Why intoxication does not always take away ability to consent: a legal perspective

soulcakeduck · 2013-10-26T17:56:56+00:00

Unless I misunderstood, your conclusion is exactly wrong, completely the opposite of the example you've illustrated here.

This also means that if someone is able to speak and verbally communicate a desire for sex, then legally they are NOT incapacitated.

If someone can verbally communicate a desire not to go to the hospital, but they cannot answer AnO to 4, then (despite their verbal communication) they're considered too drunk to make the decision for themselves and you can make the decision for them.

Similarly then, IF the law for sexual consent followed the same criteria (you actually give us no reason to assume it does, but never mind), then people could express a desire to have sex while still being too drunk to consent to sex. If they're mentally incapacitated so that they're this divorced from reality, their expressed desire for sex doesn't matter.

Your illustration shows us that people can be mentally incapacitated to a point that undermines their own verbal statements.

ANewMachine615 · 2013-10-25T22:35:05+00:00

This also means that if someone is able to speak and verbally communicate a desire for sex, then legally they are NOT incapacitated

See, shit like this is what bugs me about non-legal professionals drawing legal conclusions. You're wrong. You're drawing a comparison which is not warranted. Period. You can't say "X is one way, therefor, legally, Y must also be that way." Everything is context-sensitive in legal proceedings. First, your example is one of non-consent, not one of giving consent. They're different things. Second, medical treatment is quite a bit different than sex. What you're actually evaluating with those tests is whether they're so drunk that they're medically incapacitated, and thus can be presumed to have consented to life-saving treatment. Unless they're incapacitated or consent to treatment, you can be liable for assault and battery for giving treatment where it's not wanted. It is far, far different from an incapacity to give consent to sex, on a legal level.

Let's look at some incapacity to consent cases that are actually relevant, shall we?

For instance, here is a case specifically rejecting the idea that you're only incapable of consent if you're incapable of speech. Basically, it's distinguishing the idea of "actual consent," that is, outward manifestations of consent, from legal incapacity to consent due to intoxication. See p. 322-323:

However, the fact patterns in those cases are inconsistent with an interpretation of section 261(a)(3) that would require the victims to be so intoxicated that they are physically incapable of either speaking or otherwise manifesting a refusal to give actual consent. 323*323 Instead, they support the conclusion that the statute requires only that the level of intoxication be such that the victim is incapable of exercising the judgment required to decide whether to consent to intercourse.

This is pretty typical, actually. The law is simply not on your side on this, despite your claimed "legal perspective." To be quite clear, intoxication removes any legal capacity to consent, in the same way that we treat minors as incapable of consent. Whether they actually said "Yes, I would like to have sex please" or not is irrelevant in the case of intoxication, because the law holds that any consent so given is legally void.

LemonFrosted · 2013-10-28T22:27:06+00:00

They are considered legally sound enough to make decisions on their own behalf.

They are legally sound enough to reject intervention. If anything that means that no matter how drunk she is, no always means no, and yes should always be carefully scrutinized.

No doctor in his right mind would respect a stumbling drunk person's consent to a dangerous procedure unless waiting for them to sober up would significantly increase the risk of death or permanent damage. Ethical tattoo artists don't let you get a tattoo if you're anywhere beyond tipsy. Go to a bank drunk and ask for a loan, then see what they say about your ability to consent.

8.5 minutes of drunk sex isn't a life saving procedure. Everyone involved will be just fine without it.

FleetingWish · 2013-10-25T17:59:40+00:00

This is actually very interesting, it does give a good guideline on what should and should not legally be considered rape. Unfortunately, it doesn't answer all the logistical issues of legally qualifying something as rape or not, as there's no way to enforce this practice of asking questions, and there's no way to prove if questions were asked or not.

cardboardtube_knight · 2013-10-29T09:46:41+00:00

Are people so unable to get women to consent to sex that they are forced to prey on drunk people. The last thing I want is a drunk girl all over me, I want her sober and alert because I'd prefer her to have her facilities about herself.

If we're a couple and we just happen to be drunk and having sex, it's whatever, but when it comes to just picking up women in public why is it so important they be drunk?

[deleted] · 2013-10-25T17:58:49+00:00

what has always bugged me, and i was in college during the big date rape hysteria of the late 80s-early 90s, is the criminalization of icky, ambiguous human situations

i have absolutely NO doubt that in a lot of these cases girls are being "take advantage of" by more knowing guys, being pressured, and all kinds of bad things. what worries me is the ambiguous, subjective and truly unprovable nature of the situations. in something like murder, its almost never a case where someone could honestly say "hey, i thought he WANTED me to kill him! he was giving all the signals, he went in the dark alley with me, wtf!" you have these he-said, she-said situations where a criminal prosecution could literally destroy a mans life forever, on flimsy to no evidence, based on the VICTIMS relative state of mind. in all other crimes it is usually the perpetrators state of mind that matters, if state of mind matters at all. if a man genuinely believes he was having consensual sex with a woman, even if he had to talk her into it a little (which used to be called "seduction" in more chaste times) and the woman genuinely feels she was unable to truly consent, then you have an impasse, a tragedy, a shame, a bad thing...but a crime? i just cant see it or the justice of it. sometimes bad things happen to people and thats just the way it is

mrsamsa · 2013-10-25T21:11:27+00:00

I think this analogy only works if all of those questions are asked before drunk sex. Being able talk whilst intoxicated does not mean they can consent in either situation.

The talking needs to be coherent and indicative on an ability to assess the consequences of one's actions. So saying a drunk person consented to sex because they said "yes" is like saying they consented to the medical actions because they said "yes". You'd be fired and likely face a lawsuit for dong that.

PizzaOnEarth · 2013-10-25T17:19:22+00:00

the problem with all of this is the conflation of legal, ethical and moral standards, many of which arent universally shared. with the death of organized religious morality people are seeking bright line rules for behavior. they draw them from the law, from philosophical constructs like kants categorical imperative and (i notice a LOT) from the ethical canons of various professions. but aside from the actual law, which applies to everyone, these arent universal, and walking around believing everyone else shares your moral tenet that "pressuring" a voluntarily "drunk" girl into sex is the legal and moral equivalent of rape as has been traditionally understood (forcible rape, slipping a girl a mickey) is a dangerous way to live in a multicultural society.

GaiusScaevolus · 2013-10-29T16:28:17+00:00

This is arguably the first quality thing posted here that isn't expressly TRP. Thank you.

Title	Why intoxication does not always take away ability to consent: a legal perspective
Author	PizzaOnEarth
Upvotes	10
Comments	54
Date	October 25, 2013 3:59 PM UTC (12 years ago)
Subreddit	Posted in /r/PurplePillDebate
Original Link	https://old.reddit.com/r/PurplePillDebate/comments/1p77na/why_intoxication_does_not_always_take_away/
Archive Link	https://theredarchive.com/r/PurplePillDebate/why-intoxication-does-not-always-take-away-ability.286679 https://theredarchive.com/post/286679

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