Teen girl too drunk to consent to sex: Languish?

[CountDeMoney]

Two teens have sex after a beach party where alcohol gets consumed. Boy gets charged. What's Languish's take?

1) European posters are more tolerant and dismissive of rape
2) grumbler is contrarian, even when it comes to judges
3) there is apparently a legal equivalence between committing a crime and being a victim of crime
4) Ed would bang anybody covered in their own vomit, because that's his thing

[Barrister]

Yeah, but the argument can be made that he was pretty drunk too, and thus not able to make a sound decision.

His own testimony removed the possibility that the judge could find he was too intoxicated to be culpable. 

Is a 15 year old boy qualified to testify on his own judgement while intoxicated?

There is no one more qualified to talk about his intoxication.  It's his own body.  Of course such evidence should be viewed with caution.

It's an issue that comes up in, oh, I dunno, 60-70% of my cases.  I have to ask my witnesses "so, how drunk were you?"  There's no great way to answer that though.  Sometimes I'll use "On a scale from 1 to 10...".  Sometimes "would you say you were safe to drive".  Generally people de-emphasize their level of intoxication (or don't like to admit how drunk they were).

But evidence of intoxication is pretty important, and a person really is the best one to be able to assess their own level of intoxication.

[Berkut]

I am not sure how much that applies to someone not at all familiar with being intoxicated though, like some 15 year old kid.

[Josephus]

what Berkut asks is the conundrum I see with cases like this.

If, for instance, the defence maintains that the boy also vomited once or twice, does that legally absolve him, like it does her.

It is a worrying situation for anyone who goes to a bar to pick women up. Alcohol always plays a part in that.

[Barrister]

This is the part I don't get.

If you are responsible for your own actions, then how is SHE not responsible for consenting to sex while drunk?

I don't understand this - if two drunk people have sex, how is it that only one of them is responsible for the actions they both engaged in, presuming she wasn't actively saying "NO" or making it clear she did not wish to have sex?

I am not trying to place the blame on her, I am just trying to understand how there can be what looks like such an obvious double LEGAL standard here.

The law says you are responsible for having sex with a woman while drunk. OK, I get that.

The law says that you cannot consent to sex with a man while drunk. OK, I am ok with that as well.

I just don't know how they work together in a reasonable manner.

If he had said he was drunk and didn't remember anything, does that change the outcome? According to your rule above, it does not. He is still responsible.

If she had said she was drunk, and DID remember agreeing to sex, does THAT change anything? According to the rule about not being capable of consent while drunk, it would seem that would not change anything either.

So in a situation where both people are drunk, and they have sex, have they both committed a rape?

The law in this area is less than fully satisfying, as their are several competing policy objectives at play.

People are able to be drunk and consent to sex.  Otherwise college campuses and nightclubs would be the source of multiple rapes per night.  The law (and this case was from Canada so I'll talk about Canadian law thank you very much Seedy) is not that your capacity to consent is reduced - it is when you are unable to give consent that it becomes a crime.  Given my post above there's no firm line where 'unable to consent' exists, but it's generally when a person is no longer conscious.

There was a case 20-30 years ago (R v Daviault) where the SCC actually held that an Accused was not guilty of a sexual assault because he was so grossly intoxicated he couldn't form the requisite mens rea.  This was met with much popular outrage, and so the Criminal Code was amended such that self-induced intoxication can never negate mens rea.  The reasoning is simply that if you chose to drink (or do drugs) to that level of intoxication it's your own damn fault and you're responsible for what you do.  It's in some ways a legal fiction - a court might otherwise have held the person not guilty, but the reasoning seems sound on public policy grounds.

And yes - if the girl says she remembered agreeing to have sex, that would no longer be sexual assault.

[Barrister]

what Berkut asks is the conundrum I see with cases like this.

If, for instance, the defence maintains that the boy also vomited once or twice, does that legally absolve him, like it does her.

It is a worrying situation for anyone who goes to a bar to pick women up. Alcohol always plays a part in that.

Two separate thoughts:

-if you have sex with a drunk woman who you think will regret it once she's sober you're a cad.  But it's not illegal.
-it's only once you're having sex with a girl so out of it she's unable to know what's happening to her that it becomes a crime.

[Malthus]

what Berkut asks is the conundrum I see with cases like this.

If, for instance, the defence maintains that the boy also vomited once or twice, does that legally absolve him, like it does her.

It is a worrying situation for anyone who goes to a bar to pick women up. Alcohol always plays a part in that.

I think that the line is pretty hardcore and not usually a problem - that is, drunkenness to the point of being incapable of giving consent.

The reverse of the coin isn't usually at issue - someone drunk to that extent isn't capable of affirmatively committing a sexual act (because you can't actively have sex if you are in effect unconscious).

Thus, a "double standard" situation - two drunk people have sex, both are somehow guilty of sexual assault - ought never to happen. If they were both drunk enough, no sex should occur, because they would both be basically passed out (perhaps in a shared pool of vomit - how romantic!  ).

[Berkut]

what Berkut asks is the conundrum I see with cases like this.

If, for instance, the defence maintains that the boy also vomited once or twice, does that legally absolve him, like it does her.

It is a worrying situation for anyone who goes to a bar to pick women up. Alcohol always plays a part in that.

I think that the line is pretty hardcore and not usually a problem - that is, drunkenness to the point of being incapable of giving consent.

The reverse of the coin isn't usually at issue - someone drunk to that extent isn't capable of affirmatively committing a sexual act (because you can't actively have sex if you are in effect unconscious).

Thus, a "double standard" situation - two drunk people have sex, both are somehow guilty of sexual assault - ought never to happen. If they were both drunk enough, no sex should occur, because they would both be basically passed out (perhaps in a shared pool of vomit - how romantic!  ).

OK, that is an important distinction.

I thought it was basically saying that someone who is hammered, and says "I totally want to bang you, lets go!" is NOT giving legal consent, as they are not able to consent.

But it is really about the actual physical incapability to consent, not the idea that the consent is given but ought to be ignored (like say a 10 year old consenting to sex with a 30 year old - that "consent" is not meaningful).

So someone drunk off their ass can in fact give consent.

[Maximus]

Yeah, but the argument can be made that he was pretty drunk too, and thus not able to make a sound decision.

Or, that he was pretty drunk too, and thus also not able to give consent. (not in this case because of his statement, but in general)

If both people are too drunk to give consent are they assaulting each other, legally speaking? I'm fairly certain they're not, but I'm not sure of the mechanism for that.

[CountDeMoney]

So someone who is impaired to the point of being unable to legally operate a motor vehicle safely can still legally consent to sexual activity when impaired to a debilitating degree.

How trivializing.  Then again it's the victimization of women we're talking about, and they're all cunts and whores.

[Barrister]

So someone who is impaired to the point of being unable to legally operate a motor vehicle safely can still legally consent to sexual activity when impaired to a debilitating degree.

How trivializing.  Then again it's the victimization of women we're talking about, and they're all cunts and whores.

HOw else are you going to do it?

[CountDeMoney]

The respectable way.  You pay them.

[Berkut]

So someone who is impaired to the point of being unable to legally operate a motor vehicle safely can still legally consent to sexual activity

How is that even remotely similar?

It doesn't take much intoxication to reduce my reaction time and judgement enough to make me a dangerous driver.

I would be pretty fucking pissed off if I had a couple drinks and suddenly was not allowed to have sex because someone like you decided you know better than I do whether or not I am capable of giving consent with a nice buzz going.

[Berkut]

Then again it's the victimization of women we're talking about, and they're all cunts and whores.

You know, you make this statement an order of magnitude more than anyone on Languish could reasonably be said to imply it...

[The Brain]

In Sweden there are constant discussions about raising the bar for consent more and more and making it hard to consent while quite drunk. I don't see anything particularly strange about two people both going to jail for rape in such a situation. I'd find that law not to be awesome but laws don't have to be.