Are drunk people allowed to have sex?

[Bonobo]

I ask because of this post and I refer not to any particular case, but in general.

http://www.democraticunderground.com/?com=view_post&forum=1002&pid=4179632

It says that a woman is not able or allowed to consent to having sex if she is drunk. I take it to mean that, in this case, the OP believes that if you are drunk then even a "yes" does not mean "yes".

Is this true for men too?

What do you think of this?

Are people allowed to get drunk and have see? Doesn't seem to be any way to do so safely if this OP were true.

[Major Nikon]

1. Is it rape if the guy is drunk?

The legal definition of sexual assault varies by state. I don't know of any that meet the definition claimed.

[Warren Stupidity]

2. Do you think there is a problem with rape in our society?

[Bonobo]

5. Yes, I do. nt

[Major Nikon]

10. Do you think being drunk meets the legal standard of inability to consent?

[Warren Stupidity]

11. In some circumstances it is highly problematic.

For example you have sex with a person who is passed out intoxicated.

[Major Nikon]

12. What about in other circumstances

Let's say the person isn't mentally or physically incapacitated. Are they able to give legal consent?

[Warren Stupidity]

14. Do you agree that there is a state of intoxication where consent is not possible?

[Major Nikon]

16. I asked you first

I have no problem answering that question, but I'm not going to answer your questions if you have no interest in answering mine. I think that's fair.

[ProudToBeBlueInRhody]

26. How about when both people are equally drunk and both say yes?

Can someone just answer that question first?

No one seems to want to give an answer to that one.

[RiffRandell]

29. I thought I said yes to it.

I have no problem giving an answer. If people are drunk and the sex is consensual I don't consider it rape.

[nomorenomore08]

38. +1

For the record, I agree with both you and Warren. The key here is consensual - consensual sex while drinking is consensual sex, rape while drinking is rape, no less than if the victim were sober. Problem is some people seem to think drunk rape is a lesser crime, even not a crime at all.

[RiffRandell]

23. I'll answer.

Yes.

[Major Nikon]

25. I'd say no

Because a yes answer doesn't allow for the possibility of impairment that is not self-induced.

[lumberjack_jeff]

33. That's clearly and unambiguously correct.

What if they are both drunk to the point of diminished inhibitions?

If any of the parties involved wouldn't have consented without the alcohol is it rape if everyone involved is equally drunk?

[nomorenomore08]

37. +1

There's no magic line where something consensual suddenly becomes non-consensual - other than a "no" (which doesn't have to be verbal) - but I don't see how any non-sociopath could readily condone taking advantage of an unconscious (or nearly unconscious) person. I certainly hope no one in this Group thinks anything remotely along those lines

[malthaussen]

3. Probably be a good idea to get consent prior to intoxication.

Although no doubt there are those who will object to that.

-- Mal

[Doctor_J]

6. The linked post says that's still rape

[Major Nikon]

13. I'd object to that at least from a legal standpoint

For one, it reduces sex to a contractual arrangement which is ridiculous. For another, consent can be revoked at any time even in the middle of the act.

If you want to go so far as to get a notarized affidavit, be my guest, but the idea of requiring this from a legal standpoint is pretty much useless.

[Doctor_J]

4. The first sentence in that post is quite definitive

If someone is that drunk, any sex with her is rape.

A declaration like this would make the entire subject meaningless, IMO. As stated, this would have to include spouses, and cases where the man or both parties are drunk. That is the problem with blanket reactionary statements. They tend to toss actual crimes in with things that are not.

[Major Nikon]

7. Being drunk does not meet the legal standard in any state

If you consider the legal standard for drunk driving (0.08% BAC for most, if not all states) and consider that "drunk", this meets no standard for inability to consent in any state that I'm aware.

People who make blanket statements on consent generally have no idea what they are talking about. The definition varies greatly from state to state. What is true for one state is not necessarily true for another.

What they should be doing is telling people they need to check with their state law and make sure they have a good understanding of what consent means in their state. This is what RAINN does. With no universal definition of consent, making blanket statements about being "drunk" is simply ill informed and unhelpful.

[Bonobo]

8. Forgetting even the legal definition...

Does anyone really think that being drunk SHOULD invalidate a person's consent?

[Major Nikon]

9. Certainly if it reaches the point of mental or physical incapacity

But for most people that's a long way from being drunk.

[Warren Stupidity]

15. So just short of passed out, anything goes?

[Major Nikon]

17. That wasn't what was asked

I don't think being disingenuous with people's responses does your credibility any good.

[Warren Stupidity]

18. huh? I'm asking where the limit is.

We've established that "physically and mentally incapacitated" is beyond the limit of consent. I want to know if you think that is the limit or if a lesser state of impairment than "incapacitated" is also beyond the limit of consent.

[Major Nikon]

19. Then your answer is "no"

If you want me to elaborate you should work your way up the thread and consider the relevant questions I asked you. You dodged one and have yet to even respond to the other. You also asked another question that was only tangentially related to the OP.

I'm not convinced you have any interest in good faith discussion on this topic.

[Warren Stupidity]

21. I have no idea what "no" means to an "or" question.

I think it is pretty clear that there are situations where intoxication precludes consent. I am trying to figure out what you think. Are there such situations? What are the characteristics, the limits?

Yes of course I don't think the limit is flat out passed out drunk, and anything short of that is ok. Do you?

[Major Nikon]

31. I was answering post #15

For the record, you are still on #10 which you declined to give a yes or no response. There's also #12 which you ignored. An edit for the condescension on #2 and #15 would also help your case.

[RiffRandell]

24. Exactly.

As if spouses/partners never had consensual sex under the influence of alcohol (drunk even) or other drugs.

[TreasonousBastard]

20. It's well known that even a little alcohol...

can reduce inhibitions. The question becomes at what point does that reduced inhibition become inability to withhold consent. Or something like that.

If we define rape as sex without consent, we're getting into some really deep ethical and legal waters here if we keep digging in this direction. Especially since men are not always the aggressors or initiators in drunken sex.

[Major Nikon]

22. Throw other drugs into the mix and the issue becomes even more complicated

We already have 52 different jurisdictions (not counting US possessions) with almost as many unique definitions of what consent is or isn't. The idea that we should further muddy up the waters is not a good one. Consent should be clearly defined, widely communicated, and widely understood. None of those three are true.

[LadyHawkAZ]

28. There can't be a clear-cut definition in these circumstances

because that's only possible when personal agency can be reasonably assumed as a constant, and different levels of intoxication create a variable. There has to be some degree of responsibility for observation and rational judgement placed on the people involved, because it isn't possible to place a lawyer in every bar to make all the individual judgement calls.

Personally, my take is that if they're too drunk to be served, they're probably too drunk to consent. Observing that the person you're talking to is slurring their speech and stumbling when they walk (the cutoff point for service) isn't difficult. Visible, obvious signs of intoxication are a red flag that you've reached the point beyond which it is dangerous to proceed. Of course there's going to be variables here, too- a couple that know and trust each other, for example, are going to be able to go out, get plowed and still go home and jump each other with no issues tomorrow morning (other than a hangover), where two strangers at the same level of intoxication probably ought not to try it. But it's a decent rule of thumb and would likely save a lot of problems if followed.

People who are too drunk to move or speak, or completely unconscious, I think we can all agree are beyond capacity for consent.

[Major Nikon]

30. Here's a list of the state laws

It's in .doc format. If you are able to open it you can see that practically every state has differences in how they define the law. I think for most states if the victim is asleep or otherwise unconscious, mentally or physically incapacitated, unaware of what is happening, or administered an intoxicating substance without their knowledge, then consent can't be given. Then you get into coercion, age, and all sorts of other things that vary widely from state to state. Then various case law further define what all of those things mean. You are correct in that anyone with sound judgement should stay well inside the law rather than trying to ride the fence, but some suggest that the legality of it is a simple matter and that's just not true. It's not a simple subject that can be fully explained in simple terms because much of it depends on where you happen to be standing.

http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&ved=0CCoQFjAA&url=http%3A%2F%2Frelieffundforsexualassaultvictims.org%2Fresources%2Fsexualassaultchart_NCVLI-D.doc&ei=hE2uUpi7G8qD2gWoiIG4CQ&usg=AFQjCNHCtD-_t85pSYme3Nu5-S1yq4Oj0w&sig2=vn7agwxfKXgfDnHWaWgFNA&bvm=bv.57967247,d.b2I

[LadyHawkAZ]

32. State-level laws are made to Calvinball rules, yes

they can't even all agree on an age.

Short of outright banning all sex once a drink is taken, though, there's always going to be a gray area surrounding sex while drinking- you can do it with no problem 99 times out of 100, and it works fine until you meet Mr. or Ms. 100. Best we can do under the circumstances is teach people to use some reasonable judgement, and err on the safe side when in doubt.

[Major Nikon]

34. College campuses are where the worst of it is for women

And serial rapists are committing 9 out of 10 offenses.

http://america.aljazeera.com/watch/shows/america-tonight/america-tonight-blog/2013/10/28/serial-rapists-commit9of10campussexualassaultsresearchfinds.html

So it seems as if the vast majority of people are exercising good judgement and a small minority of men don't seem to be concerned about staying on the right side of the law.

[LadyHawkAZ]

35. If they can get away with it once,

why not do it again? And again after that? A mentality also common to small children and serial killers. The same thing happened with the untested rape kits now being tested around the country:
http://www.cleveland.com/metro/index.ssf/2013/10/rape_kit_tests_identify_lots_o.html
http://www.theguardian.com/lifeandstyle/2013/aug/26/kym-worthy-detroit-forgotten-rapes

I really think colleges should no longer be allowed to handle these cases in-house. A felony accusation isn't like breaking curfew; it's something that needs to be handled by the police and court system, not treated as an infraction and adjudicated by the school. That seems to be a huge chunk of the problem with the college rapes that have reached the media. I don't understand why this has ever been allowed.

There's always a small minority that just aren't interested in following the law, and this applies to much more than just rape. How to get the justice system off its butt and handle the people and problems that should be taking priority? Ay, there's the rub, and that's a much broader discussion; ironically, one I am too drunk for at this time.

[nomorenomore08]

39. Good post. There is some ambiguity there, but arguably there shouldn't be - when in doubt, don't.

[ProudToBeBlueInRhody]

27. Don't expect to get any straight answers, that's for sure

But mutually drunk people are having sex all the time.

[fishwax]

36. well, that post is referring to someone so drunk they don't know what they did or didn't consent to

I guess it's a bit ambiguous as to whether the lack of knowing is before the fact or in the moment. But if someone is so drunk that they don't know what they are consenting to, then they can't really consent. I'd say that goes for both men and women.

[Major Nikon]

41. I'm not so sure

Here are the facts that I have read. I'm just stating facts as I know them and not making any judgement calls as to whether or not she was raped. The 911 call can certainly lead one to believe she may have been raped, but I'm not so sure how one could make a case for even basic intoxication, much less to the point of mental or physical incapacitation.

Her own friend said she wasn't intoxicated when she left the bar and reportedly they had sex soon after arriving at the apartment. She can also be heard talking in the background of the 911 call. Her friend said she had been hit in the head which may explain why she was said to have blacked out. Her friend also said she was "OK" for whatever that means. In Florida, rape is called 'sexual battery' and it is defined below. Note that "mental incapacitation" (which is a pretty advanced state of intoxication) only applies in Florida if it happens without consent. If someone willingly gets drunk, then the legal standard appears to be unconsciousness, or physical incapacity.

Sexual battery in the 1st degree:
• “oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object” on a victim who is > 12 years old, without consent AND
• “victim is physically helpless” OR
• offender coerces the victim by force or threats of force “likely to cause serious personal injury” OR
• offender threatens retaliation OR
• offender gives or knows the victim was given, without consent, intoxicants “which mentally or physically incapacitates the victim” OR
• victim is mentally defective and offender knows OR
• offender is law enforcement officer and acting as such

Sexual battery in the 2nd degree:
• “oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object” on a victim who is > 12 years old, without consent AND
• NO force or threats of force “likely to cause serious personal injury” was used

Here is how consent is defined:

Consent
“intelligent, knowing, and voluntary consent and does not include coerced submission”

“shall not be deemed or construed to mean the failure of the alleged victim to offer physical resistance to the offender”

Incapacity
“mentally defective”: “mental disease or defect which renders a person temporarily or permanently incapable of appraising the nature of his or her conduct”

“mentally incapacitated”: “temporarily incapable of appraising or controlling a person’s own conduct due to the influence of a narcotic, anesthetic, or intoxicating substance administered without his or her consent or due to nay other act committed upon that person without his or her consent”

“physically helpless”: “unconscious, asleep, or for any other reason physically unable to communicate unwillingness to act”

“physically incapacitated”: “bodily impaired or handicapped and substantially limited in ability to resist or flee”

[fishwax]

42. I was only referring to the post in question and general principle, not

making a claim about the specific case. But I do appreciate the info you've provided, and certainly legally it all depends on location.

[nomorenomore08]

40. I guess it depends, in part, on what you mean by "drunk," but generally I would say yes.

The problem, as I see it, is that some people think drunkenness, in itself, equals de facto consent - though obviously I shouldn't have to tell you how wrongheaded that is. As I said in another post on this thread, drunk rape isn't any less rape-y than sober rape.

What it really comes down to, for me personally, is whether both people are participating in - and presumably enjoying - the act. If one person is largely passive while the other does all the work, so to speak, it isn't necessarily a crime but could be problematic, from an ethical standpoint. In that scenario, one person may not be raping the other, but it sort of does seem as if the other is being used. Making the distinction, again, between what is legal and what is ethical.

And really, so long as a person's actions fall within the law, the rest of us pretty much can't tell them how to live their life. We can hold whatever opinions we wish about their behavior, of course, but remember what Clint Eastwood said about opinions and assholes...

[Demo_Chris]

43. Of course. nt

[In_The_Wind]

44. In my drinking days ... I did get drunk and have sex.

I knew what I was doing. I didn't get drunk with anyone that I didn't know and trust.

[Bonobo]

45. People get nervous and do that to loosen up a bit sometimes.

Society has many restrictions against sex, particularly for women. Sometimes you want to do it, but feel nervous or embarrassed or a host of other feelings.

Drinking can be a way to -not only have fun with it- but too loosen up the restrictions that society has burdened you with. Don't you think?