One of the top stories in the news in the US is about a young college boy who has just been convicted of raping an unconscious girl. What's controversial is that he got 1/12th of the sentence the prosecutors were asking for (6 mos vs. 6 years). Yes, he will be a registered sex offender for the rest of his life, but one wonders if he would have gotten 6 months had he not been a white college boy with an otherwise bright future and not been a successful college athlete as well.
In other words, suppose that instead he had been a young black man with less than a high school education and a minor record for petty crimes.
Well, actually, if you want to discuss that topic, start another discussion. It's not what this discussion is about. This one is more philosophical.
I assume all of us accept the idea that a drunk person can't give legal or moral consent to having sex. And most of the time we think of this person as female.
Here's the question:
Can a male who's equally drunk refer to his drunkenness as a defense? In other words: "I was so drunk I was unable to gauge her consent in any legal or moral sense"? thus turning a potential rape charge into a "shit happens" sort of situation.
And what if the drunk woman asking for sex? I can remember three situations like that back when I was in college and good looking. In every case, I declined because I feared morning after regrets (I wouldn't have feared a rape charge back in those days: my qualms were more ethical than legal). In one case, the female thanked me the next time she saw me. I assume the other two girls think I was a fool.
"Was he too drunk to read my consent and therefore slipping me whatever he did and then raping me was "ok?"
I would guess no to the first and definitely no to the second.
Was he too drunk to read my consent and therefore slipping me whatever he did and then raping me was "ok?"
I'm asking if a victim can assert (or if the prosecution can assert) that she was too drunk to give legal consent, can the accused not have access to a similar standard in case he was just as drunk? "What's good for the goose..."
Doesn't sound like your case. It sounds like you were slipped a mickey (roofie or whatever).
Our society does have a double-standard regarding men, women, and responsibility, even if it is de facto and unofficial and socially enforced.
If there's a story in the news about a mother who kills her children, watch the reaction, and compare it to the next story of a father who kills his children. For the mother, people will say "It's too bad she didn't get the mental health help she needed." Or maybe they'll blame her religion and not her. Watch what they say about the father. It'll be along the lines of execute him or put him away and throw away the key!
If a boy got drunk at a party, passed out, and a girl was found to be attempting to perform a sex act on him, do you really believe it would even be referred to as a rape? Even if it was reported. Would she be prosecuted?
Rape is an unusual crime, in that its typically the plaintiff and defendant swapping roles....and the raped end up needing to defend themselves in court.
It would be analogous to a mugger merely needing to show how the person they mugged might have wanted to be mugged.
If being drunk was an adequate defense for a crime, then committing any crime while drunk would be a plausible defense, analogous to a liquid temporary insanity defense.
The assumption that drunk people might have sex, and the woman, typically, later might have wished she didn't and accused the man of rape...does make this sort of case harder to decide UNLESS the woman, in that example, must give consent - OR it was rape.
A "He said/She said" as to if consent was given or not is about impossible to ascertain, as the jury/judge was not there...and, its one of their word against the other.
THAT means it boils down to who people believe.
Denigrating each other's character therefore is the best "defense", and, trying to establish that the man has never done anything like that, and is a stellar citizen with a bright future...and the woman is a slut...is the typical procedure.
IE: If they guy looks like/sounds like the kind of guy who might force a woman to have sex...its bad for him, and, if the woman looks like/sounds like the kind of woman that might want sex...its bad for her.
The problem is of course that a prostitute can be raped...if she didn't want to do it with the guy....and, a guy who has never committed a crime is ALWAYS the guy who commits his first crime.
As for the girl raping the guy...typically, the guy just doesn't mind the sex part, due to strong societal mores that favor male sex, and condemn female sex....so its harder for it to BE rape.
MOST woman who are raped do not report it, due to the stigma. In some cultures, it is a crime to BE raped, etc...and in the US for example, its still a factor.
MOST men who are raped (By priests, by older woman, by their boss, etc) do not report it either, even if they feel raped...also due to the stigma....which is typically worse for a man in the US at least.
It always comes back to he said/she said (Or he said/he said, if a priest, etc...)...and, the defendant insisting the plaintiff wanted it...and the plaintiff having to prove they DIDN'T.
When you accuse someone of something, you need to defend your accusation. The problem is when irrelevancies are introduced to kind of poison the well of the accuser. Even if a victim is a hooker whose entire living is made on her back, she has the right to choose with whom goes onto her back. Even a wife has the right to say "no," and even if she has always been a very sexual person usually ready to have sex under almost any circumstance.
Being drunk shouldn't be accepted as a consideration when used by a defendant UNLESS perhaps the accuser is using being drunk and not operating soberly as a facet of the accusation.
Take a different example than yours, imagine you are accused of driving while drunk, but the cop who is testifying as to your lack of sobriety, it turns out, was drunk at the time he gave you the test. What then? Was he in any condition to apply the sobriety test and to decide if you were drunk?
An interesting scene.
I'd bet you got off on that one.
Of course, you are not so much "defending your allegation" as much as the defendant is defending theirs.
IE: In the US at least, you are innocent until proven guilty. That includes rape as a crime.
So, if driving drunk, and you can prove the cop was drunk....you'd have a decent chance of not even getting a ticket let alone going to court.
W/O the test, if you crashed into 10 enclosures at the zoo with a lampshade on your head, or was driving on the sidewalk for three miles with your doors open shouting "The Red Coats are Coming!" or whatever, you might still be found guilty.
So, again, being drunk might be a MITIGATING circumstance, but not a "get out of jail for the price of the booze card".
Again, it comes down to the judge/jury believing that a rape occurred...or, that consent was given.
If both were drunk, and neither remembers what happened...sure, the jail time would not be maxed/the verdict would be less clear.
If the woman says she was drugged and raped, and the guy says he was drunk and doesn't remember even meeting her...that is a weak defense.
The REALITY of this crime, is that due to the stigma, a woman is very unlikely to claim to be raped, especially in dicey he said/she said situation....and the character assassination that she would endure if she prosecuted.
Exceptions, as always, can include revenge, celebrity hunting/shut up and go away money, etc...where there was a motive to endure the stigma and assassination.
I don't think you actually effectively addressed the question: If someone is so drunk they can't give consent, can someone equally drunk be expected accurately to judge consent.
However, you did apparently agree that a sufficiently impaired police officer isn't qualified to judge if another party is drunk. Case closed.