Alcohol, Consciousness, Rape and Consent

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.