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More on the subject of drunken 'consent' 
27th-Nov-2005 02:35 am
opinion
I wrote a massive comment to this post here.

Here's the comment. I'm not cutting for 'tis important.




OK, here I go. Let's get a couple of things straight before I start:

1) I was once raped by a stranger walking home at midnight. I've been through police examination. I've testified in court. He was found guilty.

2) In an unrelated incident, I was once assaulted by the male flatmate of an acquaintance after becoming so drunk at a house party that I physically could not fight him off. This was before being raped, and I never went to the police about that.

Rape and sexual assault are serious crimes and should be treated seriously, and any person who falsely claims to be a victim of such is little better than a rapist themselves.

Can she prove she didn't consent? A woman's default state is presumed to be consent: if she can't prove she didn't, then it's simply assumed that she did.
False dichotomy.
"Innocent until proven guilty" is a fundamental tenant of our society, and has a sound moral backing. In a case of something as serious as rape, this is even MORE imperative than otherwise. It is VITAL that the case is clearly seen through, which is where the prosecution failed us in this case.
Of course, as I would much much rather have a guilty man walk free that an innocent man jailed, I guess I'm biased on this one.

The case fell down because she couldn't remember giving consent. This is my mind is bullshit because the security guard admits she was very very drunk. but, without that, the burden of proof is always on the accuser, no matter what the crime.

Her testimony that 'she could not remember' in itself is worthless because she might be lying. It's too easy to sympathise with someone you want to believe just to make a point. IF she was lying, she is doing more harm to rape victims than good.

We don't, for example, ask the victims of muggings whether they chose to give away their mobile phone and ipod, because we understand that it's completely implausible that they might have.
False analogy. While most people I know are not in the habit of giving their mobile phone and iPod away to random strangers or their friends, I know lots of people, male and female, who enjoy sex and like to have it with their friends and with people they just met. Sex is not something a man takes from a woman. It's something that happens between two people. Most of the time it's by mutual consent. It's not a thing to be taken from ANYONE.

Where this case falls down is that he a) was in a position of authority as the security guard and therefore shouldn't be having sex, and b) ADMITTED she was barely conscious, and anyone at that stage of drunkenness, IMO, is incapable of giving consent. But we don't know that she didn't, in her drunken haze, beg him to shag her all way from Sunday. The only argument is that even if she did, she wasn't in her right mind when she did so, and therefore is about s capable of giving consent as a thirteen year old or a mentally disable person.

And while we're bringing up the Amnesty International survey - One in three people say that in certain circumstances the victim has partial responsibility for the actions, not that the rapist is absolved from all. In fact, only 8% said that the victim has complete responsibility in cases where she was dressed inappropriately/flirted outrageously/walked home in a darkened alley etc etc. Yes, this is too too much, but it ain't 30%. It's almost certainly even further skewed by the survey's wording anyway.

It's pretty hard to deny that it's safer getting a licensed black cab home than walking the quick route through the back alleys of the red light district. Anyone who chooses the walk is taking the risk and by taking the risk takes on some responsibility for the consequences. This is a long way from absolving an attacker of rape.

I've already voiced my opinion here. I think the guy's an asshole and a rapist, but not because of the reasons other people have stated.
Opinions 
27th-Nov-2005 03:05 am (UTC)
Didn't comment on the previous one, my opinions were conflicted, but on this one, I pretty much agree with you, I think the guy was completely wrong.

However, I will question this bit of your opinion, I think I disagree slightly.

anyone at that stage of drunkenness, IMO, is incapable of giving consent
I've had sex with someone when she was horribly horribly drunk. I was also, neither of us were able to form coherent sentences, it just happened. It was stupid, yes. She consented, but wasn't in a fit state to do so. Then again, neither was I.

Someone stone cold sober screwing someone completely paralytic is out of order, and I personally don't think I could face doing it, but then, I have turned down sex and have 'stopped myself' when she's said no when we were naked in bed together, and it, unfortunately, seems I'm in the minority of males for thinking that's the right thing to do.

But I'm not sure I'd go so far as to call it rape. Perhaps, legally, we need a secondary, recognised term, a 'lesser' charge?

The reason I'm torn on it is I, strongly, believe in personal responsibility. I don't drink heavily because I know I can be a dangerous person when drunk (not normally, but it can happen) and simply don't trust myself drunk. If I get drunk and get into something I later regret, am I absolved of blame? (If not for friends, I may once have nearly hit a heavily pregnant barmaid, while I don't actually think I would have, I was grateful they dragged me out the pub; that's a good reason to stop drinking). If, conversely, a girl gets stupidly drunk and says she wants sex, how do you tell the difference?

A drunk cannot use drunkennes to absolve blame for a crime committed. So why does it absolve stated consent? I'm torn. He was wrong to do what he did, but, assuming she did consent, I don't think it was rape. But I'm not sure. I also strongly believe that if you can't completely persuade me, you'll have a hard job with Joe Public.
27th-Nov-2005 03:24 am (UTC)
Maybe we're confuses on what 'that state of drunkenness' is? My definition is near paralytic, unable to stand, kind of state, as demonstrated by the woman in question not being able to make it to her own room, kind of thing. At that point she's pretty much passive, and anything that occure happned to her, if you get my meaning. Certainly unable to state consent.

Um, yeah.

Course, I liken it to being just under the age of consent. A fifteen year old is not considered capable of consenting to sex, yet is considered capable of being held respinsible for punching a pregnant barmaid.

But mostly, a person who's in control enough of their motor and mental fucntions to punch anyone, isn't exactly at the stage of drunkenness I'm talking about here.
27th-Nov-2005 03:55 pm (UTC)
I see where you're coming from, if that drunk unable to stand then perhaps.

However, it would need a change in the law, you'd need to get that through Parliament. Do you want to start trying?
27th-Nov-2005 08:29 pm (UTC) - The formulation is simple.
Anonymouse

Sexual crimes differ from other crimes in the sense that they're not being executed for gain, as a general rule, but as an issue of power differentials between people in society. This is true even when that isn't the goal of the rapist because most of the time rapists take advantage of power differences with their victims anyway.

The formulation, at any rate, would be to make illegal having sex with someone who was, oh, as drunk as-is required over there to get arrested for drunk-driving.

Now here's where the problem comes in. You can't just go around saying that women are incapable of consent when drunk and that men, nonetheless, have a responsibility to avoid having sex with drunk women when they themselves are drunk. That, after all, implies that men are more capable of making rational decisions when drunk than woman are.

The solution is that this law only applies when there is a power difference--that is, when one person is sober and the other drunk. If two completely drunk people go and have sex with each other that's not a crime. But if one of them is sober, then they're taking advantage of the reduced mentality capacity of their partner and are in fact committing a crime by doing so.

Incidentally, I think making sex illegal between all people in power relationships is the only way to create a coherent system of law on what constitutes rape. Nobody who has any kind of authority of an individual should be able to legally have sex with that individual.
27th-Nov-2005 09:13 pm (UTC) - Re: The formulation is simple.
The formulation, at any rate, would be to make illegal having sex with someone who was, oh, as drunk as-is required over there to get arrested for drunk-driving.
Ah no. I think not. In fact, that's utterly ludicrous, the blood alcohol requirements for drunk driving are, deliberately, very low.

The solution is that this law only applies when there is a power difference--that is, when one person is sober and the other drunk. If two completely drunk people go and have sex with each other that's not a crime. But if one of them is sober, then they're taking advantage of the reduced mentality capacity of their partner and are in fact committing a crime by doing so.
That I'll agree with, to an extent, as I think I've already said, but I'm not sold it should be classed as 'rape' in the same way that Debi (or, indeed, Rachel's attacker should be.

Incidentally, I think making sex illegal between all people in power relationships is the only way to create a coherent system of law on what constitutes rape. Nobody who has any kind of authority of an individual should be able to legally have sex with that individual.
Right, and I think that the chances of getting that agreed to are completely 0, given that I fundamentally disagree.

Let's try keeping to an objective that's acheivable shall we?
27th-Nov-2005 09:53 pm (UTC) - Re: The formulation is simple.
Anonymouse


Well, power relationships exist in society. We can't make them go away. Therefore we can either recognize that and regulate them or else stick our fingers in our ears and run around going la-la-la, everyone is equal. Well, everyone is equal when they're born, but by the time you get to 30 or so, quite a lot of people are more equal than others, so to speak.

The military does in fact regulate relationships like that--you cannot have a consenting sexual relationship between a superior and a junior in rank in the military. It's illegal, and it's considered an abuse of power and a crime. If it's a successfully enforced (at least to some degree) crime in the military, why can't it be a successfully enforced crime between a boss and a secretary at a job to use a common example? That's another relationship where, clearly, sex should not be taking place.

Now, there may be zero chance of getting such a statute implemented, but at least tossing the proposal up in the air may force people to recognize the problem and work toward other ways to mediate it and reduce its impact in society, and to that end are most such proposals offered, anyway.

M.
27th-Nov-2005 11:06 pm (UTC) - Re: The formulation is simple.
in the military. It's illegal, and it's considered an abuse of power and a crime
Why yes, yes it is. Because in the military, orders are orders, and those with senior rank are able to order juniors about. However, in civilian life?
boss and a secretary at a job to use a common example? That's another relationship where, clearly, sex should not be taking place.
Clearly? Not to me. You assume that sex in this case would always be wrong, I do not. If the senior is putting pressure ont he employee, then yes, that is harassment, and already illegal. Howeve what if it's simply consensual mutual attraction?

Aren't adults allowed to make choices in your worldview? I see nothing wrong with a relationship between an employer and an employee as long as it's genuinely consensual, and would utterly oppose any attempt to have it be otherwise.
27th-Nov-2005 11:06 pm (UTC) - Re: The formulation is simple.
Except that pretty much *every* relationship has a power relationship built into it. My fiancee is American, and when she's stayed over here, she's not had a work visa. That's meant that for periods of six months at a time she's been entirely reliant on me for food, housing and everything else. That certainly didn't mean she was incapable of giving or withholding consent.
Many relationships actually have multiple separate power imbalances built in. While the boss has power over his secretary, she might also have power over him (for example the power to let his wife know what he's up to).

When the power differential is too great, then that can be abused (even unconsciously), and when it's extremely great, enough pressure can be applied to make consent effectively impossible (and those cases should be prosecuted as rape). But I think that it would be difficult or impossible to legislate something like this suggestion without legislating all sexual relationships out of existence...
27th-Nov-2005 09:27 pm (UTC)
Yeah, I think I do.

...I have no idea how to start. Um.
27th-Nov-2005 09:33 pm (UTC)
We start with publicity, for which we get lots of people to link here and/or set up a specific site. The Times article writer I linked above may be interested as well, want me to ask her?
27th-Nov-2005 09:41 pm (UTC)
Wow.

Yeah, sure. That'd be cool.

I'm all nervous now, look at me. guess I'm going to have to start a tag for this.
27th-Nov-2005 09:53 pm (UTC)
K, her blog is here: http://rachelnorthlondon.blogspot.com/ and she's fairly strongminded when it comes to presumption of innocence, etc.

When this has been submitted, I'll hit Blog This, then start getting things going properly I guess. Really strange thing, I just followed a link from her blog to an LJ entry, and found it was a friend of a friend who I didn't know back in July, she was on the same carriage. Small world.

Anyway...
27th-Nov-2005 04:19 am (UTC) - Possibly this comment will appear patronising as hell. My brain isn't working today...
I just want to say that I find it admirable that someone with the experiences you've had is capable of thinking about this in the rational, principled way you are doing. Given that the majority of people seem to think 'criminals have too many rights', and that my own gut reactions if anything that horrific happened to me would be along the lines of 'castrate all men to be on the safe side' (though I *hope* I would still be able to recognise that that is irrational and wrong), I think the calm, sensible way you're talking about this is quite amazing.
I'll shut up now. I'm talking crap, probably...
27th-Nov-2005 05:31 pm (UTC)
Debi, you know you're amazing, right?

My mom was raped in a parking lot, and it took me 14 years to get her to admit it. She still won't tell me anything why, but if I want to go to a low-security lot by myself ... She is never ever rational about it.

You have all of that rationale after tragedy that she should have.

They never found him, I don't think -- nobody will tell me, and my father isn't sure if he's right -- but she spazzes out and clams up, and she is on the Amnesty International BOARD even, and refuses to talk about it.

This is the view I needed.

Can I show this to her?
27th-Nov-2005 09:24 pm (UTC) - Bloody notifications.
Of course you can, my dear. Show away. I want to get the word out.
28th-Nov-2005 12:55 am (UTC)
Another blog article, this time from someone already known, she writes for the Guardian amongst other things:
http://philobiblion.blogspot.com/2005/11/rape-law-time-warp-back-to-sixties.html
She pretty much agrees with you, I don't read her as often, think I may have to start.
28th-Nov-2005 02:33 pm (UTC)
A good proportion of sex is carried out when one party or both is drunk. People often consent to sex with people they don't know when they're drunk. If someone knows they are likely to do this and doesn't want to then they just plain shouldn't get drunk. To say that having sex with a consentual drunk person is rape just because they are drunk is not only to trivialise a very serious crime but also means that a large proportion of men are de-facto rapists. I realise this may seem a little harsh but convicting someone based on such grounds would set a dangerous precident so far as 'innocent until proven guilty' goes. Having said this, the guy sounds like a complete arsehole, possibly even a rapist, but I can't say for sure and neither can anyone else.
28th-Nov-2005 02:55 pm (UTC)
There is a very significant difference between being tipsy and losing one's inhibitions and being incapacitated to the point at which you can't get home on your own.

There is a difference between having sex with a person who has had a bit to drink and having sex with someone who is bearly able to retain consciousness. In this case, we don't know exactly what state she was in, as those facts have not been made public. We do know that she was considered by her friends incapable of making it home and was entrusted to a security guard to do so. We also know that he admitted she was in a pretty bad way. If this is the case: if she, as seems likely from what's been said of both testimonies, was slipping in and out of consciousness, then she was not in any condition to give consent.
28th-Nov-2005 07:13 pm (UTC)
I don't really disagree with you there, but what you or I or anyone thinks 'consent' means and how it has to be defined legally are two different things.
28th-Nov-2005 07:21 pm (UTC)
My problem is defining it as being drunk. The implication seems in a lot of cases that if someone is too drunk to say 'no', then that automatically means 'yes'.
28th-Nov-2005 09:31 pm (UTC)
Was what he did unethical (regarding his job position)? Entirely.
Was what he did morally wrong? Absolutely.
If this was my sister/niece/daughter/girlfriend/wife/friend would I find a way to wait for this lowlife in an alley with a tire tool? Certainly.

None of which, unfortunately, meets the burden of proof. I'm with Thomas Jefferson on this one, I'd rather see this poor excuse for a human being be set free rather than see an innocent person go to jail (nevermind that we see enough of that anyway.) It isn't "right" nor can we make it right that this guy doesn't pay for his crime, but neither can we bend the system to right this one wrong without doing damage to the system.

...any person who falsely claims to be a victim of such is little better than a rapist themselves.

I disagree with you on this one. Any person who makes false claims of rape is worse than a rapist. For one, in doing so, they blacken the name of another innocent person. Second (and more importantly,) a false claim of rape gives an excuse to call into question every other charge of rape. Anything that gives knuckleheads a reason to say, "Oh, a lot of women just cry, 'Rape!' when they want X," is worse than criminal.
29th-Nov-2005 01:51 pm (UTC)
There has been an enormous amount of debate about this subject in my area of LJ recently and I'm perturbed by how keen some people are to muddy the waters over consent. As someone who has studied violent crime and worked in crime prevention I've learned that it is very dangerous to try to shift even a small amount of the responsibility for crimes onto victims. There is a culture among perpetrators that people who make it easy are absolving them of responsibility so it is important to keep culpability simple - the rapist/burglar/car thief is TOTALLY responsible for their actions unless they are suffering from a genuine mental illness etc.

A little metaphor - if I leave my door open on a summers day you are not entitled to come in and help yourself to my tea and buscuits. You would expect to be invited in first. If I appear to be drunk and overfriendly you still know you probably shouldn't be coming in for a cuppa let alone to nick my DVD. See? It all seems so clear in this trivial analogy so why do people have to complicate the situation when it comes to rape.

No, or incapable of giving consent means no, not "it's a bit wrong but I'll probably get away with it."

Sorry for ranting on, especially as I'm a total stranger directed here by one of your friends, but as someone who has some professional knowledge of what makes crims tick I can't emphasise enough what a bad thing it is to send out mixed messages on culpability.
29th-Nov-2005 02:07 pm (UTC)
Oh no, you're totally, welcome, hi! Um, which friend directed you here? *is nosey*

I agree with you that the perpetrator shouldn't be absolved of responsibility, but I don't think responsibility is a finite resource that can be shifted from one person to another.

Taking the same metaphor, that if you leave your door open, and I do come in and nick your DVDs, then the insurance may not cover it, and your friends may be facepalming at you and calling you out on being a bit daft.

However, this doesn't make me any less of a thief and I deserve everything I get. Just as you should take some responsibility for the consequences of your action (leaving the door open), it doesn't mean that I am absolved of my crimes.

As a rape victim, I'm happy to say: "Yep, I shouldn't have walked home through Camden after midnight" etc etc, because it was a silly thing to do. But he is still a rapist and was judged under the same conditions as if he'd attacked someone in the middle of Oxford Street at 3pm.

But yes, absolutely. No consent means no.
29th-Nov-2005 09:46 pm (UTC)
Oh no, you're totally, welcome, hi! Um, which friend directed you here? *is nosey*

I got here from this:
http://www.livejournal.com/users/stealthmunchkin/286651.html
which was here http://www.livejournal.com/users/blue_condition/friends?skip=80
at the time.

BTW - I won't be leaving the front door open any time soon (certainly not in the weather we've been having here lately) but I still think the insurance company would be wrong, at least moraly.
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