On Rape, Impairment, and Consent

[Tem]

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

If you're not ok with being accused of rape, then don't get drunk to the point where you rape other drunk people. That's called personal responsibility.


What you say is, essentially: You don't want women to go out and drink alcohol. You want all places where people usually drink alcohol to be not frequented by women. Reminds me of something. Why, of course! There were times when women weren't allowed into bars.

[Deepbluediver]

If you're not ok with being accused of rape, then don't get drunk to the point where you rape other drunk people. That's called personal responsibility.

I'm totally ok with that- in fact, many places have laws against public intoxication.

What you say is, essentially: You don't want women to go out and drink alcohol. You want all places where people usually drink alcohol to be not frequented by women. Reminds me of something. Why, of course! There were times when women weren't allowed into bars.

Why do you have to make this about gender? Does what I say not apply if it's two gay dudes? Or two lesbians? Are gay men and and women incapable of rape?
I'm perfectly ok with anyone, male or female, going out to a bar for a drink. Or for several drinks. What I'm not ok with is anyone drinking in public to the point where they lose their ability to make reasonable and rational decisions. That's called common sense.
And if you DO drink to excess, then no one else is responsible for the trouble you get into while drunk, particularly if it's with another person who is also incapable of good decision making.

[yomikoma]

In theory, sure. In practice, men will usually consent drunk or not, while sober women will often not consent to what their drunk selves agree to do. Hence the need to bring up gender.

[Deepbluediver]

In theory, sure. In practice, men will usually consent drunk or not, while sober women will often not consent to what their drunk selves agree to do. Hence the need to bring up gender.

Except that the original question was if one party was more culpable than the other when BOTH are too drunk to legally give consent, so what decisions you would make when sober isn't really relevant.
Unless you saying that women should be allowed to get away with things men wouldn't when drunk? That seems like a horrible double standard.
Or that they need to be protected from themselves? Isn't that bringing us full-circle back to chivalry?

[yomikoma]

If there's a class of people who are likely to make decision A and another class that are likely to make decision !A, a drug that makes them all make decision !A clearly affects one more than the other. For a variety of perfectly rational reasons, sober women are more likely to decline casual sex than sober men.

Would it be nice if those reasons were different? Sure. Would it be nice if alcohol didn't play such a large role in our culture? Sure. But given the double standards of society, this legal double standard makes sense to me.

[Deepbluediver]

If there's a class of people who are likely to make decision A and another class that are likely to make decision !A, a drug that makes them all make decision !A clearly affects one more than the other. For a variety of perfectly rational reasons, sober women are more likely to decline casual sex than sober men.

Would it be nice if those reasons were different? Sure. Would it be nice if alcohol didn't play such a large role in our culture? Sure. But given the double standards of society, this legal double standard makes sense to me.

A guiding principle of our legal system is that everyone is equal in the eyes of the court. When I talk about legal reform, I look to iron out any problems and make people MORE equal, not less. Double standards based on sweeping generalizations of huge portions of the population that divest people of their personal responsible and in some cases even push that responsibility off on others, doesn't seem like a good idea to me.

What about car-accidents? You don't get to say "I'm not to blame for driving drunk because when I was drunk I couldn't make good decisions"; the court says "it's your fault because you made the decision to get drunk". What's different between that and casual sex?

[yomikoma]

Perhaps we need to step back for a moment.

I agree that it is possible for people of all genders to have sex with people of all genders against their will.

I also agree that there are cases where a woman who wants to have sex with a man who doesn't will get them both drunk, which would mean that she is guilty of rape.

The main issue I see is "if drinking changes your decision, you're the victim". There can certainly be cases where neither person wants to have sex, both drink, both consent drunk - in those cases specifically, they're both victims and both perpetrators. However, in practice, generally men are more interested in casual sex and have less reasons to fear consequences thereof. In recognition of that, I'd expect courts to lean toward finding the woman to be the victim in cases of drunk sex in absence of other evidence.

This is perhaps not fair. The way to make it more fair is to work toward elimination of physical and social consequences to casual sex, not to blame women for drinking.

As for drunk driving:

Killing yourself or someone else when you drive drunk is a forseeable outcome based on the environment of law-abiding drivers, cars, and telephone poles. Having someone have sex with you that you wouldn't have wanted to when you drink with other people is only forseeable given people who will have sex with drunk people.

Outlawing drunk driving tells people "make sure that you don't have the option to drive when you're drunk." Telling someone they're to blame when someone has sex with them when they're drunk is telling them, what? "Don't drink with other people"? "Don't drink in bars"? How is someone supposed to protect themselves from nonconsensual drunk sex if it's not a crime when both people are drunk?

[Deepbluediver]

The main issue I see is "if drinking changes your decision, you're the victim".

Yeah, that's what I have the problem with. Skipping ahead for a second, I made the comparison to driving drunk because you are held responsible for choosing to drink.

However, in practice, generally men are more interested in casual sex and have less reasons to fear consequences thereof. In recognition of that, I'd expect courts to lean toward finding the woman to be the victim in cases of drunk sex in absence of other evidence.

Except that court cases (at least criminal ones) are supposed to be decided individually on the evidence available. If you base your decision on prior bases instead of evidence, it's essentially like stacking the courts.

What you are saying sounds to me like: because men rape more woman than woman rape men, we should start male-on-female rape cases with 11 jurors and 1 guilty vote. Female-on-male cases have 12 neutral jurors. That way our case will be "fair" with regards to the actual occurrence of rape.
And once you start doing that, what other crimes do you being stacking the deck for?

This is perhaps not fair. The way to make it more fair is to work toward elimination of physical and social consequences to casual sex, not to blame women for drinking.

I don't blame women for drinking. However I hold all people equally responsible when they choose to drink, then make bad decisions.
And I'm perfectly supportive of working towards the end you suggest, however going along with that is encouraging personal responsibility for ALL people, regardless of gender, race, social status, etc. You don't get people to behave better by excusing behaviors in some of them and not others.

Killing yourself or someone else when you drive drunk is a forseeable outcome based on the environment of law-abiding drivers, cars, and telephone poles. Having someone have sex with you that you wouldn't have wanted to when you drink with other people is only forseeable given people who will have sex with drunk people.

We ticket people who drive drunk regardless of whether or not they have injured someone yet. I fail to see how "injuring someone else" is a forseeable event but "having casual sex" is not. If drinking impairs your ability to say "no" (or encourages you to say "yes") how is that not forseeable?

Outlawing drunk driving tells people "make sure that you don't have the option to drive when you're drunk." Telling someone they're to blame when someone has sex with them when they're drunk is telling them, what? "Don't drink with other people"? "Don't drink in bars"?

As the saying goes, it takes two to tango. If both people are equally drunk then it's not "one person having sex with another", it's both of them having sex together. And it's not telling them not to drink, it's telling them not to drink to the point where they make decisions they will later regret. If you drive drunk, make sure you only drink with a sober friend who can prevent you from getting behind the wheel. If you have drunk sex, make sure you only drink with a sober friend who can prevent you from going home with other people. In other words, if you would say "no" to casual sex when sober, take the same precautions you when to prevent yourself from driving drunk. A rape-case can ruin lives on both sides of the accusation just as thoroughly as a car accident.

How is someone supposed to protect themselves from nonconsensual drunk sex if it's not a crime when both people are drunk?

How about not getting drunk to the point where you agree to have sex? My point is that choosing to drink to the point where you lose your capacity to reason should not shunt responsibility for your well-being off on to another person.
Think of it like this: suppose a man and a woman go drinking at the bar, and they decide to go to the man's homes to have sex. The woman insists on driving her car instead of letting the man take his so that she can leave whenever she wants (a reasonable decision, I think). However because she's been drinking, she loses control and slams the care into a pedestrian. Is the man responsible for not stopping her from driving? If men are responsible for taking care of drunk women, can a man dictate how much and when a woman is allowed to drink?

Entire societies can and have been based around the idea that one gender needs to be taken care of. Our modern western society is not, however, and almost no other facet of our culture leans this way. Certainly not in law.

[yomikoma]

I don't mind holding someone responsible for choosing to drink. If you drink so much that you can't tell whether your partner is consenting, that is and should be a crime. And sure, if both people are too drunk to consent, then they've both committed a crime. But you shouldn't have to assume that everyone you meet will take advantage of you if you dare to drink. If we go that far we should just outlaw alcohol (again).

What I'm really not ok with is "well they're both victims so no further punishment is necessary". We don't use rape as a criminal punishment. (Yes, rape is a common outcome of being put into prison and that's horrible but it's not the punishment - the state does not rape criminals.) If a woman and man both can convince a jury that they had sex they wouldn't have consented to sober, send them both to jail. But I don't think "well I was drunk too!" should be a get-out-of-jail card for someone who should have known better. And the "wouldn't have consented to sober" bar looks different for men and women in the current culture, so ignoring that isn't justice.

[Deepbluediver]

I rearranged your post a little bit, just for the ease of replying. I'm not trying to change the meaning of it at all.

I don't mind holding someone responsible for choosing to drink. If you drink so much that you can't tell whether your partner is consenting, that is and should be a crime. And sure, if both people are too drunk to consent, then they've both committed a crime.
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If a woman and man both can convince a jury that they had sex they wouldn't have consented to sober, send them both to jail.

That seems like it's far harsher with regards to killing social interactions between the genders than anything I've suggested.
I don't really want Big Brother looking over everyone's shoulder all the time, micro-managing their lives. What I want is for people to take responsibility for their own actions and self-regulate. If that means a few people get a little less drunk in public, I don't consider that to be a bad thing.

I'm not looking to kill off drinking or socializing or even casual sex; all I'm envisioning is people limiting themselves to 4 or 5 beers instead of an entire 12-pack.

But I don't think "well I was drunk too!" should be a get-out-of-jail card for someone who should have known better.
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And the "wouldn't have consented to sober" bar looks different for men and women in the current culture, so ignoring that isn't justice.

Some cultures think honor-killings are ok, too; it's not a good bar in my book to set your standards too.
Let me ask again though- if cultural assumptions are different, would a man be justified in forcibly stopping a woman from drinking if he feels she's had enough? Why or why not?
In the case OP laid out for us, both people are equally incapable of making good decisions. Therefor I don't hold one of them more responsible for the other for bad outcomes of said decisions.

I want to treat everyone who is supposed to be an mature adult the same. You seem to want to treat woman like children, with all privileges and no responsibilities. That's usually a recipe for disaster.

But you shouldn't have to assume that everyone you meet will take advantage of you if you dare to drink.

I feel like this is reaching into the topic of acceptable risk. Think about my rock-climbing example, or any outdoor activity for that matter. No matter how well I prepare and try to take into account every factor, there is a non-zero chance that something will go wrong and could be injured. I undertake only those activities for which the risk is acceptably low that the benefit outweighs it.
You can judge your social activities by the same standard. I certainly don't think everyone I meet is going to take advantage of me, drunk or sober, but I drink less when I'm at a bar then when I'm at a party with just a few close friends. If necessary, expand the idea of a "designated driver" to a "designated make-sure-we-don't-do-stupid-shit person". The idea is that everyone knows their own limits and acts of their own accord to minimize risks for a level that is acceptable to them, and they don't push the responsibility for their well-being off onto strangers.

If we go that far we should just outlaw alcohol (again).

Banning alcohol didn't really work, and I'm not usually for punishing the many for the bad actions of the few. I have wondered though, in other contexts, if we shouldn't have something like a license requirement to purchase and consume alcohol.
We do that already to some extent, but it's almost entirely based around age alone, which is a terrible way to measure maturity. Although the alcohol industry is large, I suspect is has relatively little other benefit for society, compared to something like driving a motor-vehicle. As much as I'm opposed to fascist overstepping of government authority, maybe we should implement a system where you needed to take a course to get your drinking-license and if you accumulate to many points for violations you lose it.