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Articles and essays by Girl Writes What & Quiet Riot Girl being purged by the Good Men Project.

OuiCrudites

December 28, 2012

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http://www.avoiceformen.com/feminism/purged-from-the-good-men-project/

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Title	Articles and essays by Girl Writes What & Quiet Riot Girl being purged by the Good Men Project.
Author	OuiCrudites
Upvotes	64
Comments	18
Date	December 28, 2012 6:57 PM UTC (13 years ago)
Subreddit	Posted in /r/MensRights
Original Link	https://old.reddit.com/r/MensRights/comments/15l20a/articles_and_essays_by_girl_writes_what_quiet/
Archive Link	https://theredarchive.com/r/MensRights/articles-and-essays-by-girl-writes-what-quiet-riot.1005575 https://theredarchive.com/post/1005575

Comments

[–]OuiCrudites[S] 14 points15 points16 points 13 years ago (1 child) | Copy Link

[–][deleted] 1 point2 points3 points 13 years ago (0 children) | Copy Link

[–]Crimson_D82 7 points8 points9 points 13 years ago (0 children) | Copy Link

[–]oneiorosgrip 6 points7 points8 points 13 years ago* (10 children) | Copy Link

In the case of rape, mens rea is not a question of whether someone knows that forcing an unwilling woman to have sex is rape, it is a question of whether someone is aware they are forcing an unwilling woman to have sex.

That, right there, is what feminists want to eliminate in rape laws - treatment of the crime as a deliberate act. They can much more effectively (and with more social acceptance) use it against anyone they choose if the crime is treated as if it can also be an accident. They want to base the criminalization of the act on the feelings of the accuser, rather than the nature of the accused and the intent behind the actions.

In the U.S., that is not how other violent crimes are treated. There's even a difference in levels of murder - Both types require intent, but if only intent may be proved, then the killer is convicted of second degree murder, which carries a lighter sentence. For first degree murder, one must prove not just intent, but prior intent. Even if the prosecution can prove the perpetrator killed deliberately, the crime is reduced to a lesser degree unless prosecution can also prove the killer planned it. Were we to transfer the feminist standard to the crime of killing someone, every death caused by another person's actions would be considered first degree murder, because regardless of the intent of the killer, the victim is still dead. You could get convicted of Murder 1 for being the driver who lived following that accident in which the other driver ran a stop sign. Or, back to rape, for participating in a sex act initiated by the other party (without spoken consent, but enthusiastic participation) who after it was over, regretted the decision.

Of course that standard would be unreasonable. It is unreasonable to condemn an individual for acting reasonably on the information available to him. That's why the word consent should not be part of laws defining sex crimes.

Instead, the word refuse should be used... as in contravening or disregarding the victim's right to refuse _____ (whatever term/s defining the sex crime as inflicting the unwanted sexual activity denoted in the crime's definition). With the law defining sex crimes in that manner, the term rape would apply when the actions defined in the law as rape occur in conjunction with when the victim's attempt to refuse is ignored, when the act is performed on someone who cannot refuse (incapacitated,) or when someone doesn't have the capacity to understand the act enough to know they can refuse (like a child.)

This would reduce the number of false allegations that would even make it to court, especially those based on a false definition or false understanding (by the accuser) of the crime.

Edit - accidentally a word.

[–]BedMonster 1 point2 points3 points 13 years ago (9 children) | Copy Link

The only thing which this omits is the question of at what point is one considered to be incapacitated. While no one would question whether having sex with an unconscious person is rape, there exists some level of intoxication short of unconsciousness that would constitute incapacitation. The case this raises is that in which one party is intoxicated whilst the other is incapacitated.

Looking from a technical perspective, mens rea may still be applicable regarding the rape charge, with the important caveat that the alleged perpetrator should still be charged with battery (depending on the state) for knowingly, intentionally, or recklessly causing bodily injury to another. Depending on the state and specific circumstances, there may alternately be a charge of negligent battery or third degree battery.

I think there's a case to be made for a less intoxicated or sober person to have acted recklessly in engaging in sexual action with a severely intoxicated person, even if it does not meet the standard of rape. (Further provided that the prosecution can sufficiently demonstrate the level of intoxication of the alleged victim and perpetrator, and prove beyond a reasonable doubt the alleged perpetrator's awareness of the alleged victim's level of intoxication.)

[–]oneiorosgrip 2 points3 points4 points 13 years ago (8 children) | Copy Link

It's possible to come up with a standard for that... just not likely that it would be enforceable in a situation without witnesses.

Currently, prosecutors look for things like whether the intoxicant was introduced with or without the accuser's knowledge, and whether the accuser's level of intoxication (sometimes measured by the blood-alcohol content) would have prevented the ability to appraise one's actions (decide whether or not this is a good idea.) This leaves it open for the accuser to interpret "my level of self-control was reduced" to mean "I was unable to decide whether or not I wanted to do this" and accuse a partner who had sex with an enthusiastic participant of having committed rape.

A stricter, more evenly applicable standard would the simple determination of whether the accuser was responsive despite intoxication during the incident - able to speak clearly enough to be understood and articulately enough to make sense in either encouraging the act or protesting it, and with enough motor capability to be able to actively participate, or actively resist. Activity with an individual whose induced or altered condition (intoxication, injury, sleep) resulted in him or her being unresponsive could easily be defined as rape, even if the accused was also intoxicated. Unresponsiveness is a condition which can be noted and reacted to by an individual even when the unresponsive person is conscious, with eyes open, and appears to be aware of one's presence and behavior, so this would definitely fall under the application of mens rea. The problem in trial would be the same as in any criminal case; attempting to prove the facts without relying strictly on the statements of the petitioners in the case. (In other words, without evidence beyond he-said-she-said, refusal or inability to refuse in such a case should not be considered proved.)

There definitely should be a distinction made for rape that involves physically painful or damaging violence. Being raped in either case is traumatic, but bodily injury adds a physical side to the trauma - it hurts. There should be a standard which takes into account the increased violence as an additional assault. This is where the same modifiers used to define the severity of other types of assault would be applicable - or secondary charges (rape and aggravated assault, battery, causing grievous bodily harm, whatever happened) could be leveled. For instance, if the perpetrator in a rape kills the victim, the perpetrator will be charged with some level of homicide charge depending on the nature of the act (deliberate, accidental, deliberate and planned) but since the rape occurred, if it can be demonstrated by evidence (due to the victim's injuries) a rape charge will be leveled as well, regardless of the homicide charge. The same should be true of a sexual assault which involves causing physical injury.

There theoretically could also be a charge that would be the equivalent of the less intoxicated person "taking advantage." This theoretically could be applicable if it can be proved beyond a reasonable doubt that the accused deliberately and willfully used the accuser's intoxicated condition to bypass or ignore the accuser's right to refuse sexual contact (in other words, willfully and knowingly took advantage of an individual too drunk to comprehend or care what he or she was doing, and involved him or herself in actions he or she knew were outside the person's character when sober or tipsy.)

The practical application of such an idea would be problematic at best, if due process were to be strictly followed. Currently, due process is not strictly followed, resulting in potential and real wrongful imprisonment in such cases.

The challenge, again, would be in determining whether or not mens rea would be applicable to the situation.
For that, you would have to prove beyond reasonable doubt that the accused intended to override the accuser's ability or right to self-determination.

In the case of forcible rape, that's an easily proved factor - either the accuser did or did not use physical assault or compelling threats (weapon or coercion) to overcome the accuser's resistance. In cases of incapacitation or unresponsive victims, it would first need to be proved that the accuser was in that condition, but upon proving that, it would follow that proof that the accused acted upon the accuser's person while the accuser was in that condition would be enough to demonstrate mens rea with regard to ignoring the right to refuse, via use of the inability to refuse.

When you raise the accuser's bar to "too intoxicated to be held responsible for his/her own actions," you immediately take the case from the realm of concrete factors which can be measured using standard characteristics (force, coercion, incapacitation, unresponsiveness) to subjective factors which cannot be measured using standard characteristics, as the condition will not manifest itself the same from person to person; a temporary and arbitrarily defined change in one's mental state (arbitrarily, because at what specific, consistently measurable point do you draw the line between responsible and not responsible for one's own actions?
This is further complicated when the intoxicant is self-administered by the accuser, and even more so when it is a substance (like some drugs) which does not manifest outwardly measurable symptoms of the user's mental condition.

To expand on your last statement, the case of the "too intoxicated" accuser who self-administered or knowingly consumed the intoxicant, the burden of proof becomes

1) that the accuser really was in such an altered mental state as to lose the ability of self-determination

The difficulty here would be in proving that the accuser's behavior was substantially different while intoxicated than would be normal for him or her while sober, and that said difference would indicate an easily determinable change in the accuser's choice of behavior. This means that if the accuser had, while sober, displayed similar behavior (promiscuity, impulsive decision making related to sexual activity,) that would place his or her claim of having been wronged by the accused in doubt, in that the jury would have to confront the possibility that the accuser might easily have made the same decision while sober. In that case, accuser would not be able to prove that this decision was different enough from sober decisions that it should be considered due to inability to self-determine rather than simply another choice the accuser has made. Without proof of a differing pattern of behavior, the case would be nothing but "he-said-she-said," and reasonable doubt could not be eliminated.

and

2) that the accused EITHER
° surreptitiously administered the intoxicant with intent to bypass the accuser's ability to self-determine, (drugged them without their knowledge to get them intoxicated enough to comply) or
° was aware of the change in the accuser's mental state, and that the degree of that change interfered with the accuser's ability to self-determine (knew the accuser would act differently if sober.)

This would have to entail proving that the accused knew the accuser's standard of everyday behavior enough to be able to realize that the accuser's current behavior was measurably inconsistent with the usual... something which cannot be proved if the two parties are strangers or merely acquaintances, if the accuser has been promiscuous with others in the past, or if the accuser doesn't display outward symptoms of dramatic or severe intoxication.

There is the barrier to the application of mens rea to drunk sex; if it cannot be determined that the accused willfully, knowingly used the accuser's intoxicated state to gain compliant participation in an act the accuser wouldn't agree to while sober, then accusing rape would not be holding the accuser accountable for wrongful actions, but criminalizing ignorance of one's circumstances.

Current infringements on due process, where rape shield laws bar the entrance of the accuser's sexual history as evidence, could in this type of case significantly and wrongfully impact the defense of the accused. The issue is not the idea that an individual who has consented previously is required to always consent, but that it is not reasonable to expect a jury to accept that after an individual has made the same decision repeatedly while sober, the one time the decision was made while intoxicated, the choice may be attributed to the intoxicant, and the other participant may be assumed to know the difference. In shielding an accuser from being held accountable for telling the whole story rather than just one night's actions, these laws obscure the ability to accurately determine mens rea, so that an individual accused may be more easily determined guilty of intent which was not present in his or her actions.

This is why it is not acceptable to strictly consider intoxicated-sex rape; in many instances, doing so would be holding the accused individual responsible for the fact that the accuser got drunk, stoned, or otherwise high, and then made a bad decision. Being intoxicated doesn't transfer responsibility for one's decisions to other people, even if those other people are less intoxicated, or not intoxicated at all.

[–]BedMonster 0 points1 point2 points 13 years ago (7 children) | Copy Link

Correct me if I'm wrong, but I believe there is already a precedent for incapacitation in contract law. While the accuser can attempt to interpret that "their level of self-control was reduced" translates to "I was unable to decide whether or not I wanted to do this," but the court usually holds that the contract will be invalid only if the signer (the accuser) was incapacitated, or if the accused was aware of the alleged victims state.

I think that incapacitated is fairly well defined, actually - and there exist a number of contexts in which incapacitated would be readily apparent (unable to stand/form polysyllabic sentences/have rudimentary awareness of surroundings), in which the law could be reasonably applied.

With respect to mens rea, I do not think that criminal charges would require intent to override the accuser's ability to self-determine, only that they showed a willful indifference towards their knowledge that the accuser was incapacitated. Here we might apply a "reasonable person" standard, in which jury would assess whether a legally defined "reasonable person" would have perceived that the other person was incapacitated, to which we may apply the charge of recklessness.

The point which I disagree with you on is with regard to the claim that the incapacitation consideration requires an awareness of changes in the accuser's ability to self-determine. Awareness of prior behavior might mean the accused was less likely to do something to violate the accuser, but would by no means be a complete or even incomplete defense regarding the actions on this particular date. Barring the specific case of the accuser having spoken to the accused beforehand about having drunken sex on this particular date, knowledge of prior behavior would not be that which the accused needed to be aware of; they only need know whether the accuser was capable of giving meaningful consent, and that that they had given and subsequently not withdrawn it.

If the accuser doesn't display outward symptoms of dramatic or severe intoxication

Well, then it could not be proved that by a "reasonable person standard" the accused would have known that the accuser was severely intoxicated, no?

Regarding rape shield laws, the only piece that would reasonably matter regarding the accused's awareness would be possible previous experience with the accuser, but that the sexual history between accuser and accused is definitely admissible. The "same decision" as it applies to sex with people other than the accused isn't and wouldn't be applicable, I'm afraid.

I'm certainly not claiming any more than you are that being intoxicated should transfer responsibility for one person's decisions to other people - but what responsibility is it that you're claiming is being transferred? A person's responsibility to refuse a sexual encounter? Better, your responsibility to give meaningful consent? For better or worse, the responsibility is on the acting partner to seek consent. However, as we speak of incapacitation, the incapacitated partner would be hard pressed to be the active partner as well.

[–]oneiorosgrip 0 points1 point2 points 13 years ago (6 children) | Copy Link

Correct me if I'm wrong, but I believe there is already a precedent for incapacitation in contract law.

You're talking about taking a standard in civil law, in a case where the decision would be whether or not remove an obligation based on extenuating circumstances... applying that to criminal law, and then using it to impose an obligation where one does not exist.

The same argument could be used to make the case for decriminalizing any crime committed while drunk, from streaking and crank calling to DUI, to burglary, rape, and murder... because the individual can't consent to any of those actions while drunk. In fact, by the logic of "if a contract is invalid when you're drunk, sex with a drunk person is rape," spotting the streaker would be criminal voyeurism, answering the phone to a drunk-dialing crank-caller would be harassment, getting hit by a drunk driver would be vandalism of the car, being burglarized by a stoned or high thief would be kidnapping and illegal dumping, getting raped by an intoxicated attacker would be committing rape, and being murdered by one would be committing suicide. This is the logic of transferring responsibility due to the presence of alcohol.

Another way to put it would be the reverse; applying to civil law (with respect to contracts) the standard you're tying to apply to criminal law would require that fraud charges be leveled at the sober party whenever an individual has a contract invalidated because he or she signed it after drinking alcohol or using drugs... even if the other signer didn't know about that usage.

I do not think that criminal charges would require intent to override the accuser's ability to self-determine, only that they showed a willful indifference towards their knowledge that the accuser was incapacitated.

This is the answer I get every time I discuss drunk sex - no one can argue against what I've said without strawmanning; trying to turn the conversation from a discussion on drunk (but not incapacitated) sex to a discussion on raping an incapacitated person, as if all of my assertions were made in that context.

I clearly described sex with an incapacitated person as rape. I even pointed out that intoxication wouldn't excuse the commission of rape of an incapacitated person:

A stricter, more evenly applicable standard would be the simple determination of whether the accuser was responsive despite intoxication during the incident - able to speak clearly enough to be understood and articulately enough to make sense in either encouraging the act or protesting it, and with enough motor capability to be able to actively participate, or actively resist. Activity with an individual whose induced or altered condition (intoxication, injury, sleep) resulted in him or her being unresponsive could easily be defined as rape, even if the accused was also intoxicated.

...or, you're conflating incapacitated with uninhibited in order to argue, as you are pulling from terminology I used later in the comment to describe an individual whose inhibitions had been reduced by an intoxicant, but who was not clearly incapacitated.

When you raise the accuser's bar to "too intoxicated to be held responsible for his/her own actions," you immediately take the case from the realm of concrete factors which can be measured using standard characteristics (force, coercion, incapacitation, unresponsiveness) to subjective factors which cannot be measured using standard characteristics, as the condition will not manifest itself the same from person to person; a temporary and arbitrarily defined change in one's mental state (arbitrarily, because at what specific, consistently measurable point do you draw the line between responsible and not responsible for one's own actions?

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Here we might apply a "reasonable person" standard, in which jury would assess whether a legally defined "reasonable person" would have perceived that the other person was incapacitated, to which we may apply the charge of recklessness.

This applies arbitrary standards of observation and assessment (one individual's "reasonable person" will not necessarily be the same as another, even with a legal definition for the term) and in the context of the "uninhibited partner" discussion to which you've replied, holds the accused responsible for the accuser's behavior with no valid excuse for doing so. Once again, at what point of cognizant intoxication do you draw the line to determine a legal limit if not at obvious incapacitation and/or unresponsiveness? Or do you seriously believe that there should be no clearly defined, dependable means by which a participant can avoid wrongdoing?

In the context of an "incapacitated" argument, which would be a different discussion, it would be another straw man, as it again replies to an assertion I did not make - the perception of sex with an incapacitated person as an acceptable action.

That said, your suggestion of a "charge of recklessness" against an individual for having sex with an intoxicated person is disturbing for two reasons. First, it appears from the context of the whole discussion that you consider it reckless to engage in activity with an willing partner, simply on the basis that the partner may be intoxicated. Second, it appears from that statement itself that you don't consider it equally reckless for an individual to knowingly and willfully ingest substances which will alter his or her inhibitions, and then interact with other people. In other words, I'm questioning your logic here, too: You'd hold a person criminally responsible for consenting to sex with an intoxicated person, but you wouldn't hold a person responsible for actively choosing to compromise his or her own decision-making capability?

The point which I disagree with you on is with regard to the claim that the incapacitation consideration requires an awareness of changes in the accuser's ability to self-determine.

Again - we're back to the strawman - I asserted that it's readily apparent when an individual is incapacitated.

Returning this to the context of the discussion, wherein the statement to which you're replying is that "was aware of the change in the accuser's mental state, and that the degree of that change interfered with the accuser's ability to self-determine (knew the accuser would act differently if sober" refers to an individual who, as I stated before, intoxicated but not incapacitated. This stipulation is a determining factor in whether it can be demonstrated that the accused knowingly and willfully used the accuser's intoxicated state to gain compliant participation - in other words, to take away the accuser's right or ability to refuse participation.

In the context of that discussion, your argument's literal translation is "you shouldn't have to know someone is unable to refuse sex in order to be held responsible for deliberately enforcing his or her participation." This is, essentially, an argument that the accuser's experience, rather than the intent of the accused, defines the action as a crime. By arguing this, you're requiring the accused to have been able to decide to ignore the accuser's physical actions without a basis for doing so.

Awareness of prior behavior might mean the accused was less likely to do something to violate the accuser, but would by no means be a complete or even incomplete defense regarding the actions on this particular date.

Taking this from the strawman standpoint of rape of an incapacitated person, back to the discussion at hand... what you've said here is that a person familiar with an individual known to be voluntarily and determinedly abstinent would be no less likely to consider his or her drunken advances suspect than a stranger would be.

Barring the specific case of the accuser having spoken to the accused beforehand about having drunken sex on this particular date, knowledge of prior behavior would not be that which the accused needed to be aware of; they only need know whether the accuser was capable of giving meaningful consent, and that that they had given and subsequently not withdrawn it.

This is where your logic has significant flaws in the context of the discussion, which again, relates to an individual who is not incapacitated.
The first one is in the use of the term "consent" as a defining term in the discussion. Consent is an arbitrarily measured and perceived factor, one which can occur without verbal communication, by positive physical action, something which is consistently denied by some feminists for the purpose of defining consensual sex as rape. Refusal, on the other hand, is not - it requires an overt action, either speech or overt physical behavior. While feminists choose to question whether compliant physical actions (active participation) constitute consent, no one questions whether pushing someone away, turning away from the partner, shielding one's person, or withdrawing participation while saying any version of "NO" is refusal. The second flaw in your logic is one of the things which makes the determination of consent arbitrary - your use of the equally arbitrary term "meaningful," which implies that a responsive, articulate individual who actively participates in a sex act could be a victim simply by virtue of intoxication, with the insinuation that intoxication removes the individual's responsibility for his or her own behavior. This again wrongfully transfers responsibility for the overt actions of the intoxicated person to the other partner... which in turn, criminalizes having been acted upon by an individual who is intoxicated.

[–]oneiorosgrip 0 points1 point2 points 13 years ago (0 children) | Copy Link

If the accuser doesn't display outward symptoms of dramatic or severe intoxication

Well, then it could not be proved that by a "reasonable person standard" the accused would have known that the accuser was severely intoxicated, no?

CONTEXT:

This would have to entail proving that the accused knew the accuser's standard of everyday behavior enough to be able to realize that the accuser's current behavior was measurably inconsistent with the usual... something which cannot be proved if the two parties are strangers or merely acquaintances, if the accuser has been promiscuous with others in the past, or if the accuser doesn't display outward symptoms of dramatic or severe intoxication.

Regarding rape shield laws, the only piece that would reasonably matter regarding the accused's awareness would be possible previous experience with the accuser, but that the sexual history between accuser and accused is definitely admissible. The "same decision" as it applies to sex with people other than the accused isn't and wouldn't be applicable, I'm afraid.

Again, context - that statement is contained within the argument on whether it is reasonable to assume the accused was aware that the accuser's choice was one he or she would not have made while sober.
I've already shown above why past sexual history is relevant to that, but I'll go more in-depth to emphasize it: an accuser with a history of abstinence could reasonably claim that an accused individual who knew him or her from before the incident and knew about that history had reason to question his or her advances, and assume his or her behavior was out of character - an obvious reason to put on the breaks even if the accuser seemed otherwise in possession of his or her faculties.

An individual with a promiscuous history could not reasonably use the "out of character" argument to secure a finding that the accused individual who knew him or her from before the incident and knew about that history knew he or she wouldn't otherwise make that choice. In fact, an accused individual who knew the accuser's promiscuous history would have reason to argue that the accuser's advances were entirely in character, and that without any other indication that the accuser was unable to self-determine, the accused had no way to consider the incident anything other than a consensual sex act. This would absolutely remove the determination of mens rea, as it would show that the accused did not intentionally contravene or disregard the accused right or ability to refuse.

I'm certainly not claiming any more than you are that being intoxicated should transfer responsibility for one person's decisions to other people

That is the absolute bottom line meaning of several of your arguments in the context of this discussion - that being intoxicated transfers responsibility for one's decisions to other people.

but what responsibility is it that you're claiming is being transferred? A person's responsibility to refuse a sexual encounter?

A person's responsibility to own up to his or her own decisions, and not use alcohol as an excuse to blame those decisions on someone else by claiming that his or her consent was not "meaningful."

For better or worse, the responsibility is on the acting partner to seek consent.

First, this wrongfully assumes that the less intoxicated partner is always the acting partner, an untruth.
Second, in the context of the rest of the discussion, this assumes a lack of consent where active participation exists... again, seeking to create a standard of determination, then automatically deny the fulfillment of it in order to falsely paint intoxicated sex as rape.
Third, no, it's not. The responsibility is on both partners. If a person initiates contact with an individual who is averse, it's the responsibility of the averse individual to communicate that aversion, and not indicate consent through participation. Participation is consent, whether you utter a single word, or not.

You are as responsible for your actions as your partner is for his or hers.

However, as we speak of incapacitation, the incapacitated partner would be hard pressed to be the active partner as well.

This returns to the straw-man "incapacitated" argument again, ignoring the context and tone of the entire comment to which you replied. I usually see this done in order to avoid discussion on subtle degrees between sober and incapacitated, for the purpose of insinuating that all drunk-sex is rape, while maintaining the ability to claim one hasn't said that.

[–]BedMonster 0 points1 point2 points 13 years ago (2 children) | Copy Link

I see the gleeful fashion in which you approach the bolded accusations of "strawmanning."

I was not arguing that civil law be applied to criminal charges, only that there is a legal definition of incapacitation.

You wrote:

This leaves it open for the accuser to interpret "my level of self-control was reduced" to mean "I was unable to decide whether or not I wanted to do this" and accuse a partner who had sex with an enthusiastic participant of having committed rape.

To which I replied:

While the accuser can attempt to interpret that "their level of self-control was reduced" translates to "I was unable to decide whether or not I wanted to do this," but the court usually holds that the contract will be invalid only if the signer (the accuser) was incapacitated, or if the accused was aware of the alleged victims state.

This serves only to make the point that no, the accuser cannot interpret it that way, as the courts have a definition already. Further, the court holds that the contract is only likely to be invalidated when the other party presented the contract with the intent to take advantage or was substantially aware of the signer's compromised status.

I posited exactly two points which were the basis for subsequent replies.

1) There is a question as to what the dividing line that divides intoxication from incapacitation lies.
2) Mens rea is not always a requirement for criminal charges stemming from a sexual encounter involving alcohol.

Your first reply:
* There's a standard for that (#1): was the intoxicant unknowingly administered to the accuser, and would the level of intoxication (BAC?) prevented the accuser from appraising their actions.

You believe this leaves an opening for the accuser to interpret - they can claim whatever they'd like, but (regardless of how it plays out in real world) the courts do have a standard to declare incapacitation.

A better/stricter standard would be to determine whether the accuser was responsive despite intoxication during the incident - able to speak/articulate clearly enough to be understood, and with enough motor capability to actively participate or actively resist. Unresponsiveness can be perceived by the other party, and therefore would fall under mens rea. Problems include being able to prove these facts without relying on the statements of the petitioners.

Working backwards through those points, the statements of the petitioners can only be considered incomplete evidence if they conflict. The two parties might agree that each had a certain number of drinks, and that there were no affirmative indications of consent. Returning to our definition of incapacitation, it may be that even short of being incapacitated by alcohol that by virtue of one party participating (by initiating the act) and the other party neither encouraging or protesting despite having enough motor control to have the "capability" to resist. It is unclear whether your definition of unresponsive includes this definition.

There should be a distinction for rape that involves violence.

As you describe, this is already the case. Defendants are often charged with additional charges: assault, aggravated kidnapping, battery, criminal menacing, etc.

In theory, there could be a charge that would cover the less intoxicated person 'taking advantage,' if it can be proved beyond a reasonable doubt. At best, this theoretical application would be problematic if due process were strictly followed. In reality, due process is not strictly followed, resulting in wrongful convictions and imprisonments.

No part of me disagrees with this, and my reply did not indicate such.

There is a barrier to applying mens rea to drunk sex - if it cannot be determined that the accused knowingly and willfully used the accuser's intoxicated state to gain compliant participation in an act the accuser wouldn't agree to while sober, then accusing rape would not be holding the accuser accountable for wrongful actions, but criminalizing ignorance of ones circumstances.

Here you claim that it is a strawman argument to mention that mens rea need not apply for the accuser to be accountable for wrongful actions. At issue is not that the accused deliberately used the accuser's state to have sex with them. At issue is whether the accused had sex with the accuser without having received meaningful consent. This breaks into two questions: Was there consent? If yes, was that consent meaningful? (e.g. given freely, by someone capable of understanding what it is they are consenting to.)

There is an argument to be made, in drunken sex, that a party might initiate and fail to receive consent, without thinking that they were doing anything wrong. In this case, accusing rape would be holding the accuser accountable for wrongful actions, not criminalizing ignorance of one's circumstances, because it is/was criminally negligent to not be aware that the other party did not consent.

When you raise the accuser's bar to "too intoxicated to be held responsible for his/her own actions," you immediately take the case from the realm of concrete factors which can be measured using standard characteristics (force, coercion, incapacitation, unresponsiveness) to subjective factors which cannot be measured using standard characteristics, as the condition will not manifest itself the same from person to person; a temporary and arbitrarily defined change in one's mental state (arbitrarily, because at what specific, consistently measurable point do you draw the line between responsible and not responsible for one's own actions? This is further complicated when the intoxicant is self-administered by the accuser, and even more so when it is a substance (like some drugs) which does not manifest outwardly measurable symptoms of the user's mental condition.

It is here that you err. Let us step back a moment from intoxication altogether. What action is the accuser supposed to be held accountable for, exactly? The world is a better place when people take ownership of their sexuality and feel comfortable refusing sex. It is not a responsibility, however. Not telling a woman no does not make it okay for her to have sex with you. Returning to the subject of intoxication, there is no "too intoxicated to be held responsible," because there was never an obligation for one party to refuse sex.

So I imagine then that the case to which you refer is one in which the accuser consented during the act, but claims that their consent is not valid due to their intoxicated state, no?

And here we return to the already defined category of incapacitation, and the two already posed questions. Was there consent? If yes, was it meaningful?

The strawman argument you make here is that at no point did I claim that intoxicated-sex was by definition rape, because that is an absurd claim.

As to your second reply

In fact, by the logic of "if a contract is invalid when you're drunk, sex with a drunk person is rape,"

**If there is a strawman argument, it is this one. I did not make any such claim. I wrote:

Correct me if I'm wrong, but I believe there is already a precedent for incapacitation in contract law. While the accuser can attempt to interpret that "their level of self-control was reduced" translates to "I was unable to decide whether or not I wanted to do this," but the court usually holds that the contract will be invalid only if the signer (the accuser) was incapacitated, or if the accused was aware of the alleged victims state.

This is to say that the court considers two circumstances in determining whether a contract was valid: 1) Incapacitation, defined from a medical standpoint. 2) Mens rea, in that the offering party was aware of the signer's drunkenness and knowingly, willfully sought to take advantage of it.

The application, criminally, is that when consent is given it would be considered invalid ex post facto only if 1) the accuser was incapacitated (which has a medical definition), or 2) if the accused could be proven to have knowingly, deliberately taken advantage of the accuser's drunkenness.

Not any of what you put forth.

The answer you got is a response to the exact distinction which was in my first reply - that there is a state short of unconscious known as incapacitation, where although a partner might still be able to speak or move, is not aware enough of the world around them to give meaningful consent. On the subject of drunken sex, there is still only one standard: was there consent? If yes, was that consent meaningful?

Finally,

Once again, at what point of cognizant intoxication do you draw the line to determine a legal limit if not at obvious incapacitation and/or unresponsiveness? Or do you seriously believe that there should be no clearly defined, dependable means by which a participant can avoid wrongdoing?

The line is where it has always been - incapacitation. The reasonable person standard applies simply to whether a reasonable person would have known that the accuser was incapacitated.

That said, your suggestion of a "charge of recklessness" against an individual for having sex with an intoxicated person is disturbing for two reasons. First, it appears from the context of the whole discussion that you consider it reckless to engage in activity with an willing partner, simply on the basis that the partner may be intoxicated.

No, you misunderstand my point. Having sex with a consenting but incapacitated partner would be a charge of recklessness, not rape. The question is the same, with three possible outcomes.

Was there consent? If yes, was that consent meaningful?

No. = Rape.
Yes. No. = Third degree assault or recklessness.
Yes. Yes. = Consensual sex.

[Continued.]

[–]oneiorosgrip 0 points1 point2 points 13 years ago (1 child) | Copy Link

I was not arguing that civil law be applied to criminal charges, only that there is a legal definition of incapacitation.

Your argument doesn't actually give a legal definition for incapacitation. What you've stated boils down to citing the invalidation of Party A's part of contract (a promise to do something in the future) in a civil case as a rationale for finding Party B guilty in a criminal case, based on Party A's actions.

If that is not what you meant to argue, then there is no point to bringing up contract law, as there are many examples in criminal law where intoxication is never considered to absolve the individual of responsibility for his or her actions... including being on the wrong side of a rape accusation.

There is a question as to what the dividing line that divides intoxication from incapacitation lies.

There's actually not an actual question as to what the dividing line there is - feminists insert a question to obscure the obvious (described in my comment.) If the individual is unconscious or unresponsive, he/she is incapacitated. If the individual is responsive, then he/she is not incapacitated.

There's a standard for that (#1): was the intoxicant unknowingly administered to the accuser, and would the level of intoxication (BAC?) prevented the accuser from appraising their actions.

You believe this leaves an opening for the accuser to interpret - they can claim whatever they'd like, but (regardless of how it plays out in real world) the courts do have a standard to declare incapacitation.

Here, you're doing it again - strawmanning, then conflating intoxicated with incapacitated.

1) I said absolutely nothing about an intoxicant "unknowingly administered to the accuser.

2) The standard described in that statement can occur when the drinker is conscious and active - one can be unable to judge the value of one's actions, and still actively, willfully participate in them. That is how drunk driving happens.

3) How it plays out in the real world vastly trumps any academic discussion. If a standard is so arbitrary that in the real world, its effect on the case in no way resembles the intent of its authors, it's a wrong standard, and it should be reviewed and revised.

A better/stricter standard would be to determine whether the accuser was responsive despite intoxication during the incident - able to speak/articulate clearly enough to be understood, and with enough motor capability to actively participate or actively resist. Unresponsiveness can be perceived by the other party, and therefore would fall under mens rea. Problems include being able to prove these facts without relying on the statements of the petitioners.

Working backwards through those points, the statements of the petitioners can only be considered incomplete evidence if they conflict. The two parties might agree that each had a certain number of drinks, and that there were no affirmative indications of consent. Returning to our definition of incapacitation, it may be that even short of being incapacitated by alcohol that by virtue of one party participating (by initiating the act) and the other party neither encouraging or protesting despite having enough motor control to have the "capability" to resist. It is unclear whether your definition of unresponsive includes this definition.

It's pretty clear from my previous comment, where I described motor control and speech, that in order for the accused to have believed that the accuser was responsive, the accuser would have to be moving under his or her own power, and talking articulately enough to be understood. To say that it's unclear whether lack of response is included in my definition is willfully obtuse.

It appears to me that you're trying to insert "passive accuser" rape accusations into the discussion. If so, I'm calling that bullshit. The able but passive accuser is as responsible for refusal as the able and active accuser. Drinking doesn't change that.

At issue is whether the accused had sex with the accuser without having received meaningful consent. This breaks into two questions: Was there consent? If yes, was that consent meaningful? (e.g. given freely, by someone capable of understanding what it is they are consenting to.)

That's your issue, not the issue. It should never, ever be an issue included in rape law. This is a means of placing onus for responsibility in a sexual encounter entirely on one person, so that the other partner may enjoy the encounter with impunity, then later accuse rape. Further, modifying "consent" with the term "meaningful" does exactly the opposite of what it is intended to imply; by adding an arbitrary modifier which can be interpreted to any level of bullshitting that the accuser wants to use, you essentially make all consent meaningless.

There is an argument to be made, in drunken sex, that a party might initiate and fail to receive consent, without thinking that they were doing anything wrong. In this case, accusing rape would be holding the accuser accountable for wrongful actions, not criminalizing ignorance of one's circumstances, because it is/was criminally negligent to not be aware that the other party did not consent.

That is absolute bullshit - it is not anyone's responsibility to know what another person is thinking.

Here is what you've basically laid out so far, in reverse:

If party A initiates sex (which again, I contest is not always the case, but going with that) then party A is responsible for obtaining "consent."
Consent is an arbitrarily defined factor which may be "meaningful," or "not meaningful." If it is not meaningful, it isn't consent.
Consent may be invalidated, as with a contract, if Party A knows that Party B is drunk at the time of the action.

Ergo, you did in fact argue that drunk sex is rape. This is, effectively, you dodging and weaving to try to validate that argument while continuing to maintain that you did not make it.

This is the reason why the term refusal should be used instead: by twisting and changing the definition and application of consent, feminists can use it to classify sex acts in which the participants were willing and active as rape on the basis of later regret. Your feelings do not absolve you of responsibility for your actions. If you say yes and have sex, or if you participate in a sex act even without saying yes, that was your decision. It's something you did, not something that was inflicted upon you. Even if later on you decided it was a bad idea, and even if later on you decide you did it because you were drunk, stoned, high, or just plain stupid... it's still something you did, not something you can use to accuse another person.

In other words, given your scenario where the parties acknowledge that both were drinking, and sex was engaged in, it won't matter if both parties state that there was consent, because if Party B says "but I didn't mean it" that would still make party A eligible for conviction, having essentially made a decision based on a lie from party B.

By my count, at this point, you have Party B tricking party A into non-consensual sex. Party A consented to have sex with a willing partner. Party B claimed to be willing, and engaged in sex. Party B later, after the fact, has denied the validity of that consent, in order to level a rape charge... taking away the basis upon which party A has consented.

Therefore, Party B is guilty of rape.

What action is the accuser supposed to be held accountable for, exactly? The world is a better place when people take ownership of their sexuality and feel comfortable refusing sex. It is not a responsibility, however.

It is absolutely, unquestionably a responsibility to communicate your refusal when you don't want to interact. That is as much your responsibility as it is the asker's responsibility to initiate instead of sitting in an easy chair hoping someone will come along and have sex with her. You don't get a pass on your responsibility for your actions and your choices just because the desire originated with someone else. Again, that's a standard which places the entirety of responsibility for a sex act on only one of the participants.

Not telling a woman no does not make it okay for her to have sex with you. Returning to the subject of intoxication, there is no "too intoxicated to be held responsible," because there was never an obligation for one party to refuse sex.

Participation in an act, coupled with refusal to communicate with your partner, does make it okay. If you give your partner no reason to believe anything but that you're interested and in agreement, then you've communicated that you're interested and in agreement.

A good comparison would be a driving analogy; your assertion treats sex like a driver-passenger car trip, in which one individual controls everything, and the other has no control over the situation. That is a false description of sex. A sex act is more like a driver's ed car, where both sides have a brake pedal - only in the case of sex, the car is modified so that both sides also have a gas pedal and a steering wheel.

The equivalent of your stated standard is that it's acceptable for Driver B to get into the car with Driver A, and then after the car is moving, fail to speak up, steer or brake, but still later place blame on Driver A if the car didn't go where she wanted to go, or stop where she wanted to stop.

[–]oneiorosgrip 0 points1 point2 points 13 years ago (0 children) | Copy Link

So I imagine then that the case to which you refer is one in which the accuser consented during the act, but claims that their consent is not valid due to their intoxicated state, no?

To take the analogy a step further... if Driver B is able to get into the car on her own, and give Driver A directions in a manner that is articulate enough that he knows what she just said, she's responsible for being on that trip. That makes it as much her job to say stop or hit the breaks if she changes her mind as it would be if she were sober. And here is where your "meaningful consent" is wrong - even if Driver B later decides that getting into the car was a bad, drunken decision, if there is a wreck and she was driving, she's still a drunk driver and still culpable for the act. Even if Party B later decides that getting involved in a sex-act was a bad, drunken decision, she's still a willing participant, and she's still responsible for her choice. Blaming that on the other party, whether the other party was drunk or sober, is dishonest.

In fact, by the logic of "if a contract is invalid when you're drunk, sex with a drunk person is rape,"

**If there is a strawman argument, it is this one. I did not make any such claim. I wrote:

Correct me if I'm wrong, but I believe there is already a precedent for incapacitation in contract law. While the accuser can attempt to interpret that "their level of self-control was reduced" translates to "I was unable to decide whether or not I wanted to do this," but the court usually holds that the contract will be invalid only if the signer (the accuser) was incapacitated, or if the accused was aware of the alleged victims state.

That is an or, not an and. Two conditions are considered, but only one is necessary to invalidate a contract, and it doesn't matter which one it is.

Again... back to the earlier summary of your arguments:

Party A (initiator) is responsible for obtaining consent, or sex is rape --> Consent is to Sex as Signature is to Contract --> Contract signature may be invalidated if Party A knows Party B was intoxicated.

In other words, if a contract is invalid when you're drunk, sex with a drunk person is rape

Don't pretend you didn't argue something which you have clearly stated - it wrecks your credibility.

The answer you got is a response to the exact distinction which was in my first reply - that there is a state short of unconscious known as incapacitation, where although a partner might still be able to speak or move, is not aware enough of the world around them to give meaningful consent. On the subject of drunken sex, there is still only one standard: was there consent? If yes, was that consent meaningful?

An individual who can clearly speak and move is not incapacitated, but merely drunk. Your standard, once again, is deliberately designed to make the standards malleable enough for a participant to accuse rape where rape did not occur.

I've described the issue with using consent instead of refusal. The rest of that point goes back to my description of unresponsiveness. If an individual has no motor control, and no articulation, and is therefore considered unresponsive, then the action would still be considered rape. If the individual is able to respond, (participate) and communicate (not just make noises) then the individual is also capable of saying no, pushing, turning away, or closing his posture, all elements of refusal. Being intoxicated doesn't excuse him from exercising those capabilities. Neither does being the sought partner instead of the initiator.

Was there consent? If yes, was that consent meaningful?

Irrelevant, because you've already established that drunk consent cannot be meaningful.

Was there refusal?

No = not rape.
Yes = rape.
And the accused was at no time proceeding without the ability to easily know which it was. Therefore, there should be no criminal charge for an arbitrarily defined third option.

[–]BedMonster 0 points1 point2 points 13 years ago (1 child) | Copy Link

[Cont.]

In the context of that discussion, your argument's literal translation is "you shouldn't have to know someone is unable to refuse sex in order to be held responsible for deliberately enforcing his or her participation."

As I state above, you would be considered to have engaged in reckless conduct by failing to be aware that the person you're engaging in sex with is in a state rendering them unable to refuse sex.

By arguing this, you're requiring the accused to have been able to decide to ignore the accuser's physical actions without a basis for doing so.

No, the basis for doing so is that the person is incapacitated. A failure to recognize that incapacitation does not absolve one of responsibility, except in the case of the accused's mutual incapacitation.

What you've said here is that a person familiar with an individual known to be voluntarily and determinedly abstinent would be no less likely to consider his or her drunken advances suspect than a stranger would be.

This strawman argument regarding what an individual's likeliness to consider advances has nothing to do with the bearing of prior behavior on consent. We're talking about two people who mutually agree that sexual intercourse occurred, so what do advances have to do with anything?

The first one is in the use of the term "consent" as a defining term in the discussion. Consent is an arbitrarily measured and perceived factor, one which can occur without verbal communication, by positive physical action, something which is consistently denied by some feminists for the purpose of defining consensual sex as rape.

Consent is not arbitrarily measured; it can be verbal or non-verbal, and constitutes the conscious indication by an individual of their willingness to participate in a given act.

Moreover, I do not claim that refusal is something that can occur without some indication, whether verbal or physical.

While feminists choose to question whether compliant physical actions (active participation) constitute consent, no one questions whether pushing someone away, turning away from the partner, shielding one's person, or withdrawing participation while saying any version of "NO" is refusal.

Where do I claim otherwise? I will only chastise that compliance and active participation are two different things. Compliance can be defined as non-resistance, which would not be a non-verbal sign of consent. Active participation would count as a non-verbal indicator of consent.

Meaningful, as I have defined several times above, purely relates to whether consent is given freely (not coerced or under duress), by someone who is capable of understanding the meaning of the consent they are giving.

That is in no way arbitrary. "A responsive articulate individual who actively participates in a sex act" would not be a victim simply by virtue of intoxication , because their active participation constitutes a non-verbal form of consent, and being articulate and responsive would easily meet the clearly defined parameters of "meaningful."

[–]oneiorosgrip 0 points1 point2 points 13 years ago (0 children) | Copy Link

In the context of that discussion, your argument's literal translation is "you shouldn't have to know someone is unable to refuse sex in order to be held responsible for deliberately enforcing his or her participation."

As I state above, you would be considered to have engaged in reckless conduct by failing to be aware that the person you're engaging in sex with is in a state rendering them unable to refuse sex.

This still criminalizes Party A for Party B's behavior. You're arguing to enforce an arbitrary standard upon Party A, where Party A hasn't the means to secure a realistic guarantee that a mutually executed action will not result in his being convicted of a crime, even when one was not committed. Your assertion is not one of writing law to protect the innocent, but twisting it to entrap the innocent.

By arguing this, you're requiring the accused to have been able to decide to ignore the accuser's physical actions without a basis for doing so.

No, the basis for doing so is that the person is incapacitated. A failure to recognize that incapacitation does not absolve one of responsibility...

Here, you're once again strawmanning incapacitated sex where the previous discussion was about drunk sex, thereby proving my point about proponents of criminalizing drunk sex being unable to discuss it without limiting the discussion to incapacitation.

As I previously pointed out, your own argument negates the possibility of your own standard for defining an act of intoxicated sex as not a crime.

Party A (initiator) is responsible for obtaining consent, or sex is rape --> Consent is to Sex as Signature is to Contract --> Contract signature may be invalidated if Party A knows Party B was intoxicated. In other words, since a contract is invalid when you're drunk, sex with a drunk person is rape.

...except in the case of the accused's mutual incapacitation.

this would be physically impossible, unless your standard for incapacitation is simply "very drunk..." in which the entire discussion just became about you stating that there really cannot be an accurately measurable standard by which your requirement of consent could be secured, because you put an arbitrarily defined line of demarcation between "consent" and "inability to consent," where neither party would be able to base their decision on the characteristics of the solicited partner's state of being.

What you've said here is that a person familiar with an individual known to be voluntarily and determinedly abstinent would be no less likely to consider his or her drunken advances suspect than a stranger would be.

This strawman argument regarding what an individual's likeliness to consider advances has nothing to do with the bearing of prior behavior on consent. We're talking about two people who mutually agree that sexual intercourse occurred, so what do advances have to do with anything?

I think you don't understand the meaning of the terms you're using here. Apparently Tipsy Party B makes advances toward Sober Party A. Sober Party A knows that Apparently Tipsy Party B is a voluntary virgin - someone who chooses to not have sex. Sober Party A would then have reason to assume that Apparently Tipsy Party B is more strongly affected by alcohol than she looks, and should refuse.
(This wouldn't absolve party B of her actions, or make Party A responsible for party B's actions, but continuing on with the sex act would be a shitty thing to do. Criminal? No. Shitty? Absolutely.)

On the other hand...
Same scenario, except that Apparently Tipsy Party B has had a different sex partner at every party he and Sober Party A have been at during the last year, whether she was drinking or not. In this instance, Sober Party A has zero reason to believe that Apparently Tipsy Party B is too drunk to participate in a sex-act. After a mutually executed sex-act takes place, even Apparently Tipsy Party B had consumed a cocktail of intoxicants and was completely out of her mind, then later realized she's unhappy about having had sex with Party A, Party A is not guilty of rape, or even "recklessness," because he had no reason to believe that Party B was doing anything different than her usual behavior. Your elements of lack of consent are here - Party B was drunk, and Party A knew it. However, Party B didn't do anything different than when she was sober. Party A is not responsible for knowing without being told that *this time, she didn't mean it.*

The first one is in the use of the term "consent" as a defining term in the discussion. Consent is an arbitrarily measured and perceived factor, one which can occur without verbal communication, by positive physical action, something which is consistently denied by some feminists for the purpose of defining consensual sex as rape.

Consent is not arbitrarily measured; it can be verbal or non-verbal, and constitutes the conscious indication by an individual of their willingness to participate in a given act.

If consent is not arbitrarily measured, why don't you give a concise, non-arbitrary definition of everything (without exception) which does constitute "the conscious indication by an individual of their willingness to participate in a given act" and everything (without exception) which does not constitute "the conscious indication by an individual of their willingness to participate in a given act?" Don't leave anything out - or you could be charged with recklessness.

Moreover, I do not claim that refusal is something that can occur without some indication, whether verbal or physical.

Nobody said you did. Was there something else you meant by that than the meaning of the way you typed it?

While feminists choose to question whether compliant physical actions (active participation) constitute consent, no one questions whether pushing someone away, turning away from the partner, shielding one's person, or withdrawing participation while saying any version of "NO" is refusal.

Where do I claim otherwise?
It is not necessary for anyone to make claims about you in order to add supporting statements to an assertion.

I will only chastise that compliance and active participation are two different things.

Chastisement is not your prerogative. You are not my mother. You can argue, but you're using the wrong word for it.

That said, compliance is a choice - that is an active behavior, even if it is not a dramatic one. Compliant physical actions (as differentiated from compliant nonphysical actions; eg. just laying or sitting there) do not become inaction simply because the participant is not moving more dramatically.

Compliance can be defined as non-resistance, which would not be a non-verbal sign of consent. Active participation would count as a non-verbal indicator of consent.

Removing the modifier and noun used in conjunction with a modifier, then changing the modifier to a noun, in order to alter what your debate opponent said to just that instead of what your debate opponent said can be defined as straw-manning. Again.

It has been argued to me in multiple discussions that simple, passive non-resistance is not consent. I'm glad to see that you're not doing that, but the modifiers and the noun were used together as a preemptive strike against that frequently presented argument.

Further, you just defined lack of refusal as consent - in other words, negated the entire rest of the discussion by agreeing with me.

Not that I mind, but if that's your assessment, then wth were you arguing for in the first place? Certainly, it should not bother you to change the legal terminology from consent, an impossible standard to prove if it is contested, to refusal, which is at least provable in the case of physical resistance, and is more measurable in the inability to effectively move or articulately speak - it's actually easier to argue that a person was unable to resist or speak up than it is to argue that this time, consent wasn't meaningful.

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