I can certainly accept the idea that we should switch to "degrees of sexual assault" for legal purposes if that would make it easier to actually have these cases investigated and tried in the first place, but I just don't see any way to rationalize this as a "lesser crime".

Edit: In fact, on further reading, there isn't much room for debate here legally. When the terms of your consent are violated, the term is "Rape by Fraud," which covers things like pretending to put on a condom in a dark room to deceive your partner.