Alcohol: Consent and Culpability double standard

So I was thinking about a question the other day after class, a question about alcohol, and how it relates to legal consent and culpability.

So I see an inconsistency here
1) If you are inebriated, you are considered unable to give consent, and thus if someone has sex with you, they have legally raped you.

2) If you are inebriated, you are still culpable for crime. Although you were not in control of your mental faculties when the crime occurred, you are still responsible because you chose to get drunk.

So which is it? Why are you responsible for your actions in the one situation but not the other? Following the logic of point two, was responsibility for the resulting actions in point one not accepted when you made the choice to get drunk?

The second one isn't true, although I very much wish it were.

For example, if you hit and kill someone with your car, it's vehicular homicide. If you hit and kill someone with your car while under the influence, it's only vehicular manslaughter. Because you're not considered to be responsible for your own actions. Which is retarded for reasons that should be wholly obvious.

Edit: To clarify that statement a bit, killing someone in a car is just considered murder in most states. But killing them in a car (or any motor vehicle) while inebriated is vehicular homicide/manslaughter. With the exception of 3~ states, vehicular homicide is the same thing as manslaughter in the legal sense. I don't use the two interchangeably, but the law does. Hence the clarification.

Edit 2: If you really want to kill someone, toss a gun/knife in your car and leave a note in your house (preferably in a private journal) that you're going to kill them using whatever weapon you took with you. Then have a drink or two and hit them with your car. You'll get a very light sentence for three reasons. 1. Vehicular crimes tend to have lesser sentences. 2. Being inebriated is considered gross negligence, which further lowers the sentence. 3. By showing that you planned to kill them through another method, you can rather easily prove that you had no criminal intent in regards to the vehicular homicide, and so mens rea does not exist. Which would greatly reduce the sentence/crime all on it's own.

Champthrax:
So I was thinking about a question the other day after class, a question about alcohol, and how it relates to legal consent and culpability.

So I see a big inconsistency here
1) If you are inebriated, you are considered unable to give consent, and thus if someone has sex with you, they have legally raped you.

2) If you are inebriated, you are still culpable for crime. Although you were not in control of your mental faculties when the crime occurred, you are still responsible because you chose to get drunk.

So which is it? Why are you responsible for your actions in the one situation but not the other? Following the logic of point two, was responsibility for the resulting actions in point one not accepted when you made the choice to get drunk?

Because we don't blame the victim? In the senario where you are unable to give consent to sex, you did not choose to get raped, and there is no reasonable expectation to be raped. You, being raped, did not innitate any sort of action. In the case of drunk driving, you choose to drink and drive. It's expected that if you're going to drink, you take the precautions to stop yourself beforehand from doing something like getting behind the wheel after.

I think you are misattributing responsibility in the first case to the victim.

The law refers to this as Diminished Capacity.
If you got yourself so drunk that you were unable to control your own actions, then you're still responsible for whatever crime was committed as you created the situation that lead to the crime and then perpetrated the crime.
The law recognises your diminished mental capacity and generally lowers the sentence, however you still acted irresponsible in getting yourself that drunk and you still committed the crime. You still need to be punished.

It's not a double standard on par with being the same level of intoxicated and then someone taking advantage of you. Your diminished capacity prevents you from being able to give consent, yes, but not all drunk sex is considered rape - it's only rape if one party objects to it afterwards, and then you enter the wonderful circle of hell known as "He said, She said" and, if you're lucky, you meet Statutory Rape in there.

You don't need to provide your consent to be charged with a crime, and being raped isn't ok just because you don't remember it. So, no, there is no double standard.

Champthrax:
So I was thinking about a question the other day after class, a question about alcohol, and how it relates to legal consent and culpability.

So I see an inconsistency here
1) If you are inebriated, you are considered unable to give consent, and thus if someone has sex with you, they have legally raped you.

2) If you are inebriated, you are still culpable for crime. Although you were not in control of your mental faculties when the crime occurred, you are still responsible because you chose to get drunk.

So which is it? Why are you responsible for your actions in the one situation but not the other? Following the logic of point two, was responsibility for the resulting actions in point one not accepted when you made the choice to get drunk?

Another inconsistency I noted:

1) If you are underage, you are considered unable to give consent, and thus if someone has sex with you, they have legally raped you.

2) If you are underage, you can still be culpable for (some) crimes.

Which is it society? Why is it not okay for me to have sex with kids and drunk people?

It's actually pretty simple: in one case you're the most culpable (or responsible). In the other case another person is more culpable (or responsible.) Responsibility for an outcome is generally attributed to its nearest cause. For DUI, that's the driver who is drunk. For rape, it is the participant who is not drunk. If someone were to somehow force a drunk person to drive, then that might be a case where our sympathy should lie with the driver.

Consensual sex with a drunk person isn't rape however. That only flies if someone was so far gone they're basically passed out and couldn't consent as a result. Even if you passed out drunk and showed every sign of consenting it would be extremely hard blaming your partner, for instance if someone went along to a room, undresses, then wakes up sobered up and files rape charges, that would never lead to a trial.

Well, except in the US maybe.

Champthrax:
So I was thinking about a question the other day after class, a question about alcohol, and how it relates to legal consent and culpability.

So I see an inconsistency here
1) If you are inebriated, you are considered unable to give consent, and thus if someone has sex with you, they have legally raped you.

2) If you are inebriated, you are still culpable for crime. Although you were not in control of your mental faculties when the crime occurred, you are still responsible because you chose to get drunk.

So which is it? Why are you responsible for your actions in the one situation but not the other? Following the logic of point two, was responsibility for the resulting actions in point one not accepted when you made the choice to get drunk?

It's possible for there to be more than one victim in a case involving two people.

It's also possible for there to be more than one punishment.

Ex: A German police officer (ages ago) had to torture a suspect to save a kidnapped girl. It worked- she was saved. The kidnappers were punished for their crimes, and so was the police officer for his.

Personally I think that's a good system.

Well, they're two different rather crimes with two rather different backgrounds.

Drunk Driving is criminalized negligence rather than the usual intentional violations. If you're careless enough to get yourself so drunk that all reason have left you, and you did not take steps from prevent you from driving when still sober, then you'll be punished for this negligence if it gets you into a driver's seat. This because such action present a clear and present danger to others.

Sex with a drunk person is reasonably "rape" when that person is sleeping/unconscious, physically incapacitated, or visibly unable to grasp what's going on. This because "rape" usually requires use of physical/psychological force, but none is needed in these situations. So intentionally (...or in some systems even just negligently) taking advantage of a person's physical/psychological defencelessness is the standard instead, because fucking the defenceless without their consent is for all practical purposes the exact same as rape (...if they don't consent afterwards, because they have a fetish for being taken advantage of while unconscious or whatever).

This is obviously tricky to work with though, even more so than traditional rape. Mere "morning after regrets" should never get anyone convicted, so long as there was a conscious consent at the time of the intercourse. And in less puritanical/more sane justice systems, they don't. So if you end up in bed with some creature from the Black Lagoon, because your usual standards for who you'd invite there were lowered by alcohol consumption, then the law should not retroactively punish others for following your lead.

But determining just how inebriated you were when the creature got in there, and if it'd reached a point were you were unable to grasp what was going on (and whether Mr./Mrs. Creature knew/should've known this), is pretty god damn hard. To the point that one wonders how any convictions are obtained at all, unless the usual requirement of "guilty beyond all reasonable doubt" is slackened a bit. Which at times it might actually very well be, considering that of the very few cases of miscarriage of justice discovered, no small amount concern rape convictions.

Champthrax:
So I was thinking about a question the other day after class, a question about alcohol, and how it relates to legal consent and culpability.

So I see an inconsistency here
1) If you are inebriated, you are considered unable to give consent, and thus if someone has sex with you, they have legally raped you.

2) If you are inebriated, you are still culpable for crime. Although you were not in control of your mental faculties when the crime occurred, you are still responsible because you chose to get drunk.

So which is it? Why are you responsible for your actions in the one situation but not the other? Following the logic of point two, was responsibility for the resulting actions in point one not accepted when you made the choice to get drunk?

1) Not really. You are able to give consent as long as you are conscious and 'sufficiently aware' (gray area). Otherwise any person who has sex with anyone that is even the slightest affected by anything (pain medication, alcohol, hell even tobacco as it gives a 'high' to new smokers) would be deemed a rapist.

2) Yup. Just as if you have sex with someone while drunk, you're responsible for your actions.

Champthrax:
snip

1) Being inebriated per se does not make you legally incapable to give consent to have sex: what counts is being drunk to incapability. Similar standards exist in, say, contract law.

2) The issues are not comparable. If you get drunk and commit a crime, the only responsible actor from start to finish is you. If you get drunk and someone commits a crime against you, your responsibility is far smaller than that of the someone else.

As mentioned above, you simply cannot compare the two. Being the victim of a crime while drunk is completely different from being the perpetrator of a crime while drunk.

Saying that a person is responsible for crimes someone else decided to commit against them because they were drunk is nothing more than the usual victim blaming.

Well you have to classify these laws differently, not all laws are created equal there isn't just a distinction between state and federal there are also distinctions by who the law is applied to and how.

The first instance is protection of a person while the second is an indictment against a person's actions.

A person can start drinking expecting a good time and then get taken advantage of or a person can start drinking and act very stupidly. The first is an example of inaction, meaning a person was so drunk they didn't act to stop the act while other a person has to act. Acts must be punished, however so can inaction. As an example if a women declares rape but doesn't put up a fight or say no and isn't coerced into the act then her silence is inaction and the "punishment" is she has no legal standing for declaring a rape case. Someone can be inebriated enough not to act in their own self interest or in the interest of another. However actions have consequences unless there are serious mitigating circumstances and those actions must be punished, but being drunk usually reduces your jail time and replace it with treatment for alcoholism or anger issues.

I still want to know why this bothers the OP so much. Personally I would consider it rape if I was drunk and passed out and a guy decided to have sex with me. Wouldn't the OP?

Jux:

Champthrax:
So I was thinking about a question the other day after class, a question about alcohol, and how it relates to legal consent and culpability.

So I see a big inconsistency here
1) If you are inebriated, you are considered unable to give consent, and thus if someone has sex with you, they have legally raped you.

2) If you are inebriated, you are still culpable for crime. Although you were not in control of your mental faculties when the crime occurred, you are still responsible because you chose to get drunk.

So which is it? Why are you responsible for your actions in the one situation but not the other? Following the logic of point two, was responsibility for the resulting actions in point one not accepted when you made the choice to get drunk?

Because we don't blame the victim? In the senario where you are unable to give consent to sex, you did not choose to get raped, and there is no reasonable expectation to be raped. You, being raped, did not innitate any sort of action. In the case of drunk driving, you choose to drink and drive. It's expected that if you're going to drink, you take the precautions to stop yourself beforehand from doing something like getting behind the wheel after.

I think you are misattributing responsibility in the first case to the victim.

I doubt he's talking about "pinned down and screaming NO"-rape, more along the lines of "regret rape", in which consent is given at the time and then withdrawn after the fact once one party sobers up. Now, I suspect that such scenarios aren't very frequent, but they do happen occasionally, and if viewed in that context your critique falls apart, because they are comparable in terms of responsibility while inebriated.

1) Inebriated and incapacitated are not the same thing.

2) The two examples are not comparable anyway because one refers to a victim's culpability and the other to a perpetrator's culpability.

Jux:

Champthrax:
So I was thinking about a question the other day after class, a question about alcohol, and how it relates to legal consent and culpability.

So I see a big inconsistency here
1) If you are inebriated, you are considered unable to give consent, and thus if someone has sex with you, they have legally raped you.

2) If you are inebriated, you are still culpable for crime. Although you were not in control of your mental faculties when the crime occurred, you are still responsible because you chose to get drunk.

So which is it? Why are you responsible for your actions in the one situation but not the other? Following the logic of point two, was responsibility for the resulting actions in point one not accepted when you made the choice to get drunk?

Because we don't blame the victim? In the senario where you are unable to give consent to sex, you did not choose to get raped, and there is no reasonable expectation to be raped. You, being raped, did not innitate any sort of action. In the case of drunk driving, you choose to drink and drive. It's expected that if you're going to drink, you take the precautions to stop yourself beforehand from doing something like getting behind the wheel after.

I think you are misattributing responsibility in the first case to the victim.

The more interesting approach to this is the following scenario:

Two individuals, one male the other female, both get inebriated and have sex. Did a crime occur? If so, who is the victim? Are they both simultaneously victim and perpetrator? Does it come down to who makes an accusation first, if anyone? Can consent or responsibility be removed retroactively?

As far as your bit about victim blaming, you make an interesting bit of circular logic where we don't hold inebriated people responsible for consenting to sex because we don't victim blame someone who is only a victim (and not merely someone who had sex they later regret) because we don't hold inebriated people responsible for consenting to sex. There are far better ways to defend the distinction, but this one is basically "because it is!"

Interestingly, we seem much more willing to hold men responsible for consenting to sex than women, otherwise a mutually drunk scenario has no perpetrator because neither of them is responsible for having sex, and we wouldn't ever make male victims of statutory rape responsible for child support to the perpetrator if she becomes pregnant as a result of said statutory rape (if I really need to, I can track down a court case where an underaged boy was deemed "not entirely innocent" as a victim of statutory rape in order to justify hitting him with child support, while not actually charging the woman claiming an underage boy was the father of her child).

Imperator_DK:
Mere "morning after regrets" should never get anyone convicted, so long as there was a conscious consent at the time of the intercourse. And in less puritanical/more sane justice systems, they don't. So if you end up in bed with some creature from the Black Lagoon, because your usual standards for who you'd invite there were lowered by alcohol consumption, then the law should not retroactively punish others for following your lead.

You really didn't get the memo of what the only interpretation here that isn't "rape apology" is, did you? The moment they ingest any amount of alcohol, they are no longer responsible for their sexual choices, especially if female. Males get the same benefit, unless there is an inebriated female involved as well in which case there's a good chance her lack of ability to consent trumps his lack of ability to consent.

Imperator_DK:
But determining just how inebriated you were when the creature got in there, and if it'd reached a point were you were unable to grasp what was going on (and whether Mr./Mrs. Creature knew/should've known this), is pretty god damn hard. To the point that one wonders how any convictions are obtained at all, unless the usual requirement of "guilty beyond all reasonable doubt" is slackened a bit.

It's simple. They were accused. Almost no one ever makes a false accusation. Therefore, since they were accused, they must be guilty. If they aren't found guilty then the law is letting rapists go free.

More seriously, there are special restrictions placed on what can be used as a defense in rape trials in order to protect the victim, most of which are advantageous to the defendant regardless of the truth of their claims. There are some people who actually *want* to reverse the burden of proof in rape cases as well.

Imperator_DK:
Which at times it might actually very well be, considering that of the very few cases of miscarriage of justice discovered, no small amount concern rape convictions.

Almost none of which are "false accusations", because of the way that phrase gets defined. It's a evil little rhetorical twist, where "false accusation" gets defined in a way that someone who was accused of a crime they didn't commit wasn't "falsely accused" unless it can be shown that no crime was committed at all (Louis Gonzales was not "falsely accused" for example, because there was evidence that *something* happened to the "victim"), while the low rate thereof gets used to demonstrate that we should assume that anyone accused is probably guilty. Rather like how, in a hypothetical world where 90% of all cases of "sexual intercourse performed through force, the threat of force, or while the victim is intoxicated, unconscious, or otherwise incapable of consent" are female perpetrators against male victims, most rape would still be committed by men.

Champthrax:

1) If you are inebriated, you are considered unable to give consent, and thus if someone has sex with you, they have legally raped you.

2) If you are inebriated, you are still culpable for crime. Although you were not in control of your mental faculties when the crime occurred, you are still responsible because you chose to get drunk.

So which is it?

Yeah, I've thought the same kind of thing. Either you're responsible for your actions while drunk or you aren't - the current system quite specifically loads the dice against men because according to the legal definition, men can rape women but not vice-versa. So, if two people get drunk and end up in bed, the man can always be accused of rape while the woman can never be accused - regardless of exactly who was drunker, who initiated it, and so forth. It's a distinctly sexist double standard (although arguably deliberate date rape is a much bigger problem and ought to have priority in "getting fixed")

Champthrax:
1) If you are inebriated, you are considered unable to give consent, and thus if someone has sex with you, they have legally raped you.

This isn't actually true.

If you are inebriated to the point that you cannot consent (which varies from country to country) and someone else is aware of this and penetrates you anyway, then they have legally raped you.

Penetrating or doing any other sexual act with someone who has not consented is not a crime unless you knew at the time they had not consented (in some countries, this can be extended to cover situations in which a reasonable person would know that someone hadn't consented).

Actus non facit reum nisi mens sit rea. The act is not guilty unless the mind is guilty. Now stop pretending that this is all some terrible conspiracy against men. It is pretty much the opposite, in practice.

Magichead:
I doubt he's talking about "pinned down and screaming NO"-rape, more along the lines of "regret rape", in which consent is given at the time and then withdrawn after the fact once one party sobers up. Now, I suspect that such scenarios aren't very frequent, but they do happen occasionally, and if viewed in that context your critique falls apart, because they are comparable in terms of responsibility while inebriated.

I was assuming he meant 'passed out' rape, when the drunk person was unable to give consent, since thats how he worded it in his original post. :3

1) If you are inebriated, you are considered unable to give consent, and thus if someone has sex with you, they have legally raped you.

I made the assumption he meant 'inebriated to the point of incapacitation', though that may be a mistake on my part, as it was correctly pointed out that inebriation doesn't always mean incapacitated.

Schadrach:
The more interesting approach to this is the following scenario:

Two individuals, one male the other female, both get inebriated and have sex. Did a crime occur? If so, who is the victim? Are they both simultaneously victim and perpetrator? Does it come down to who makes an accusation first, if anyone? Can consent or responsibility be removed retroactively?

As boots pointed out afterwards, inebriated doesn't mean incapacitated. I had made that assumption in my orginal response. In this senario, I would say that if verbal consent was given by both parties, there was no crime. I could be wrong though, as I don't know if legal precedents have been set.

Schadrach:
As far as your bit about victim blaming, you make an interesting bit of circular logic where we don't hold inebriated people responsible for consenting to sex because we don't victim blame someone who is only a victim (and not merely someone who had sex they later regret) because we don't hold inebriated people responsible for consenting to sex. There are far better ways to defend the distinction, but this one is basically "because it is!"

Again, this goes back to where I made the assumption 'inebriated to the point of being unable to give consent'.

Schadrach:
Interestingly, we seem much more willing to hold men responsible for consenting to sex than women, otherwise a mutually drunk scenario has no perpetrator because neither of them is responsible for having sex, and we wouldn't ever make male victims of statutory rape responsible for child support to the perpetrator if she becomes pregnant as a result of said statutory rape (if I really need to, I can track down a court case where an underaged boy was deemed "not entirely innocent" as a victim of statutory rape in order to justify hitting him with child support, while not actually charging the woman claiming an underage boy was the father of her child).

I think one of the reasons men are generally held to a higher degree of responsibility is because of biology. Being able to have an errection is a prerequisite for penetration I would think, it's generally considered a man taking action upon a woman. The case of statutory rape with the underage male is an interesting thing to consider, but I don't see how its relevant to this discussion, as we are talking primarily about how alchohol relates to consent and culpaility.

The reason for why the "that person was drunk so having sex with it is rape" argument is such massive amounts of bullshit is that the people who use it don't understand that people can be drunk to varying degress. There is a HUGE difference between having 1 beer and being a little mellow, and having 12 beers and being barely able to move.

If a person is still able to maintain a conversation with you just fine then that person is NOT drunk enough to not know what it is doing even if that person is drunk. But if that same person just barely appears to know what is going on around it, then trying to have sex with it is abusive.

I find it HUGELY annoying when people act as if there is just "one kind of drunk" that people can be.

 

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