Tuesday, March 14, 2006

on rape and drunken consent

Theres been a bit in the news about rape recently, the bit that has interested me most is the government's idea that juries could decide if a woman was too drunk to give consent

Recently, on a night out with a friend of mine, Rich, we were discussing this specifically- the idea that drunken consent is consent. The fact that he held several ideas that I totally disagree with interests me, and I'm going to attempt to respond to his arguments here, now I am a little more sober than I was when we were arguing.

First of all, I do believe that in the case of one heavily drunk partner, and one relatively sober partner, consent cannot be truly given by the drunken partner. The fact is that your judgement is deeply impaired when you are drunk. I understand that certain people like the idea of getting someone drunk to lower their resistances... well sorry, but that practice is deeply immoral, and you are kidding yourself if you think otherwise.

Note I do not specify exact parameters here, that would be for someone more expert than myself to estimate, but we all know when someone is pretty much sober, and very drunk. Also, I am talking about strangers here, as with acquantinces the lines are of course blurred.

Rich argued initially this means men (and indeed women, I have no problem with this law being applied equally) would have to be extremely cautious when out. So? I'm sorry, but I'd prefer to make casual sex a bit more difficult than allow people to be taken advantage of. And bear in mind this is only when the accused partner is pretty much sober, so is of clear judgment themselves.

Also, he argued, rather surprisingly to me, that if one gets drunk, then one accepts that one might wake up in a strange bed. I certainly don't. I have gone out and got extremely drunk, and not expected to be taken advantage of. I am a man, of course, hardly pulling in armies of women, but that should make no difference.

The point he made was that when one is drunk one takes responsibility for one's actions- that is if you do criminal acts while inebriated, you are considered responsible for actions. This is true, and initially striking as an action, until you realise, if you agree that drunken consent is not really consent, then what you are taking responsibility for is to have a crime committed on you. If a drunken person wonders into someones home and begs them to kill them... is it legal to do? If they are extremely offensive, is it legal to punch their lights out? Yes, you take responsibility for any crimes you might commit, but not crimes commited to you. That's the state's responsibility. I really don't find the argument that women can't get drunk without accepting that someone might take advantage of them and get away with it.

There is also, incidentally, a problem of proving this, and of course the burden of evidence must still be upon the accusor. I don't hold with what some argue, that the accused should prove their innocence in the case of rape. That is a dangerous, and unacceptable commitment to law. What I am saying is the law should be very clear that for a sober person to take advange of a very drunk one is a crime, and should be treated thusly.


At 12:17 am, Blogger Complex said...

Oh no you didn't! (Said in some kind of "sassy" way which I find impossible to replicate)

I will write a full and reasoned response, but for now, I will just pick up on one point...

"...what you are taking responsibility for is to have a crime committed on you..."

Well, no, because, last I checked, sex is not a crime. And yes, if they give you permission it is legal to punch their lights out... boxing anyone?

At 12:18 am, Anonymous Anonymous said...

je suis.

At 12:28 am, Anonymous Anonymous said...

I see... so the moral of this story is, if you want to commit rape... get drunk to do it???

At 10:44 am, Anonymous Anonymous said...

I am completely thrown off track.

Have I been doing some sleep commenting?!

Who else would write je suis...

At 5:57 pm, Blogger Mr K said...

No, but sex without true consent is a crime, and my argument is that drunken consent is no real form of consent.

And, the whole boxing thing... har di har.

At 10:07 pm, Anonymous Anonymous said...

Je ne sais pas

At 12:14 pm, Blogger Complex said...

The har di har comment... Well, as you may know, I've been reading Bad Thoughts. Har di har, not exactly a reasoned refutation...

At 7:14 pm, Blogger Kelly said...

I think I tend to agree with Complex here. If you're going to drink, you have to accept that you may do something stupid when you're drinking.

Of course, there is something to your arguments Mr. K, because if you are extremely drunk you may be unable to give assent to a contract.

And no, you can't consent to be punched. Boxing is different because there is some licensing involved. Just like in some states you can't consent to sodomy.

At 8:25 am, Blogger Imperium child said...

I think thats its true, if u go out and you know, say, that u hang around with a bawdy gang of people (is bawdy a real word??) then u have to expect that ur drunkeness will leady to bawdy behaviour. But no on can expect rape, its not a thing that u go out to expect.

At 8:34 am, Anonymous Anonymous said...

well, No. no one expects to be raped when they are drunk, but certainly many people go to the bar with the intention of scoring.

But no one can predict weather or not they will decide to drink too much, nor can they predict if they will drink so much that they wind up sleeping with someone they would not otherwise have sex with.

does that lapse in judgement amount to rape?

Speaking as someone who has been drunk AND horny, i know that if i decide to have sex, it is still a choice despite my chosen state of drunkenness. and if i regret it the next day, it is still my choice, even though i would not have made the same choice sober.

And that is what this will come down to more often than an actual case of non consensual sex.


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