Alcohol, Consciousness, Rape and Consent

The Corinthian

metrovelvet wrote: »

With that law in place, women will hesitate to drink, in order to reassure the men around her. Its an indirect prohibition.

I think it would return us to pre-sexual revolution dating habits and a marked increase in the traditional safe-sex option (i.e. prostitutes).

On the plus for the guys side thats the end of buying the ladies drinks.

Soft drinks cost as much if not more in Irish pubs. On the plus side, the decline in beer drinking women may result in belly tops worn in the Summer that don't remind one of a lava lamp.

drkpower wrote: »

Isnt that article is from 2006? I presume this idea was shelved. Rightly so, as it seems like an impossible law to implement, nevermind the inredible injustices that would result from imposing a certain level of drunkenness which automatically vitiates consent. As we all know, the outward manifestation of drunkenness can be a very different thing to the amount consumed or the blood concentration of alcohol.

I presume the idea behind such a law would be to increase the rate of convictions in rape cases. As presently, as the article stated, only a tiny number secure a conviction because rape cannot be proven, making sex with someone who is over a certain level in terms of drunkenness rape would make it easier to prosecute.

taconnol wrote: »

Consent is usually communicated to the other person through active and conscious engagement in a particular act. I'm sure we've all been there with a partner when you both gradually realise how far the other person wants to go. Even in a relationship, one or both partners might not always want full sex. If a person falls asleep, they may or may not have wanted to have full sexual intercourse but they can't exactly express their consent any more. If their partner continues on after they've fallen asleep, it's weird, creepy and bordering on rape. But I can see why others wouldn't see it that way.

Ahh, but it the latter two examples, consent for coitus had been given and consciousness was only lost after it had commenced. Losing consciousness would effect the affected party's capacity to revoke consent during the act - which while rare, does take place.

metrovelvet

taconnol wrote: »

Under this reasoning, it would be impossible for a person in a relationship to be considered raped after they consent to foreplay. Consent to foreplay is consent to foreplay and nothing else. If a person decides at any stage of a sexual act that they want to stop and the other person forces them to continue, that is rape.

Consent is usually communicated to the other person through active and conscious engagement in a particular act. I'm sure we've all been there with a partner when you both gradually realise how far the other person wants to go. Even in a relationship, one or both partners might not always want full sex. If a person falls asleep, they may or may not have wanted to have full sexual intercourse but they can't exactly express their consent any more. If their partner continues on after they've fallen asleep, it's weird, creepy and bordering on rape. But I can see why others wouldn't see it that way.

Good thread idea, The Corinthian. It's a very grey area.

Also complicated by how responsible you hold the inebriated but concious party for their actions.

metrovelvet

donegalfella wrote: »

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I think Taco was referring to the foreplay example there.

Herbal Deity

Neither of the last two are necessarily rape IMO, but it is very context dependant.

Like, what does it mean to 'finish oneself off'? A couple of extra thrusts? A few minutes of extra thrusting? Manoeuvring the asleep party into different positions? Changing the nature of the sex act? (e.g. switching from vaginal sex to anal or oral sex)

I think that what is key is that if the awake party finishes themselves off, that they do not change anything about the nature of sex they were having when the other person fell asleep. Just going on a little longer so you're satisfied seems perfectly reasonable to me, and I really can't see how anyone would have a problem with that if they fell asleep.

However, if the person fell asleep during foreplay, then the person who is awake does not have consent to proceed to penetrative sex and it is rape to continue.

Of course, in a relationship, a couple should perhaps talk about these things. I certainly wouldn't have a problem with my gf doing anything to me, bar hurting (or waking!) me, to get herself off while I was asleep. I can't imagine too many people would be bothered with allowing the person they love and trust the same privilege. (Furthermore, I have read quite a number of posts on forums about sex where people have explicitly asked their partners to have sex with them while they sleep)

metrovelvet

Not to mention sexsomnias.

Permabear

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Macha

donegalfella wrote: »

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Well, I think it's important to make a distinction between different sexual acts. Just because someone wants to have foreplay with someone, doesn't mean they want to have sex or any other sexual act for that matter. If two people were having sex and then one partner decided they want anal sex and forced the other person, would you still say that it wasn't rape?

Also, they didn't say "stop" because in some instances they were asleep!

donegalfella wrote: »

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Well OK yes that is slightly different. Still though, person A is fully aware that person B is not capable of voicing their desire to withdraw consent, which they may possibly want to do (a person having the right to withdraw consent at any time they so wish) and person A is taking advantage of this. Plus, if I consent to have sex with someone, I would normally say that I'm consenting to engage in a sexual act where I am awake. I don't think that's the same as me consenting to having sex with that person after I fall asleep.

No, I wouldn't call it rape. Sexual assault?

The Corinthian wrote: »

Ahh, but it the latter two examples, consent for coitus had been given and consciousness was only lost after it had commenced. Losing consciousness would effect the affected party's capacity to revoke consent during the act - which while rare, does take place.

Yes, I suppose that is the crux of the issue. I believe a person has the right to remove their consent at any point while engaging in sexual relations (I sound like a barrister now) with someone else. I don't see it as a video game where you get to the next level and then the next level etc. And someone can say "OK I don't want to do sexual act A any more, let's do B or C now".

I would say that many people (me included) often find it difficult to grasp the concept of being raped/sexually assaulted by someone we know. And it's even harder to conceptualise being raped by a partner or spouse. Rape within marriage only became a recognised offence in this country a few years ago. The idea of the stranger lurking in the bushes is more clear cut.

metrovelvet wrote: »

Also complicated by how responsible you hold the inebriated but concious party for their actions.

Oh there's another whole can of worms!

metrovelvet

donegalfella wrote: »

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Ok. No you're right or at least technically you're right, but the possibility can't be ruled out that if someone consents to foreplay and falls asleep, that implicit consent was not made for the full sex act, anal, vaginal or what the hell, lets include oral.

Or in the case of young or inexperienced people, or virgins.

Also context is important. There are more flexible boundaries within relationship. If there is trust. You can always have a bad marriage where these things get exploited and that cant be ruled out either.

The Corinthian

taconnol wrote: »

Oh there's another whole can of worms!

Relevant nonetheless. Loss of consciousness is simply the extreme case of where alcohol affects one's capacity for sexual consent. There is no reason to argue that it should be limited to this level.

What I'm asking is at what point are we responsible for one's choices (to drink, etc.)? If a woman goes to a certain nightclub on Harcourt st, knocks back vodka and Red's to beat the band until she is only semi-conscious (and thus of dubious capacity to consent) and ends up sleeping with the creature from the black lagoon, is that rape or should she share responsibility?

And if drunkenness absolves one from responsibility, how can the aforementioned creature from the black lagoon be held accountable given that he was likely to be plastered also?

metrovelvet

The Corinthian wrote: »

Relevant nonetheless. Loss of consciousness is simply the extreme case of where alcohol affects one's capacity for sexual consent. There is no reason to argue that it should be limited to this level.

What I'm asking is at what point are we responsible for one's choices (to drink, etc.)? If a woman goes to a certain nightclub on Harcourt st, knocks back vodka and Red's to beat the band until she is only semi-conscious (and thus of dubious capacity to consent) and ends up sleeping with the creature from the black lagoon, is that rape or should she share responsibility?

And if drunkenness absolves one from responsibility, how can the aforementioned creature from the black lagoon be held accountable given that he was likely to be plastered also?

I dont think being drunk does. Ask any battered spouse or child.

However, the otherside of this would be a case like marilyn monroe who was so doped out of it the night before she dies she was incapable of consent. My only answer could be take it on a case by case basis. Not ideal, but what else is there?

I think being unconcious does.

Permabear

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Macha

The Corinthian wrote: »

Relevant nonetheless. Loss of consciousness is simply the extreme case of where alcohol affects one's capacity for sexual consent. There is no reason to argue that it should be limited to this level.

What I'm asking is at what point are we responsible for one's choices (to drink, etc.)? If a woman goes to a certain nightclub on Harcourt st, knocks back vodka and Red's to beat the band until she is only semi-conscious (and thus of dubious capacity to consent) and ends up sleeping with the creature from the black lagoon, is that rape or should she share responsibility?

And if drunkenness absolves one from responsibility, how can the aforementioned creature from the black lagoon be held accountable given that he was likely to be plastered also?

As with all crimes, intent is a large factor. To keep things gender neutral, if person A and B are both equally plastered, sexual assault/rape cannot have taken place because neither was conscious enough to intentionally carry out such a crime.

The balance of responsibility shifts as the disparity in consciousness widens between the individuals. Not a neat black-and-white answer, I know.

metrovelvet

donegalfella wrote: »

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Just to remind you, not everyone having sex is in a couple or practises monogamy.

Permabear

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Herbal Deity

metrovelvet wrote: »

Just to remind you, not everyone having sex is in a couple or practises monogamy.

Yes, but the OP states that the people in question were in a relationship.

Should we assume that people not in relationships are being discussed ITT now? It would make the discussion a little more interesting.

Macha

donegalfella wrote: »

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I really don't think it matters what the couple used to do in the past, etc. A person should have the right to remove their consent if they so wish at any stage, regardless of if they had sex every Sunday evening for the past year.

donegalfella wrote: »

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But define "forced".

donegalfella wrote: »

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Why would you make that assumption?

donegalfella wrote: »

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Well of course any relationship is a personal matter between two individuals and this should be taken into consideration when looking at such an issue. As is usually the case, a conversation about these things can often save a lot of hassle further down the line.

donegalfella wrote: »

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Sexual assault can happen between partners.

metrovelvet

Herbal Deity wrote: »

Yes, but the OP states that the people in question were in a relationship.

Should we assume that people not in relationships are being discussed ITT now? It would make the discussion a little more interesting.

In the examples yes, but I did not assume that in the links op posted.

Not all partnerships are full of love and trust either.

Permabear

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Permabear

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Macha

donegalfella wrote: »

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And I think there are serious issues over using past experiences for excusing sexual assault. It doesn't matter if they had sex when both were semi-conscious every night of the week. If one night, one person knowingly has sex with the other without their consent, that is sexual assault.

donegalfella wrote: »

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It seems for your definition of rape there must be physical violence involved, a struggle? I used the word "forced" to see if that was the case. In sexual assault, the "forcing" can be done through threats, coercion or physical violence. And it helps when the other person is unconscious because the objections of the other person do not need to be considered.

donegalfella wrote: »

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In my book it does because, as I noted earlier, a person should have the right to withdraw consent at any time. If the other person continues in the knowledge that the other person is incapable of giving their continued consent, it is an assault. For me, it is conscious, continuous consent that is the difference between a sexual experience and a sexual assault.

If individuals and couples choose not to see it that way, if they have an understanding that they're both happy with it if it ever happens that's fine. Each to their own. After all, they don't have to go anywhere near a law court if they don't want to. But if any partner of mine ever did that to me, I might not press charges, but the relationship would be over.

metrovelvet

donegalfella wrote: »

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Because you seem to be only talking about the couples context.

Or maybe it doesn't make a difference to you?

metrovelvet

taconnol wrote: »

And I think there are serious issues over using past experiences for excusing sexual assault. It doesn't matter if they had sex when both were semi-conscious every night of the week. If one night, one person knowingly has sex with the other without their consent, that is sexual assault.


It seems for your definition of rape there must be physical violence involved, a struggle? I used the word "forced" to see if that was the case. In sexual assault, the "forcing" can be done through threats, coercion or physical violence. And it helps when the other person is unconscious because the objections of the other person do not need to be considered.


In my book it does because, as I noted earlier, a person should have the right to withdraw consent at any time. If the other person continues in the knowledge that the other person is incapable of giving their continued consent, it is an assault.

If individuals and couples choose not to see it that way, if they have an understanding that they're both happy with it if it ever happens that's fine. Each to their own. But if any partner of mine ever did that to me, I might not press charges but the relationship would be over.

I have to say, if I were the woman in the OP's example, I would have felt like I was violating him to continue, partner or stranger.

drkpower

There seem to be a lot of red herrings flying around. Whatever about what the law should be, this is the law right now:

1. Drunkeness is no defence to rape; a drunk consent is still consent. There is some doubt around whether a valid consent can be given by someone who is so drunk so as to border upon unconciousness. But, in any case, the general rule that a drunk (even very drunk) person can give a valid consent.
2. One cannot imply consent from previous practice; ie. what the couple does every Sunday night. Each and every act of sex must be seperately consented for.
3. Whether the people were in a relationship, married or only just met does not change the legal situation at all; seperate consent is required for each and every sexual encounter. It will, however, change whether the evidence provided is credible, but that is a different matter.

It seems to me that there is one net issue here; if X gives valid consent to an anticipated sexual act, and the act begins, and X subsequently becomes incapacitated (ie. falls asleep/unconscious), can Y rely on that consent in order to continue that same anticipated sexual act (clearly, if Y changes the sexual act (ie. vahinal > anal), then there is no consent) or does Y need to discontinue the act until a new consent has been provided?

Personally, my view is that legally, Y can rely on that consent (using the medical examples as analogies); of course, Y is a little bit of a scumbag if he does..... But that Australian case that Corinthian posted is directly on topic and it would suggest otherwise. As the Australian legal system is similar to our own, it may have some relevence here. However the Australians may have a statutory definition for consent, which we do not have, which might make the situation there quite different. (of course, in that Aus case, it subsequently transpired that the woman was lying and was only pretending to be asleep, so Im not sure where that leaves the precedential nature of that case)

metrovelvet

Op did you intend this to be a legal or philosophical debate? Or both?

metrovelvet

taconnol wrote: »

As with all crimes, intent is a large factor. To keep things gender neutral, if person A and B are both equally plastered, sexual assault/rape cannot have taken place because neither was conscious enough to intentionally carry out such a crime.

The balance of responsibility shifts as the disparity in consciousness widens between the individuals. Not a neat black-and-white answer, I know.

I dont think the law lets someone off a rape conviction because they were drunk.

Macha

metrovelvet wrote: »

I dont think the law lets someone off a rape conviction because they were drunk.

Ok, I'm not familiar with the law, just my own opinion

Well, if drunken consent is allowed then drunken rape should be as well I suppose. Although, I think neither should be allowed as we acknowledge that the capacity to think is reduced (ie drink driving) and therefore the capacity to consent as well.

metrovelvet

taconnol wrote: »

Ok, I'm not familiar with the law, just my own opinion

Well, if drunken consent is allowed then drunken rape should be as well I suppose. Although, I think neither should be allowed as we acknowledge that the capacity to think is reduced (ie drink driving) and therefore the capacity to consent as well.

Rape is a crime. Consent is not. Drunk or not, the law holds you accountable for both of them. I'm not sure diminished responsibility is at play here either.

Macha

metrovelvet wrote: »

Rape is a crime. Consent is not. Drunk or not, the law holds you accountable for both of them. I'm not sure diminished responsibility is at play here either.

I didn't say that consent was a crime. I said that if we're judging drunk people to be able to make valid judgements, then that should hold for the capacity to consent to a sexual as equally as the capacity to perceive the communication of that consent or lack thereof.

metrovelvet

taconnol wrote: »

I didn't say that consent was a crime. I said that if we're judging drunk people to be able to make valid judgements, then that should hold for the capacity to consent to a sexual as equally as the capacity to perceive the communication of that consent or lack thereof.

I agree with you there. And afaik, that's how the law stands.

Permabear

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metrovelvet

Sorry but high, drunk, and very sleepy are not the same as unconcious.

The Corinthian

taconnol wrote: »

I didn't say that consent was a crime. I said that if we're judging drunk people to be able to make valid judgements, then that should hold for the capacity to consent to a sexual as equally as the capacity to perceive the communication of that consent or lack thereof.

In essence are you suggesting that if we are to say that a drunk person cannot be held responsible to give consent, then an equally drunk person cannot be held responsible for rape or a drunk person can be held responsible for rape, then an equally drunk person can be held responsible to give consent. Correct?

metrovelvet wrote: »

I agree with you there. And afaik, that's how the law stands.

For the time being. The lobby groups that seek to protect victims at any cost - to the point of a cake and eat it scenario, where a drunk person can be held responsible for rape and an equally drunk person cannot be held responsible to give consent, could well be legislated for in the future.

metrovelvet

Next we'll have to sign consent forms witnessed by a pharmecist holding a breathaliser and taken to the commissioner for oaths for 30 euro signature.

Hot.

Macha

donegalfella wrote: »

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Obviously if the couple have an agreement that sex while unconscious is acceptable, then that's fine. I've said that before. But in that case consent has also been given, but simply earlier.

donegalfella wrote: »

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You've chosed to use the phrase "implied consent". I don't think consent should ever be "implied" or "assumed" except when agreed between a couple, as above.

donegalfella wrote: »

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I used anal sex as an example of a sexual act. People can be forced to engage in other acts. Do you you believe that all rape/sexual assault involves physical forcing?

donegalfella wrote: »

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Litigious? I haven't sued anyone lately. If you're using it to mean argumentative then guilty

Didn't I very clearly describe in an earlier post the very familiar situation whereby someone's continuous, conscious engagement with a sexual activity is the way in which both partners understand that the person is consenting? Your effort to depict this type of situation as people constantly speaking to each other about it is odd.

And, yet again, I accept that point that if people in a couple are happy to have sex while unconscious/drunk/on drugs, then more power to them.

donegalfella wrote: »

Naturally, you're entitled to end a relationship at any time, for any reason. But that doesn't mean that your partner is a rapist or a sexual assaulter.

It does if that person engages in a sexual act with me without my consent. That's the very definition of a sexual assault.

The Corinthian wrote: »

In essence are you suggesting that if we are to say that a drunk person cannot be held responsible to give consent, then an equally drunk person cannot be held responsible for rape or a drunk person can be held responsible for rape, then an equally drunk person can be held responsible to give consent. Correct?

I suppose so. Surely this is all about the capacity to consent or perceive consent. If we consider someone as having the capacity to consent, don't we also acknowledge someone as having the capacity to perceive consent?

I don't think it fair for a person to say they were raped because they were too drunk to consent yet charge an equally drunk person with being fully capable of rape, don't you? Maybe I haven't thought this through enough?

The Corinthian

metrovelvet wrote: »

Next we'll have to sign consent forms witnessed by a pharmecist holding a breathaliser and taken to the commissioner for oaths for 30 euro signature.

Hot.

Is that a notary in your pocket or are you happy to see me?

The Corinthian

taconnol wrote: »

I don't think it fair for a person to say they were raped because they were too drunk to consent yet charge an equally drunk person with being fully capable of rape, don't you? Maybe I haven't thought this through enough?

I can't see how it could be, although I am open to someone suggesting a relevant scenario where it could.

And where I mean a relevant scenario, I don't mean the sort of vague emotive blather about protecting victims, without explaining why and how, that people like Bacik come out with.

metrovelvet

Lol.

The Corinthian

TBH, were such a law passed it would be a gold mine for stand-up comedians.

drkpower

taconnol wrote: »

I don't think it fair for a person to say they were raped because they were too drunk to consent yet charge an equally drunk person with being fully capable of rape, don't you? Maybe I haven't thought this through enough?

Having the 'capacity to consent' and the 'requisite intention to commit a crime' are two different concepts, although the factors which affect one can obviously affect the other. As a general rule, alcohol intoxication does not render someone incapable of consenting or incpable of forming the requisite legal intent to commit a crime.

taconnol wrote: »

You've chosed to use the phrase "implied consent". I don't think consent should ever be "implied" or "assumed" except when agreed between a couple, as above.

'Implied consent' is a recognised and valid legal construct used in may areas, from medical treatment to contracts to sexual conduct. It is a vital legal construct also. Otherwise, express consent would be required in every case. For instance, a person who open their legs and places a condom on your c.ock, would be able to convincingly argue that they did not consent to intercourse. Which would be somewhat unfair.....

metrovelvet

The Corinthian wrote: »

I can't see how it could be, although I am open to someone suggesting a relevant scenario where it could.

And where I mean a relevant scenario, I don't mean the sort of vague emotive blather about protecting victims, without explaining why and how, that people like Bacik come out with.

The way I look at it is if you are so out of it that you cant own your consent then you've brought on your own destruction. If you want control control your drinking. Dont go to frat parties and be wise.

Permabear

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Nevyn

donegalfella wrote: »

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In date rape scenarios it happens.

donegalfella wrote: »

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It doesn't have to be forcible at all for it to be rape.
If someone held a gun to one of my children, while someone raped me, they would not need to be phyically forceful at all but it would still be coerced and non consensual and therefore rape.

donegalfella wrote: »

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Consent was given but does the inability to revoke consent not factor into it?

Macha

donegalfella wrote: »

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No, you see your partner is communicating to you that she wants to engage in some sort of sexual activity. If a few minutes later she decides she doesn't want to, she's allowed to stop and you should not force her to continue. If, however, she doesn't object to continued proceedings then you can take it as consent because she is fully capable of consenting or showing her withdrawal of consent and is therefore displaying continuous, conscious consent. However, if someone is unconscious, by the very nature of their state, they cannot give conscious consent so you cannot assume anything. You see you're not really assuming anything in the above scenario because she is very clearly communicating her consent on a continual basis.

donegalfella wrote: »

That's not the question. You used the example of someone being forced to have anal sex. I said that that scenario implies physical coercion. I didn't say anything about "all rape/sexual assault."

Well that is a question I'm asking you. I am asking you if you think that all rape or sexual assault involves physical coercion. You defined rape as" having forcible intercourse with someone against his or her will" earlier on and I am wondering if your definition limits it to physical force.

donegalfella wrote: »

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No because as I said in response to The Corinthian's discussion about burden of responsibility, if you are asleep or unconscious yourself, then you cannot have consciously carried out any act, including a sexual assault. But if we accept that you were unconscious and therefore without the capacity to willfully carry out such an act, then we must also accept that an unconscious person is without the capacity to consent fully, in my opinion.

There have been cases where accused have been acquitted of sexual assault on the grounds of suffering from sleep sex disorders.

The Corinthian

Thaedydal wrote: »

It doesn't have to be forcible at all for it to be rape.
If someone held a gun to one of my children, while someone raped me, they would not need to be phyically forceful at all but it would still be coerced and non consensual and therefore rape.

That is still coercion - to force someone against their will. Drugging someone would be the same, as you are 'taking' their will away from them.

Consent was given but does the inability to revoke consent not factor into it?

It should certainly factor in (at the very least because anyone who consents and half way though changes their mind probably has issues that would make me not want to have sex with them). The question is to what level.

As politically incorrect as it may be to suggest, there do appear to be different scenarios that qualify as rape, with often vastly differing and mitigating circumstances.

With homicide we have murder, manslaughter, wrongful killing, self defense and so on, to differentiate between each scenario. However we are supposed to treat rape with a one size fits all measure (there is statutory rape, which may or may not be treated differently, now that I think of it). Not sure if that is appropriate.

metrovelvet

The Corinthian wrote: »

That is still coercion - to force someone against their will. Drugging someone would be the same, as you are 'taking' their will away from them.

It should certainly factor in (at the very least because anyone who consents and half way though changes their mind probably has issues that would make me not want to have sex with them). The question is to what level.

As politically incorrect as it may be to suggest, there do appear to be different scenarios that qualify as rape, with often vastly differing and mitigating circumstances.

With homicide we have murder, manslaughter, wrongful killing, self defense and so on, to differentiate between each scenario. However we are supposed to treat rape with a one size fits all measure (there is statutory rape, which may or may not be treated differently, now that I think of it). Not sure if that is appropriate.

If someone stops midway, it could be because of pain or tearing, or if they've been drinking, want to vomit or it's just not happenning for them. They may not necessarily have issues.

The Corinthian

metrovelvet wrote: »

If someone stops midway, it could be because of pain or tearing, or if they've been drinking, want to vomit or it's just not happenning for them. They may not necessarily have issues.

Pain or tearing as reasons is a fair point. 'Not happening for them' is egocentric to the point of issues, IMO. Whatever happened to politeness?

metrovelvet

The Corinthian wrote: »

Pain or tearing as reasons is a fair point. 'Not happening for them' is egocentric to the point of issues, IMO. Whatever happened to politeness?

That's another conversation.

Permabear

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drkpower

donegalfella wrote: »

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These are (almost;)) good points but there is one fundamental difference between these examples and the case at hand. Where someone is going under a GA or getting on a rollercoaster, it is anticipated and accepted that one will not be able to revoke consent thereafter; in the situation at hand, is it anticipated and accepted by the consent-giver that they will soon thereafter not be able to revoke consent? That is doubtful (in most cases) and is where your examples fall down.

donegalfella wrote: »

I think you're missing my point. If two people go to bed together in the nude, is there not an implied consent on both sides to waiving the normal boundaries of what would be considered "sexual assault" or "sexual molestation" if it happened on a public street?

Perhaps; but going to bed together nude is not necessarily an implied consent to sexual intercourse.

Permabear

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