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Join the conversation! There are now 56 comments on “Examples pg 21
  1. MathBuster says

    But only if Stickie regrets the act later, right?

    • “Regret” implies Stickie had a choice in the matter. Since Stickie was intoxicated, her decision making was impaired, so under the law she did not choose to have sex, and had nothing to “regret”.

      Legally, it was rape regardless of either’s opinion regarding the event. The law in this hypothetical scenario considers giving consent while mentally incapacitated the same as not giving consent at all. Legally, Jeff had sex with Stickie without her consenting, even though she said “yes”, because she was mentally incapacitated due to her being drunk.

      It’s true that Stickie could choose not to tell the authorities, but whatever Stickie chooses, it doesn’t change the fact that what occurred between Stickie and Jeff was rape, not consensual sex.

  2. Guardian of Nekops says

    And this REALLY breaks down, logically, if Jeff was drunk, too, and both consented while being unable to consent.

    Unfortunately, for many at the bar scene, this is Plan A… and society turns a blind eye unless someone complains.

    So in the morning, having both consumed stupid amounts of alcohol of their own free will, have they raped each other?

    • I think that might fall under ‘not knowing she was incapable of giving legally effective consent’– if he was too drunk to know how drunk she was and vice-versa (and they had simply gotten mutually smashed instead of him deliberately plying her with booze), would it still count as rape?

      • If he was too drunk to know it was a crime, and the alcohol he drank was self-administered, then it’s still a crime. If they were both drunk of their own accord and Jeff was accused, he has a much better defence but could still be charged.

        • But logically in that case she’d have to be charged too surely? If he was considered incapable of giving consent just as much as she was and both were responsible for their own drinking to that point then who is the victim and who is the accused?

          • Good point. People tend to avoid the thought, but men can be raped by women. It’s just that society has taught us that it only goes one way.

            TvTropes Double Standard

            As to your question, I would assume that if they were both drunk, both gave meaningless consent, and had sex, they would either be guilty only of making bad decisions OR both be guilty of reckless behavior. Whether they would get punishment in the latter case would depend on the judge.

            • This all ignores the fact that to be charged with rape one has to initiate the penetration, or physically threaten the other person into doing it. At least in Massachusetts. Depending on who initiated the sex, Stickie could just as easily be r\judged guilty of rape, as someone who is drunk or otherwise mentally impaired of their own volition while free of duress is still considered responsible for his or her actions. Which does make this whole too drunk to give consent thing a bit dubious. As long as she was sober enough to understand that she was being asked for sex. Regretting it afterwards does not make it rape. Not to mention that you don’t generally go to a bar single, drink expensive watered down alcohol, take drinks from someone who is obviously attracted to you and follow them home and not expect to have sex. Possible, but neither reasonable nor terribly likely. For the consent to be invalid it would only make sense if she was too drunk to give consent before leaving the bar, which if she had drinks later would be hard to prove. Not to mention the mens rea for the act was lacking and whether or not she was willing at the time is difficult to tell, unless she was unconscious. None of this however applies if she was given drugs without her knowledge.

          • Not necessarily because it’s specified he *got* her drunk. He made a concerted effort to cause her to drink alcohol, and she was already tipsy enough that she was not fully capable of being aware of her actions when she accepted the drinks. Meanwhile, he got HIMSELF drunk, which is not considered an acceptable defence (because otherwise anyone would be able to just get drunk before committing a crime and at least muddy the waters by claiming “I was drunk”). Legally, still rape 2. It would be rape 2 if he was got drunk by her as well – it’s rarer but that doesn’t mean it doesn’t happen or that it’s any less rape.

  3. Cheryl Nelson says

    This isn’t based on law or anything, but my thinking is that the person more active in the sex is the potential rapist. And that’s usually going to be the guy. I guess if the woman climbs on top then the man might be able to claim rape.

  4. Jack says

    I remember something from an earlier chapter where if you go out and get drunk or high or something like that and then commit a crime, you are responsible for that crime because you are responsible for getting yourself into that situation.

    Why does that not apply here?

    Did she consume the alcohol freely or was she forced to consume the alcohol?

    If she didn’t go home with him but instead tried to drive herself home and killed a family walking on the sidewalk would it be her fault even though she didn’t know what she was doing?

    • The reason that Stickie is not culpable for her own rape even though she knowingly became intoxicated is that she did not commit any crime. Now, if she had had sex with Jeff without his consent, then she would be legally responsible and guilty of rape 2. And yes, she would have been responsible of (I believe) manslaughter because of reckless endangerment if she had killed a family while driving home drunk.

    • Even if she intentionally got drunk, that intent only transfers to any crimes she herself might commit. She isn’t the one who committed a crime. The crime was committed by the guy who had sex with her when he knew she was too drunk to give meaningful consent. Her intent in getting drunk doesn’t have anything to do with the fact that she was consequently incapable of consenting to sex.

      • The problem is that this is another “a matter of law” things that doesn’t make any sense. If you get yourself too drunk to know what you’re doing, you either are or aren’t responsible for your actions. However, as a matter of law, you can be either responsible or not responsible for your actions depending on what those actions are. Actions that, as we’ve just established, you are too drunk to control.
        Being able to absolve yourself of responsibility for things just by getting drunk first is a horrible idea, so I would say that you should be responsible for what you do while drunk. Perhaps not everything, but certainly anything a reasonable person should have been able to predict.
        Following that, I’m sorry but however you look at it, going home with someone you normally wouldn’t is easily one of the most likely consequences of getting completely plastered in a bar.

        • As it says in this example, the fact that he *knew* she was too drunk to offer meaningful consent, and that he acted to get her that drunk in the first place is what takes any chance of a defense from him.

        • Scratch that. More importantly…

          Drunkenness cannot become an excuse for criminal behavior. Swigging a six-pack of beers cannot be allowed to give a person immunity from the law. You don’t get to swig a beer and then go on a shooting rampage and get off Scott-free. And yes, you are responsible for controlling the way your behavior affects the well-being of others after you’ve chosen to limit your own self-control.

          However, someone cannot use your impaired mental state to get you to sign a contract and then have it be legally binding later. You cannot bindingly give away power of attorney over all of your assets while black-out drunk, regardless of whether or not you manage to pull yourself together well enough for a few seconds to have a vague idea of what you’re doing and sign your name legibly. Neither can a child do this, nor someone deemed mentally incompetent on grounds of disability.

          So why should consenting to sexual activity be any different?

  5. Dhamon says

    I see everyone make good points, mostly about how she decided to take the drinks from him. She knowingly got smashed, and (not stated in the brief) so did he, so I see it as mutual rape (both guilty) as they did this to themselves, no matter who was buying.

    • Unfortunately, society tends to lay the blame in these situations on the man, even if he was black out drunk as well. Not exactly fair, but life tends to suck like that.

      • If rape is determined to have occurred, I think you’re right that most often the blame is laid on the male. However, more often than that, the female is blamed for “putting herself in the situation” or “asking for it” somehow, and no legal action against the male is taken at all.

    • Wrong, Dhamon. The fact that she got herself drunk is irrelevant. What’s relevant is that he knew she was too drunk to give meaningful consent, and took advantage of that to have nonconsenual sex with her.

      She didn’t rape him. She didn’t have sex with him without his consent.

      • However, if he was drunk too (which I don’t think he was in your version, Dhamon is floating another hypothetical), then she did have sex with him without his consent, since he couldn’t have consented while drunk.

      • The “knowing she was *too* drunk” seems like a convenient add-on to this theoretical scenario. Obviously if he really knows she is too drunk, the situation is clear. However without an alcohol test it would be difficult to determine how impaired another person actually is, and it wouldn’t be a particularly common occurrence that only one of the parties drinks, either.

      • I think the major dissonance here is that in your comic Sticky says “okay” and seems to understand she’s saying okay to sex. Alcohol can have a range of effects, from reduction of inhibition to unconsciousness. While most people would agree it’s immoral to have sex with someone who is unconscious, or borderline unconscious, I think that most people also feel that having sex with someone whose inhibitions have been reduced but is otherwise conscious is not immoral. I think most people’s attitude, (and “most people’s attitude” is important in a system of descriptive law) is that if you make decisions you regret while drunk, you should avoid getting drunk. I have a couple of hypotheticals to illustrate this.

        1. I drive for a ridesharing company. If I pick up a man and a woman who are both drunk and enthusiastically discussing the sex they’re going to have, do I have a moral duty to step in?

        2. Let’s say I got to a bar, get somewhat drunk, and end up going home with another man. Witnesses say I was clearly too drunk to drive, but could walk and seemed to be looking forward to sex. In fact, a video later surfaces in which I appear to be a very enthusiastic (but drunk) participant. In the morning I wake up next to him in a state of homophobic self-loathing. I go to the police and say he raped me.

        3. I get drunk in a manner similar to #2 and wake up next to a woman I normally would find unattractive, who as it turns out was sober when she suggested we go back to her place. Is this a case of the proverbial beer goggles, or did she rape me?

        4. I get drunk in a manner similar to #2. I go home with my girlfriend, sober, who produces a strap-on dildo and says she has always fantasized about penetrating me. I agree. In the morning I experience a bout of gay panic similar to in #2. Did she rape me?

        • 1. Not a legal question, but a moral one. This one changes from culture to culture and community to community. Where I live, you’d be considered an asshole as best if you did that. On the scale of immorality, it’d be way over on the “rudeness” end of making life less smooth for others, and nowhere near the “killing 20 million of your own people” end of it. But it’s on the immorality scale, nonetheless.

          2. You left out the critical factor: what was going on in the other guy’s head. He only committed rape if he should have known that you were so incapacitated that you were unable to consent to sex. The facts that you were an enthusiastic participant, and it was obvious to bystanders that you were clearly looking forward to it, makes this highly unlikely. You had drunk sex that you later regret. That is not rape.

          Let’s be clear: what’s going on in the other person’s head is what’s important. If you have sex with someone, and the whole time in your head you’re silently screaming that you don’t want this, but there’s no way for the other person to know… it’s not rape. It’s only rape if you didn’t or couldn’t consent, and the other person knew it and had sex with you anyway. See my rape flowchart here.

          3. You left out all the important information: (1) Did/could you consent to have sex, and (2) If not, did the other person know you didn’t/couldn’t. She raped you if you couldn’t consent to sex and she knew it. It’s impossible to tell from the facts you provide.

          4. Before we get to the decisive question of what was going on in your girlfriend’s head, this conduct wouldn’t even count as rape in most jurisdictions. If it was nonconsensual, it would be an assault. Rape is a special kind of assault, involving sexual intercourse. This was a sexual encounter, but it wasn’t intercourse. But was it an assault, or was it consensual activity? You said yes. If she knew or should have known you couldn’t have known what you were doing, then she assaulted you. If she reasonably believed you knew what you were doing when you said yes, then she did nothing wrong. Your regrets the next day are irrelevant.

          The morning-after regret does not affect anything. It has zero bearing on what the other person knew or should have known at the time the act occurred. It’s simply irrelevant.

          • Thank you for the clarification. I think my misunderstanding stemmed from how the word drunk is defined. People use it to mean anything from a mild buzz to .08 BAC to passed out. But, if I understand correctly, the law requires that a person be incapacitated by alcohol, which goes beyond just being drunk. I think a lot of people’s resistance to the idea of alcohol-assisted rape is the fear that having sex with someone whose inhibitions have been lowered as a result of drinking will be treated as rape. So if I’m understanding you correctly, the legal standard is a lot closer to “borderline comatose” than “drunk enough to sing karaoke.”

    • The way I read it he wasn’t drunk at all, only she was. So, she is the only one who couldn’t give informed consent.

  6. I will join the others in saying Stickie consented by entering the bar. She can withdraw that consent very easily and often enough does, but she went there frequently viewing sex as a goal, or a known price she would have to pay for the free drinks. She may not have said yes, but this can be a case where silence gives consent.
    We can easily imagine, and find plenty of real cases where Stickie, having been “raped”, will return to the same bar and engage in the same behavior that caused the “rape”. Quite simply, her behavior says she consented.
    Now the roofie does limit her ability to withdraw her consent, and is thus rape, but the extra drinks are a known hazard and so she has consented to the limitation.
    Jeff can be on shaky ground here, but the basic behavior is not rape.

    • “She went there frequently viewing sex as a goal, or a known price she would have to pay for the free drinks.” This is a disgusting and incorrect view. To say that a woman’s very presence in a bar means that she is consenting to sex with any man is just false. Also, to believe that sex is the “price” that is expected for drinks has no legal (or moral) basis. Now, the points about the man’s intoxication levels are valid, however I think that this is implying that Stickie was heavily intoxicated, but Jeff was not, and was therefore able to see that she was in no state to give consent. Thus, Jeff is charged with Rape 2 (if Stickie presses charges).

    • Holy shit you’re a terrible person. It’s a good thing the law isn’t defined by proto-rapists like yourself. Who the fuck assumes that someone has consented to sex by merely entering an establishment? And nice job putting attributes on a stick figure that doesn’t exist.

    • Disregarding the rather broad generalization about the function of bars being made here, what you’re saying is that the very presence of a person in a particular location acts as an implicit consent by that person to do things to that person that would be considered “typical” of that location, regardless of any other factors (mental state, etc). Is that correct?

      Because if so, that… sounds like sketchy-ass reasoning to me.

    • I went to a sports bar several times, on Fridays; a place I did work at sometimes. I would get a Coca-Cola or Dr Pepper and sit in the office and watch things happen. I don’t know if it was coincidence or what, but every time I went, an underage female (never a male, interestingly) would end up in the office after drinking or trying to drink alcohol (one time, it was sucking on an ice cube which came from an alcoholic drink), waiting for her parents to pick her up (a two-hour round-trip for the parents of the ice cube sucker). Also, every time, there would be a fight, and the police would be nearby to come in and haul off the participants. After that, the free entertainment would be over and I’d go home.

      In hindsight, I wonder if staff were proactive about pulling out underage girls to keep them from being victimized.

  7. Anonymous says

    So NOW we have a Chutzpah Defense.
    But only for women who put themselves in the situation of being so drunk at a club that they agree to sex with random guys.

    • I can just see you watching a news story about a mugging and yelling out,

      “So NOW we have a Chutzpah defense.
      But only for people who put themselves in the situation of walking down the streets in bad neighborhoods at night so that they get beaten and robbed by random guys.”

    • That assumes she knew that she would do such a thing while intoxicated. Besides, it’s not a crime to drink yourself silly at a bar, but it is a crime for a sober person to encourage you to drink yourself silly and then coerce you into having sex with them, which is what Jeff did. Stickie did nothing wrong.

  8. M says

    For this to be rape wouldn’t she have to be drunk to the point where she was incapable of understanding what was being asked of her? So that would be at the level of incoherent drunk or passed out. Merely being very drunk isn’t enough.

    • If you’re too drunk to sign a contract and have it be legally binding later, you’re too drunk to give consent to sex.

      • According to the somewhat law school famous case Lucy v. Zehmer, you can totally enforce a contract against a person who was ridiculously blitzed when they signed. The nullification of consent when drunk seems exclusive to sex.

        • The holding there as I understand it was that Zehmer was not drunk enough for his intoxication to matter, not that contracts signed by sufficiently impaired people are enforceable. And drunkenness is not the noteworthy aspect of that case.

  9. KW says

    If she suggests sex early in the evening, in a manner which indicates she means it, and let’s say for the sake of argument that the bar has a good surveillance system which records sound, presumably that would be consensual sex.

    • Jeff would probably be acquitted. I probably wouldn’t call it rape, even in the colloquial sense.

      But it is a woman’s prerogative to change her mind (and anyone else’s, for that matter) and if she can’t indicate that she’s done so, Jeff is on shaky moral ground. But the law is not really concerned with that.

    • That would be irrelevant. She has to be consenting at the time of the sex, not at some prior time.

  10. Bulanova says

    Holy shit, look at all these comments, questions, and confusion! No wonder we have so many rapes!

    • We are a society. That society has historical momentum. Knowledge is passed from generation to generation through multitude of means – some is taught at schools, some is read in books or seen in movies, and some is observed.

      For decades now, young men observe older men taking women home from bars after paying for their drinks. We have commercials and billboards warning us not to drink and drive, but ZERO commercials and billboards warning us not to drink and screw. We have movies showing elegant gentlemen paying for women’s drinks, and we see women sighing romantically while watching these movies, expressing “I wish I met such a gentleman!” with their sighs and foggy glasses.

      Let me turn the question: WHAT exactly is going on in a woman’s head when a man buys her a drink in a bar after sunset? And then buys her another? What can she be thinking?
      Is she thinking: “Oh, he’s buying me drinks, he is surely interested in my thesis on African cultures that I’ve written while studying at Yale”?
      Is she thinking: “Oh, he’s buying me drinks, I must have captured his attention with my deep psychological analysis of Donald Trump’s rapport with minorities”?
      Let’s stop bullshitting one another.

      • If we’re going to stop the bullshitting, we’d have to start by dispensing with the notion that, generally speaking, a woman flirting with a man, or engaging in low-level sexual activity with him means she wants to sleep with him. You really think all those women want to sleep with you? No, they want to get free drinks out of you, or they want to flirt with you, possibly with an eye to considering having sex with you, but probably not.

        The overwhelming majority of such bar interactions do not end in intercourse, so it’s bizarre of you to suggest that ending up in bed is what women should expect from the encounter. It’s like if you claimed anybody attending an open house was (in so doing) giving their consent to buy the property. Most people attending an open house aren’t even considering buying the property! They just like looking.

  11. Shashakiro says

    I’ve always found this topic really fascinating, mostly because every bright-line rule produces a certain number of bizarre results that make no sense and/or are blatantly unfair.

    Under the rules stated by the comic, for example, if both A and B are both too drunk to consent and they proceed to then have sex, they have raped each other. This is of course quite absurd, and while occasionally some stand by it as somehow just, people generally don’t rush to defend this strange outcome as sensible. The crime of rape ought to involve a rapist and a victim; both people somehow being treated as being BOTH rapists AND victims with respect to the same act of sex is just ridiculous.

    One could avoid this by saying that it only counts as rape if one is sober and one is drunk. The problem there is you then demand that if sober A wishes to have sex with too-drunk-to-consent B, A has a solution: drink a bunch of alcohol, THEN try to score with B. This is also ridiculous.

    But we definitely want to have a rule of some sort about drunken consent not counting, otherwise getting drunk suddenly also means consenting to anyone and everyone having sex with you, which is obviously wrong.

    If you ask me, this is one of those things where I think the law shouldn’t try to draw bright lines. Maybe toss in the word “reasonable” in there or something, and let judges and juries sort out case-by-case whether or not any given act was rape. That comes at the cost of some consistency and predictability, but heck, at least that way you can nail the real rapist who preys on blackout drunk women without also sweeping in the married couple that celebrates their anniversary with drinks.

    • The law in this hypothetical scenario says “knowingly engages in intercourse”. I would argue that if both parties were drunk to the point that they couldn’t consent, then neither party would have been knowingly engaging in intercourse.

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