Sexual Assaults in the militaryFollow

Pshaw! Low hanging fruit.

I think the moral of the story here is, if you want to rape somebody, you'd better be drunk as a skunk; or at least enough to not remember the event.

But this is generally a non-issue, because all rapes charges (to the best of my knowledge) are reviewed by a jury. No jury is going to convict someone of rape if he was wasted* and sex with another wasted person. If he's at .08 and they're at .16? Then yeah, there's a very good chance he'd be convicted, because he's still conscious and his victim isn't. He was in a state where his rational consent would have no legal merit, while his victim was in a state where she literally could not give consent.

*Note that this does not apply to forcible rape, which is a more heinous crime. That's where physical or chemical aggression is used to subdue someone. This is a discussion of rape where one of the parties failed to gain consent.

And rational consent is what's at stake here. Rational consent requires you have full control of your faculties. If one party has the capacity for rational consent, and the other does not, it's rape. If neither have the capacity for rational consent, you'd use the reduced form of consent that you have available as your measuring stick.

It's not a difficult concept at all - don't have sex with someone significantly more inebriated than you. That REALLY shouldn't be an issue.

And because Olorinus brought it up, legally speaking you DO need clear consent for a sexual act. Assumptions that your partner wants to have sex generally aren't legally accepted.

I don't think anyone disagrees that someone who's passed out can't give consent. That's not what I'm taking issue with.

I think we're in some dangerous territory though when we say you're responsible for what you do when you decide to drive drunk but not if you have sex while drunk.

How can you take responsibility away from someone who's drunk and consents to sex but later says I was too drunk to make that call, so I was raped. But then hold that same person who was too drunk to make the call on having sex, responsible for driving?

We're not talking about someone who's passed out here.

Drunk driving isn't a relevant analogy. It's illegal to drive drunk, it's not illegal to have sex while drunk. And despite that issue, we also don't establish those laws for the same reason: drunk driving laws are primarily a public health initiative. A stupid one, because they probably don't work, but the reason drunk driving punishments are harsh is primarily due to a wish that they'll act as a deterrent for drunk driving.

I'm not a fan of the concept. Nor am I fan of the same concept for rape charges, particularly since it IS proven that increased sentences have no impact on the frequency of rape within populations.

Another problem is that the reason we prosecute for drunk driving isn't the same reason we prosecute for rape. We prosecute for drunk driving because it poses a clear danger to other people for a drunk person to operate a vehicle. We prosecute for rape because it's a fundamental violation of another person's human dignity. It's a different concept of victimization.

And finally, drunk driving is again its own beast, because it is one of the few crimes you can commit that is fundamentally based in inebriation. For most crimes, inebriation can work to reduce your sentence, in the best case scenario. In the worst case scenario, it won't make it worse.

DWIs are fundamentally different from other crimes. Maybe that means we should rethink our treatment of them (which I would agree to), but it definitely means they shouldn't be used as our measuring stick for other crimes.

If you are sober, and you have sex with someone you know or suspect is drunk, you have made the decision that you don't care if they can offer informed consent or not. That's the degradation of their human dignity.

It doesn't matter if the woman would have made the same decision while sober, because the crime is your dismissal of her right to give informed consent. It doesn't matter if you think that it should count, because inebriation is a violation of the fundamental concept of rational consent.

I'm guessing usually a jury/judge is the one determining whether or not someone was coherent enough to consent?

Edited, Jun 6th 2013 8:14am by someproteinguy

But it's not criteria that can be allowed when determining someone's liability or consequence. If a sober man asks you for a ten-spot when you're drunk and you give it to him, you can certainly claim he took advantage of you, but your blood-alcohol level doesn't make the exchange a crime.

Increase that sum to a level where it would be legal to sue them and it is considered theft, and you can be prosecuted for it.

And if it's an amount that exceeds the legal minimum, you can sue them for it.

Probably wouldn't bother for $20, but for $300 you certainly might take it to civilian court.

I have no clue at what point anyone would bother charging them with a crime, but that doesn't really matter, now does it? Because I'm inclined to think that someone's human dignity isn't equatable to a couple hundred bucks.

[EDIT]


Well no wonder you were terrified of letting teh geys into the military.

Edited, Jun 6th 2013 11:38am by idiggory

You can sue for about anything. There is no law being broken that would cause you to win a lawsuit however.

That's hyperbole. And it's really obvious.

I have no clue why you think that a person who is drunk loses their human dignity because they have sex when under the influence.

Women are people, equal to men in both rights and responsibilities. They're not feeble, or ill-informed, or unable to make a decision when under the influence. Maybe not a good decision, but they have to be given the same opportunity to make a bad decision as men.

If you teach women how to keep from being raped you're sending the message that men don't have to take responsibility for their actions.

If you educate men about their actions you're sending the message that the women are feeble, helpless, and can't stay safe without a man's help.

If you ignore the problem you're oppressing the disadvantaged.

What's your poison?

Then you're just glossing over the most common form of the problem.