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The "I did not know" is covered in the third part of the comic.

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Originally posted by BYTEMITE:

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The "I did not know" is covered in the third part of the comic.

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Not "I didn't know they were drunk." That was "they were sober but conflicted about our relationship and how fast it was going but never said anything about it and so intimacy caught them by surprise when they weren't ready and I couldn't have known." Relationship anxieties, however, are not recognized by a court of law as a condition of non-consent, even though it can be as labyrinthine as all other aspects of this law.

Technically drunk is something a person does (a condition) that informs you that they can't consent. Rather like "schizophrenic fugue state" is a condition that informs you they can't consent.

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If the person is not drunk they still maybe able to give consent if they have been drinking. That buzzed area is where the gray is.

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...and people can drink but not be drunk.

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I don't exactly believe in Byte's definition that all such encounters are definitely rape, but I do allege that you cannot know if it is until one party wakes up and feels that it was. And everyone needs to be aware of that risk and act accordingly.

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Yes, but that is the problem, I would say? Being unconcerned with potential consequences shouldn't be considered an excuse. I would call it the reason for a great deal of misery.

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It seems to me you're arguing "but getting drunk at parties and having sex is a fun thing to do!", which I even agree with.But I disagree with the idea that because it's popular, it should not be considered a very high-risk behavior with potential legal consequences - for men AND women.

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But you cannot tell if they truly did (consent) until afterwards. You certainly would have a hard time proving it.

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And yes, I think of someone "takes advantage" you're looking at rape.

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I think where we mainly disagree is on how much responsibility should be placed on people's shoulder for avoiding situations where they might unintentionally rape someone, to phrase it weirdly. I think a LOT.

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You're saying BEHAVE THIS WAY, or risk being charged as a rapist. I say if that's the case, the law is wrong (luckily it isn't).

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Originally posted by BYTEMITE:

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What I'm talking about would be in the relm of a person not knowing the other's judgment is effective, which than is not rape.

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And this is where the comic geezer posted actually misses some nuances, because the second comic specifically focuses on a guy who knew what he was doing and knew she wasn't able to consent. But it was useful to illustrate some common situations and the logic behind it.

It can be rape still even if they don't know their partner's judgement wasn't effective.

Reposting a law blog I already posted.

http://blogs.findlaw.com/blotter/2013/03/what-is-rape-by-intoxication.
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That's an important distinction to know and one that isn't talked about often. But "I didn't know" or "I thought she was OK with it even though she was drunk" generally won't fly in court.

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However, thanks for recognizing that impaired judgement is non-consent.

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As an adult making decisions about sex, it's your responsibility to make sure that any sexual advances that you make are welcome.

The easiest way to determine that is just to ask, "Is this OK?" Under the law, a lack of response is the same thing as a "no."

That also means it's your responsibility to assess whether the person you're with is actually able to give consent. If she's too intoxicated to know what's going on, there probably isn't consent.

That's an important distinction to know and one that isn't talked about often. But "I didn't know" or "I thought she was OK with it even though she was drunk" generally won't fly in court.

It also won't endear you to a jury at all.

Getting consent is important. Always ask before you act.

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Originally posted by BYTEMITE:

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...and people can drink but not be drunk.

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Which depends on the person.

Seriously, we're going in circles. The law is very broad because it is meant to cover the people who do take one drink or who are on medication and take a sip and it causes impaired judgement/lowers inhibitions/non-consent.

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Originally posted by kpo:

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Originally posted by M52NICKERSON:

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Originally posted by BYTEMITE:

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...and people can drink but not be drunk.

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Which depends on the person.

Seriously, we're going in circles. The law is very broad because it is meant to cover the people who do take one drink or who are on medication and take a sip and it causes impaired judgement/lowers inhibitions/non-consent.

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It is broad. However unless a person can prove that they are on medication or that one drink impairs their judgement and thus can't consent no prosecutor is going to go to court with that.

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...and again simple lower inhibition does not equal impaired judgement and non-consent.

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Because it is difficult to judge how much alcohol incapacitates another person, the military pushes a “one drop” approach against sex after alcohol, urging troops to save it for another day if either party has been drinking.

“With all these trainings, they drill it into you. Once you have one sip of alcohol, that’s it,” Hopkins said.

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Legally, a person cannot not truly consent under the influence of alcohol. Alcohol is involved in the majority of sexual assaults (including date rapes) at Stanford and other schools.

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Alcohol is in fact the most commonly used drug to facilitate the perpetration of sexual assault. Just as with roofies, alcohol impairs your judgment, lowers inhibitions, and affects consciousness. In the eyes of the law, you cannot consent to have sex when you are under the influence of alcohol.

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Consent cannot be given when judgment is impaired by alcohol or drugs, or if the person not initiating is asleep or unconscious. Being under the influence is not an affirmative defense. According to Connecticut state law, having sexual intercourse with someone who cannot give consent is rape.

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Originally posted by BYTEMITE:
[It is entirely about proof. Yes. Thank you for acknowledging the situation is possible.

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Originally posted by BYTEMITE:
ONCE AGAIN. It is if it is NOT SOMETHING THEY WOULD HAVE DONE WHILE SOBER.

You already conceded this as part of the premise of your earlier argument. We are now going backwards. Yay...

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Originally posted by BYTEMITE:
Just... Fuck it. You have your preconceived notions, and even the law isn't going to dissuade you. Do what you want.

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The earliest signs of impairment would be the loss of inhibitions. [...] This level of impairment is usually seen in the range of 0.02% or 0.05% depending on alcohol tolerance.

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Perhaps you don't understand what inhibition is. Lowering ones inhibition does not mean they are impared. It can be as simple as getting over a fear of rejection or fear of judgement. Or it could be lowering a fealing of guilt. None of which means impared judgement. So it does not matter what a person would have done in an other situation.

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Originally posted by BYTEMITE:
Not absolutism. Reasonable objection to biases and preconceptions in a drinking culture that fail to recognize the full implications of the effects of alcohol on cognition.

Oh, and here's that case, BTW. She was also bruised when she woke up. And apparently raped by someone else at the club before picked up by the couple and the "consensual sex."

http://statecasefiles.justia.com/documents/ohio/eighth-district-court-
of-appeals/2007-ohio-6483.pdf?ts=1323909316

I am to determine that your expression of frustration and focus on "moral outrage" indicates you have nothing further to offer in service of your opinion or perspective. You have not posted sufficient evidence in favour of your opinion or the flaws in mine.

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Originally posted by kpo:
The degrees that I think we've got:

1) Woman is lightly inebriated, has willing sex
2) Woman is lightly inebriated, has willing sex, later regrets it
3) Woman is heavily inebriated, has willing sex, later regrets it
4) Woman is heavily inebriated, is coerced/pressured into sex and finally agrees to it
5) Woman is heavily inebriated and disorientated/doesn't know what is going on

My position is something like:

1) - Fine. Nobody is hurt, everyone hopefully enjoys themselves.
2) - Oops. Live and learn. But it's hard to say the woman was taken advantage of - it's possible that the alcohol didn't even play a role. Certainly nothing criminal here.
3) - Possibly this woman was taken advantage of, possibly not. Depends on exact circumstances. But not rape.
4) - Predatory, scumbag behaviour, definitely taking advantage. Maybe prosecutable as rape depending on laws, and extremeness of the case.
5) - Rape

It's not personal. It's just war.

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You keep citing case in which women were so obviously intoxicated it is not even in the realm of which I'm speaking. I have posted evidence, right from the law you simply ignore it.

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That does not mean that any amount of alcohol and a person is considered impaired.

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Even in one of your citations it said something to the affect that people are going to drink and have sex.

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Originally posted by kpo:
The degrees that I think we've got:

1) Woman is lightly inebriated, has willing sex
2) Woman is lightly inebriated, has willing sex, later regrets it
3) Woman is heavily inebriated, has willing sex, later regrets it
4) Woman is heavily inebriated, is coerced/pressured into sex and finally agrees to it
5) Woman is heavily inebriated and disorientated/doesn't know what is going on

My position is something like:

1) - Fine. Nobody is hurt, everyone hopefully enjoys themselves.
2) - Oops. Live and learn. But it's hard to say the woman was taken advantage of - it's possible that the alcohol didn't even play a role. Certainly nothing criminal here.
3) - Possibly this woman was taken advantage of, possibly not. Depends on exact circumstances. But not rape.
4) - Predatory, scumbag behaviour, definitely taking advantage. Maybe prosecutable as rape depending on laws, and extremeness of the case.
5) - Rape

It's not personal. It's just war.

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You are wrong with 3 and 4. Any time you are talking about heavily inebriated you are talking rape.

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Originally posted by BYTEMITE:
I never saw you post a law citation or a court case.

You posted a law wiki article. Of which it doesn't say what you claimed it said, and I pointed that out, and you moved on trying to find another source. Which was an informal blog.

There is a difference.

THIS is a law cite.

http://codes.lp.findlaw.com/cacode/PEN/3/1/9/1/s261

They have big long numbers behind them, if that helps you.

As a side note, California interprets the statute as a "one drop" rule. I've also heard that Washington does as well.

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Originally posted by BYTEMITE:But it can. Which is the reason why many states' laws are broad and don't specifically detail what constitutes incapacitation or specify exactly when they are no longer able to consent.

If you do it, you're taking a risk. Period.

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Originally posted by BYTEMITE:I don't recall. The court case? Because there was a problem with the court case, I posted that as an example of how the law can be applied badly.

In any case, how about you find me a court case where "drunken consensual sex" with a girl who was "lightly" inebriated turned out well. I've done a lot of legwork already showing the opposite.

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So no please cite were that is interpreted as a "one drop" rule.

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Originally posted by kpo:

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I don't exactly believe in Byte's definition that all such encounters are definitely rape, but I do allege that you cannot know if it is until one party wakes up and feels that it was. And everyone needs to be aware of that risk and act accordingly.

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This idea that a woman can voluntary go out and have a few drinks, and then voluntarily (and enthusiastically) sleep with a man, and then if she chooses to she can be a rape victim the next morning according to the law - is ridiculous. I would say it's demeaning to women, and offensive to rape victims like Alison.

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Yes, but that is the problem, I would say? Being unconcerned with potential consequences shouldn't be considered an excuse. I would call it the reason for a great deal of misery.

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Misery does not imply criminal behaviour.

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My problem is that you are talking about using the law, or the threat of the law, against behaviour which is not criminal, and not necessarily even unethical.

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But I still say you're picking a stupid battle, and doing feminism no favours by wagging your finger and lecturing men and women who want to enjoy themselves about how to behave.

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It seems to me you're arguing "but getting drunk at parties and having sex is a fun thing to do!", which I even agree with.But I disagree with the idea that because it's popular, it should not be considered a very high-risk behavior with potential legal consequences - for men AND women.

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This is what I mean. You're being a stern, feminist finger-wagger.

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Innocent people engaging in a common activity should never be at 'high risk' from the law. If they are the law is wrong.

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But you cannot tell if they truly did (consent) until afterwards. You certainly would have a hard time proving it.

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Is it up to me to prove that she consented? Surely the prosecution has to prove that she didn't?

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And yes, I think of someone "takes advantage" you're looking at rape.

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This 'you're looking at'. If you think it's rape, say that you think it's rape.

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Saying 'you could be charged' doesn't mean anything. A woman could hypothetically concoct a whole story and have me charged for rape her when in fact I have not even had sex with her.

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For me, taking advantage is not necessarily rape (in fact it rarely is).

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I think where we mainly disagree is on how much responsibility should be placed on people's shoulder for avoiding situations where they might unintentionally rape someone, to phrase it weirdly. I think a LOT.

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I think we mainly disagree on what constitutes 'rape', and everything else flows from there.

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In fact I don't think you've got straight in your mind what rape is.

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Do you think, for e.g., that if a drunken woman initiates sex, but the next morning regrets it, that she can legitimately claim rape?

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Originally posted by G:
I wasn't myself when I typed that... I'd had 2 cups of coffee and was a bit stressed from work...

Yes, I know the "sip" comment was Byte's, not yours. I agree about alcohol and fair warning to those that indulge too much on both sides.

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Originally posted by BYTEMITE:

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So no please cite were that is interpreted as a "one drop" rule.

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Washington State Code RCW 9A.44.010

(4) "Mental incapacity" is that condition existing at the time of the offense which prevents a person from understanding the nature or consequences of the act of sexual intercourse whether that condition is produced by illness, defect, the influence of a substance or from some other cause.

And a 90 pound girl can have a blood alcohol content of 0.05% after one drink for an hour.

Why don't you post some cites? I've been citing everything up to now.

Here are various answers from lawyers around the nation.

http://www.lawqa.com/qa/will-my-friend-be-accused-of-rape-if-both-of-t
hem-were-under-influence

Here is a nytimes article about the kind of grey area stuff we've been discussing.

http://cityroom.blogs.nytimes.com/2007/10/15/gray-rape-a-new-form-of-d
ate-rape/?_r=0

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Originally posted by M52NICKERSON:

Both of those talk about folks being to drunk to remember...which is not what we are talking about. If you can't remember the next morning pretty safe bet you could not give consent the night before.

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I have given citations, and in them as well as in yours it clearly states there is no line at which a person is concidared to intoxicated to give consent. You have said that yourself. It does not logiclly follow "one drop" eguals rape or that it would even be enough by itself to charge someone.

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3) People who would take advantage of laws that deal with diminished ability to give consent? I'm sure we can agree: vast minority. The vast majority who would both claim to others that they have been violated and go so far as to press charges? Like genuinely feel that they have been violated. And they should have every opportunity to file charges. Disagree?

[...]

Also: you say "regret", as if women are driven in hordes to press charges because they feel a vague sense of dissatisfaction. They generally tend to because they genuinely feel they weren't capable of consent anymore.

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Originally posted by SIGNYM:
Wow, this is a long thread. Sorry if I'm re-introducing a topic which has already been covered but...


What if the woman is mentally retarded? Is autistic? Comes from a foreign country where language and customs are different? There are a lot more ways to screw up "consent" than just alcohol or date rape drugs.

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Originally posted by G:
To recap:

Women who want to have sex, should not drink alcohol.

Women who want to drink, should drink alone or only with people they do not find sexually attractive

Men should never buy a woman a drink if they have any sexual interest in them (could lead to some awkward diner dates).

Every man who has had consensual sex with a woman who has had any alcohol, could be a rapist.

Men should carry breathalyzers and sexual consent forms at all times, ideally with a lawyer present.

New thumb print iPhone consent app coming in 2015.

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Originally posted by BYTEMITE:
Or hell, cheat - I've never cared much about monogamy anyway, and cheating is WAY better than rape.

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Originally posted by AgentRouka:
Saying "Don't sleep with people who cannot give consent, and when in doubt say no". If that's lecturing, I'm willing to wear that badge. I disagree that it's a stupid battle, though. It's just a request for common decency.

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Originally posted by m52nickerson:


3) - Possibly this woman was taken advantage of, possibly not. Depends on exact circumstances. But not rape.


It's not personal. It's just war.

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Originally posted by BYTEMITE:
Guess what? if you CAN remember the morning after, in many cases you ALSO couldn't give consent. As it turns out, traumatic memories tend to be more easily established, and when alcohol affects the hippocampus, the memory making abilities are still functional to a point, however they can be sporadic and that is why many drunken memories are sporadic or "flickering."

However, eventually enough alcohol is in the hippocampus that new memories stop forming, so it is also true that a happy enthusiastic drunk could SEEM fully functional and "able to consent", could be moving around on their own, and yet not remember anything they did the next day. Called a memory black-out.

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Originally posted by BYTEMITE:
DRAW A LOGICAL INFERRENCE. We're talking about interpretations of the law here, individual and situational variance, the practical reality of the issue, and how these things get reported. We're also talking about flaws in some interpretations of the law whereby "lowered inhibitions" suggests a diminished ability to comprehend the consequences of their actions! Where does that say that? Oh, the Washington law I posted.

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Originally posted by BYTEMITE:
One drink is enough for some people depending on their personal considerations and the kind of alcohol, and it's ESPECIALLY enough... IF THERE'S A ROOFIE IN IT.

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Originally posted by BYTEMITE:
And no. You posted ONE law-wiki cite that was marginally useful but which ultimately supported my position and a BLOG. You also REFUSED cites I've posted about the policies of major public institutions, REFUSED actual LEGAL cites and COURT CASES I've posted showing the issue and how it's interpretted and why it should be interpretted my way, generally moved the goal posts, and been frustrating as hell to work with because you acknowledge verify and confirm every single one of my arguments but you WON'T FOLLOW THEM TO THE LOGICAL CONCLUSION even though I have given more than enough information and examples to establish the validity of such an interpretation.

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Originally posted by BYTEMITE:
So now, after my exhaustive search, efforts, and coverage, I have asked you to dig up a legal cite about lowered inhibitions casual sex false accusations and the guy not getting convicted. And there actually are a number out there. However, I don't think you'll like how the law is applied in those cases.

Do some of your OWN research now.

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Originally posted by Storymark:
If that is true, in regards to #3 - I knew a lot of women in college who very deliberately went out each and every weekend to get raped.

What if they're heavily inebriated, and don't regret it later?

Regret over one's poor choices doesn't make the other party guilty of a crime.

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1) Where do you get "women" from, again? I made it clear that I apply this to all genders.

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In fact I don't think you've got straight in your mind what rape is.


I do, and thank you for phrasing this so insultingly, as if only your opinion counts.

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I am not sure what to make of your argument other than you don't think it's your responsibility to be sure that the person you're sleeping with can give proper consent.

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If that's lecturing, I'm willing to wear that badge. I disagree that it's a stupid battle, though. It's just a request for common decency.

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People who would take advantage of laws that deal with diminished ability to give consent? I'm sure we can agree: vast minority.

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The vast majority who would both claim to others that they have been violated and go so far as to press charges? Like genuinely feel that they have been violated. And they should have every opportunity to file charges.

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It (taking advantage) means making use of something that places the other in a vulnerable or inferior position in order to press one's own interest. Sounds rape-y to you?

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Well no shit Sherlock! We've discussed this before and I agree with on it. Yet you keep bringing it up as if I don't or that it somehow changes things in regards to people who can drink more than one and be fine.

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I know. But the reality is that most rapes are done by men against women, and most rape accusations by women against men. That's why we're all talking in those terms.

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Trust me: as a feminist, don't pick these fights. You know what reputation feminists have.

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I'm not picking this fight for women. I'm picking it for everyone.

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Everything I've been saying goes equally for guys and girls.

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If we make rape laws ultra-strict, we're talking about more men going to prison, not more women (or disproportionate amounts).

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In date rape/acquaintance rape, the victims are predominantly female, and a lot of the activism directed against it comes from a feminist place.

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Originally posted by BYTEMITE:
And you understand why the law is broad enough to cover those cases where one drink is enough, and yet you are unable to then make the logical inference that if you have sex with ONE OF THOSE PEOPLE you could potentially be charged. As such, the rule of thumb is, don't sleep with ANYONE who has been drinking because you don't know how the alcohol will effect them or if they've taken other drugs and you could end up charged. Ergo, a "one drink" or "one drop" rule, that some courts will convict based on.

Again. This REALLY is not that hard.

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