15 percent of women are raped while incapacitated during their freshman year at college

[Nice Squirrel]

Just in case you folks missed it here is the link to the actual study:

http://www.jsad.com/doi/full/10.15288/jsad.2015.76.829

 

[ksen]

Why do the progressives that run these colleges turn them into such hotbeds of racism and rape?

50 Shades of College

 

[Bronzeage]

i know we've had this conversation before, and i'm not on the anti-woman hate wagon that certain other unnamed posters here are, but i still don't follow why that statement only applies to men and not to women when it comes to sexual encounters.

Having sex with a person who cannot give consent is a crime.

if a woman can be too drunk to consent, can not also a man?
i've never understood this whole "no matter how drunk (or not) a woman is, her consent is invalidated" thing and how that contrasts with "no matter how drunk (or not) a man is, his intent is assumed."

Okay, you caught me on a good day, so I'll say it one more time, but I'll mix it up a bit.

If a man is drunk and wakes up to find a woman riding his cock and he objects to this, he is free to pursue legal charges against the woman.

If the same man is drunk and wakes up to find someone's penis in his mouth, and he objects to this, he is free to pursue legal charges against the man.

If either this woman or this man happen to be so drunk it clouds their judgment, it is not an allowable defense of their actions.

This is one of those things that could have gone either way, but their was a big meeting of all the grown ups and we decided to go with the "don't fuck drunk people rule, we don't care how drunk you are" rule. It's kind of like the don't drive drunk rule.

 

[couch_sloth]

i know we've had this conversation before, and i'm not on the anti-woman hate wagon that certain other unnamed posters here are, but i still don't follow why that statement only applies to men and not to women when it comes to sexual encounters.

Having sex with a person who cannot give consent is a crime.

if a woman can be too drunk to consent, can not also a man?
i've never understood this whole "no matter how drunk (or not) a woman is, her consent is invalidated" thing and how that contrasts with "no matter how drunk (or not) a man is, his intent is assumed."

In my experience, it's not uncommon for women to become the 'sexual aggressor' while drinking. So if both the man and woman are incapacitated with alcohol, I suppose it would be the one who initiates and persists in the sexual contact who is the rapist

 

[GenesisNemesis]

To translate: 15% of freshmen females have had sex while drunk.

If you're incapacitated by alcohol you can't consent to sex. Key word is incapacitated. Also, you can't simply claim that they all "knew what they were doing" based on your bias against women, you have to provide evidence for that, and I'm pretty sure you can't do that.

 

[Tom Sawyer]

To translate: 15% of freshmen females have had sex while drunk.

If you're incapacitated by alcohol you can't consent to sex.

But in order to make that statement, you need to define the term incapacitated. The study didn't.

 

[Bronzeage]

i've never understood this whole "no matter how drunk (or not) a woman is, her consent is invalidated" thing and how that contrasts with "no matter how drunk (or not) a man is, his intent is assumed."

Which is actually another issue with the study. They're presenting their conclusions like this is a women's problem but don't have a similar group of men surveyed to see if there's a gender difference. If 15% of women are victims of incapacitated rape (whatever that may be) and only 3% of men are, then it's far more of an issue for women. If 40% of men are, then it's far more of an issue for men. If the rates are similar, then it's a problem (or lack of a problem, given that we don't know what they're talking about) for the student body as a whole.

There may very well be a rape epidemic on campus which women need to protect themselves against. This study doesn't provide any information on the subject, though.

It's been a while since I spent any great amount of time on campus, but if anecdotal evidence from the late 70's is admissible, the number 15% sounds reasonable. In my circle of friends, 1 in 10 women, give or take, had sex in less than fully consensual situations. This includes drunkenness and plain intimidation. The 3% number for guys who had sex with other guys in the same circumstance is probably on the mark, as well.

In those days, the term "date rape", was not in use, but it was a recognised phenomena.

 

[Tom Sawyer]

Which is actually another issue with the study. They're presenting their conclusions like this is a women's problem but don't have a similar group of men surveyed to see if there's a gender difference. If 15% of women are victims of incapacitated rape (whatever that may be) and only 3% of men are, then it's far more of an issue for women. If 40% of men are, then it's far more of an issue for men. If the rates are similar, then it's a problem (or lack of a problem, given that we don't know what they're talking about) for the student body as a whole.

There may very well be a rape epidemic on campus which women need to protect themselves against. This study doesn't provide any information on the subject, though.

It's been a while since I spent any great amount of time on campus, but if anecdotal evidence from the late 70's is admissible, the number 15% sounds reasonable. In my circle of friends, 1 in 10 women, give or take, had sex in less than fully consensual situations. This includes drunkenness and plain intimidation. The 3% number for guys who had sex with other guys in the same circumstance is probably on the mark, as well.

In those days, the term "date rape", was not in use, but it was a recognised phenomena.

Ya, that's not admissible. Those were the days when Bill Cosby wandering around dropping qualudes in women's drinks was considered funny instead of horrific.

Now, it may be that the incidence of it is about the same as it was during the 70s. It may be that the problem has gotten a lot worse. It may be that the problem has gotten a lot better. It may be that men have become decent, kind and respectful while women have gotten all rapey and are preying on defenceless drunk men.

What I'm saying is that this study does not give an answer to any one of those questions. If they'd defined their terms and given cross-group comparisons, this sort of thing could given valuable information on the topic. It doesn't, though.

 

[whichphilosophy]

To translate: 15% of freshmen females have had sex while drunk.

Why is it if a girl is drunk she is 'raped' while when a guy is drunk he is the 'rapist'?

Because that's the way it works.

We've had conversation before. The act of getting drunk does not relieve a person of the consequences of their actions while drunk. Having sex with a person who cannot give consent is a crime.

If this is a problem for you, I advise you to either avoid women, or avoid liquor.

Better avoid women with liquor and liquor

 

[prideandfall]

sorry, i know this is rather a derail from the topic of the linked study, and bronze i'm not trying to drag you into a debate or get under your (or anyone else's) skin - this is just a fascinating and really weird topic to me that i like discussing so i'm kind of just going with it.

Okay, you caught me on a good day, so I'll say it one more time, but I'll mix it up a bit.

but you're still basically inferring the same thing: if person A is black-out drunk, person B is maliciously victimizing them during their state of vulnerability - i fully admit up front that my understanding of alcohol is extremely limited since i've never been under the effects of it and i avoid people who are like the plague, but even in my totally naive ability to perceive these situations it doesn't strike me that this happens all that often.

If a man is drunk and wakes up to find a woman riding his cock and he objects to this, he is free to pursue legal charges against the woman.
If the same man is drunk and wakes up to find someone's penis in his mouth, and he objects to this, he is free to pursue legal charges against the man.
If either this woman or this man happen to be so drunk it clouds their judgment, it is not an allowable defense of their actions.

couple of things here:
1. "free to" isn't the same thing as "it is the correct moral, ethical, legal, and socio-cultural choice" - which i thought was kind of the point of discussing the issue in the first place.
2. i think it's kind of weird to go straight from "wakes up from being black-out drunk" to "pressing charges against the person."
3. i kind of feel like you're once again inferring that the other person in each of these scenarios is some kind of mustache-twirly who saw a prone body and went all windowless-free-candy-van on them - and maybe i'm a total stooge and have no idea what i'm talking about, but i just don't have a perception of that being how many (most?) of these situations shake out.

This is one of those things that could have gone either way, but their was a big meeting of all the grown ups and we decided to go with the "don't fuck drunk people rule, we don't care how drunk you are" rule. It's kind of like the don't drive drunk rule.

except it's completely not, at all, and i really think it's kind of ridiculous all the people that keep trying to use it as a comparison.

first of all, there is no context ever in any circumstances wherein driving drunk is legal, however there are countless myriad circumstances where fucking while drunk are legal.
secondly, you can't negate the responsibility for, or consequences of, driving drunk by having gotten permission from the car or other passengers to be driving while drunk. however, you can negate the entire concept of rape if two people were sober and agreed to get drunk and then fuck each other.
thirdly, impaired driving is inherently and fundamentally unlawful in and of itself, whereas impaired fucking is not.
fourth, i think you kind of complicate the underpinning premise of your own argument here in a way, because if the basic concept is "if you get drunk, anything/everything you do while drunk is your fault", then logically that argument states that the onus for letting themselves get fucked by someone is on the woman, regardless of how drunk they are.

 

[Bronzeage]

but you're still basically inferring the same thing: if person A is black-out drunk, person B is maliciously victimizing them during their state of vulnerability - i fully admit up front that my understanding of alcohol is extremely limited since i've never been under the effects of it and i avoid people who are like the plague, but even in my totally naive ability to perceive these situations it doesn't strike me that this happens all that often.

If a man is drunk and wakes up to find a woman riding his cock and he objects to this, he is free to pursue legal charges against the woman.
If the same man is drunk and wakes up to find someone's penis in his mouth, and he objects to this, he is free to pursue legal charges against the man.
If either this woman or this man happen to be so drunk it clouds their judgment, it is not an allowable defense of their actions.

couple of things here:
1. "free to" isn't the same thing as "it is the correct moral, ethical, legal, and socio-cultural choice" - which i thought was kind of the point of discussing the issue in the first place.
2. i think it's kind of weird to go straight from "wakes up from being black-out drunk" to "pressing charges against the person."
3. i kind of feel like you're once again inferring that the other person in each of these scenarios is some kind of mustache-twirly who saw a prone body and went all windowless-free-candy-van on them - and maybe i'm a total stooge and have no idea what i'm talking about, but i just don't have a perception of that being how many (most?) of these situations shake out.

This is one of those things that could have gone either way, but their was a big meeting of all the grown ups and we decided to go with the "don't fuck drunk people rule, we don't care how drunk you are" rule. It's kind of like the don't drive drunk rule.

except it's completely not, at all, and i really think it's kind of ridiculous all the people that keep trying to use it as a comparison.

first of all, there is no context ever in any circumstances wherein driving drunk is legal, however there are countless myriad circumstances where fucking while drunk are legal.
secondly, you can't negate the responsibility for, or consequences of, driving drunk by having gotten permission from the car or other passengers to be driving while drunk. however, you can negate the entire concept of rape if two people were sober and agreed to get drunk and then fuck each other.
thirdly, impaired driving is inherently and fundamentally unlawful in and of itself, whereas impaired fucking is not.
fourth, i think you kind of defeat your own argument here in a way, because if the basic premise of your argument is "if you get drunk, anything/everything you do while drunk is your fault", then logically that argument states that the onus for letting themselves get fucked by someone is on the woman.

sorry, i know this is rather a derail from the topic of the linked study, and bronze i'm not trying to drag you into a debate or get under your (or anyone else's) skin - this is just a fascinating and really weird topic to me that i like discussing so i'm kind of just going with it.

When I use the term "free to," it means the grown ups recognize this person has suffered a wrong and is entitled to some sort of redress. We don't look at them in the same way as we view the person who steps on the skateboard they left on the stairs.

One of the problems of moral codes, and this is exactly what this is, is there is no way to construct a code which does not have some conflict, somewhere. We can recognise the conflicts whereever someone plants the "But that's not fair" flag. Settling these disputes is a grown up problem. We know that it can't be fair to everyone, every minute of the day.

 

[bilby]

but you're still basically inferring the same thing: if person A is black-out drunk, person B is maliciously victimizing them during their state of vulnerability - i fully admit up front that my understanding of alcohol is extremely limited since i've never been under the effects of it and i avoid people who are like the plague, but even in my totally naive ability to perceive these situations it doesn't strike me that this happens all that often.

If a man is drunk and wakes up to find a woman riding his cock and he objects to this, he is free to pursue legal charges against the woman.
If the same man is drunk and wakes up to find someone's penis in his mouth, and he objects to this, he is free to pursue legal charges against the man.
If either this woman or this man happen to be so drunk it clouds their judgment, it is not an allowable defense of their actions.

couple of things here:
1. "free to" isn't the same thing as "it is the correct moral, ethical, legal, and socio-cultural choice" - which i thought was kind of the point of discussing the issue in the first place.
2. i think it's kind of weird to go straight from "wakes up from being black-out drunk" to "pressing charges against the person."
3. i kind of feel like you're once again inferring that the other person in each of these scenarios is some kind of mustache-twirly who saw a prone body and went all windowless-free-candy-van on them - and maybe i'm a total stooge and have no idea what i'm talking about, but i just don't have a perception of that being how many (most?) of these situations shake out.

This is one of those things that could have gone either way, but their was a big meeting of all the grown ups and we decided to go with the "don't fuck drunk people rule, we don't care how drunk you are" rule. It's kind of like the don't drive drunk rule.

except it's completely not, at all, and i really think it's kind of ridiculous all the people that keep trying to use it as a comparison.

first of all, there is no context ever in any circumstances wherein driving drunk is legal, however there are countless myriad circumstances where fucking while drunk are legal.

No, there aren't.

Just as it is common for people to drive drunk, and get away with it, it is common for people to fuck drunk people and get away with it. But that doesn't render it lawful.

secondly, you can't negate the responsibility for, or consequences of, driving drunk by having gotten permission from the car or other passengers to be driving while drunk. however, you can negate the entire concept of rape if two people were sober and agreed to get drunk and then fuck each other.

Nope. Retrospective consent can be obtained "I was too pissed to say 'yes', but that's OK, because I would have said 'yes' had I been sober"; but that doesn't render the encounter lawful, any more than "I was out of my skull driving home last night, but that's OK because I didn't crash the car" renders DUI lawful. Of course, these conditions do render the unlawful act less likely to be prosecuted; but the law is not changed one iota by the chances of being caught.

When considering a rape charge, the law is only interested in consent AT THE TIME of the act. Consent later (or withdrawal of consent after the fact) are not considered by the law. Consent at the time is all that matters.

Equally, it is no defence to a DUI charge to say "Well I was sober the next morning". Nor is it lawful to rob a bank if you don't get caught.

thirdly, impaired driving is inherently and fundamentally unlawful in and of itself, whereas impaired fucking is not.

Nope. Impaired fucking is unlawful in and of itself. Of course, people get away with it all the time, and many people think that it's no big deal; but that is also true of DUI.

fourth, i think you kind of defeat your own argument here in a way, because if the basic premise of your argument is "if you get drunk, anything/everything you do while drunk is your fault", then logically that argument states that the onus for letting themselves get fucked by someone is on the woman.

No. Anything you do while drunk is your fault. Anything done to you by someone else while you are drunk is their fault.

sorry, i know this is rather a derail from the topic of the linked study, and bronze i'm not trying to drag you into a debate or get under your (or anyone else's) skin - this is just a fascinating and really weird topic to me that i like discussing so i'm kind of just going with it.

Sorry for jumping in to your conversation with Bronzage, but I felt I had to address the misconceptions you have here.

The law doesn't care about the outcome; just the act. It is not legal to have sex with someone who is incapable of consent, even if they subsequently declare that they would have consented, any more than it is legal to drive while dunk, even if you subsequently arrive home without having crashed your car. It might be 'OK', for a given value of 'OK'; but it is NOT legal.

 

[prideandfall]

No, there aren't.

okay, hang on, before i reply to what it sounds like you actually said, i want to make sure that i'm not misreading.
are you making the statement that there are no circumstances wherein having sex while drunk is legal?
let's take that a step further: are you stating there are no circumstances where having sex while drunk is legal in the US?

Just as it is common for people to drive drunk, and get away with it, it is common for people to fuck drunk people and get away with it. But that doesn't render it lawful.

i'm sorry but this is simply incorrect in the context of this conversation, because two people can agree to have sex while they are drunk, then get so drunk they are arguably incapable of consenting, and have sex, and there's nothing illegal about that.
as you say yourself say, what matters is consent during the act - if one consents to it beforehand, and after, and during, then i suppose you could still argue that simply being drunk negates that consent, but i think doing so would be really kind of stupid.

now of course "having sex with someone who doesn't consent to having sex" is illegal, and "being drunk negates your standing to give legal consent" is a law in many places, so "having sex while drunk" can be illegal in an ipso facto kind of way, but there's no law that says "it's illegal to fuck while drunk" where as there are tons of laws that say "it is illegal to drive while drunk".

Nope. Retrospective consent can be obtained "I was too pissed to say 'yes', but that's OK, because I would have said 'yes' had I been sober"; but that doesn't render the encounter lawful, any more than "I was out of my skull driving home last night, but that's OK because I didn't crash the car" renders DUI lawful.

see the problem here is that state of inebriation at the time can only be used after the fact to define a sexual encounter as rape - whether it's being used by the "victim" or by some agency perceiving itself to be acting on their behalf.
what i mean by this is that there is no blood alcohol limit set to indicate whether you can give consent or not, there's no objective means of determining if consent for sexual activity is viable or not (well short of "are they conscious"), but driving while intoxicated has actual metrics which in a given moment can be objectively quantified and designated.

i see them as totally different things and i don't see how you can try and compare them. it seems like apples to oranges to me.

No. Anything you do while drunk is your fault. Anything done to you by someone else while you are drunk is their fault.

but "anything you do while drunk is your fault" necessarily includes "failing to prevent someone having sex with you" - if you're so drunk that you black out and lay there and let someone fuck you, by your own logic would that not mean that you're responsible for having laid there and let someone fuck you?
i'm not saying that to try and be argumentative, i just honestly don't understand how that isn't the logical end point of your premise.

an extreme counter-example of what i'm talking about:
you're walking down the street. a person who is clearly physically smaller than you wearing light clothing with no hidden folds or pockets and with no visible weapons or means of threatening you slowly and politely walks up to you and says "i want money, so i'm going to reach into your pocket and take out your wallet, then be on my way. if you say no at any point, i'll go away."
as you stand there in no way resisting, the person does as they said they would and then leaves.
would you say you've just been mugged?

Sorry for jumping in to your conversation with Bronzage, but I felt I had to address the misconceptions you have here.

not at all - like i said, i'm not trying to score points or prove anything here, i just find the subject really interesting.

The law doesn't care about the outcome; just the act. It is not legal to have sex with someone who is incapable of consent, even if they subsequently declare that they would have consented

which kind of comes back to the original point i brought in response to bronze, which was wondering why that standard only applies to women.

 

[bilby]

okay, hang on, before i reply to what it sounds like you actually said, i want to make sure that i'm not misreading.
are you making the statement that there are no circumstances wherein having sex while drunk is legal?

Yes.

let's take that a step further: are you stating there are no circumstances where having sex while drunk is legal in the US?

I am not particularly familiar with any of the US jurisdictions; but it would surprise me greatly if this were not true.

Just as it is common for people to drive drunk, and get away with it, it is common for people to fuck drunk people and get away with it. But that doesn't render it lawful.

i'm sorry but this is simply incorrect in the context of this conversation, because two people can agree to have sex while they are drunk, then get so drunk they are arguably incapable of consenting, and have sex, and there's nothing illegal about that.

Yes, there is.

as you say yourself later on, consent for a given act is the thing that matters, when that consent happens doesn't really matter.

What? That's the EXACT OPPOSITE of what I said. ALL that matters in law is whether consent existed AT THE TIME of the sex act. A person who is incapable of consent AT THE TIME OF THE SEX is, in law, the victim of rape.

now of course "having sex with someone who doesn't consent to having sex" is illegal, and "being drunk negates your standing to give legal consent" is a law in many places, so "having sex while drunk" can be illegal in an ipso facto kind of way, but there's no law that says "it's illegal to fuck while drunk" where as there are tons of laws that say "it is illegal to drive while drunk".

It may not be explicit in law that drunkenness makes sex illegal; but it IS explicit that 'absence of consent' makes sex illegal, and it is also explicit that drunkenness eliminates the ability to consent, in law.

The two situations are sufficiently similar in law as to render any distinction irrelevant.

Nope. Retrospective consent can be obtained "I was too pissed to say 'yes', but that's OK, because I would have said 'yes' had I been sober"; but that doesn't render the encounter lawful, any more than "I was out of my skull driving home last night, but that's OK because I didn't crash the car" renders DUI lawful.

see the problem here is that state of inebriation at the time can only be used after the fact to define a sexual encounter as rape - whether it's being used by the "victim" or by some agency perceiving itself to be acting on their behalf.
what i mean by this is that there is no blood alcohol limit set to indicate whether you can give consent or not, there's no objective means of determining if consent for sexual activity is viable or not (well short of "are they conscious"), but driving while intoxicated has actual metrics which in a given moment can be objectively quantified and designated.

That speaks to the perpetrator's probability of getting away with it; It says NOTHING about whether the act was illegal. If you drive over the limit, but it takes a while to get a blood test from you, and by the time that blood is taken, you are below the limit, then you get away with it - but that doesn't mean you were not breaking the law.

i see them as totally different things and i don't see how you can try and compare them. it seems like apples to oranges to me.

I can see that; and I find it a little disturbing. The law is VERY clear - having sex with a person who cannot consent is a crime. Being drunk renders a person incapable of legal consent.

Of course, there are LOTS of ways that people routinely get away with this crime. It is even seen by many people as a victimless crime in many circumstances; and it is, of course, almost impossible to prosecute (or even detect) if the victim doesn't feel wronged. But all of that is of no regard IN LAW. The law is explicit, and simple. If you commit a crime that is never detected, then you will never be punished for it. But it is still a crime in law.

No. Anything you do while drunk is your fault. Anything done to you by someone else while you are drunk is their fault.

but "anything you do while drunk is your fault" necessarily includes "failing to prevent someone having sex with you" - if you're so drunk that you black out and lay there and let someone fuck you, by your own logic would that not mean that you're responsible for having laid there and let someone fuck you?

If someone tries to punch you on the nose, and you are too drunk to duck, then the assault is still not your fault. 'Failing to prevent X' is not something you do, it is something you fail to do. Anything you do while drunk is your fault, anything done to you (whatever your state of inebriation) is the fault of whoever does it.

i'm not saying that to try and be argumentative, i just honestly don't understand how that isn't the logical end point of your premise.

If A does something to B, then it is A's fault. If A is drunk, anything A does remains A's fault. A cannot attack B and claim his drunkenness as a defence. But that doesn't mean that B can do whatever he likes to A.

an extreme counter-example of what i'm talking about:
you're walking down the street. a person who is clearly physically smaller than you wearing light clothing with no hidden folds or pockets and with no visible weapons or means of threatening you slowly and politely walks up to you and says "i want money, so i'm going to reach into your pocket and take out your wallet, then be on my way. if you say no at any point, i'll go away."
as you stand there in no way resisting, the person does as they said they would and then leaves.
would you say you've just been mugged?

No. Unless, of course, I was in an impaired state, where I was unable to understand what was going on, and that I had the option to say 'No'. In that case, yes, I would have been mugged.

Sorry for jumping in to your conversation with Bronzage, but I felt I had to address the misconceptions you have here.

not at all - like i said, i'm not trying to score points or prove anything here, i just find the subject really interesting.

The law doesn't care about the outcome; just the act. It is not legal to have sex with someone who is incapable of consent, even if they subsequently declare that they would have consented

which kind of comes back to the original point i brought in response to bronze, which was wondering why that standard only applies to women.

Nothing I have said is specific in any way to gender; The exact same rules apply whether the protagonists are both men, both women, or one of each (in either role - victim or perpetrator). There is no standard here that applies only to women.

 

[Metaphor]

A person who is incapable of consent AT THE TIME OF THE SEX is, in law, the victim of rape.

You wake up to a drunk person raping you. You recognise they are completely, off-their-tits drunk themselves, and are therefore incapable of consent to sex.

Are you also raping them? If you're not raping them, please explain how and show your work. Remember

i) you are having sex with them
ii) they are incapable of consent.

No. Unless, of course, I was in an impaired state, where I was unable to understand what was going on, and that I had the option to say 'No'. In that case, yes, I would have been mugged.

Actually that sounds like a mugging. The situation would be so bewildering and unusual (that someone tells you they're going to take your money but all you have to do is say no to make it stop) that it could reasonably be regarded as an implicit threat.

 

[laughing dog]

You wake up to a drunk person raping you. You recognise they are completely, off-their-tits drunk themselves, and are therefore incapable of consent to sex.

Are you also raping them? If you're not raping them, please explain how and show your work. Remember

i) you are having sex with them
ii) they are incapable of consent.

If you wake up and someone is raping you that means you are not raping anyone. It also means you are not having sex. It doesn't matter what state the other party is in, you are not having sex with them and you are not raping them.

 

[Metaphor]

You wake up to a drunk person raping you. You recognise they are completely, off-their-tits drunk themselves, and are therefore incapable of consent to sex.

Are you also raping them? If you're not raping them, please explain how and show your work. Remember

i) you are having sex with them
ii) they are incapable of consent.

If you wake up and someone is raping you that means you are not raping anyone. It also means you are not having sex. It doesn't matter what state the other party is in, you are not having sex with them and you are not raping them.

Okay, so what is going on when an act of intercourse happens between two drunken people? I say 'act of intercourse' because you've ruled out that someone being raped is 'having sex' with the rapist. But, are they both rapists and neither of them had sex with each other?

Imagine footage of this act would show that both sides made visible and audible signs of what would be regarded as consent if the parties were not intoxicated, and there is no clear 'initiator'.

 

[laughing dog]

If you wake up and someone is raping you that means you are not raping anyone. It also means you are not having sex. It doesn't matter what state the other party is in, you are not having sex with them and you are not raping them.

Okay, so what is going on when an act of intercourse happens between two drunken people? I say 'act of intercourse' because you've ruled out that someone being raped is 'having sex' with the rapist. But, are they both rapists and neither of them had sex with each other?

It depends. If Person A initiates intercourse with Person B while Person B is asleep then it is ludicrous to even think Person is having sex or is raping anyone. Regardless of level of sobriety of Person A and Person B, Person A initiated the act.

Imagine footage of this act would show that both sides made visible and audible signs of what would be regarded as consent if the parties were not intoxicated, and there is no clear 'initiator'.

Then it would need to be sorted out.

 

[bilby]

You wake up to a drunk person raping you. You recognise they are completely, off-their-tits drunk themselves, and are therefore incapable of consent to sex.

Are you also raping them? If you're not raping them, please explain how and show your work. Remember

i) you are having sex with them
ii) they are incapable of consent.

In law, yes, you are raping them. Or maybe not. A court would need to determine that; it may be that a court would consider initiation of the sex as a necessary element for a crime, as LD points out. However, that is not certain, nor is it necessarily a bad thing if the law does consider both parties to be rapists - because there are degrees of everything.

The law is, as I hope we are all aware, an ass.

It defines what is an offence. If it is well written, most of the things it defines as offences are things we, as a society, want people not to do. Of course, there will always and inevitably be some circumstances where the law defines something as illegal, but we do NOT want to prohibit people from doing it, and/or do not want to punish them for doing it; If such situations are very rare, then the imperfect law is tolerated; If they are common, then the law should be amended.

Perfection is likely unachievable; This is recognised in civilised societies, and is the reason for courts. The legislature says 'This is an offence'; the Jjudiciary have two roles - to determine whether that offence actually occurred; and, if so, to determine the appropriate sanction against the perpetrator. Civilised societies give sentencing judges the ability to consider all of the circumstances of a specific case, and if little or no harm was done to society, to set the punishment at an appropriately trivial (or even non-existent) level.

This is why mandatory sentencing is a VERY bad idea. It may be difficult for the legislature to imagine a situation in which a person is guilty of rape, but has done no harm; But such situations could arise, so a court should always, with full information about the actual circumstances of a specific case, have the ability to determine that while an act was unlawful, it is nevertheless not worthy of punishment.

The situation you describe is one in which one would hope, if it were brought to court, that the case of the person who was asleep at the beginning of the encounter would lead either to an acquittal (despite their technical guilt), or to a zero or token punishment; While the case of the person who initiated sex with a sleeping person would lead to a conviction and severe punishment.

The law defines what is a crime; The courts decide whether the circumstances mitigate or aggravate the crime, and adjust the sentence accordingly. And of course, the courts only prosecute people whose offences are detected or reported; 'getting away with' a technical crime, because it is never reported as nobody feels victimised is not a bug, it's a feature. But only the victim gets to decide whether to use that feature - if the victim presses charges, then it is for the courts to weigh up all of the circumstances, and determine whether a crime occurred, and if so, whether a punishment is needful, and if so, how severe it should be.

 

[bilby]

If you wake up and someone is raping you that means you are not raping anyone. It also means you are not having sex. It doesn't matter what state the other party is in, you are not having sex with them and you are not raping them.

Okay, so what is going on when an act of intercourse happens between two drunken people? I say 'act of intercourse' because you've ruled out that someone being raped is 'having sex' with the rapist. But, are they both rapists and neither of them had sex with each other?

Imagine footage of this act would show that both sides made visible and audible signs of what would be regarded as consent if the parties were not intoxicated, and there is no clear 'initiator'.

Legislation does not concern itself with these minutiae and nuances. That's the job of the judiciary. The law indicates whether an offence may have occurred, and provides a definition of the offence for the consideration of the courts. The courts determine whether the actions of the accused meet that definition, and if they do, the court then considers any mitigating or aggravating circumstance when passing sentence.

The law need not be perfect; It cannot be, and it is not intended to be.

Your ability to think of (implausible) situations where a crime occurs in circumstances which entirely mitigate the actions of the perpetrator is not any indication of a problem with the law; However your apparent belief that the law should address such thought experiments in advance of any similar case being brought before the courts does suggest that you don't understand the way that the legal system is intended to work.