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That's OK, I am. The California penal code does not declare that intoxication alone is sufficient to negate the ability to give or withdraw consent. The threshold under California law is if they are intoxicated to the point that they are incapable of resisting. And the California statute is regarded as one of the stronger statutes offering protection to an intoxicated party in a sexual encounter. (The weaker statutes in other states could stand to be re-written, but that's another topic for another day.) Obviously, an intoxicated woman who actively participates in sexual conduct has not reached the point where she is incapable of resisting.
That's what I always thought. It wouldn't make sense otherwise. I missed the post with the statute citation though.
Well, as I suspected, CESpeed, the problem is one of statutory interpretation. The statute doesn't state that an intoxicated person cannot give consent -- only that rape occurs if the intoxication prevents the person from resisting (which it doesn't always do). Also, all that is needed for there to be consent is that she understand the nature of the act in which she is engaging -- she doesn't need to appreciate all the risks, benefits, possible consequences; she only just has to be sober enough to understand what is happening.
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Originally Posted by Ameiko If we can still hold a woman responsible if she gets too drunk and then gets behind the wheel, we can also still hold her responsible if she gets too drunk and climbs on top of a man.
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Originally Posted by laorbust61
If the general consensus is anything like what I reading on this thread, women should seriously reconsider going to clubs and bars. Because once they are there, a possibility exists they they will miscalculate their alcohol tolerance and have to much too drink, and if they wind up raped afterwards, they will be blamed for it.
I just seek to be consistent. Just as I would not excuse a man who committed a crime because, "well I was drunk", neither do I think that a woman should say, "well I was drunk" and thus not responsible for her actions.
At issue with your comment above is what is rape? I know that this term has been diluted to the point where it is almost meaningless and thus lost the proper impact. If a woman and a guy both are too drunk and have sex and she regrets it the next morning, was she raped? Why? Because she was too drunk to consent? Was he not too drunk to consent as well? Did they rape each other?
On the other hand, if you mean a woman who got too tipsy and was a little foolish in her drunkeness and went home with the guy to make out, said no to anything future, and he proceeded to force himself onto her, well yeah that's rape and I blame HIM... mostly. She still put herself in a bad situation although that does not excuse or lessen his actions.
I do think that people, women especially, should be careful of what they drink because it leads them to bad situations. It doesn't excuse the violater but I am more interesting in stopping a situation from occuring than trying to assign blame afterwards.
Too many women think they can act and dress anyway they want and there will not be consequences. Does it mean that they should be raped? OF COURSE NOT! Similarly, a guy shouldn't get drunk and wander down a dark alley in a bad neighborhood by himself with hundred dollar bills hanging out of his pocket. That said, if he does get robbed, well isn't he a little responsibility for his foolishness?
Well, as I suspected, CESpeed, the problem is one of statutory interpretation. The statute doesn't state that an intoxicated person cannot give consent -- only that rape occurs if the intoxication prevents the person from resisting (which it doesn't always do). Also, all that is needed for there to be consent is that she understand the nature of the act in which she is engaging -- she doesn't need to appreciate all the risks, benefits, possible consequences; she only just has to be sober enough to understand what is happening.
This is technically not true -- the standard jury instructions in a rape-by-intoxication case in California state that the person must be able to "understand and weigh not only the physical nature of the act, but also its moral character and probable consequences."
BUT -- if you read the case that gave rise to this wording, the distinguishing cases they use were instances in which a person became voluntarily intoxicated for some other reason besides recreation -- typically, due to a medically administered drug or substance. In those cases, the doctors took advantage of their patients while they were "out of it," and in those cases the victims were not expected to reach a state where they could no longer physically or verbally resist in order to pursue a charge of rape by intoxication. It was enough that their judgment was substantially diminished even if they "appeared" to give consent.
And if you examine the subsequent case law, it's pretty clear that for people who get wasted for the hell of it, you basically have to be passed out, catatonic, or so out of it that you can't even understand what you're consenting to (that is, aren't even aware that what you've supposedly "consented to" is a sexual act) in order to claim rape. Otherwise, you are presumed to be able to understand the physical nature, moral character and probable consequences even if you're pretty smashed. In cases on appeal where there was evidence that the accuser was an active -- not passive but ACTIVE participant -- the convictions were overturned.
Do the jury instructions explain that, though? Because without proper context, the requirement that the participants understand "the moral character and probable consequences" of engaging in sex smells like trouble for the defendant.
The jury instruction does provide some context -- whether it's sufficient context is a matter of question, but it does state that merely being intoxicated is not enough. Here's the jury instruction in full:
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1.23.2 "PREVENTED FROM RESISTING"--DEFINED IN RAPE, SODOMY, FORCIBLE PENETRATION AND ORAL COPULATION
In the crime charged in Count[s] an essential element of the crime is that the alleged victim was prevented from resisting the act by [an [intoxicating] [or] [anesthetic] substance] [or] [any controlled substance]. "Prevented from resisting" means that as a result of [intoxication] [having [been administered] [ingested] [an anesthetic] [a controlled substance]], the alleged victim lacked the legal capacity to give "consent." Legal capacity is the ability to exercise reasonable judgment, that is, to understand and weigh not only the physical nature of the act, but also its moral and probable consequences.
In making this determination, you should consider all the circumstances surrounding the act, including the alleged victim's age and maturity. It is not enough that the alleged victim was [intoxicated] [impaired by the [anesthetic] [controlled substance] to some degree, or that the [intoxication] [anesthetic] [controlled substance] reduced the person's sexual inhibitions. Impaired mentality may exist and yet the individual may be able to exercise reasonable judgment with respect to the particular matter presented to his or her mind. Instead [the level of intoxication and] the resulting mental impairment must have been so great that the alleged victim could no longer exercise reasonable judgment concerning that issue.
That's modern feminism for you. Men are all criminals (some have just not been caught yet) and women are all stupid victims.
Precisely. That view (which is NOT mainstream feminism, I hope) depicts women as irresponsible children who are too stupid to refrain from risky behavior. Modern feminism (gender feminism, I mean; equality of economic opportunity is a whole other matter) does women such a major disservice.
It really makes us look like a bunch of ninnies.
What's odd is that the other poster makes absolutely no distinction between a woman who has unknowingly been administered a drug designed to impair a woman's consciousness, and one who self-administers it by drinking too much and then engages in sex voluntarily (but consciously).
Alcohol is a total cop out for having sex if you really don't want to. On more than one occasion, I have had too much to drink....to the point of passing out. One thing that was always clear in my mind: I wasn't having sex with ANYONE. I refuse to believe that people do things unknowingly when they're drunk. I believe the feelings/thoughts were always there, the alcohol just makes it easier to express them.
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Originally Posted by RJay123
I'm not trying to be offensive, just trying to understand this better.
In my mind, why would anyone put themselves in a position where they don't have clear enough thinking to say no? Wouldn't females realize that some men like it when women drink because they might do sexual things they wouldn't otherwise do sober?
If they realize that, then get drunk, have sex, then claim "Oh I didn't mean for that to happen, I was drunk", then I don't know what to think.
I feel like that the drunk explanation is a cop out to make it seem like they aren't "easy."
But that's just my observation, I realize this isn't black and white. I guess this could apply to men too, but I'm trying to understand women better so...what do you think? Drunk excuse a cop-out or legitimate in most circumstances?
I was so wasted when I got back to my camp my buddy asked me if I wanted another cold one? It took me 15 minutes before I realized it was a Pepsi and not a beer!LMAO........
lmao!! that happened to me one time, i drank like 12 shots of tequila and then i threw up...and i still wanted more...and my boyfriend at the times brother was giving me shots of water and i didnt even know it lol. bastard. everyone knew and no one told me! kinda embarrassing lol.
but to the OP...i do think its a cop out...and i admit...ive used it as an excuse. lol. whatever. when one of my ex's cheated on me when he was wasted...he still got dumped because its really not a good enough excuse. not in my book anyway. even though ive been drunker then anyone should ever be...i still always knew when i was having sex. im so glad im not a lush anymore lol.
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