If a male has sex with a female who is drunk, normally we would call it rape because she's unable to give informed (clearheaded) consent.

But if he's as drunk (not clearheaded) as she is, is it still rape?

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The ultimate point us...not being capable of stopping someone doing something to you...is not the same as not stopping yourself from doing something to someone. They aren't equivalent be it with alcohol, drugs, rage etc.

The OP is about equally intoxicated people, one of whom can't give consent due to intoxication while we seem to expect the other to (despite being equally intoxicated) to have the presence of mind to assume responsibility for the situation.

That clearly implies that one person a more responsible person despite being equally intoxicated and because he's the male. The conclusion would seem to be that males are held to a different standard.

The conclusion would seem to be that males are held to a different standard

Would you give the same defense if the girl was underage? If the *only* issue is how someone's ability to make proper judgement while intoxicated, what about the guys who are likely to get intoxicated just to use your intoxication defense?

I can't defend the double standard per se, but the statistical likelyhood is that the rapist is a male. Is that a probability that needs to be ignored when a jury considers evidence? (Yes, I'm biased to the female's version of the story, for cultural history reasons, especially when they're not fully mentally capable adults.)

The conclusion would seem to be that males are held to a different standard

Pope is right...the conclusion that under the law there is a double standard per gender...is a terrible one (except in some archaic states or juristictions where rape is defined by gender). It is as bad when a woman initiates sex with a man who is incapable of consenting or being coerced (even if an errection happens). And it happens, and according to the very few studies made on the topic, it happens more than people would ever guess and barely reported (though intuitively most people would not be surprised that one gender tends to do it the most, though without reliable statistics the conclusion is a difficult one). We've also discounted male on male sexual assault (which thankfully is more likely to be reported) and woman on woman sexual assault (of which I have no idea how likely it is to be reported). It's the violation of your bodily autonomy that matters, not your gender.

The reason why it may seem that men are across the board held to a different standard (as Pope points out) the cases we hear about the most are of men initiating sex with girls who cannot consent...and because men are very unlikely to report the sexual assault let alone bring it to public media attention. If there is any double standard, it is getting police, prosecutors and the media to take the cases of men sexually assaulted by women seriously...that has nothing to do with the moral principle...but with unfair gender bias. Why would moral principle be any different for women or men if both are capable of sexually assaulting one another?

As for "not being capable of making a decision when you are drunk" including both parties, another thought experiment would help.

John is quite interested in donating a lot of money to charity and never stops talking about it. Phil totally thinks John should do it and would love to see it happen. John is drunk, Phil isn't, Phil puts John in front of a computer screen and tells him to confirm an online transfer to the organization. At this point in the night John run around naked if asked or give away his car if asked. What Phil is doing is wrong and he could get in very big trouble for it. Now what if Phil was drunk too...does that make what Phil has done any less wrong? Is Phil liable for the inevitable problems that may come from it? Even though John was very likely to donate money, he has still been wronged as he doesn't have the ability to choose all the details and say yes. The fact that they were both drunk doesn't matter. What Phil did was wrong be Phil drunk or not (even if he felt absolutely positive John would be happy about it).

Jenny is quite interested in having sex and never stops talking about it. Phil totally thinks Jenny should do it with him and would love to see it happen. Jenny is drunk, Phil isn't, Phil puts Jenny in bed and tells her to have sex with him. At this point in the night Jenny run around naked if asked or give away her car if asked. What Phil is doing is wrong and he could get in very big trouble for it. Now what if Phil was drunk too...does that make what Phil has done any less wrong? Is Phil liable for the inevitable problems that may come from it? Even though Jenny was very likely to have sex, she has still been wronged as she doesn't have the ability to choose all the details and say yes.

I've changed the above quote to be about Jenny, and sex to make a point... You're still stuck on sex being something that women have a passive role in? Like John, being sat infront of his computer and told what to do, women just go along with whatever the man tells them to do?

I have to say: you're wrong. Women have an active role in sex. Sex between an equally drunk man and woman, therefore, can only mean they raped each other simultaneously, which doesn't make any sense. The only way to resolve this conundrum, is for consensual sex to remain consensual even when intoxicated.

Ok so two people are equally intoxicated and thus equally "not being capable of stopping someone doing something to you", and they have sex which aside from their mutual intoxication, would be considered consensual. Is that rape?

not being capable of stopping someone doing something to you...is not the same as not stopping yourself from doing something to someone.

Duh? Are you so sexist as to think that sex is something a man does to a woman? Again, I feel sorry for your sexual partners if you are. So far, this is my best guess as to why you just keep misunderstanding the question (mostly because you haven't given many other clues)...

No it wasn't close...it is a mechanism for some people to understand why consent itso important when they seem to think its not such a big deal. Regardless of passing out or being super drunk... if someone is incapable of deciding or stopping someone doing something to you or dragging you into a situation...it does not diminish the responsibility of someone who didn't stop themselves doing something to someone else (drunk or not). And this applies to an enormous range of situations (I've given numerous other examples) and not just sex. There is always a disparity in responsibility...be you too drunk to make a informed decision or stop it happening or be passed out. Be it with sex, doing a dangerous activity, breaking something, breaking laws, drunk driving etc.

People tend to support this general principle when it comes to drunk person initiating a dangerous activity or illegal activity or costly activity and the other drunk person is too drunk to even know what's going on. Some people seem to think that it is not so with sex...because at some point sex is inevitable or is a given or is entitled to and just isn't a big deal if it happens or its just not harmful to someone if they don't even remember or he/are probably enjoyed it...

I've given numerous other examples

None of which address the question in the OP. You're still missing the point.

Some people seem to think that it is not so with sex

No, we think you're missing the point! You're not addressing the question, you're addressing a similar question.

Find him, kill him, feed him to the Pigs at the farm. Done.

What I'm getting at is this: does the current thinking on rape seem to create a double standard unintentionally based on the unstated assumption that men are more responsible than women, and that when a man and woman are equally intoxicated and the woman can't control her actions, the man is still expected to control his.

current thinking on rape

Define this. My thinking is that each person remains responsible for their own actions even when intoxicated, but I'm getting the feeling that maybe Davis (and others) might have a different thought.

Emphasis on "their own" above, because if someone is so intoxicated as to be unable to make actions (e.g. passed out), then obviously whatever happens to them is out of their control.

I have seen this moral quandary discussed in several films and documentaries.

Legally, no. Both are in an unreasonable state so neither is at fault. Obvious caveat, violence...

Morally, yes. Even if you do not remember an act, you still performed the act, thus you are responsible.

I have always loved the rule, "If I don't remember it, did it even happen?" And the answer, "Yes, you fool."

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