[mike777]

"The legislation says silence or lack of resistance does not constitute consent. Under the bill, someone who is drunk, drugged, unconscious or asleep cannot grant consent"


California passes an important bill regarding rape and sexual attacks. Please note a woman or man who is drunk can never grant consent. Silence is never consent.

[helene_t]

I sympathise with the intention but TBH I don't remember ever having been THAT drunk. Ok, I suppose the fact that I don't remember it doesn't prove much.

[Winstonm]

Does pointing and slobbering constitute consent?

[billw55]

While I certainly agree with drugged, unconscious, or asleep, I have doubts about drunk. This treads near the territory of saying that we are not responsible for our actions while drunk. Also, how will drunk be defined in this context? Will a breathalyzer become mandatory for a victim? That won't go over well with victim advocates. What field test are people expected to administer to their would be partner, prior to commencing?

Nevertheless, there are colleges with written policy that drunk sex is automatically rape, regardless of any level or consent and/or participation. I wonder how they enforce this.

[barmar]

 billw55, on 2014-September-29, 08:48, said:

While I certainly agree with drugged, unconscious, or asleep, I have doubts about drunk. This treads near the territory of saying that we are not responsible for our actions while drunk. Also, how will drunk be defined in this context? Will a breathalyzer become mandatory for a victim? That won't go over well with victim advocates. What field test are people expected to administer to their would be partner, prior to commencing?

Doesn't this same issue already come up when bartenders are expected to cut someone off before they get too drunk, or call a cab for them if it's too late so they don't drive drunk? Or is that different because they're professionals, and are expected to have enough experience with drinking that they can recognize the signs, while a prospective sexual partner doesn't necessarily have such expertise.

[kenberg]

I'm ok with "someone who is drunk, drugged, unconscious or asleep cannot grant consent" although "drunk" comes in degrees. It seems to me that even if a person, presumably but not always in such cases the female, got drunk under her own power it is still reasonable to set limits on how such a person is treated. I am more concerned about "silence or lack of resistance does not constitute consent". Now I am old and memory fades, but it seems to me that often sexual engagement occurs without anyone giving explicit verbal consent. Afterward, there might be regret. Contrary to stereotype, it is not always only the female who later says something along the lines of "Good God that was stupid". I have even heard that sometimes women (I of course only dated very respectable girls, all of them virgins, so I can't say from experience) are the sexual aggressor and seduce the male. Should these women be placed in jail if the male was silent and did not resist the seduction? Ok, you might find this ridiculous but my concern is that someone might impulsively go to bed with someone, later regret that lack of judgment, then recall that "I never explicitly said ok" and get the other person thrown in jail.

I am fine, more than fine, with "No means No" and it still means No even if not said fiercely. I am fine with hands off drunken women. But bad judgment and impulsive behavior happen, and it seems reasonable to me that if someone, a wide awake sober someone, wants to file a criminal complaint later then s/he should make her/his wishes clear at the time. My limited experience leads me to believe that women are very capable of doing so.

[billw55]

Yes, drunk comes in degrees. I can easily imagine a person who is so grossly drunk that he/she is unaware of what they are doing. In fact, I don't need to imagine it. And I do think that yes, a person can be incapacitated beyond the point of being able to give informed consent, and yet still be conscious and at least partly mobile. To have sexual contact with such a person could reasonably be called assault or rape. But if the law (or institutional policy as the case may be) says only "drunk" or "intoxicated" then it is too vague to be useful IMO.

The silent part matters. Personally this is very weird to me. Why would anyone want to have sex with a ... nonparticipant? In such a case it should be obvious that she is not into it, to say the least, and highly likely that she does not want to. But why would *I* want to? For that matter, even "consent" would never be enough for me - only actual desire, which is very different. "Oh fine go ahead" is not a turn on!

[blackshoe]

 billw55, on 2014-September-29, 08:48, said:

While I certainly agree with drugged, unconscious, or asleep, I have doubts about drunk. This treads near the territory of saying that we are not responsible for our actions while drunk. Also, how will drunk be defined in this context? Will a breathalyzer become mandatory for a victim? That won't go over well with victim advocates. What field test are people expected to administer to their would be partner, prior to commencing?

Nevertheless, there are colleges with written policy that drunk sex is automatically rape, regardless of any level or consent and/or participation. I wonder how they enforce this.

So do I. Also, colleges do not make laws. They aren't the government, much as they might like to be.

I suppose if I were sober, and my companion had been drinking, I'd have to get her to sign a waiver or something before having sex. Yeah, right, like that's ever going to happen.

Scenario: two drunken college students have sex. Which one is guilty of rape, and which one is the "innocent victim"?

[barmar]

 billw55, on 2014-September-29, 12:07, said:

Why would anyone want to have sex with a ... nonparticipant?

Because they're a bunch of drunk frat boys who just want to get their rocks off, not interested in a romantic sexual encounter.

[billw55]

 blackshoe, on 2014-September-29, 12:31, said:

Scenario: two drunken college students have sex. Which one is guilty of rape, and which one is the "innocent victim"?

It is pretty obvious, even if not explicitly stated, that the intent of the law is to punish the man in such a situation, and treat the woman as the victim. Still, unclear how they will handle same gender cases.

[barmar]

 blackshoe, on 2014-September-29, 12:31, said:

Scenario: two drunken college students have sex. Which one is guilty of rape, and which one is the "innocent victim"?

The double standard still exists. So by default, the woman would be considered the victim.

But if there's witnesses or a video, you could probably determine which one was the aggressor. If the guy is just lying there in a drunken stupor, and the girl is riding him, it should be pretty clear that he's not assaulting her.

[kenberg]

 billw55, on 2014-September-29, 12:07, said:

The silent part matters. Personally this is very weird to me. Why would anyone want to have sex with a ... nonparticipant?

Or with a drunk participant or a drugged participant or, good grief, a sleeping participant. Regrettably, people do. So it has to be dealt with legally. Of course there was Bell, Book and Candle where Kim Novak used sorcery to snare the unfortunate (?) Jimmy Stewart.

I have known various people throughout life who have had unwise liaisons. To the best of my recollection they have always been consensual. Stupid maybe, but consensual stupid. I am at a bit of a loss to say what to do about the non-consensual case.Obviouly it has to be dealt with, but some legal issues, such as how drunk is drunk, are tricky.

[blackshoe]

Indeed. And the double standard doesn't help.

[kenberg]

 blackshoe, on 2014-September-29, 19:56, said:

Indeed. And the double standard doesn't help.

Well, men and women are in fact different. I was thinking of this when I mentioned Bell, Book and Candle. What a nice romantic story, who wouldn't want Kim Novak using her sorcery to bring you to her. Of course if it were a guy stooping to such trickery, drive a stake through his heart. But actually, I don't mind.

The trick is to stop predators without turning romance into something where the guy has to have the woman sign a release form before they can do what they, most often, both want to do. Realism is always helpful, so is a little restraint in always painting the guy as only after what he can get. Quite a few of us actually like women.

[barmar]

Now you've got me thinking about how many years Endora would be in jail for if she were prosecuted for everything she did to Darrin in "Bewitched". Not to mention the child endangerment charges against Samantha for letting Aunt Agatha babysit.

[helene_t]

 blackshoe, on 2014-September-29, 19:56, said:

Indeed. And the double standard doesn't help.

No doubt there are double standards but even with a totally unbiased legal system I think cases of women raping men would still be rare. Obviously stuff like coercing and sexual harrasment could easily occur both ways, but outright rape less so. There was a case from Russia a few years ago where a guy tried to rop a hairdresser saloon. One of the (female) staff managed to knock him down, tie him to a radiator, feed him with viagra and rape him. Now I don't know if the story is true since the source was just the woman bragging about it on social media, but in any case you can imagine such cases to be rare.

[Cyberyeti]

There are double standards all the way through this and not just with this law. I recall an incident from my student days which illustrates this. Two people both of whom were politically active for different parties went back to her room.

Afterwards:

Her: he raped me
Him: we made love

She didn't press charges, but his potential political career was ruined

My problem with the law as it stands is that the man is probably just as intoxicated and judgment impaired as the woman (if he isn't, and is using alcohol as a tool, he deserves the full weight of the law to come down on him) so doesn't notice when she says yes that she technically wasn't in a fit state to consent. I don't feel this should be criminal.

[PassedOut]

 helene_t, on 2014-September-30, 02:33, said:

No doubt there are double standards but even with a totally unbiased legal system I think cases of women raping men would still be rare. Obviously stuff like coercing and sexual harrasment could easily occur both ways, but outright rape less so. There was a case from Russia a few years ago where a guy tried to rop a hairdresser saloon. One of the (female) staff managed to knock him down, tie him to a radiator, feed him with viagra and rape him. Now I don't know if the story is true since the source was just the woman bragging about it on social media, but in any case you can imagine such cases to be rare.

Well there are double standards for sure. Honestly, the story you related automatically strikes me as mildly amusing, whereas a woman being tied to a radiator and raped strikes me as horrifying (even if she was trying to rob a barbershop).

[kenberg]

 Cyberyeti, on 2014-September-30, 04:16, said:

There are double standards all the way through this and not just with this law. I recall an incident from my student days which illustrates this. Two people both of whom were politically active for different parties went back to her room.

Afterwards:

Her: he raped me
Him: we made love

She didn't press charges, but his potential political career was ruined

My problem with the law as it stands is that the man is probably just as intoxicated and judgment impaired as the woman (if he isn't, and is using alcohol as a tool, he deserves the full weight of the law to come down on him) so doesn't notice when she says yes that she technically wasn't in a fit state to consent. I don't feel this should be criminal.

At the risk of sounding prudish, maybe the take-away lesson here is that it is a good idea, for both the man and the woman, to get to know each other before they take their clothes off. This would reduce the number of mis-understandings, whether they are real or contrived. In this particular case I find the idea that the woman had sex so that she could end the guy's political career by charging rape to be at least a little far-fetched. This doesn't mean it is impossible, but certainly far-fetched. A rather extreme form of ideological devotion. Maybe if he got to know her first he could have judged for himself whether this was likely to happen.

As mentioned earlier, I have known of a number of stupid, consensual bur stupid, liasons.

[Trinidad]

 Cyberyeti, on 2014-September-30, 04:16, said:

My problem with the law as it stands is that the man is probably just as intoxicated and judgment impaired as the woman (if he isn't, and is using alcohol as a tool, he deserves the full weight of the law to come down on him) so doesn't notice when she says yes that she technically wasn't in a fit state to consent. I don't feel this should be criminal.

My problem with this is that it somehow assumes that the man (or the woman) is not (or less) responsible for his (/her) actions when (s)he is drunk.

Barring the exception where people are drinking alcohol against their will, in my very strong opinion, people are entirely responsible for all their actions when they are drunk. And they should think about that before they take their first drink.

Rik