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Men face jail for rape if a woman is drunk (UK Law)
December 28, 2006 9:10 PM   Subscribe

Men face jail for rape if women are 'too drunk' to consent in bed to boost convictions. Men who have sex with drunken women will be at risk of being convicted of rape under new laws to be considered by ministers. The legal shake-up would mean a woman would be considered incapable of giving consent to sex if she had been drinking heavily.
posted by IronWolve (268 comments total) 2 users marked this as a favorite

 
That's already the case here, in Victoria. (I think. Damn my failing memory!)
posted by liquorice at 9:16 PM on December 28, 2006


Dont say you where both drink, he must have committed the rape then. What happens if you are both drinking and she changes her mind afterwards?

At least they have legalized prostitution, wont be worth it to date women after laws like this.
posted by IronWolve at 9:16 PM on December 28, 2006


What if they're both drunk?
posted by spaltavian at 9:17 PM on December 28, 2006


"But it would open the way to prosecutions of husbands or regular boyfriends who have sex with drunken wives or partners as well as fierce arguments over medical evidence and real levels of intoxication of alleged victims."

That's stupid on many levels.
posted by liquorice at 9:18 PM on December 28, 2006


I should say that is the case here so long as the defendant's belief of consent was not honest and reasonable.
posted by liquorice at 9:21 PM on December 28, 2006


It's getting harder and harder to rape someone and get away with it.
posted by ColdChef at 9:22 PM on December 28, 2006 [5 favorites]


At least they have legalized prostitution, wont be worth it to date women after laws like this.

Uh, why, because you can only get laid if you get a woman drunk to the point of blacking out, so she can't recall whether or not she said yes? Charming.

Consent isn't consent if the person saying "yes" is too intoxicated to stand up. It isn't necessarily rape, but it sure isn't informed consent.
posted by cmonkey at 9:23 PM on December 28, 2006


It's getting easier and easier to frame someone for rape and get away with it.
posted by IronWolve at 9:23 PM on December 28, 2006 [5 favorites]


Here in the US, in RI at least, I've always been told by health teachers and the like that those who are drunk are not able to give consent. Therefore, it counts as rape. It's dumb in some/many cases, but in others I can see how that would make sense.

As far as both people being drunk, I've again been told that neither party is able to give consent. So technically, both people are legally raped? I'm sure the courts would favor the female if it were to go to court, however, and it often turns into just another he said she said case.
posted by CitrusFreak12 at 9:25 PM on December 28, 2006


"A rape law making it an offence to have sex with a woman who has reached a set level of drunkeness is to be proposed by the Home Office committee that four years ago recommended the disastrous reclassification of cannabis that made possessing the drug less of a crime."

Clearly, this article is in no way biased.
posted by cillit bang at 9:26 PM on December 28, 2006


IronWolve you should have asked for MetaFilter's consent before you posted this thread. Couldn't you tell she wasn't up for it, what with her singing showtunes in the middle of the street and making out with the telephone booth?
posted by liquorice at 9:27 PM on December 28, 2006


Earlier discussion of this idea.
posted by dilettante at 9:30 PM on December 28, 2006


This will lead to breathalyzer belt buckles. "If you can’t blow this…"
posted by Tenuki at 9:33 PM on December 28, 2006 [1 favorite]


I'm confused. What if the man is drunk and the woman isn't? Is it still rape?

What if it's two really intoxiated lesbians?
posted by Astro Zombie at 9:36 PM on December 28, 2006


How do you prove how drunk a woman was? This doesn't sound like a very well thought out rule.
posted by aburd at 9:36 PM on December 28, 2006


cillit bang - The Evening Standard is owned by the Daily Mail. Foaming mouthed distortions come as standard.
posted by Artw at 9:39 PM on December 28, 2006


I love the picture in the article.

The fact that it is named "Drunk Girl" is an extra special touch.
posted by Hicksu at 9:41 PM on December 28, 2006


IronWolve: At least they have legalized prostitution, wont be worth it to date women after laws like this.

cmonkey:Uh, why, because you can only get laid if you get a woman drunk to the point of blacking out, so she can't recall whether or not she said yes? Charming. Consent isn't consent if the person saying "yes" is too intoxicated to stand up.

I don't recall the article stating the law applies only to that high level of drunkenness, and even if it did, the comment you were responding to was obviously tounge-in-cheek. But the retarded snark was fun, right?
posted by spaltavian at 9:42 PM on December 28, 2006


Tongue-in-cheek?
posted by liquorice at 9:44 PM on December 28, 2006


Also, if drunken intercourse is outlawed...
posted by Hicksu at 9:45 PM on December 28, 2006 [1 favorite]


Strange what can change in a year, isn't it?

Astro Zombie: I'm no lawyer, but as I said in my previous comment I have always been told that regardless of gender, if you are drunk you cannot legally give consent (in the US at least...).
posted by CitrusFreak12 at 9:49 PM on December 28, 2006


How do you know someone can't: a) have sex with you, b) chug a fifth of bourbon, c) take a cab to the emergency room and d) claim to have been raped?
posted by popechunk at 9:52 PM on December 28, 2006


Men face jail for rape if women are 'too drunk' to consent in bed to boost convictions.

I'm having fun attributing other meanings to that goofy headline. Exactly how drunk do you have to be to consent in bed to boost convictions? What if you consent in the parlor, or in Cleveland, to boost convictions? What if you don't want to consent to boost convictions at all?
posted by I Am Not a Lobster at 9:55 PM on December 28, 2006


popechunk: It's possible to frame a man for murder, as well.
posted by monocyte at 9:55 PM on December 28, 2006 [1 favorite]


As far as drunk men being "raped" by women, the main type of rape is usually defined as "criminal sexual penetration". So, if a woman can sexually penetrate a drunk man, then sure, she raped him.
What's sad is that this sort of law needs to be made, it's something I would have thought would already be a law in every civilized place. ... so it probably isn't here.
posted by eparchos at 9:56 PM on December 28, 2006


Oh, and way to editorialize with the keywords. The one-two punch of "misandry" and "feminism" is especially subtle.
posted by I Am Not a Lobster at 9:56 PM on December 28, 2006 [3 favorites]


Is there any distinction between someone being too drunk to respond, and being too drunk to have the willpower to not make a mistake that they will regret the next day? If you're so drunk you knowingly get into bed with someone, but the next day are smacking yourself, how do you fare?
posted by CharlesV42 at 9:57 PM on December 28, 2006


popechunk: It's possible to frame a man for murder, as well.

Huh? I don't get it. In one case, you got a brisk rogering, in the other, you're, uh, dead.
posted by popechunk at 9:57 PM on December 28, 2006


Even though this is a hand-wavey article in some ways it seems that the rape laws in the UK are a bit different than those in the US, in that they have been getting more strict only pretty recently. I note these facts stated by the article

1. only one rape accusation in 20 ends in a conviction
2. in 120 cases of sexual assault examined by researchers, in 119 cases the woman had been drinking.
3. Since 2003, a man accused of rape has had to show he had "reasonable" grounds for believing a woman consented. Before then, he had only to demonstrate that he believed she had consented. [which could mean that if the guy thought she had consented earlier and was now unconscious, it was okay to have sex with her]

And, the problem the article says the new laws are trying to solve is just this sort of problem:
The legal pitfalls around rape and alcohol were powerfully illustrated in a landmark case last year in which a security guard had sex with the 21-year- old woman student while she was lying drunk and unconscious in a corridor outside her flat in a university hall of residence.

Even though the security guard, 20-year-old Ryairi Dougal, was a stranger to the woman, a judge at Swansea Crown Court instructed the jury to bring in a not guilty verdict because she could not remember whether she had given consent.

"Drunken consent is still consent," Mr Justice Roderick Evans told the jury.
My guess is they're trying to quantify that. Hamfisted, probably. On the other hand, the issue of consent is tricky and pretty integral to the ability to prosecute for rape. IronWolve, you clearly have an axe to grind here and I'm sorry if someone has hurt you in the past, but it doesn't seem to me that this is some angry group of feminists keeping you or anyone else from having sex with drunk women. It's more like trying to establish standards for consent as well as "new rules that could also include fresh guidance for juries on matters of consent and the right for defendants to call experts on rape who would explain to juries how damaging to a victim the offence is."
posted by jessamyn at 10:01 PM on December 28, 2006 [12 favorites]


I'm so drunk...
posted by 0of1 at 10:03 PM on December 28, 2006


You know, a staggering majority of rapes in America go unreported, and I'm sure a lot of that is because of the culture that seems more concerned about the dangers men face of being accused of rape than the dangers of women actually being raped.

But what do I know; there are countries where it's perfectly legal to rape women so I guess I should just shut up and be happy I live in a country where women are free enough to be accused of lying most of the time.
posted by XQUZYPHYR at 10:05 PM on December 28, 2006 [13 favorites]


if you are drunk you cannot legally give consent (in the US at least...).

Darn. I'm a virgin again.
posted by bardic at 10:06 PM on December 28, 2006 [1 favorite]


Well, now I feel better about not letting that really drunk girl have sex with me back in college.
posted by Astro Zombie at 10:07 PM on December 28, 2006 [2 favorites]


It's worth emphasizing that this is just a committee recommendation at this stage; many (even most?) things recommended by ministry committee don't ever get written into a bill or discussed in the House.

Rape convictions are very low compared to other crimes; it's not surprising that the home office would want to do something about that. When a woman is unconcious or severely impaired through alcohol, sleep or drugs (such as rohypnol) I personally don't see how she *could* give informed consent. How many decent people would find a stranger unconcious in a hallway and take that as an opportunity to have sex? The law already reflects that - you need reasonable grounds to believe she consented. That said, the previous law change apparently hasn't had the desired effect, which may be why this stronger change to the law is being thought about. Juries still think that the woman is at least partially to blame for being raped if she drank at all.

One thing I do find iffy about this proposal is the back calculation of drunkeness. Especially given the time between sample and incident, people's metabolisms do vary quite a bit when it comes to processing alcohol. To tie that to some sort of drink/consent limit, rather like the drink/drive limit seems rather inflexible. Perhaps better instructions to the juries of the existing laws by the judge would make more sense than trying to force juries to convict 'probable' rapists, with a questionable law and drunkness limit.

What the hell happens when both parties are drunk, anyway? Would you end up with the ludicrous position where both have comitted rape because they were too drunk to give consent, but since reduced judgement through drunkeness isn't a defence under the law, they're guilty? Reminds of the legal trouble minors can get into if they have sex with another minor their own age...
posted by ArkhanJG at 10:08 PM on December 28, 2006


Here in the US, in RI at least, I've always been told by health teachers and the like that those who are drunk are not able to give consent.

I'm pretty sure that's the standard throughout the U.S.
posted by XQUZYPHYR at 10:11 PM on December 28, 2006


Sooooo......y'all are saying I've raped my wife? Hunh.
posted by popechunk at 10:12 PM on December 28, 2006


Dont say you where both drink, he must have committed the rape then.

You're drunk right now, aren't you?
posted by Mikey-San at 10:13 PM on December 28, 2006


You know there is an easy way around all of this... DON'T HAVE SEX WITH SOMEONE YOU DON'T TRUST.
posted by edgeways at 10:14 PM on December 28, 2006 [2 favorites]


I don't recall the article stating the law applies only to that high level of drunkenness, and even if it did, the comment you were responding to was obviously tounge-in-cheek. But the retarded snark was fun, right?

Ah, no, spaltavian, that comment was obviously not tongue-in-cheek. Maybe you haven't encountered the MANGRY INTERNET MALE before, but I have.

I don't actually recall the article stating what level of drunkenness it will apply to. The article did talk about a woman who was passed out on the floor and the man who raped her got away with it at a judge's directive. That situation wasn't consensual at all, and the government really needs to make that clear.
posted by cmonkey at 10:17 PM on December 28, 2006


The Judge was required to ask at what point does the withdrawal of consent mean rape. As council for the defense my first recommendation would have been: Once I've shot my load.

It's getting harder and harder to rape someone and get away with it. An unqualified good, if true*. Sad if it were simply getting easier and easier to convict someone of rape.

*Almost unqualified.
posted by econous at 10:18 PM on December 28, 2006


popechunk: It's possible to frame a man for murder, as well.

Huh? I don't get it. In one case, you got a brisk rogering, in the other, you're, uh, dead.


Am I right in understanding that you think it makes sense to be more concerned about false accusations for rape than for murder because rape is (relatively) not so bad?
posted by scottreynen at 10:18 PM on December 28, 2006 [1 favorite]


What makes legislation like this particularly asinine is the whole notion of "giving consent," as if two people sign a piece of paper or put together a power-point presentation before they fuck, even when they're sober.

No doubt rape is a serious, horrible crime, but larding over relatively clear legal guidelines (rape = crime) with vagaries like this (What constitutes "drunk"? What constitutes "too drunk"? What constitutes "consent"?) seems to only add to the problem, IMO.

What if someone has just smoked some really good weed? What if they forgot to take their Prozac? What if they took too much of it? What if they're (*gasp*) in love, which is arguably a powerful distorter of impressions and judgement? What if it's a threesome?
posted by bardic at 10:21 PM on December 28, 2006


Am I right in understanding that you think it makes sense to be more concerned about false accusations for rape than for murder because rape is (relatively) not so bad?

No. Fuck no. In the first case, "framing a man for raping you", you got drunk and had sex, and in the second case, "framing a man for murdering you", you are dead. Surely it costs the accuser less to frame a man for raping you than murdering you.
posted by popechunk at 10:24 PM on December 28, 2006


It's also worth pointing out there was a big media storm a couple of years ago when the law changed in the UK - men used to have to have an 'honest' belief that consent for sex had been given, currently they need a 'reasonable' belief. This was supposedly going to cause a huge upswing in convictions, including false convictions.

Basically, men could say 'I thought she consented' and the question then hinged on - was he telling the truth? If there was no other evidence such as witnesses hearing screams, or physical injury greater than that explainable by rough sex, juries would usually give the man the benefit of the doubt, in fact they pretty much had to.

With the 'reasonable' wording, it puts some of the burden of proof on the man, to show he had a reasonable reason to believe she had consented, it's not just about his word any more. Given the accused is supposedly innocent until proven guilty, but this wording potentially spins him as guilty until he proves his belief to be reasonable, that's why there was all the dire worry of a wave of false convictions.

As it turned out, juries - and judges - haven't really changed their views or their verdicts, and pretty much any belief of consent has been accepted as 'reasonable', where it comes down to he-says-she-says.
posted by ArkhanJG at 10:26 PM on December 28, 2006


You know there is an easy way around all of this... DON'T HAVE SEX WITH SOMEONE YOU DON'T TRUST.

Of course, if you're drunk, you aren't really capable of assigning levels of trust, right?
posted by smackfu at 10:26 PM on December 28, 2006


*actually, "consent" seems a sensible enough concept. But "lack of consent" doesn't. Even the most loving of couples will get busy at times when one partner is horny and the other is just "going through the motions" to satisfy the other. That's not rape, that's marriage and/or any long-term relationship.
posted by bardic at 10:26 PM on December 28, 2006


only one rape accusation in 20 ends in a conviction

That struck me as appallingly low. The UK has been experiencing a tripling of rape accusations over a decade while prosecutions and convictions have not kept pace. This seems to be the original report on "attrition" in rape cases which has now been answered by some recommendations.

Note that rape, along with other violent crimes, is prosecuted successfully at a much higher rate in the United States directly compared with England. Ten years ago, the US Justice Department concluded:

The higher U.S. conviction rate for rape is attributable both to the higher U.S. police-recorded rape rate and to a United States criminal justice system that catches and convicts rapists at a higher rate than England's system. According to the most recent statistics ... the U.S. police-recorded rape rate is three times England's, but the U.S. rape conviction rate is over eight times England's (.212 versus .025), indicating that a rape in the United States is more likely to lead to conviction than one in England.

This is in contrast to the higher murder conviction rate, which the study concluded was almost entirely due to the higher rate of victimization rather than to differences in prosecution.
posted by dhartung at 10:27 PM on December 28, 2006 [1 favorite]


Are they talking about women so drunk they can't even talk or what? In the US that's considered rape. I think it's a difficult issue, since the evidence in cases of date rape is really difficult to figure out, unless you take the position that accusation is true by default.

But the fact that it's a complicated issue doesn't mean it should just be legal, obviously.
posted by delmoi at 10:27 PM on December 28, 2006


I love watching straight people squirm.
posted by matty at 10:28 PM on December 28, 2006 [2 favorites]


What relatively clear guidelines? For most people rape = lonely woman walking down dark alley getting attacked by random male stranger. Yes, that is rape. But there are a lot of other situations that are rape as well that many seem to have misguided notions about. The majority of sexual assualts happen between two people that know each other. Obviously consent is going to become a legal issue when these types of cases arise. We're dealing with real life events here, and it's never going to be clear-cut.

It was only twenty years ago that raping your wife wasn't a crime. These type of laws that the ministers are discussing are sorely needed, but more importantly - education. The next generation is filled with boys and girls who still think it's okay to pressure someone into sex if she flirted with you, if you spent a lot of money on them, or if they've "done stuff" with other guys. We're far from "rape = crime" for a lot of people.
posted by liquorice at 10:31 PM on December 28, 2006


Assuming this law isn't abused (which, whenever dealing with a law is always a concern,) I find myself not actually against it. I'm sure the idea is to protect women who are clearly too drunk to make clear decisions. Not unlike the idea of charging men who use roofies to take advantage of women in a unconscious and therefore non-consenting state. The inevitable problem is that eventually it will be used vindictively by one party or the other to get even for a night of bad choices. Hopefully the UK lawyers and Justices have the good sense to start building precedences early to weed out this sort of thing.

/Takes idealistic hat off...

Yeah, this is going to end badly for someone. I mean, Booze is the lubricant for society in more ways than one (double entendre, I know...) People drink to pick other people up and have sex. It has been going on since alcohol was invented. Hell, the smart money is on the idea that it was why alcohol was invented.

I would love the idea that this will be a good tool to put bad people away. And by accident, it could happen. But more likely it will be nothing more than a hammer to settle grudges in court.
posted by quin at 10:31 PM on December 28, 2006


Basically, men could say 'I thought she consented' and the question then hinged on - was he telling the truth? If there was no other evidence such as witnesses hearing screams, or physical injury greater than that explainable by rough sex, juries would usually give the man the benefit of the doubt, in fact they pretty much had to.

MAN: Let us commence fucking
WOMAN: I consent to fucking

They fuck. Time passes. The woman changes her mind, and reports it as rape. What recourse does the man have to prove that it was consensual sex. How could it be anything other than, "he said, she said"? Why should the burden of proof be higher for the man? I don't get it....
posted by popechunk at 10:33 PM on December 28, 2006


I love watching straight people squirm.

Man, I can't keep up with all the new fetishes.

Meanwhile, in Durham (which is not to say that all accusations of rape are as baseless as this one, but I do think that going down the slope of "no outright statement of consent = rape" is really problematic.)
posted by bardic at 10:33 PM on December 28, 2006


smackfu : Of course, if you're drunk, you aren't really capable of assigning levels of trust, right?

Not to mention the whole, 'We just met for the first time that night' aspect. Assigning trust happens in relationships and totally ignores the one-night-stand phenomena.
posted by quin at 10:39 PM on December 28, 2006


Is the blood alcohol level where you no longer bear any responsibility for the consent decision higher or lower than the blood alcohol level where you no longer bear any responsibility for the driving decision?

All in all it sounds like a reasonable rule (using alcohol as means of eliciting consent that otherwise would not be given is not a good thing) but it quickly bogs down into fine points of distinction that law is not very good at handling.
posted by obfusciatrist at 10:41 PM on December 28, 2006


The next generation is filled with boys and girls who still think it's okay to pressure someone into sex if she flirted with you, if you spent a lot of money on them, or if they've "done stuff" with other guys. We're far from "rape = crime" for a lot of people.

Perhaps because those people believe that "pressuring" someone into sex isn't rape.

Forcing? Yes. "Pressuring"? No.
posted by cribcage at 10:42 PM on December 28, 2006


popechunk : What recourse does the man have to prove that it was consensual sex.

The obvious answer is to digitally record all trysts. Just to be legally safe.

Man youtube is going to be awesome in the next couple of years.
posted by quin at 10:42 PM on December 28, 2006


popechunk: before, he only had to say 'I believed she consented' and unless there was absolute incontrovertible proof he was lying, there was no way to convict. So, for example, he could have slipped her a roofie, and unless it could be proved HE gave it to her, the fact that he had sex with her while she was unconcious in a toilet couldn't be proved to be rape. Also, if a man raped his partner, he could say that he thought he had consent and she was just playacting by saying no. Virtually impossible to convict, again.

The change in the wording was intended so that he didn't just have to SAY he thought he had consent, he has to show he had reasonable grounds for that belief. IE unconcious women can't give consent, so the belief that she did isn't reasonable. A woman clawing your face and shouting no - when no history of BDSM - shows you wouldn't have a reasonable belief of consent either. That's the theory, anyway.
posted by ArkhanJG at 10:46 PM on December 28, 2006


Perhaps because those people believe that "pressuring" someone into sex isn't rape.

Forcing? Yes. "Pressuring"? No.


I never said it was, my point was that you can't expect the law to be clear on such a complicated issue.
posted by liquorice at 10:53 PM on December 28, 2006


ArkhanJG, I see what you mean.

If it is in fact the case that what you and Jessamyn are saying is true, that some judge somewhere claims that unless an unconscious woman can say, "no!", she's fair game, I for sure understand what you are saying, and agree that the law should be changed.

But I have to believe, because this is so insane, that this idiot judge's decision would be over-ridden (by a higher court), and there is no need to pass a law that would make it so easy to get an innocent man convicted of rape. There must be a less drastic change we could make to the law that would protect woman who were passed out, for whatever reason.
posted by popechunk at 10:57 PM on December 28, 2006 [1 favorite]


I suddenly find myself strangely glad that my parents don't drink, because under these sorts of laws the majority of the populace could be considered the endproduct of a sexcrime.
posted by Ryvar at 11:00 PM on December 28, 2006


Unless you're in the Dead Kennedys.
posted by bardic at 11:05 PM on December 28, 2006


popechunk: In the case highlighted, the 'reasonable' addition to the law in 2003 didn't help - as since she had no memory at all, she *might* have consented. You and I would say that given he found her unconcious through drink, it wasn't reasonable to accept that consent, even assuming she did give it. That was the intent of the law, after all.

However, if the judges and juries find accepting drunken consent - or even the possibility there was drunken consent - to be 'reasonable', then, as the law stands, there's no way to appeal it.

I think we're in agreement on this. I too would prefer a smaller, less drastic change. If someone is drastically incapacitated, i.e. unable to talk, walk or move (through whatever cause), then they cannot consent, and the defence of 'reasonable belief of consent' wouldn't apply. The back-calculation and percentage of blood alcohol is a bit too hand-wavy to make good law in my opinion. Stick to incapacitated, similar to the US law.
posted by ArkhanJG at 11:10 PM on December 28, 2006


I doubt many semi-drunk strangers-in-a-bar will end up using this proposed law as a weapon. You'd have to be highly motivated to falsely accuse...rape trials aren't for chickens on either side.

That said, a friend of mine went through a breakup where the (batshitinsane) woman falsely accused him of molesting her son. You want some trouble? Try that. He eventually cleared his name--helped by the fact she wrote him pleading letters during the investigation telling him she made up the accusations and would drop the charges if he got back with her. (Lesson he learned: Hot monkey sex is NOT worth dating someone with a smooth cerebral cortex.)

Surely this proposed law is a good reason to keep your web cam on...video might be the only proof you could produce if you are wrongly accused.
posted by maxwelton at 11:11 PM on December 28, 2006


Why should the burden of proof be higher for the man?

Well, first off, our cultures are historically patriarchal, hence men are more aggressive and already in a higher social position.
Secondly, men are typically stronger than women, and thus more capable of forcing the issue.
Thirdly, men have the proper plumbing to sexually penetrate. Women don't.

The law is there for protection, theoretically, and women are in more need of protection (generally) in patriarchal societies than men are.

Note that rape, along with other violent crimes, is prosecuted successfully at a much higher rate in the United States directly compared with England.

I'd be curious about whether or not there is a higher conviction rate for all crimes in the States than there is in the UK.
posted by eparchos at 11:15 PM on December 28, 2006 [1 favorite]


the fact that he had sex with her while she was unconcious in a toilet couldn't be proved to be rape

Are you sure? Logic would seem to dictate that since the woman is unconcious and therefore unable to give consent, that would be rape.

Plus wouldn't the evidence of a rohyphonol in her system be proof that her ability to consent was considerably compromised, regardless of whether it could be proven that he was the one to give it to her?
posted by CitrusFreak12 at 11:19 PM on December 28, 2006


MeatheadFilter.
posted by Blazecock Pileon at 11:24 PM on December 28, 2006


UK rape laws used to REALLY suck, CitrusFreak12. They still do, even after the 2003 attempt to fix them. Prior to 2003, an 'honest belief of consent' was usually enough to secure an acquital, unless there was very strong evidence of force or refusal. It hinged on whether he believed he had consent, rather than whether she actually could consent. That's why the law was changed in 2003, though it would appear it didn't work.

Here's a bit from an article about the 2003 changes (not the proposed new extra changes)

How do the reforms change rape laws?
...
On the issue of consent, people will be considered most unlikely to have willingly agreed to sex if they were unconscious, drugged, abducted, subject to threats or fear of serious harm, or incapable of giving consent because of learning disability or mental disorder.

There has also been a tightening of the approach to "date rape", although there is no specific law to deal with it. Defendants would have to prove they made "reasonable" efforts to ensure their sexual partner consented. The Home Office said what was considered reasonable will have to be judged "on a case by case basis".

Rape law will not be extended to cover a woman who forces a man to penetrate her with without his consent but this crime will be covered by a new offence of causing another person to perform an indecent act without consent.

posted by ArkhanJG at 11:28 PM on December 28, 2006


The law is biased, its written gender centric, and puts undo proof on the accused.

And for the "he has an axe to grind" comments, people who are abused or used, feel some sort of injustice do tend to find even if overly for a cause. I don't see many men fighting for mens rights anymore. People of means have lawyers, its the working class man that doesn't have a fair deal in these crisis es. I'm not taking up the cause, I'm just being aware and pointing them out when it happens. The preachiness of my post are just trying to offset the imbalance of inaction for mens rights. You're not saying mens right is bad are you?

And
The easiest way to frame someone, just have a couple of glasses of alcohol before being tested.
posted by IronWolve at 11:33 PM on December 28, 2006


Or maybe there's a new business opportunity:
Informed Consent, Inc.

Men, call our 900 number and an accredited member of our legal team will ask all parties involved in your tryst if they understand that in a matter of a few moments something humiliating may or may not happen (see hipster coke dick).

For a per minute charge (two minute minimum) we offer live monitoring--with your choice of seven musical themes played over your speaker phone during your "transaction." For an extra two dollars we will announce the time at an accelerated pace (for every 10 seconds passed we will ping the music track with our "minute" note). Other services include frank but admiring discussion "accidentally" revealed over the music track and precisely timed pizza delivery (our sexologists can predict with uncanny accuracy when you'll be ready to eat).

Court appearances will be charged at $250 per hour.
posted by maxwelton at 11:35 PM on December 28, 2006


Men's rights are important IronWolve, but so are women's rights. The way things are in the UK, women have a lot more to fear from rapists - almost always men they know, and usually men they have a relationship with - than men have to fear from false accusations.

I believe, from an earlier thread that false accusations for rape run at about 2%, the same as false accusations for other crimes. Around 5% of rape trials end in convictions - and that doesn't include the large number of rapes that aren't reported, or are reported and aren't considered strong enough cases to go to trial over.

It is possible to believe that different groups of people are being ill-served in different circumstances, rather than take the partisan approach that all men are rapists and potential child molestors, or all women are harridans out to scream rape if we even look at them funny.
posted by ArkhanJG at 11:40 PM on December 28, 2006 [1 favorite]


Holy fuck your tags are ignorant and insulting. I swear to god every man I know who pipes up for "Men's rights" drags the term further and further into the mud.
posted by dobbs at 11:54 PM on December 28, 2006


i'
m gonna have to go to the emergenc room now to have them reset my eyes in their sockets,. having rolled them bacjk so far redaing ironwolve's drivel.
posted by Heywood Mogroot at 11:57 PM on December 28, 2006


False accusations of rape in non-divorce cases where around 2%, that number rises in divorce cases, so do claims of child abuse and battered spouse claims. People lie if they feel threatened. There was a study about women lying to protect their children in divorce cases, cant find the link, but the number was over 60%. (If you can trust any study, lies, lies and statistics.)

There problem I have with these biased laws,
1. The male is deemed the attacker if both parties are intoxicated.
2. Intoxicated consent is no longer valid for a woman, but still for a man.
3. Intoxication set at blood levels is easy to fake or be incorrect.
4. The burden of proof is on the male.
5. No way to fight unjust claims, or very expensive.

Now the world is grey, and we try to make laws grey'ish, but these laws are written to be gender specific.
posted by IronWolve at 12:04 AM on December 29, 2006


How come I feel like I'm at a fraternity party?
posted by eparchos at 12:18 AM on December 29, 2006


Argh, I thought we were past this in the Duke thread.

1) This article is laughable and about as unbiased as the Washington Times.
2) People on this board would get mad if people randomly claimed to be experts on evolutionary developmental biology whenever we talk about the latest creationist assault on evolution. Rape laws, like the teaching of evolution, are important elements of society that deserve widespread attention, yet they are also incredibly complicated and nuanced far beyond what this article is willing to state or what these discussions frequently reach. A quick glance at the Duke thread will see all the same canards as you would see in a high school debate about evolution (clocks in a field! eyes at the same time!) Jessamyn is spot on here with her analysis and it would be nice if people bothered to do some research before going off the handle.

As for me, my knowledge of rape laws in England are limited to the time I spent there as a student and I still don't feel qualified to talk about how these proposed changes will affect a complicated situation. I do know enough not to take this article any more seriously than a FrontPage Magazine missive. Seriously, the line about marital rape is so ridiculous it's hard to know where to begin. Same goes for many of the posts here. Just the most basic research into the issues surrounding criminal prosecution of violence against women would be a nice start instead of, well, unsubstantiated freewheeling.
posted by allen.spaulding at 12:18 AM on December 29, 2006


I'm not opposed to this law, but I am getting ready to be righteously pissed off at the (very small number of) women who will abuse it for vengeance and gratification. The vibe I'm feeling from the opposition side is "Wait, so if I hit you with my car and I'm drunk, I get my ass handed to me, but if you have sex with me and you're drunk, I can still get my ass handed to me?"
posted by tehloki at 12:18 AM on December 29, 2006


Also, IronWolve, I linked to the ABA statistics on false accusations in custody cases in the Duke thread. 21% of men's claims are false, compared to 1.3% of women's claims according to the best studies down out there, so I doubt your unsubtantiated 60%.
posted by allen.spaulding at 12:23 AM on December 29, 2006


And a report from "Victims of Domestic Violence" are not slanted? The whole thing is cherry picked statistics from resources.
posted by IronWolve at 1:08 AM on December 29, 2006


Buddy, that's the ABA commission on domestic violence.

Nothing is unbiased, but the ABA is like the AMA, it's a large and well-established organization without an overt agenda when it comes to these issues. Tort reform, sure, agenda overoad. Do you think the AMA has an agenda on cholesterol?

It's slogan is "Justice and Safety for Victims of Domestic Violence," something I think most people on this board would support. Nice try at a hatchet job though. Like I said, this data is accepted by practioners within the field. You know, those people with expertise.
posted by allen.spaulding at 1:19 AM on December 29, 2006


Finding of 60% of rape claims where false.

The McDowell team did in fact address these questions in follow-up studies. They recruited independent reviewers who were given 25 criteria derived from the profiles of the women who openly admitted making a false allegation. If all three reviewers agreed that the rape allegation was false, it was then listed by that description. The result: 60% of the accusations were identified as false. McDowell also took his study outside the military by examining police files from a major midwestern and a southwestern city. He found that the finding of 60% held (Farrell, 1993, pp. 321-329).
posted by IronWolve at 1:23 AM on December 29, 2006


Right, anyone can google and find some crackpot with a disreputable study that supports their theory. I've linked to one of the largest and best respected source in the legal field. You've linked to the equivalent of Michael Behe. If I were to write an article that cited your study, I'd be laughed at. Like I said, expertise is valued.

Have you even read that link? It's like reading about chemtrails. Not only does it take quotes out of context, but it's just riduculous hyperbole so far outside mainstream treatments of the subject that it's hard to take seriously, let alone the whole IPT-forsencics bit. It's a crackpot institute dedicated to 'debunking' all false claims (read all claims) of child abuse. Seriously, and you call me out on sources?
posted by allen.spaulding at 1:34 AM on December 29, 2006


I was just compiling a list of links to say what allen.spaulding just said. So, yeah! Hey! That Zepezauer fellow is crazy!
posted by wemayfreeze at 1:43 AM on December 29, 2006


Anecdote: A friend of mine was threatened with being accused of rape because he didn't "pull out." She didn't go through with it, and then later he ended up sleeping with her again (When it "blew over").
posted by delmoi at 1:45 AM on December 29, 2006


Allen.spaulding: Ahem, bullshit. That data isnt accepted by all practitioners in the field... ABA like the AMA has special interest groups, you cant trust them to be impartial, they have agendas. Maybe you didnt see who wrong the report (McDowell & Hibler, 1985) of the U.S. Air Force Special Studies Division. Not some crackpot. Thanks, youre Wrong, thanks for playing.

You must be young or very naive. Check out the famous false claim the Wenatchee Sex Ring about how false claims by those using the ABA reports can go overboard.

A Spokane County jury yesterday found the city of Wenatchee and Douglas County negligent in the now-discredited 1994-1995 Wenatchee child sex ring investigations, awarding $3 million to a couple who had been wrongly accused in the inquiry. ... In 1994 and 1995, Perez and Child Protective Services caseworkers initiated a series of investigations in Wenatchee that resulted in 43 people charged with 27,726 counts of child rape and molestation against 60 children.

Reports are slanted by the person or group giving them, if presented by a special interest group you have to question it. Its the same thing as the tobacco industry releasing health reports that smoking doesn't cause cancer...
posted by IronWolve at 1:45 AM on December 29, 2006


Look, the day care hysteria is another story. We're talking about false accusations in custody cases. And you're just wrong. Only Eugene Kanin believes that story. Pointing out that Bebe is at Lehigh doesn't give him credibility either.

Until you start referring to something that has a shred of credibility within the field, it's going to be hard to believe that you're on top of this research.
posted by allen.spaulding at 1:50 AM on December 29, 2006


er, that should read Behe. Freudian slips are intelligently designed 60% of the time or something.
posted by allen.spaulding at 2:01 AM on December 29, 2006


Um, IronWolve, anecdotal evidence is not statistical evidence. I'll trust the ABA over wikipedia, thank you. Besides which, that Wenatchee Sex Ring thing? Yeah, that was about poor evidence gathering and a badly-run legal case in regards to people accused of assaults on children, not women falsely accusing men of raping them. Also, there is no mention of teh ABA in there.
Could you just stop? Seriously, you're not making a good case here. I mean, not even knowing what your own links are about... that's just sad. Maybe there IS evidence in favor of what you're claiming here, but so far you've just managed to bolster the opposing view... you know, the sane one.
posted by eparchos at 2:08 AM on December 29, 2006


... if you are drunk you cannot legally give consent (in the US at least...).

zackly wat I told nice ofisher when he wannened to searsh my car.
posted by hal9k at 2:35 AM on December 29, 2006 [1 favorite]


I'm glad allen.spaulding mentioned the Duke lacrosse thread. IronWolve clearly has an axe to grind and has started a whole new thread to do so. Just stop.
posted by ninebelow at 3:35 AM on December 29, 2006


Good thing this is a British proposed law, not a US one, given the rather different legal landscape and all that. But wait! It must be the real purpose of the special relationship! The trans-atlantic feminist misandry cabal is in control, with Laura Bush and Cherie Blair secretly passing laws and twisting the courts so that all men will be locked up on no evidence for raping some girl they looked at in the pub/bar (*delete as appropriate)

Who will save us now from this wave of female tyranny?
posted by ArkhanJG at 3:44 AM on December 29, 2006 [1 favorite]


I think an appropriate response to such laws is to avoid picking up women in bars who are so drunk they can't talk intelligibly or stand without falling over... funny, I've already been implementing this for years. Then again I don't live in the UK, where drinking appears to be a sport (used to work with Englishmen, I could never keep up with them at the bar).

The point of the law is apparently to establish a scientific basis for making the "too drunk to consent" claim. If the claim's validity can be measured, then it goes beyond a "he-said-she-said" situation.

I'm a little surprised that the UK isn't more categorical about situations where a man has sex with a woman who's passed out, though. That would seem pretty much like an open-and-shut case.
posted by clevershark at 4:32 AM on December 29, 2006


IronWolve (for the love of god, please acquire an s), please remember that personal vendettas do not generalize well. I'm sorry your ex is/was a psycho who abused your trust. This does not mean that every woman is a psycho who will abuse your trust in the future with any more likelihood that a man will do the same thing to you.
posted by kalessin at 4:37 AM on December 29, 2006


eparchos writes "Thirdly, men have the proper plumbing to sexually penetrate. Women don't."

Does this mean, therefore, that it is impossible for a woman to rape another woman? Don't be so asinine. Rape means sexual assault, of which penetration may or may not be a component.
posted by dirtynumbangelboy at 4:46 AM on December 29, 2006


Does this mean, therefore, that it is impossible for a woman to rape another woman? Don't be so asinine.

I was responding to a specific question, in particular:

"Why should the burden of proof be higher for the man [than for the woman]?"

Don't be so asinine.
posted by eparchos at 5:00 AM on December 29, 2006 [1 favorite]


I think if people are drinking, they should be allowed to drive while having sex.

Further, there are legal complications. If you can be too drunk to drive, and too drunk to have sex, then how will you get home?

How is it that our most popular form of recreation is becoming legally incapacitated?
posted by ewkpates at 5:32 AM on December 29, 2006


it's either badly written legislation or a badly written article ... (i suspect it's the article)

at no point are we told HOW drunk is too drunk ... do they mean if she's passed out? ... that's not any different than u s law

if they mean a certain blood alcohol level, that seems pretty dicey to me, especially with "back-calculating" working in only 31 of 119 cases ... (and how did they manage to verify that it worked in THOSE cases?)

i'm sure they mean that a woman can't give consent if she's passed out or unresponsive ... that's reasonable
posted by pyramid termite at 5:35 AM on December 29, 2006


So are you also saying that rape=penetration? A friend of mine, whose babysitter repeatedly forced him to perform oral sex on her (this continued well into his teens), would take great exception to that. With, probably, a baseball bat.
posted by dirtynumbangelboy at 5:36 AM on December 29, 2006


No drunken sex? This could be the end of civilization as we know it.
posted by jonmc at 6:02 AM on December 29, 2006


"I love watching straight people squirm."

Me too. If they're female.

Male, not so much.
posted by mr_crash_davis at 6:23 AM on December 29, 2006


Wish I had seen this article yesterday. oops.
posted by tadellin at 6:27 AM on December 29, 2006


So are you also saying that rape=penetration? A friend of mine, whose babysitter repeatedly forced him to perform oral sex on her (this continued well into his teens), would take great exception to that. With, probably, a baseball bat.

No, I'm not. I'm saying that women lack penises, ergo they lack the equipment (and I'm quoting exactly what I wrote above here) "sexually penetrate." A baseball bat might do the trick, though.
This thread is about men raping women, and someone asked why the burden of proof fell on the man, and plumbing was ONE of the reasons which I mentioned. One of the others was aggression, and another was men generally being stronger than women. I'm talking about generalities here, as that is in keeping with the topic of the thread. I'm sure there are plenty of stories of men being raped by women and stories of women accusing men of rape unjustly. However, consider a hard factoid: 1 in 6 women versus 1 in 33 men in the US report experiencing an attempted or completed rape at some point in their lives. I'll leave it to you anti-feminists to dispute the CDC.
posted by eparchos at 6:30 AM on December 29, 2006


Women are 10 times more likely than men to be victims of sexual assault.

I can't believe this is that hard to understand.
posted by eparchos at 6:33 AM on December 29, 2006


So are you also saying that rape=penetration?

As I understood it, the assertion was that, since it's easier to demonstrate forced penetration (i.e., tearing, abrasions), the burden of proof is higher for a man — presumably, lacking comparable physical evidence — seeking to prove he was raped by a woman.

Not that it doesn't happen. Just that it's more difficult to prove.
posted by cribcage at 6:52 AM on December 29, 2006


I love watching straight people squirm

Now is not the time to talk about your fetishes.
posted by jonmc at 6:55 AM on December 29, 2006


Ahem:
METAFILTER: LET US COMMENCE FUCKING
I am so. Sorry.
posted by damnthesehumanhands at 7:04 AM on December 29, 2006


This is what I don't understand:

#1 A woman getting drunk and then getting behind a wheel is legally responsible for her act.

#2 A woman getting drunk cannot consent to sex, and cannot be held legally responsible for her (drunken) consent.


So, you can be held accountable for drunken driving, but not drunken consenting? Ridiculous.
posted by ewkpates at 7:14 AM on December 29, 2006


Within 20 years, England will be a bland paste.
posted by aerotive at 7:28 AM on December 29, 2006


ewkpates' argument is pretty strong. Such a law has much potential for harm. For example, it may also provide an extremely drunken rapist some defence: "Your honor, my client was too drunk to tell that the girl was passed out.." Seems safest to keep all drunks fully respncible for all their actions.
posted by jeffburdges at 7:41 AM on December 29, 2006


So, you can be held accountable for drunken driving, but not drunken consenting? Ridiculous.

Yes, truly we can all remember the made for TV movie when the Ford Taurus cornered the freshman in her dorm room and forced her to hop in the driver's seat. "Dont' worry, babe! I'll turn at the last minute! Seat belts ruin the feeling!"

Or, what sort of non-sequiter nonsense are you talking about? You're comparing the individual use of an inanimate object to an outside party manipulating an intoxicated person. You might as well have said "how come it's rape if you're drunk and say yes, but your fault if you get wasted and do your taxes wrong?"

So, yeah, if I got drunk and did my taxes wrong, I'd be at fault. If I got plastered and my accountant went up to me and recommended I list my goldfish as dependents, then I'd probably drag his ass with me to the audit.

Your own argument is that it's your fault when you do something while drunk but not your fault when someone does something to you while drunk. Well... yeah. You really, truly, "don't understand this?"
posted by XQUZYPHYR at 7:42 AM on December 29, 2006 [1 favorite]


Xquz... I think the question that ewkpates is trying to ask is:

When drunk, many people think they are capable fo driving. They are not, and are held responsible for their actions.

When drunk, many people will consent. This law says it is impossible for them to consent, and that it is therefore rape. Why the burden of responsibility in one case but not the other?
posted by dirtynumbangelboy at 7:45 AM on December 29, 2006


Look all these knee jerk reactions to this are silly. As Jessamyn pointed out this law (if it's passed) will be used to supplement existing rape laws in extreme cases. If you meet a girl in a bar and have a couple of drinks and she consents and later regrets it you will not be prosecuted for rape. This law will be put into place to get bastards who rape unconcious women in jail where they belong. So is the idea behind this to boost conviction rates? Of course, but not in the reactionary sense in which some people here think.
posted by ob at 7:49 AM on December 29, 2006


So is the idea behind this to boost conviction rates? Of course, but not in the reactionary sense in which some people here think.

Yep, and anti-terror laws were for terrorism and not for holding elderley hecklers at a party conference.

If the law is only for drooling, passed out can't talk drunk then cool, if there is any scope for using it after a couple of shots then its bullshit, which will, sooner or later, be abused.
posted by Reggie Knoble at 8:06 AM on December 29, 2006


I find it amazing that there have been so many comments and no one (including the 'journalists' who wrote the article) has apparently grasped the point of the proposed rule:

It's not to outlaw drunken sex. It's to specify a rule of evidence that can be used to prove the element of "no consent" in a rape trial.

In other words, if you rape a drunk woman, the rule circumvents the 'he said / she said' part of the trial where the (alleged, of course) rapist argues that she wanted it and the rapee says the didn't. The prosecutors can introduce her drunkenness as evidence that she didn't consent, because she couldn't.

The real issue here is whether the societal problem of women framing men is worse than the problem of rapists getting off (bad pun) because the prosecution can't prove the consent element. And frankly, it sounds pretty reasonable to me.
posted by norm at 8:08 AM on December 29, 2006


Men's rights are important IronWolve, but so are women's rights.

(my emphasis)

This sentiments seeks perpeptual discord between the sexes.

That's why I love living far far away from the west. Far away from this bullshit. Far from the tug-of-war men V women antagonism that pervades every issue concerning love and life in the west.

Men have rights. Women have rights. People have rights. It's not fucking zero sum.

People have rights and responsibilities, and any kind of pseudo-intellectualism trying to counter this truth is just a waste of breath fighting for a perverted cause.
posted by FieldingGoodney at 8:29 AM on December 29, 2006


> i'm sure they mean that a woman can't give consent if she's passed out or unresponsive ... that's reasonable

When the home office gets around to publishing the "consultation document" we'll be able to read it and see what it actually says. However, the purpose of the law overhaul is explicitly to increase the conviction rate to better match some a priori belief about how much rape is actually going on.
Solicitor General Mike O'Brien claims that the number of complaints about rape has gone up "quite sharply" but the number of convictions has risen only "very slightly".

Speaking on the Today programme this morning, Mr O'Brien said that only between three per cent and nine per cent of rape claims were "vexatious" – when the case has been instituted maliciously and without probable cause.

That suggests, he argues, that "an awful lot of people who are committing rapes are getting away with it" and is the reason why the government wants to overhaul the current system.
> So is the idea behind this to boost conviction rates? Of course, but not in the reactionary sense
> in which some people here think.

Nothing reactionary about it at all, we're being proactive and progressive.

Note that the Solicitor General dosn't say the number of rapes has gone up sharply, only that the number of complaints has increased sharply. The most likely reason for this increase in complaints is increased awareness on the part of the female participants in sexual encounters of the expanding definition of rape. Formerly rape meant out-and-out forcible intercourse (from Latin rapere, to take by force.) Presently it is heading very much in the direction of Catharine MacKinnon's dictum, 'Politically, I call it rape whenever a woman has sex and feels violated.' (Catharine A MacKinnon, 'A Rally against Rape.' In Feminism Unmodified: Discourses on Life and Law [Harvard, 1987] p82.) So obviously, if more women are feeling violated after a sexual encounter and reporting that feeling of violation as an instance of rape, we gotta crank up the number of guys we burn to match the complaint rate. That is, just as MacKinnon says, politics. Not justice.


P.S., speaking of MacKinnon's dictum, we have a really superior example of the expanding definition of rape from our own licorice:

> The next generation is filled with boys and girls who still think it's okay to pressure someone into sex
> if she flirted with you, if you spent a lot of money on them, or if they've "done stuff" with other guys. We're
> far from "rape = crime" for a lot of people.

Why no. Happily we're still some distance from seeing vague notions like "pressure" as fully equivalent to forcible rape, because it isn't. Victim: "He took me to such an expensive restaurant that I felt pressured. That's rape." DA: "Put the cuffs on 'im, boys."


> It's not to outlaw drunken sex. It's to specify a rule of evidence that can be used to
> prove the element of "no consent" in a rape trial.

It's a rule of evidence that will be used to manufacture the element of "no consent" to achieve a given government-mandated conviction rate. It's just like cops having to meet ticket quotas, only it destroys lives.
posted by jfuller at 8:34 AM on December 29, 2006


In other words, if you rape a drunk woman, the rule circumvents the 'he said / she said' part of the trial where the (alleged, of course) rapist argues that she wanted it and the rapee says the didn't. The prosecutors can introduce her drunkenness as evidence that she didn't consent, because she couldn't.

So a woman can get passed the awkward he said/she said impasse by getting drunk after sex and stating she was raped. Get to the trial and she has 'evidence' on her side instead of just her testimony.

Do you not see the weakness in using alcohol as 'evidence of rape'?
posted by FieldingGoodney at 8:37 AM on December 29, 2006



That's why I love living far far away from the west.


Please tell me where this wonderland of gender equality you've found is. I'm presuming you're not speaking of England.

The "pseudo-intellectualism" you're referring here is to the legislation and the protection of rights. If you've got the "ultimate truth" or whatever, please let our leaders and our philosophers know... I'm sure they're all sick of wasting their breath fighting for the perverted cause of trying to inch toward a more harmonious and egalitarian society.
posted by eparchos at 8:40 AM on December 29, 2006


The next generation is filled with boys and girls who still think it's okay to pressure someone into sex if she flirted with you, if you spent a lot of money on them, or if they've "done stuff" with other guys.

If you want to expand the rape definition to that extent, you will see a lot of male victims of rape in the future. I know a lot of girls come on strong to guys at nightclubs for the explict purpose of a one night stand. This is certainly pressuring a person into sex.

Frankly, your view of rape is fucking ridiculous (pun intended).
posted by FieldingGoodney at 8:46 AM on December 29, 2006


I'm presuming you're not speaking of England.

OK, updated my profile.

I live in Thailand. And I don't want to know about your preconceived ideas about this country based on some pollitcally correct paper you've read. Save it for another thread.

My original statement was commentary on how downhill England is going with crazy legislation that can easily be abused by those who want to.
posted by FieldingGoodney at 8:56 AM on December 29, 2006


The real issue here is whether the societal problem of women framing men is worse than the problem of rapists getting off (bad pun) because the prosecution can't prove the consent element.

Or more generally, the issue is whether it's worse to convict some innocent people or let some guilty people go free (unless, like ob, you have magical foresight that the former will never happen).

Is rape a special case where a few wrongful convictions are acceptable, or are you arguing for the general principle that a wrongful conviction here and there is a worthwhile price?
posted by Armitage Shanks at 9:02 AM on December 29, 2006


So a woman can get passed the awkward he said/she said impasse by getting drunk after sex and stating she was raped. Get to the trial and she has 'evidence' on her side instead of just her testimony.

Do you not see the weakness in using alcohol as 'evidence of rape'?


It's not. It's using alcohol as evidence to support the contention of a the 'no consent' element of the rape charge. I recognize this may seem a fine distinction to draw, but I assure you it has real legal import. Besides, this all presupposes your answer to the question I posed above, which I'll happily quote myself on:
[Is] the societal problem of women framing men ... worse than the problem of rapists getting off (bad pun) because the prosecution can't prove the consent element[?]
I think that the idea that there are large numbers of vindictive women who are willing to lie to drag innocent men through the court system is a dangerous and misogynist canard. Yes, you may be able to cite an anecdote or two, but I will bet my eyeteeth that there is a far, far greater incidence of rapes being unprosecuted or unconvicted due to lack of evidence on this point.
posted by norm at 9:05 AM on December 29, 2006


Is rape a special case where a few wrongful convictions are acceptable, or are you arguing for the general principle that a wrongful conviction here and there is a worthwhile price?

Most rules of evidence make the exact same kind of balancing that I'm referring to here, considering the risk of prejudice versus the risk of useful evidence being excluded. Here's an example. In most states, the refusal to submit to a breath alcohol test is either a) an independent charge or b) evidence that may be used in trial to prove the 'intoxicated' element of a DUI case. There's not much of an outcry about these "implied consent" laws-- what's so terrible about an "implied unconsent" law?
posted by norm at 9:13 AM on December 29, 2006


Eventually, all sex will simply be negotiated by agents and lawyers, just to avoid this crap.

I'm beginning to this overregulation of sexuality is being furthered mainly by people who never get laid and don't want anyone else to either.
posted by jonmc at 9:20 AM on December 29, 2006


I think that the idea that there are large numbers of vindictive women who are willing to lie to drag innocent men through the court system is a dangerous and misogynist canard. Yes, you may be able to cite an anecdote or two, but I will bet my eyeteeth that there is a far, far greater incidence of rapes being unprosecuted or unconvicted due to lack of evidence on this point.

Abso-bloody-lutely seconded.
posted by chill at 9:21 AM on December 29, 2006 [1 favorite]


and norm, 'pressuring' someone into sex? what exactly does that mean? saying 'you'd do it if you loved me?' what? It sounds like a loaded definition designed to pump up statistics and create a climate of fear.
posted by jonmc at 9:21 AM on December 29, 2006


> Do you not see the weakness in using alcohol as 'evidence of rape'?
>
> It's not. It's using alcohol as evidence to support the contention of a the 'no consent' element of the rape charge.

A distinction without a difference. Anthing that supports an element of the charge supports the charge.


> I think that the idea that there are large numbers of vindictive women who are willing
> to lie to drag innocent men through the court system is a dangerous and misogynist canard.

That's not the proposition. The proposition is that there are large numbers of women who feel used and ambivalent after sex, and they are now increasingly encouraged think of this as being fully equivalent to old-fashioned forcible rape. And increasingly the law, being (as is well known) politics-based rather than justice-based, concurs.
posted by jfuller at 9:22 AM on December 29, 2006 [1 favorite]


I think that the idea that there are large numbers of vindictive women who are willing to lie to drag innocent men through the court system is a dangerous and misogynist canard.

Yes, because women are wonderful, pure beings made of sugar and light who would never dream of doing anything vindictive or cruel. And men of course are noting but icky, sex-crazed beasts who women must be sheilded from, lest their purity be soiled. Come on.

The actual numbers don't matter. The simple fact is that there's a lot of potential for abuse here.
posted by jonmc at 9:29 AM on December 29, 2006 [1 favorite]


I don't have any idea what percentage of women falsely accuse men of raping them. I don't even know how likely a woman is to be raped.

But it does seem self-evident that trying to determine whether or not informed consent was given is likely to be a futile exercise in most cases. Unless there is evidence of violent penetration, it's going to come down to two different people with different recollections of the same event.

Rape conviction rates SHOULD be low, because conviction should require proof of guilt, and non-violent rape is almost impossible to prove.

That's the real reason rape conviction rates are low compared to other crimes; it's not some gigantic male conspiracy; it's simply that in most cases the crime leaves no meaningful evidence behind.

In the absence of proof of guilt, the accused must be found innocent. This is absolute and non-negotiable in Western systems of justice.

It is better for ten men to "get away with it" than for one man to be falsely convicted. I'm sorry if that raises your hackles of feminist outrage; but that's the same standard that applies to all crimes.

And for what it's worth, I think the consequences to a man of being falsely convicted of rape are very much more severe than the consequences to a woman of being the victim of non-violent rape.
posted by thparkth at 9:35 AM on December 29, 2006


It's not. It's using alcohol as evidence to support the contention of a the 'no consent' element of the rape charge.

Umm, this doesn't mean anything in regards to the reality of being able to fabricate 'evidence' against someone you accuse of rape. It's been pointed out several times in this thread how easy it would be to do with this new law.

...but I will bet my eyeteeth that there is a far, far greater incidence of rapes being unprosecuted or unconvicted due to lack of evidence on this point.

Well you can keep your eyeteeth. Opinions on this are rather futile and can lead to 500+ threads of wasted time.

I think that the idea that there are large numbers of vindictive women who are willing to lie to drag innocent men through the court system is a dangerous and misogynist canard

I don't think it's naive to think false accusations exist and that some women have a motivation to make them. I think this is just a reflection of reality. It doesn't mean somebody hates all women to think some women are capable of doing this.
posted by FieldingGoodney at 9:36 AM on December 29, 2006


It doesn't mean somebody hates all women to think some women are capable of doing this.

FieldingGoodney: didn't you get the new guidebook, criticizing anything at all about feminism (if your a man) automatically makes you a misogynist. It's right there next to 'every man is a pontetial rapist.'
posted by jonmc at 9:39 AM on December 29, 2006


Every time anything related to feminism, patriarchy, etc. comes up, I like Metafilter a little less. The overall thoughtful tone takes a sudden nosedive (with some notable exceptions, of course).

I don't know if there are a lot of men here who are open-minded about everything except real gender equality, or it's just that these are the threads that the self-satisfied chauvinists come out of the woodwork to post in or what, but the glib comments, callous jokes and zero-sum "men's rights" bullshit are all really stomach-turning.

Can anyone really truly say we're going to see a sudden spike in wrongful convictions when across North America there's already an overwhelming deficit in rightful convictions when it comes to sexual assault? Any man who honestly feels he has something to fear from this sort of law is someone who I think the rest of us have something to fear from.
posted by poweredbybeard at 9:39 AM on December 29, 2006 [8 favorites]


I don't know if there are a lot of men here who are open-minded about everything except real gender equality, or it's just that these are the threads that the self-satisfied chauvinists come out of the woodwork to post in or what, but the glib comments, callous jokes and zero-sum "men's rights" bullshit are all really stomach-turning.

Please. Any response short of 'what a swell idea!' would be considered misogynist by many here.
posted by jonmc at 9:40 AM on December 29, 2006


And I don't want to know about your preconceived ideas about this country based on some pollitcally correct paper you've read.

Right, so a recently-feudal patriarchy which is working its way slowly out of their past is your example of gender eqality.... natch. Preconceived? Call it that if you will, but the "politically correct papers" that I've read are things like this(pdf).
Not to mention these.
My favorite bit from that last link is this: "...a husband may not be prosecuted for spousal rape."
posted by eparchos at 9:46 AM on December 29, 2006


You're comparing the individual use of an inanimate object to an outside party manipulating an intoxicated person.

Sometimes, both. But please leave my wife out of this.
posted by hal9k at 9:47 AM on December 29, 2006


Can anyone really truly say we're going to see a sudden spike in wrongful convictions when across North America

This discussion would be about an English law, nice to see you are well versed in what you're commenting on though.

Any man who honestly feels he has something to fear from this sort of law is someone who I think the rest of us have something to fear from

I know i have nothing to fear from this law, i'm in a long term, committed relationship with a woman i trust. And even if i wasn't im too socially retarded to pick up a woman in a bar, doesn't matter how drunk she is, they can smell fear.

That doesn't mean i can't see this potential law for what it is, a PR stunt with a massive downside in terms of potential for abuse.

And considering this (UK) governments habit of writing shitty laws and then abusing them, thats not something i look forward to.
posted by Reggie Knoble at 9:49 AM on December 29, 2006


FieldingGoodney:
Re: my last post.
Sorry, I actually defer to the opinion of someone who lives in a country rather than to my own notions, but ALL of the data which I have seen on the subject of Thailand and women's rights have been pretty negative compared to most countries in the West (with the glaring exception of my own). I understand two things which I rather disingenuously failed to make clear in that response for those who don't bother to go through all the links. One, Thailand is a pretty stellar human rights performer for Southeast Asia, commonly referred to regionally as a paradigm. Two, Thai Buddhism is a very fatalist philosophy, and many people are content with what anyone else would consider a horrible lot.
Sorry I didn't put this in that response, I got an itchy "post" finger.
posted by eparchos at 9:56 AM on December 29, 2006


FieldingGoodney: didn't you get the new guidebook, criticizing anything at all about feminism (if your a man) automatically makes you a misogynist. It's right there next to 'every man is a pontetial rapist.'

Yeah I have to admit I did get the guidebook. I also attended the lecture, and watched the video. I'm still suffering from a kind of cognitive dissonance though - I still don't believe it makes me a misogynist. Guess I'll have to watch that video one more time.
posted by FieldingGoodney at 9:58 AM on December 29, 2006


Does this mean, therefore, that it is impossible for a woman to rape another woman? Don't be so asinine. Rape means sexual assault, of which penetration may or may not be a component.

I had the same reaction you did so I looked it up. In England there are three definitions, one for rape (penile penetration), sexual assault (not gender specific) and assault by penetration (also not gender specific). I much prefer Canada's definition, it's not sexist and doesn't require a penis to be sexual assault.
posted by squeak at 10:07 AM on December 29, 2006


This thread in a nutshell:

jonmc: The actual numbers don't matter.

thparkth: I don't have any idea what percentage of women falsely accuse men of raping them. I don't even know how likely a woman is to be raped.

People with the least information and smallest commitment to getting accurate data to address a serious social problem have the loudest voice. I second poweredbybeard's opening sentiment. Every time we talk about rape, I feel that Metafilter as a whole is unable to reach a level of sustained informed discourse and becomes the kind of angry rmabling I associate with Freepers.

And I always bet on who will be the first to use Catherine MacKinnon in a misguided attempt to undermine some vague notion of feminism. Congrats jfuller!
posted by allen.spaulding at 10:11 AM on December 29, 2006


hal9k & eparchos, there's rather a lot to like about Thailand, particularly family life, despite what you may read. I rely on my experiences more than reading academic papers. OK, we choose different sources to form our opinion about a country - although when you finish reading your article, I am still living here. Interesting you criticise Buddhism, but this thread is not about where I live or Buddhism.
posted by FieldingGoodney at 10:11 AM on December 29, 2006


...but this thread is not about where I live or Buddhism.
You're right, it isn't.
Actually I form my opinions an every country based on two things: Reading and experience. In the absence of experience, all I can do is rely upon reading. However, I have found that I'm pretty good at finding out what my impression of a place will be by reading a lot about it before I go there. It worked for me in several South American countries, several Central Asian countries, and in a couple Scandinavian countries. It also has worked for me for my own country. There's plenty of data out there, all it takes is some sifting.
posted by eparchos at 10:17 AM on December 29, 2006


Every time we talk about rape, I feel that Metafilter as a whole is unable to reach a level of sustained informed discourse and becomes the kind of angry rmabling I associate with Freepers.

allen.spaulding, the very same who questioned the DNA evidence in the Duke 'rape' case.
posted by FieldingGoodney at 10:19 AM on December 29, 2006


I guess I am confused. Is this law saying that a women, if she is intoxicated, is rendered to be the equivalent of an insane person or a child, where they cannot be considered to be responsible for their actions, and cannot give meaningful consent? Because, if that's the case, how can you prosecute a man, if he was also drunk, because, by the same standard, he is not responsible for his actions?

So we find ourselves in a situation when no always means no, but yes only means yes if it is under optimal circumstances? I don't know -- if I were a woman, I would not want my ability to say yes, even if intoxicated, to ever be defined as infantile or insane.
posted by Astro Zombie at 10:20 AM on December 29, 2006 [1 favorite]


The vibe I'm feeling from the opposition side is "Wait, so if I hit you with my car and I'm drunk, I get my ass handed to me, but if you have sex with me and you're drunk, I can still get my ass handed to me?"

Is this law saying that a women, if she is intoxicated, is rendered to be the equivalent of an insane person or a child, where they cannot be considered to be responsible for their actions

Back in the day, people of both genders used to acceptably excuse themselves all sorts of crimes and general "bad behavior" by invoking intoxication. Sure I drove drunk, but hey I didn't know any better... I was drunk, har har. Yeah I had sex with that guy but hey... I was outta my mind so it doesn't count, har har.

Maybe a better law would define a condition such as unconciousness or inability to communicate and leave alcohol out of it.
posted by scheptech at 10:23 AM on December 29, 2006


Actually I form my opinions an every country based on two things: Reading and experience. In the absence of experience, all I can do is rely upon reading. However, I have found that I'm pretty good at finding out what my impression of a place will be by reading a lot about it before I go there. It worked for me in several South American countries, several Central Asian countries, and in a couple Scandinavian countries. It also has worked for me for my own country. There's plenty of data out there, all it takes is some sifting.

Looks like you'll be giving Thailand a miss then.....
posted by FieldingGoodney at 10:25 AM on December 29, 2006


This law effectively relieves women of their responsibility if they are drunk. It could also set a precedent - if you're drunk then you are not responsible for your actions: "Honest Judge, I was absolutely out of my box when I stabbed that guy."

Some time ago, there was some research into date rape (in the UK) and it was discovered that in 95% of the cases the women were not drugged - but had "life-threatening levels of alcohol" in their blood.

This proposed law is well intentioned - but dumb. I have two daughters - who take responsibility for themselves and don't get into drunken stupors when they go out.

And am I the only person worried about the motivation for this law - "to increase the conviction rate"?
posted by bobbyelliott at 10:25 AM on December 29, 2006


How 'bout if she just shot up heroin?

Just asking.
posted by Football Bat at 10:28 AM on December 29, 2006


I've been lurking on MetaFilter for a couple of years and don't think I've ever seen such a level woman-hating here. Sheesh, fellas, what's so difficult about being careful about where you stick your penis, who you stick it into, and what the circumstances are surrounding the sticking?

And someone please tell me I'm not reading here that some people believe "non-violent" and "non-forcible" rape are not really as bad as the violent and forcible kind? As if...
posted by fuse theorem at 10:29 AM on December 29, 2006 [1 favorite]


We don't hate women, we just love drunk sex.
posted by Astro Zombie at 10:31 AM on December 29, 2006


> Any man who honestly feels he has something to fear from this sort of law is someone who I
> think the rest of us have something to fear from

Oah Yasss. And if you're worried about government surveillance that means you must have something to hide. This thread reeks of the presumption of guilt.


> Metafilter as a whole is unable to reach a level of sustained informed discourse

Metafilter: as a whole, unable to reach alan.spaulding's level of sustained informed discourse

> And I always bet on who will be the first to use Catherine MacKinnon in a misguided attempt to undermine some vague notion of feminism.

CathArine. Tell me more about that committment to accuracy of yours.
posted by jfuller at 10:33 AM on December 29, 2006


People with the least information and smallest commitment to getting accurate data to address a serious social problem have the loudest voice. I second poweredbybeard's opening sentiment. Every time we talk about rape, I feel that Metafilter as a whole is unable to reach a level of sustained informed discourse and becomes the kind of angry rmabling I associate with Freepers.

I'm sorry? I don't know what kind of bar you're setting, allen.spaulding, but I'd say things have been kept downright civil, considering the volume with which folks are making wholly ridiculous assertions.

poweredbybeard said it himself--what we're striving to do is establish gender equality legislatively. You don't achieve gender equality by propping up one end of things with lopsided rules that fail to apply equal protection under the law. Enacting asinine rules under that guise leads to pretty widespread discontent, be it with affirmative action policies that make no goddamn sense or anti-sexual-assault laws that establish different standards for men than for women. You can make arguments in favor of either, certainly, but you're undermining your own set of principles in doing so. And you're alienating the margin (in this case, most men) by advocating for a bizarre double standard.

Calling out the left-leaning voices of Metafilter for not being sufficiently sympathetic is an equal waste of time, because we agree with your principles: rape bad, equality good. I'm honestly bewildered by the cries of "misogyny!" being hurled around here; we (or at least I, since I can't speak for anyone else here) just think that establishing laws that are ripe for abuse and founded on illogical principles is probably not the best way to get things done.
posted by Mayor West at 10:35 AM on December 29, 2006


Sheesh, fellas, what's so difficult about being careful about where you stick your penis, who you stick it into, and what the circumstances are surrounding the sticking?

Seriously though ladies, whats so difficult about not getting so drunk that you have no idea where you are and what you are doing?

Some people see woman hating far too easily. I just think that the government making this law cannot be trusted and that drunk people (of any and all genders) need to take some responsibility.

If we are only talking about unconcious drunk thats one thing but making a pissed up mistake is not something other people should go to prison for.

You didn't mean to fuck that guy? I didn't mean to buy a round for my entire pub, i somehow doubt that i'm ever getting the barman sent down for theft.
posted by Reggie Knoble at 10:36 AM on December 29, 2006


> someone please tell me I'm not reading here that some people believe "non-violent" and "non-forcible"
> rape are not really as bad as the violent and forcible kind?

Can you provide some examples of non-violent, non-forcible rape, so we'll know what sort of thing you're talking about?
posted by jfuller at 10:37 AM on December 29, 2006


Firstly, you people and your car analogies. People are found liable for drunk driving because they recklessly chose to put themselves in a position where they could cause harm to another person. This is why it's illegal to drink and drive even if you don't hit anyone, which could seem to be a victimless crime in some light. When you drink at a bar without the intent to drive, or drink at home, or when someone spikes your drink before you go driving without you knowing, then you are not putting any additional person at risk. People should not drink to the point where they lose the ability to consent, but unless there's a risk to a second-party, there's no equating it with drunk driving.

And secondly, FieldingGoodney, I see you were unable to defend your points in that other thread so you're taking the vendetta here. In that post, I was showing why it was foolish to trust everything we read about evidence before it is entered into a trial and how it would be possible for there to be alternate scenarios that were explored in a courtroom. If you read the next post, I take this to an even more extreme situation. I was not questioning that specific data, I was pointing out that those who are intellectually lazy and form snap-judgments without bothering to learn the basics of the situation and the research surrounding the questions, well, they're not worth arguing with in this situation, now are they?
posted by allen.spaulding at 10:40 AM on December 29, 2006


Firstly, you people and your car analogies.

i've got a train analogy for this thread, if you're interested

(and, yes, you're one of many reasons for that)

feh
posted by pyramid termite at 10:43 AM on December 29, 2006


Of this thread can inspire a flame out, it will all have been worthwhile.
posted by Astro Zombie at 10:45 AM on December 29, 2006


Of this thread can inspire a flame out, it will all have been worthwhile.

I had a friend in college who was accused of flaming out and it ruined his life so everything you know about flaiming out is wrong and so are the statistics and facts.
posted by allen.spaulding at 10:48 AM on December 29, 2006 [1 favorite]


well, allen, at least this time, you've managed to be brief
posted by pyramid termite at 10:53 AM on December 29, 2006


Guilty as charged.
posted by allen.spaulding at 10:56 AM on December 29, 2006


Looks like you'll be giving Thailand a miss then.....

Care to make a valid point any time soon? Perhaps address an actual issue? Or is ad hominem part of that magical wisdom which equates to 29.9% of women being raped in your beloved offshore brothel?
You jump in this thread with a "My lord, you sad, sad westerners and your pathetic arguments about gender relations." and then you get on my case for questioning the validity of your Ivory Tower?
Enjoy your cognitive dissonance, I'll be over here in reality.
posted by eparchos at 11:06 AM on December 29, 2006


Okay, so in college I was with a woman who was blasted (and so was I) and I started groping her and she at first responded with pleasure (she was wet, e.g.), but then started saying, in an agitated way, "No. Protection, protection." This last I took to mean, "use a condom."

I stopped, because I realized she wasn't really interested in me, just trying to be accommodating in her drunken state. But would I have been guilty of rape under this law had I whipped out my Trojan and done the deed?
posted by Mental Wimp at 11:07 AM on December 29, 2006


...being the victim of non-violent rape.

thparkth, please define "non-violent rape". Are you trying to say that if someone gently and sensitively sticks their penis (or a broomstick, to be non-gender specific), into some unresponsive human being's orifice, there's no violence involved?
posted by oneirodynia at 11:08 AM on December 29, 2006


Can you provide some examples of non-violent, non-forcible rape, so we'll know what sort of thing you're talking about?

I think this might be the kind of thing people have in mind. (Dan Savage column, first letter.)
posted by escabeche at 11:10 AM on December 29, 2006


jfuller

Statutory rapes are often non-violent and non-forcible. More to the point here, any time a woman says no and means it is rape, so if you decide to proceed under those circumstances, even if you don't need force or violence, that'd be rape.
posted by Mental Wimp at 11:12 AM on December 29, 2006


Did anyone else think this post really sucked? It's a single link to a hysterical article posted by someone who admittedly has a major axe to grind on the subject. With plenty of illiterate, ranting follow-ups. Aren't we supposed to be better than this?

Also, did any of you guys ever consider how humiliating it is for a woman to come forward about being raped? I mean, it's not like getting your bike stolen or something. I really can't imagine there are that many women who would want to draw that kind of attention to themselves just because they regretted sleeping with some dude the morning after. Maybe I'm just a wallflower that way though.
posted by 912 Greens at 11:16 AM on December 29, 2006


But we're potentially not discussing rape here; we're discussing consentual sex being redefined as rape because of an unsopported theory that women can't be drunk and meaningfully consent to sex. If the woman is drunk and unconscious, fine, yes, it's rape, and should be prosecuted, but that doesn't seem to be the crux of the conversation.
posted by Astro Zombie at 11:20 AM on December 29, 2006


Also, did any of you guys ever consider how humiliating it is for a woman to come forward about being raped?

Isn't one of the statistics being thrown around that false reporting for rape is the same as other crimes? So there are just as many crackpots making up stories about rape as for other crimes.

For my part this is simply about being fair in our justice system. Meddling with the burden of proof for different crimes to "boost conviction rates" doesn't sit right with me.

The use of drinking here seems to provide a shortcut straight to conviction anytime an accusation is made and a blood test shows a certain amount of liqour has been consumed.

Just doesn't seem right.
posted by Reggie Knoble at 11:24 AM on December 29, 2006


Did anyone else think this post really sucked?

yes ... above, i pointed out the article (or the law) seemed to be badly written to the point where we can't be sure what this proposed law really means

but people seem very eager to not only tell us what it means but why their assumptions about that piss them off or please them

not only that but either the west or thailand sucks ... you're the jury ... YOU decide!
posted by pyramid termite at 11:26 AM on December 29, 2006


scheptech: Maybe a better law would define a condition such as unconsciousness or inability to communicate and leave alcohol out of it.

Best Idea in the whole thread.
posted by IronWolve at 11:41 AM on December 29, 2006


The source of the problem was a case in which a young womean claimed to have been raped, the man claimed there was consent, and then, under questioning the woman admitted she had been so drunk she didn't remember whether she had consented or not. This is a bad law designed to respond to the failings of a bad case.
posted by Astro Zombie at 11:48 AM on December 29, 2006


The source of the problem was a case in which a young womean claimed to have been raped, the man claimed there was consent, and then, under questioning the woman admitted she had been so drunk she didn't remember whether she had consented or not.

Actually, under questioning it was found that she was unconscious and didn't know the man who raped her. However, since she was unconscious outside of her apartment instead of inside on her bed, the judge instructed the jury to assume she could have consented.

In other words, this was the "in the dark alley" form of rape that was condoned because she wasn't capable (i.e. unconscious) of saying no.

In other words, drug a woman or find her drugged and legally she's consented to anything anyone does to her, based on that case. We're not talking about something a woman did, such as in the "drunk driving" example above; we are talking abound something done to her.

She was drunk. People did things to her. According to what many of you are saying, she is responsible for being raped because she was unconscious due to drinking. The rapist, of course, holds no responsibility; I mean, who doesn't have sex with strangers lying in hallways unconscious?
posted by Deoridhe at 12:31 PM on December 29, 2006


I don't like the way this law sounds, mainly because it doesn't seem to take into account different people's tolerance for alcohol. I've known some women who could drink staggeringly large amounts and still be able to function OK, a lot better than I would be able to if I'd drunk the same amount. There's no way to measure that, so any formula to determine how drunk she was seems inherently unfair.

Still, I don't think it's necessarily a bad thing for guys to have some fears about what might happen to them as a result of drunken hookups. If fear stops a guy from moving in on that obviously plastered girl at last call, or from intentionally feeding a woman shot after shot until she is too drunk to think straight, the world might be a better place.

I doubt such fears will result in the end of drunk sex. Women have faced fears of what a man might do to them when they are alone for a lot longer than men have faced fears of false rape allegations, yet drunken hookups continue. If she can risk torture and death to be with you, can't you risk a little jail time?
posted by InfidelZombie at 12:32 PM on December 29, 2006


Well, that does change things. But this law does nonetheless seem an ineffective response to the problesm with prosecuting this case.
posted by Astro Zombie at 12:33 PM on December 29, 2006


so remember guys, stay away from the drunks, hit up those with down syndrome.
posted by jcterminal at 12:37 PM on December 29, 2006


Jimmy Buffett’s career plummets.
Well, he’s still got “Cheeseburger in Paradise” I guess.


“Oh, I’m so drunk...that wine went straight to my head. I could do any sort of crazy thing tonight...”
“Really? Well, I can’t touch you then.”
“Oh...well, I’m not that drunk...”

I’m curious about a nuance ewkpates , et.al brought up regarding drunkenness and responsibility.
If my daughter gets drunk (when she’s 21) and some guy attempts to rape her and she very seriously injures him, is it self defense?
You see, if she’s drunk, it’s attempted rape, because she couldn’t give consent, therefore it’s self-defense - however she’s also not in control of her faculties and is liable for the damage she’s done. Also how does she know - from a legal perspective being that she was drunk - the guy’s intent was to rape her?
I’m pretty much with jessamyn (way back), but it occurs to me that there would have to be some reasonable parity in self-defense laws.
I’d rather have my kid not be raped in the first place than make sure the guy who did got sent to jail.
I like scheptech’s idea, leave alcohol out of the equation.
posted by Smedleyman at 12:59 PM on December 29, 2006


Re: non-violent rape


Pretty easy oneirodynia, it's non-violent rape if sexual intercourse occurs in the normal way, without any violence or use of force, but without legally competent consent.

Like, for example, getting drunk and waking up naked in a stranger's bed the next morning.
posted by thparkth at 1:04 PM on December 29, 2006


Having morning after regrets make the other party a rapist? What if they're waking up to a stranger in their bed?
posted by Snyder at 1:11 PM on December 29, 2006


According to what many of you are saying, she is responsible for being raped because she was unconscious due to drinking. The rapist, of course, holds no responsibility; I mean, who doesn't have sex with strangers lying in hallways unconscious?

no one said that. they did say that unconsciousness or inability to communicate would be a better condition to have in law, as oppossed to alcholo consumption or simple inebriation, but don't let that get in your way.
posted by Snyder at 1:15 PM on December 29, 2006


> Like, for example, getting drunk and waking up naked in a stranger's bed the next morning.

Ah. Well, if somebody dragged you there while you were unconscious, that clearly meets the "forcible" criterion.

But if you're an adult and you got smashed voluntarily and went to this stranger's bed under your own steam, then no, this isn't rape--if there's only one degree of rape. I'm prepared to call it rape, of a sort, if you're prepared to grant that there are degrees of rape and this isn't a particularly heinous one, not remotely comparable to getting dragged into the bushes and raped at knifepoint. Both parties here deserve fucking tickets, the minor kind you can pay at the kiosk that says "Pay parking and fucking tickets here."

If you can't remember whether you got there on your own or were dragged there, then you may not cry rape, even if the Recording Angel knows that's what it was, because an accusation this serious must be made honestly and truthfully and you can only make honest and truthful accusations about things you remember and remember clearly.
posted by jfuller at 1:32 PM on December 29, 2006


I'm always shocked at how quickly defensiveness overwhelms reasonable discourse when it comes to non consensual sex between men and women.
posted by cytherea at 2:02 PM on December 29, 2006


More to the point here, any time a woman says no and means it is rape, so if you decide to proceed under those circumstances, even if you don't need force or violence, that'd be rape.

Sometimes the woman (or girl, in my case) is so freaked out by the situation that she doesn't fight, so only the force required to rip a hymen is required (or less if that's not necessary).

I wouldn't call it "violent" but I certanly didn't consent.

(And no, I made no fuss about it then or later).

The paranoia of guys terrified of being falsely accused displayed here I find risible. If you're so terrified, then get written consent (notarized would be even better). If she won't do that, then maybe she's just not that into you.

I dunno, it just kind of creeps me out, that whole mindset. How dare anything interfere with your pressuring drunk women to fuck you, eh?

If you need pressure to do it then imho you don't deserve it. But whatever, that's tangential so I'll shut up.
posted by beth at 2:05 PM on December 29, 2006


Well, with a blanket law like this, of course it will be easy to serve up a numerous amount of counter examples which make the law look ridiculous. On the other side, I think the case of the security guard is quite shocking. I think that example makes a claim about a bigger issue that needs to be dealt with a law like this one, and some major fine tuning.

That being said, when my idiot drunk roomate breaks his cellphone, sets his shoe on fire, bumps his head and then wakes up and complains about it, i have no sympathy. We are all adults, and we all know how alcohol works. Its not "i accidentially got to drunk to control myself", its "I put caution to the wind."
posted by Kudos at 2:27 PM on December 29, 2006


If you need pressure to do it then imho you don't deserve it. But whatever, that's tangential so I'll shut up.

Deserving sex? Sorry, but have you ever had anything to do with heterosexual attraction? It’s a matter of whims, caprice, the stupidest tiny things. Not deserving, not fairness, not anything sensible.

I don’t mean to say that pressuring anyone into sex is a particularly great idea. I do mean to say that the more I read from many women on line, the more interest I have in staying in nights.
posted by Aidan Kehoe at 2:31 PM on December 29, 2006


According to what many of you are saying, she is responsible for being raped because she was unconscious due to drinking.

The law is not capable of solving all mysteries and knows it. That's why, in the face of insufficient evidence to convict it opts to not convict, in rape or any other criminal case. It's not about assigning responsibility to her or promoting rape or pressuring women into sex. It's a legal issue related to protecting basic liberty for anyone, male or female, charged with a criminal offence of any kind. Reasonable doubt means more than an accusation is required. The new law wants to remedy that by taking samples up to 24 to 72 hours after an alleged incident to assess mental competence, and then assume guilt based on an assumed state of incompetence. It's an assumption pile. Assume the alcohol reading doesn't reflect any further intake since the incident, assume the reading is one which indicates this particular person was incompetent to decide whether to have sex or not, assume her decision was not, and assume she communicated that to the defendent. In doing so the legal system would be overreaching, going well beyond it's ability to reliably determine what really happened.
posted by scheptech at 2:36 PM on December 29, 2006


I agree that the tags certainly show a deplorable mind-set on the part of the poster.

Two anecdotes (useful only as such):

Many women I've dated had been raped before. In each case it was someone they knew in a social situation (some variant of "date rape"). In each case there was some alcohol involved, but in each case at a certain point they tried to leave and were physically overpowered.

Not one of these half-a-dozen or so rapists was ever punished for anything -- because the rape wasn't reported, or because there simply wasn't enough evidence. (My tone is a little dispassionate, but I wasn't at the time. I considered killing one of them but I never found out who he was and I probably wouldn't have gone through with it.)

So I frankly think that anything that clarifies and strengthens the rape laws is a good idea. Sure, there are people who are wrongfully convicted of rape but my guess is that this is less than 1% of the number of rapists who get away with it.


On the other hand, a friend of mine (heh, on MeFi now!) went out to a friend's office party, got very drunk, and ended up going home with one drunken girl: the next morning she wakes up beside him, leaps out of bed naked and says, "Who are you? How the fuck did you get in here?"

She was talking about pressing charges but it petered out -- quite probably because they'd been all over each other at the party in front of everyone. But my friend was pretty freaked out (and there's no question in my mind that he'd been completely ethical....)
posted by lupus_yonderboy at 2:38 PM on December 29, 2006


Like, for example, getting drunk and waking up naked in a stranger's bed the next morning.

In that case, I have been raped a hell of a lot of times. Except that I haven't.

According to what many of you are saying, she is responsible for being raped because she was unconscious due to drinking.

Um, no, but a really nice strawman that is there. Fucking an unconscious person (unless they have clearly told you ahead of time that they want you to do that very specific thing) is clearly rape.

What people are actually saying--it would behoove you to read what people write, instead of deciding what you want them to have said--is that the idea of inebriation automatically removing consent is an idea that is open to massive and widespread abuse. Especially when the stated goal of the law is to provide more convictions. Please note that the goal is not to 'ensure justice is done,' or 'make sure that people who are committing rape can't get away with it', but to simply increase conviction rates.
posted by dirtynumbangelboy at 2:41 PM on December 29, 2006


As with all rules of evidence, this one has consequences that may not seem that great. For example, the rule of evidence banning most hearsay has the unfortunate effect of excluding evidence that could convict guilty people. The current rule of evidence that the UK has in effect-- that you have to prove that there was no consent-- has the effect of making it exceedingly difficult to convict guilty people.

This rule shifts the presumption on an element of the crime to make it easier to convict rapists. The rather hysterical (ha!) fear that this will lead to widespread persecution of well-meaning male pursuers of drunk women is just bizarre.

I am not accusing anyone in here of misogyny, but I am saying that the current rape laws in the UK (which are pretty close to most US laws) are a product of a patriarchal system that makes it easy to get away with violence against women. To the extent that such a rule of evidence does something to fix that I think it's a great idea.

If it means that some drunk cads miss out on some questionable sex, oh well. Maybe you should be more discerning about your partners. Why would you sleep with a woman that you fear might go to the police about you? Is this a reasonable fear? And I still haven't seen any evidence to suggest that the adoption of such a law will lead to a parade of tyrannical women out to get a ton(ne) of men by making up a rape charge to get an easy conviction. I mean, come on.
posted by norm at 2:41 PM on December 29, 2006


I'm sorry, but the "if you're not doing anything wrong, you have nothing to fear from this ill-made law that is wide open for abuse" doesn't fly anywhere else, why should we accept it here?

There area real reasons for not allowing hearsay, even though it makes a prosecutors job more difficult. Prosecuting should be difficult. This shift in law actually makes it possible to jail someone for having consensual sex, because it redefines that sex as rape. And how is that rape determined? By taking blood samples hours after the fact and then retrojecting the amount of alcohol back in time to determine if the person was drunk enough for consent not to be meaningful. I don't think it is hysterical to consider this a very bad move. You don't cure crime or punish criminals by creating bad laws.
posted by Astro Zombie at 2:51 PM on December 29, 2006


Having been harassment counselor for a large firm, I find that it's far more common for women who have been pressured or pawed to refuse to start proceedings--to refuse to do anything at all, including talk to me--about situations where alcohol has brought about nonconsensual fooling around, than to risk making it public. Accusing a man of rape is a good way to destroy yourself permanently, even if he did it.
posted by Peach at 3:06 PM on December 29, 2006


If you want to expand the rape definition to that extent, you will see a lot of male victims of rape in the future. I know a lot of girls come on strong to guys at nightclubs for the explict purpose of a one night stand. This is certainly pressuring a person into sex.

Frankly, your view of rape is fucking ridiculous (pun intended).


That wasn't my view of rape. That was me responding to above comment on how the world of sexual assault is hardly clear cut. Is that clear enough for you?
posted by liquorice at 3:28 PM on December 29, 2006


late to this thread, but:
having sex with an unconscious woman is rape.
having sex with a drunk woman who consents is not rape.
giving drunk women a special, protected status 1) demeans female equality, and 2) increases the risk of wrongful convictions.

the original poster seems to be leading with his chin instead of his brains on this issue.

if this law takes hold, it will create new opportunities for funny lines in bars "ma'am, i know you want to have sex with me, but i see you've had several drinks, howbout tomorrow night at my place?"
posted by bruce at 3:35 PM on December 29, 2006


> I dunno, it just kind of creeps me out, that whole mindset. How dare anything interfere with your
> pressuring drunk women to fuck you, eh?

Lots of us have a problem with "interfering" by calling it rape, a capital crime. It's equivalent to claiming that a guy who hits a girl has committed murder. It's equivalent to busting an old lady who brings scissors onto a plane and calling it terrorism. It's out of all proportion, and a perversion of the law. Perversions of the law are what's scary to me, because they tend to spread.
posted by jfuller at 4:02 PM on December 29, 2006


I don't see what personal liberty this endangers, though*. It makes it easier for a prosecutor to prove an element of a crime, like res ipsa loquitur or an implied consent law, as I argued earlier.

and by the way, this doesn't create a protected class for women or otherwise give them any special rights. really, this isn't about the women, and saying things like that just sound like a slightly glibber way of saying that "she dressed slutty so she deserved it" to my ear.

many laws may be misused or abused by prosecutors. This just doesn't strike me as awful as many of the evidentiary presumptions currently on the books. Consider the Felony Murder rules in many jurisdictions.

*if we're going to talk law, could we agree to use terms of art correctly? for example, rape is not a capital crime in either the US or UK.
posted by norm at 4:18 PM on December 29, 2006


Deserving sex? Sorry, but have you ever had anything to do with heterosexual attraction? It’s a matter of whims, caprice, the stupidest tiny things. Not deserving, not fairness, not anything sensible.

Yes, I have fucked quite a few men in quite a few different sorts of situations (and zero females). Yes, I know all about the whim-age, the caprice, etc. But you still don't get sex unless your partner determines that you deserve it (from them), by whatever standards (or lack thereof) they deem appropriate to bear on the question.

Unless you don't care about that sort of thing and just go for it regardless of what your partner wants or consents to.

I'm just some random crazy chick on the internet, don't let my personal opinion of the merit of your particular seduction attempt cockblock you in any way. Why do you care what I think anyway? Why are you so defensive? If the woman wants you and gives consent, I don't think there's anyone here, least of all me, who would say you should hold back.

I just find "pressure" unseemly. Persuade? Convince? Cajole? Coax? Seduce? None of these have the connotations (at least to me) that "pressure" does. Pressure implies a force mustered against a fundamental unwillingness. That's what irks me.

O great wise sir, how many times have you been pressured for sex? Repeatedly?
posted by beth at 5:50 PM on December 29, 2006


you still don't get sex unless your partner determines that you deserve it

or they've just decided they want to fuck somebody and you just happen to be the nearest halfway decent looking guy who didn't say or do anything stupid or disgusting. That's what 'deserving' often amounts to, if were being honest.
posted by jonmc at 6:10 PM on December 29, 2006


O great wise sir, how many times have you been pressured for sex?

This is where the differences in sex drives come in. A single heterosexual male dosen't require any 'pressure' or cajoling or whatever to consent to intercourse. If it's offered, we'll take it.
posted by jonmc at 6:12 PM on December 29, 2006


I've turned it down.
posted by Astro Zombie at 7:41 PM on December 29, 2006


Care to make a valid point any time soon? Perhaps address an actual issue? Or is ad hominem part of that magical wisdom which equates to 29.9% of women being raped in your beloved offshore brothel?

Like I say eparchos, with your rigorous intellectual reasoning and theoretical understanding, it looks like you'll be giving Thailand a miss.
posted by FieldingGoodney at 8:17 PM on December 29, 2006


I am not accusing anyone in here of misogyny, but I am saying that the current rape laws in the UK (which are pretty close to most US laws) are a product of a patriarchal system that makes it easy to get away with violence against women.

norm, have you heard of VAWA, the US's gender-specific set of domestic violence laws? Check out what the W stands for.

Oh, but hold on - it seems that men are just as likely to be victims of domestic violence, according to a number of recent surveys:-

------------------------
Men are More Likely Than Women to Be Victims in Dating Violence

Quote: A 32-nation study of violence against dating partners by university partners found that about a third had been violent, and most incidents of partner violence involve violence by both the man and woman, according to Murray Straus, founder and co-director of the Family Research Laboratory at the University of New Hampshire. The second largest category was couples where the female partner was the only one to carry about physical attacks, not the male partner.

Domestic violence isn’t one-sided

Quote: The reality, borne out by independent peer-reviewed studies as well as StatsCan, is that women commit more severe IPV (Intimate Partner Violence), and more IPV in general, than men. For all kinds of relationship types, females are unilaterally more violent than males to non-violent partners. More females strike first in IPV (men are conditioned not to strike first in our society) and, contradicting received wisdom, fear of their male partner is rarely a factor amongst violent women. Actually, both male and female victims of IPV report equal fear levels of “intimate terrorism”.

Family violence soars

Quote: When minor and major acts of violence were tallied, female-to-male violence accounted for 18.2 percent of overall violence and 7.5 percent of severe violence. Male-to-female violence accounted for 13.7 percent of overall violence and 8.6 percent of severe violence.
------------------------


Sorry, what were you saying about the patriarchal system that makes it easy to get away with violence against women? I'd say the opposite was more true - men are much less likely to report violence in the home - because there's little or no support for them.
posted by FieldingGoodney at 8:43 PM on December 29, 2006


She was drunk. People did things to her. According to what many of you are saying, she is responsible for being raped because she was unconscious due to drinking. The rapist, of course, holds no responsibility; I mean, who doesn't have sex with strangers lying in hallways unconscious?

Wow, are you seriously that bad at debating?
posted by oaf at 9:59 PM on December 29, 2006


O great wise sir, how many times have you been pressured for sex?

I've been pressured for sex several times. The most notable was a woman at my office several years and a couple of paygrades senior to me (but not supervisory to me), who knew I was living with a girlfriend. Sexual harassment - maybe mildly, anything more than that - definitely not. (I gave in - she was attractive and I was 24. But it definitely took some pressure on her part.)

Another was a woman (and, a cop in the sex crimes unit, ironically) I was trying to break up with, who just wanted one more go. (yep, gave in again - what's one last time gonna hurt?)

And once, a girl who was friends with my female roommate (and staying in her room, while she was out of the apt) took me to a party, where I got very high on hashish (and drinks), and we wound up in bed together. In this case, I would definitely NOT have consented to sex if I had not been high (no matter what jonmc said) , but I didn't consider myself unable to give consent. I just made an embarassingly bad decision. Should I have sent this girl to jail because she took the initiative with someone too high to resist?
posted by bashos_frog at 10:27 PM on December 29, 2006


On reflection, if the genders were reversed in my anecdotes, I probably could have gotten at least one indictment, maybe two.
But as they stand, the very idea is laughable.
posted by bashos_frog at 10:33 PM on December 29, 2006


Wow, a lot of people here just came out as closet self-hating misandrists. We're worried about some small number of women abusing this new potential device for falsely accusing somebody of rape, not worried about the whole gender suddenly backlashing against men.

Yes, quote your numbers. I guess women's 1.6% false accusation rate is essentially 0%?

Look, I know that on the whole, there are a lot more sex-crazed, predatory males then females, but that doesn't mean that a drunk woman should get some special protection of the law that doesn't apply to drunk men. If a woman shoves drinks in a man's face to the point where he is in a stupor, to get him to fuck her, paradigms aside, this law should make sure that is still considered rape, or it is sexist tripe.

Personally I think the whole thing is kind of ridiulous.. the impaired judgement associated with excessive alcohol consumption only kicks in after you've knowingly consumed it in a clear state of mind. If somebody is drunk to the point of unconsciousness, then they can't consent anyway under current laws because they can't move or talk.
posted by tehloki at 11:40 PM on December 29, 2006


Just to clarify, the legal definition of unconsciousness is not the same as the common-language usage. This seems to be causing some trouble in the conversation.

You can be conversant and legally unconscious.
posted by allen.spaulding at 1:14 AM on December 30, 2006


metafilter: You can be conversant and legally unconscious.
posted by pyramid termite at 6:29 AM on December 30, 2006 [2 favorites]


Let's talk about it when someone other than the Evening Standard reports on this. If there is such a law under discussion at all (which is by no means certain if this story is the only evidence), this article could be a gross distortion of it.
posted by grouse at 5:03 PM on December 30, 2006


"The actual numbers don't matter. The simple fact is that there's a lot of potential for abuse here."

Aww, I love you, Metafilter.
Nowhere else can I see so many ostensibly smart people make so many bad arguments.

Jon, there's a lot of potential for abuse right now in the criminal justice system. You know the fastest way to eliminate all false claims of rape? Eliminate rape as a crime. But for some unfathomable reason, our society makes determinations on balancing risk between, say, false allegations and criminal prosecution. One of the ways that they do that is with numbers.

So yeah, the numbers do matter. And not just because the quote mentions "ten guilty men" and not "all guilty men."

(I also like how many here are obviously basing their arguments on the retarded article, and the parallels between this and affirmative action FPPs, where again the white males boldly defend their privilege).
posted by klangklangston at 11:05 PM on December 30, 2006


But for some unfathomable reason, our society makes determinations on balancing risk between, say, false allegations and criminal prosecution.

It's not a question of balancing two possible injustices, it's about discovering a crime occurred beyound reasonable doubt.

If being drunk de facto disables you from giving consent, what of a groom consummating his marriage with his drunk bride on their wedding night? Surely that's statutory rape if she's drunk?
posted by FieldingGoodney at 6:50 AM on December 31, 2006


"If being drunk de facto disables you from giving consent, what of a groom consummating his marriage with his drunk bride on their wedding night? Surely that's statutory rape if she's drunk?"

Define drunk. If she's so shitfaced that she's passed out, yes, that's still wrong, despite your honeymoon consumation canard. In fact, that would go back to my point about this being a shitty article— drunk isn't defined, and there are varying levels of drunk. At some point, all reasonable people should be able to say "Yeah, they're too drunk to consent to sex." Everything else is chaff thrown up by whining men.
posted by klangklangston at 9:08 AM on December 31, 2006


klangklangston, the issue here is that somebody could be too drunk to legally consent, but still sober enough to be in control of their actions and actually consent to sex anyway. Then we have a statutory rape charge hanging in the air that won't be pressed by either party under most circumstances, but could be exploited by either party in a pinch.
posted by tehloki at 3:45 PM on December 31, 2006


tehloki - I'm not sure there exists such a thing as actual consent in the way that you put it. Consent is much more robust than people are acknowledging and it doesn't just mean saying yes. Think about the classic put-out-or-get-out situation. If a person drove a date out fifty miles in bad weather and insisted that the date either have sex or walk home, that's a non-consenting situation. Even if the person says yes, it's not a real yes (just as if a rapist were to hold a gun to a woman's head and make her agree to sex it would not be consentual).

Now you can say that a woman who got into the car consented to whatever happened next, but you'd be wrong. Just as a woman who goes out to a bar and accepts a drink from a stranger does not consent to being slipped a roofie, putting yourself into a situation where your ability to say no is taken away from you does not mean you consent to whatever happens next. If a woman goes to a bar and has too much to drink, to the point where she is incapable of giving informed consent, she is no less of a rape victim than the put-out-or-get-out person.

There's an interesting discussion as to where that line of drunkeness is and a side discussion on the rare situation in which the sexual partner is unaware that the individual is not capable of giving consent. The latter one rarely occurs (if you can't tell that she is that far gone, you probably shouldn't be having sex with her) but it can be an affirmative defense.
posted by allen.spaulding at 4:35 PM on December 31, 2006


Define drunk. If she's so shitfaced that she's passed out, yes, that's still wrong, despite your honeymoon consumation canard.

Correct me if I'm wrong, but unconsciousness isn't taken as consent in current laws around any western country (surely), so they're attempting to create a law that states a conscious-but-drunk women cannot consent. This is a huge grey area that I'm sure would demand a fixed blood-alcohol level to determine whether it was rape or consented to sex.

It would create many situations of statutory rape. In actuality, she consented, but technically she could not consent because of her level of inebriation so it's called rape.
posted by FieldingGoodney at 1:09 AM on January 1, 2007


In actuality, she consented, but technically she could not consent because of her level of inebriation so it's called rape.

This doesn't parse. If she's so drunk that consent isn't possible, she didn't consent. Like I said in my examples above, consent isn't just saying yes (or not saying no).

What is possible is that the legal level of drunkeness at which point consent isn't possible is too low, such that a woman who was physically capable of consenting is legally considered to have not consented. I understand this concern and it does call for a exacting degree of specificity, but it does seem that if the woman is in fact consenting, this is pretty much a non-issue.
posted by allen.spaulding at 1:38 AM on January 1, 2007


"If she's so drunk that consent isn't possible, she didn't consent. Like I said in my examples above, consent isn't just saying yes (or not saying no)."

You aren't taking into account that consent is a legal term, involved in laws which are created by the legislative branch of the government. So the level of drunkenness represented by "so drunk that consent isn't possible" must be set at an arbitrary blood alcohol level by a legislative body, and may be a completely inappropriate level for many situations.
posted by tehloki at 5:43 PM on January 1, 2007


These perps will most likely be ordered to sex addiction or anger management classes
posted by angryinla


Eponysterical.

But no, convicted rapists in the UK are not likely to be ordered to anger management classes—they are sent to prison.
posted by grouse at 5:57 PM on January 1, 2007


"If she's so drunk that consent isn't possible, she didn't consent. Like I said in my examples above, consent isn't just saying yes (or not saying no)."

My point was - if a woman actually consented - as in, she herself - in her own consciousness - in her own mind - fully consented to the sex. However the law will say NO she did not consent legally because of the level of alcohol in her system. The new proposal, if I am reading it right - will automatically make consent impossible for a woman (whether she actually consented or not) who is drunk to a particular degree. The new proposal wishes to over-ride any actual consent with a default "no-consent" which is why I raised the issue of two consenting adults - husband and wife - having sex - yet the husband commits the crime of statutory rape as his wife was over a particular limit of drunkenness. A crime occurred - complaint or not. In fact, I'm sure even a third party could report such a crime - just as under-aged sex can be reported by a 3rd party and punished even if there's no complaint by the victim of the statutory rape.
posted by FieldingGoodney at 10:51 PM on January 1, 2007


Why do you have such a problem with the idea of people being too drunk to consent? You can be too drunk when you sign a contract to have the terms enforced. Are you just dense, or does this cut too close to your dating strategy?
posted by klangklangston at 8:42 AM on January 2, 2007


Why do you have such a problem with the idea of people being too drunk to consent?

how do you define too drunk? ... more importantly, without a breathalyzer in every bedroom, how do you prove "too drunk"? ... and what if they're both "too drunk" and go ahead and do it anyway? ... do you arrest BOTH of them?

this is a legal mess waiting to happen

wait ... i know the solution ... we'll just ban alcohol ...
posted by pyramid termite at 9:20 AM on January 2, 2007


how do you define too drunk?

The same way you define too young, legislatively and with strict liability. There may be 14 year-olds who are capable of making reasonable decisions regarding sex or who look older, but it doesn't matter. If you get caught with one, you are held strictly liable for the violation. There also may be women who are capable of making consentual sexual decisions with a stranger after 15 shots of Tequilla, but if there's trouble afterwards (ie she presses charges) then you're straight-out-of-luck.

If you can't tell if a stranger is capable of consent, then you should do the same thing you should do if you can't tell if a stranger is under 16. You should not sleep with her. If you engage it questionable activity, you are assuming risk.

And Fielding, you keep bringing up marriage, which is such a canard it's hard to know where to start. The history of the common law to rape explicitly definied it as "nonconsentual sex with a woman not your wife." Marital rape is a new legal issue and is totally seperate from what we're talking about here. It doesn't really matter though.

This is what I don't get. If the woman was capable of consent-in-fact despite being past the legal limit of drunkenness, then there really is no problem if she consented. Nobody is going to press charges in that situation. Statutory rape is much the same way. Millions of teenagers commit statutory rape each year, often when both are under the legal limit. It's really only prosecuted in cases where there appears to have been nonconsentual sex and there may not be enough information to convict on that ground. Strict liability with regards to consciousness is a good thing in that sense.

As people have mentioned, this will be used to pursue convictions where there may not be enough evidence to show that a woman did not consent because she was passed out. Without strict liability here, which is what we have in many states in America, there's pretty much no way to prosecute a man who takes home a passed-out woman.
posted by allen.spaulding at 11:39 AM on January 2, 2007


The same way you define too young, legislatively and with strict liability.

objectively, you're talking about a blood alcohol or breathalyzer test ... there's no other way you can measure it

but, if you read the article this linked to carefully, you'll realize that there is no way that it can be measured by backestimating

"in 120 cases of sexual assault examined by researchers, in 119 cases the woman had been drinking."

ok, but ...

"The ACPO research found that in 31 cases alcohol levels at the time of the incident could be estimated by "back-calculating"."

that's only 25% of the cases ... and it leaves aside the question of whether the back-calculation was actually accurate enough to be admissible in court

this will be used to pursue convictions where there may not be enough evidence to show that a woman did not consent because she was passed out.

except, how will you get enough evidence that she drank too much? ... in 75% of the cases, there would be no such evidence ... in 25% it's dubious

if you're having trouble proving she was passed out, proving that she drank a certain amount seems even harder to prove
posted by pyramid termite at 12:45 PM on January 2, 2007


See, now you're arguing about practice and not theory. You're also focusing on a highly dubious line in the ridiculous article that forms the basis of this post.

Here in the states, there are many ways you can go about determining how drunk someone was. Bartenders can testify to the number of drinks that a person ordered, friends can testify that the person had slumped against a booth for a few minutes, or had been falling down, witnesses can testify that the person was incapable of walking out under his/her own volition and needed to be carried to a taxi. These are all good ways for a trier of fact to determine whether the person was incapable of consenting. The blood alcohol thing does sound very fishy, but I suspect that the error lies with the reporting. If anything, that evidence couldn't be fully conclusive because someone could have drunk after the sex act. That being said, if a woman was taken to a hospital and they did a blood test, it could be admittable and be persuasive.

So that's the evidentiary side of the discussion, if you've given up on the idea that the law should prohibit sex with someone who is too drunk to give consent. The article is rubbish and if you're not interested in looking at actual empirical, peer-reviewed research, then throwing out lines like "in 75% of the cases, there would be no such evidence" is just silly. I think Klangklangston has summed up this thread nicely and I don't see why people are otherwise arguing.
posted by allen.spaulding at 1:07 PM on January 2, 2007


I say get it in writing. In triplicate. Notarized. Each and every time. Regardless of who it is or how long you've known him/her in whatever context. Whether anybody's intoxicated on anything or not.

"I, _______, hereby consent on this date of ________ to allow ______ to put his/her _______ in/on my ________."
posted by davy at 2:27 PM on January 2, 2007


See, now you're arguing about practice and not theory.

if the practice turns out to be a mess, then the theory has a problem

These are all good ways for a trier of fact to determine whether the person was incapable of consenting.

or passed out ... which the law already considers in many u s states ... all the data you've cited has been used in court cases before to prove a person was unconscious

So that's the evidentiary side of the discussion, if you've given up on the idea that the law should prohibit sex with someone who is too drunk to give consent.

say rather that the way that's being stated is poor ... was the woman passed out is the question that should be asked

The article is rubbish and if you're not interested in looking at actual empirical, peer-reviewed research, then throwing out lines like "in 75% of the cases, there would be no such evidence" is just silly.

i'm going with what we have here, which is all we have ... you haven't presented any research to look at

I think Klangklangston has summed up this thread nicely and I don't see why people are otherwise arguing.

because "too drunk" is far too vague to write a law around, seeing as you've admitted that back-testing will be probably impossible ... "passed out" or "unconscious" is something that a court can work with
posted by pyramid termite at 3:07 PM on January 2, 2007


Marital rape is a new legal issue and is totally seperate from what we're talking about here. It doesn't really matter though.

You can't apply the law differently to two equally drunk women.

This makes a mockery of such a law, as they are claiming it is a physical impairment (being 'too drunk').

The claim is that you simply can't consent over a certain level of drunkenness - regardless of the relationship between the two parties - hence a groom most certainly can be charged for rape just because his bride was 'too drunk' (although she actually consented). And as you state, allen, this kind of law would be applied in a technical way - and I'm sure a complaint could be made by a 3rd party even if the so-called 'victim' of this statutory rape did in fact consent.

Why do you have such a problem with the idea of people being too drunk to consent? You can be too drunk when you sign a contract to have the terms enforced. Are you just dense, or does this cut too close to your dating strategy?

No, I must be just dense - because I don't know what the definition of too drunk is when you apply it to women as a group - even a single woman on a single occasion - how do you define 'too drunk'? Being unconscious is already defined as 'non-consent' (correct me if I'm wrong, but this seems obvious). So please tell me what level of drunkenness is 'too drunk'?
posted by FieldingGoodney at 3:59 AM on January 3, 2007


I just think the whole "inebriation as a binary state" thing is ridiculous. There is no magical BAC level where you are "too drunk". There is unconsciousness/unresponsiveness/catanonia, but those already invalidate/preclude consent. So, why the fuck are they saying that it is actually possible to determine, solely based on reverse-calculated BAC, whether or not a woman "consented" to sex? There's just no logic to it. It's amusing that we're even arguing about it.
posted by tehloki at 5:34 AM on January 3, 2007


"So please tell me what level of drunkenness is 'too drunk'?"

I realize that this sounds tautological, but the level of drunkenness that is too drunk is "too drunk." Perhaps that can be back calculated; perhaps the legislation is being used in an attempt to provide another piece of contributory evidence. From the article, it's hard to tell. Almost like there was more noise from the grinding wheel than there were straight lines from the axe.

Again, you don't have to be unconscious to be too drunk to consent to a contract. Right now, the frat boys v. Borat case relies heavily on whether they were too drunk to consent, and while IANAL, I believe the standard is generally whether the person was sober enough to reasonably understand what the terms of the agreement were.

Do you really believe that short of unconsciousness, you should be able to fuck any drunk woman? Can you not recognize when a girl is too drunk to fuck? Are you going with a "She didn't stop me" standard for consent? And have you never turned a girl down because she was too drunk?
posted by klangklangston at 7:33 AM on January 3, 2007


Legal Problem - If you are drunk, you are still responsible for you actions, unless you are female and the action is to consent to sex.

Under many assault statutes, "perceived threat" is justification. So if a woman is drunk, says no, and then fights to defend herself, it's perceived threat even if she consented - the consent and the threat are separate.

I'm amazed at how much variance in perspective there is on this thread. For example, "what are laws for?" is a question we clearly don't agree on an answer to.

Western society is constantly striving to find "other people to blame". If you get drunk, you shouldn't be allowed to argue about what you did or did not intend. You were drunk, you don' know what you were thinking.

Some of the frustration that men have expressed here is at the double standard of the law. Equal protection is a pretty big deal. If two people get drunk and have sex, it isn't equal protection for the courts to blame one of them (based on gender) if they both deny consenting.
posted by ewkpates at 8:06 AM on January 3, 2007


You can't apply the law differently to two equally drunk women.

Sorry, but status matters. Like it or not, that's how the common law developed and there's a an explicit clause for this. It's why you don't need a waiver to make medical decisions for your unconscious spouse. So unless you somehow think your internet pontifications make more sense than 700 years of the common law, get used to being wrong. There are things you can do without your spouse's consent that you could not do without a stranger's consent.


Legal Problem - If you are drunk, you are still responsible for you actions, unless you are female and the action is to consent to sex.

Wrong. If you are drunk you are still responsible for the harms you cause others. If you get drunk and someone beats you up and steals your wallet, the fact that you were drunk has nothing to do with it. The fact that he was drunk when he took your wallet also doesn't matter.

Again, backing up Klang's point: if you can't figure this stuff out, you should probably not be having sex with drunk people.
posted by allen.spaulding at 8:34 AM on January 3, 2007


Wrong. Wrong!

If you are drunk you are still responsible for your actions... in this example you are still responsible for consent.

Okay. I'll draw you a picture. A drunk girl calls a 911 operator and demands a law officer be dispatched to residence for sex, consenting like anything on the phone.

Did she consent? No! She can't, she's drunk! Is she legally responsible for placing a non-emergency call to 911? Oh yes she is. So, she ain't responsible for the consent, but she is responsible for the words she consented with...

Huh. Sounds like bs to me.
posted by ewkpates at 10:08 AM on January 3, 2007


That's a terrible hyporthetical because it doesn't work in your favor. Again, if you're not interested in learning how the common law systems of the US and England treat intoxication and would prefer to consistantly be wrong, that's your call.

Generally, courts have held that self-induced intoxication as such never excuses criminal wrongdoing. Matthew Hale wrote, in 1736, that an intoxicated person "shall have no privilege by this voluntarily contracted madness" and Blackstone, in 1769, refined this point, stating that intoxication was "an aggravation of the offence, rather than as an excuse for any criminal misbehavior."

Thus, if you got drunk and raped someone, you could not claim that you lacked the intent to have sexual intercourse with your victim. (If you were charged with sexual assault with intent to rape, you could introduce evidence that you lacked the specific intent that is an essential element of that crime, but for general intent offenses like rape, drunkeness cannot be used to mitigate mens rea.) This is a very old and established rule.

So if a drunk person called 911 and were charged with making false reports (general intent crime), she could not use her intoxication as an excuse. Were a police officer to come over, see she was drunk, and get her to sign a contract by which he was able to take her TV, it would not be valid and he would be guilty of robbery. This doesn't seem hard.

Drunkeness does not excuse your criminal activity. It also denies you the consent necessary to make decisions such as have voluntary sex or sign contracts. There is no contradiction here.
posted by allen.spaulding at 12:10 PM on January 3, 2007


Ok, so that last post was riddled with typos and is a little unclear. In summary: intent and consent are seperate doctrines with different histories and are not equivalent. Drunkeness does not negate your intent but it can prevent you from giving consent.

Thus if two men get drunk at a bar, past the point where they both are able to consent, and penetrate each other, both can be tried on rape. If only one penetrates the other, then only that person can be tried on rape charges (most jurisdictions define rape through penetration). If a girl gets a guy drunk and uses a strap on, she can be tried for rape. Regarding regular vaginal intercourse, if he's so drunk he cannot consent, he can push for battery charges or perhaps sexual assault, depending on the jurisdiction, but probably cannot argue rape.
posted by allen.spaulding at 1:29 PM on January 3, 2007



Thus if two men get drunk at a bar, past the point where they both are able to consent, and penetrate each other, both can be tried on rape.


that's absurd

don't say a word in reply until you find me an actual case of such a thing going to trial ... (and sodomy laws don't count)
posted by pyramid termite at 9:05 PM on January 3, 2007


Your discursive stylings reminds one of a brick wall sometimes. Of course there aren't many cases like this, because nobody would press charges in such a situation. It's also why you have no charges filed in a relationship where a couple splits six bottles of wine before really bad sex. Look, I don't see what's confusing here, you're going to have to do a better job of explaining why this is beyond you.
posted by allen.spaulding at 10:52 PM on January 3, 2007


Your discursive stylings reminds one of a brick wall sometimes.

find a case to cite yet?

Look, I don't see what's confusing here,

who's confused? ... my bullshit detector's working quite well

now find a case to prove your absurd statement
posted by pyramid termite at 6:00 AM on January 4, 2007


I don't think you quite get burden of persuasion either. I'm telling you what the law is and then provided a list of hypotheticals to clarify it for you. You are pulling shit out of your ass and losing a pretty simple argument.

There is not a single jurisdiction in America that would not consider both men criminals if such a thing happened. Show me a single statute that says otherwise.
posted by allen.spaulding at 6:19 AM on January 4, 2007


On second thought, strike that, don't bother. I can't believe I got sucked into an argument with the functional equivalent of a LaRouchenik who just discovered chemtrails. I explain to you how the law works and what the underlying reasons are and your response is to demand an example of an extreme hypothetical without giving a single reason to support your beliefs other than a laughable reference to a bullshit detector. It's as if you are incapable of imagining the legal ramifications of two 14 year old boys having pentrative sex with each other. Analogy seems just out of your grasp.

I almost feel I have an ethical obligation to tell you that you have to pay your income taxes too, no matter what some flyer you read somewhere says. I know, I know, you'll want me to prove that too.
posted by allen.spaulding at 6:39 AM on January 4, 2007


citation talks, bullshit walks, and all the insults in the world ain't gonna change that

you have a tendency to be a know-it-all and say things you can't back up and you just got called on it ... you can either come up with a case or continue on with prevarications like this ...

It's as if you are incapable of imagining the legal ramifications of two 14 year old boys having pentrative sex with each other.

your original claim -

Thus if two men get drunk at a bar, past the point where they both are able to consent, and penetrate each other, both can be tried on rape.

don't send a boy in to do a man's job, m'kay?
posted by pyramid termite at 8:29 AM on January 4, 2007


Hey smart guy, it's the exact same situation. It's called analogy. Differentiate between the two or make an argument and maybe I'll start respecting your intellect.

It's pretty fucking simple. In most jurisdictions, rape is defined as nonconsentual penetration with both a level of drunkeness and an age set as bars to sexual consent. Drunkeness does not negate intent in the same way it does consent. Thus if two people who are drunk past the point of consent, or below the age of consent, penetrate each other, they have raped each other.

Most jurisdictions also consider a certain mental threshhold to be a floor for giving consent, such that people with the mental capacity of an infant are unable to consent. I hope your sexual partners realize that they are putting themselves at risk in your case.
posted by allen.spaulding at 8:38 AM on January 4, 2007


So again, PT, just to make this clear: Because a citation of a prosecution isn't available, that means something isn't illegal? You can't think of any laws on the books that are infrequently prosecuted? Like, perhaps, Michigan's law against swearing in front of women and children, which went unenforeced for years?

That's bullshit. Perhaps your detector needs to be recalibrated to avoid the rampant stench you're putting out.
posted by klangklangston at 8:55 AM on January 4, 2007


Woah, so I was researching the Minnesota Criminal Code just to let pyramid know the exact rule in his own state and there's some weird stuff in there. Not only am I correct in that rape is defined as sexual penetration (M.S.A. § 609.342(1)(a)), there's a lot of interesting stuff in there.

If a psychotherapist has sex with a patient, it is automatically sexual assault in the third degree (M.S.A. § 609.344(h)(i)). Consent is not an excuse. While I see the potential for abuse there, it seems like it doesn't rise to the level (such as a police officer and an inmate) that leads to strict liability. I'll have to think about this more.

Feel free to check it out sometime. M.S.A. § 609.341 defines the basic terms, such as consent and penetration. 609.341(4)(b) defines consent to require that someone not be mentally incapacitated. 609.341(7) shows that drunkeness provides for mental incapacitation, although it does at first blush read that only if it was involuntary drunkeness. I'll go find some case law on this later when I have time to see how it's been interpreted. 75 C.J.S. Rape § 25 mentions a few cases and pretty much sums up what I've been saying throughout the thread, but it doesn't list a MN case.
posted by allen.spaulding at 9:30 AM on January 4, 2007


Because a citation of a prosecution isn't available, that means something isn't illegal?

nice straw man

now, i want to see a case ... i realize that it's utterly outrageous for me to ask people to actually back up their arguments on the internet with facts, but i thought it would make an interesting novelty

Woah, so I was researching the Minnesota Criminal Code just to let pyramid know the exact rule in his own state

once again, allen, your superior knowledge and ability to research amazes a mere mortal like myself
posted by pyramid termite at 9:48 AM on January 4, 2007


termite, it's time for you to flame out of this one, you're just wrong. Absence of a case does not prove anything about the law.
posted by allen.spaulding at 10:01 AM on January 4, 2007


termite, it's time for you to flame out of this one, you're just wrong.

i bet when i woke up this morning and thought i was in michigan i was wrong about that, too

next up on the allen.spaulding show ... dragons - is it a violation of FAA rules to land them at the airport? ... relevant! ... hard-hitting! ... meaningful law analysis, right after THIS!

(just admit you can't prove it and leave it)
posted by pyramid termite at 10:16 AM on January 4, 2007


Guess I should have checked. Somehow I was convinced you were in MN. My bad. Look, there's no question about this one, that the rule is nearly all if not all jurisdictions is clear. Just because it hasn't been tested doesn't mean it's not provable. And just because you can post online doesn't mean you understand the law.
posted by allen.spaulding at 11:23 AM on January 4, 2007


pyramid termite, even if allen.spaulding doesn't identify a single case where two people who have penetrative sex while both are incapacitated, it doesn't change the clear meaning of the statute which indicates that they would both be committing an offense. If you want to argue that there is a defense in law for this, it is you that would have to identify a source for this contention. Allen.spaulding has provided plenty of source material already.
posted by grouse at 11:41 AM on January 4, 2007


in other words, you couldn't find a case to prove your ridiculous assertion

i'm done with this
posted by pyramid termite at 8:50 PM on January 4, 2007


pyramid termite, if anyone needs a case to prove an assertion, it is you, not allen.spaulding.

i'm done with this

Good.
posted by grouse at 9:08 PM on January 4, 2007


I was away on a nice holiday over the weekend, so I'm arriving rather late to reply to some queries here.

Do you really believe that short of unconsciousness, you should be able to fuck any drunk woman? Can you not recognize when a girl is too drunk to fuck? Are you going with a "She didn't stop me" standard for consent? And have you never turned a girl down because she was too drunk?

klangklangston, I find your specific use of genders here sexist, even hateful. The misandry tag on this thread is becoming ever-more relevant. I won't even bother replying to it, or your previous points in your post.

I just think the whole "inebriation as a binary state" thing is ridiculous. There is no magical BAC level where you are "too drunk". There is unconsciousness/unresponsiveness/catanonia, but those already invalidate/preclude consent. So, why the fuck are they saying that it is actually possible to determine, solely based on reverse-calculated BAC, whether or not a woman "consented" to sex? There's just no logic to it. It's amusing that we're even arguing about it.

tehloki, you make a compelling argument against such proposals. After all, how on earth can you even begin to apply such a law in the reality of everyday life where different women have different alcohol tolerances? How do you prove she didn't drink after having sex? Then how do you prove she consented or not? (i.e. actually wanted to have sex?). The term 'beyond reasonable doubt' should not be forgotten.

There are things you can do without your spouse's consent that you could not do without a stranger's consent.

allen.spaulding, this is true, and has absolutely zero to do with rape laws. Or are you saying that spouses can have intercourse with their unconscious partners and it isn't rape? You say you're practicing law?!

If a girl gets a guy drunk and uses a strap on, she can be tried for rape.

A man can have an erection, but may not have the capacity to consent (and I *can* find cases to prove this :) ). I think your imagination is lacking somewhat to think it must involve a strap-on. Or are you saying lack of consent must include an inability to get an erection? And you say you're practicing law?
posted by FieldingGoodney at 10:26 AM on January 9, 2007


allen.spaulding, this is true, and has absolutely zero to do with rape laws. Or are you saying that spouses can have intercourse with their unconscious partners and it isn't rape? You say you're practicing law?!

Um, marital rape is a new thing and has not taken hold in all jurisdictions. Historically, you could have sex with your unconscious spouse and not be held criminally liable. And I'm not a practicioner and never claimed to be, but why bother with being accurate?

A man can have an erection, but may not have the capacity to consent (and I *can* find cases to prove this :) ). I think your imagination is lacking somewhat to think it must involve a strap-on. Or are you saying lack of consent must include an inability to get an erection? And you say you're practicing law?

You certainly had plenty of time to read this thread but I guess you didn't bother. That was in reference to an understanding that many jurisdictions define rape as penetration and as such, vaginal intercourse with an unconsenting man would not count as such. It would count as battery and perhaps sexual assault, but not rape. The strap-on was used to have the man be penetrated.
posted by allen.spaulding at 12:09 PM on January 9, 2007


"klangklangston, I find your specific use of genders here sexist, even hateful. The misandry tag on this thread is becoming ever-more relevant. I won't even bother replying to it, or your previous points in your post."

HAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHA! "Help, help, I'm being oppressed!"
posted by klangklangston at 12:31 PM on January 9, 2007


You certainly had plenty of time to read this thread but I guess you didn't bother. That was in reference to an understanding that many jurisdictions define rape as penetration and as such, vaginal intercourse with an unconsenting man would not count as such. It would count as battery and perhaps sexual assault, but not rape. The strap-on was used to have the man be penetrated.

Well, the best way to do this is go by the definition of rape - unconsented to intercourse.

answers.com

The crime of forcing another person to submit to sex acts, especially sexual intercourse.

medterms.com

Heterosexual rape usually refers to an assault in which a male forces himself upon a female, and homosexual rape usually refers to an assault in which a male forces himself upon another male. However, both terms (heterosexual and homosexual rape) have been used to refer to an assault in which a female forces herself upon a male or a female.

(also to answer your previous point about marital rape):-

Rape can also occur in a marriage.

freedictionary.com

The crime of forcing another person to submit to sex acts, especially sexual intercourse.

You should name your 'many jurisdictions' but I suspect given your track record of speaking from a false sense of authority, you'll squelch again.

Um, marital rape is a new thing and has not taken hold in all jurisdictions

Care to name any jursidiction in the west that does not find the rape of a spouse.....rape?

HAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHA! "Help, help, I'm being oppressed!"

klangklangston, project much?
posted by FieldingGoodney at 9:37 PM on January 9, 2007


"klangklangston, project much?"

What the hell are you on about? Your "misandry" snivelling was hilarious! I laughed, and thought you should get another opportunity to read your own comment, as it could bring such mirth. But projection? Is that something you just learned about on Answers.com?
posted by klangklangston at 9:48 PM on January 9, 2007


Wait, am I really arguing with someone who goes to answers.com to find out the law? And yet can't google marital rape to find out that only 17 states and DC hold spouses to the same standard for rape as non-spouses and that 33 consider it a lessor crime, that it wasn't until 1993 that marital rape was a crime in all 50 states? Hell, even wikipedia would answer that one for you.

As for Thailand, there was some movement in the early 2000s to make marital rape illegal, but as I understand it (and the state department hasn't updated it's info for a few years) it's still not a crime.

And I'm still cracking up that you think the best way to find out what the law is to go to answers.com. I think there's a word for that, but answers.com doesn't have an entry for batshitinsane.
posted by allen.spaulding at 11:19 PM on January 9, 2007


Nice typo allen. If only freedictionary included freegrammar.
posted by allen.spaulding at 11:20 PM on January 9, 2007


Im in ur answers.com rewriting ur laws
posted by grouse at 2:24 AM on January 10, 2007


allen, what's amusing (and telling) is you completely ignored the two other sources I provided - I can only assume you approve of their definitions - or are you clutching at strawmen?

Might as well return a few more.....

Wikipedia returns the same definition:-

"Rape" is, in most jurisdictions, a crime defined as sexual intercourse or penetration without valid consent by both parties.(my emphasis)

dictionary.com :-

any act of sexual intercourse that is forced upon a person.

OED returns a similar description of rape (unfortunately it's subscription only so can't supply link).

So I guess all six (now) definitions offered are not correct just because allen.spaulding says so. Or do you just want to admit that your definition of rape is too narrow? allen, even you are wrong sometimes.

What the hell are you on about?

klang, it was your bizarre non sequitur - "Help, help, I'm being oppressed!". Finding one person's comment rather sexist (and stereotyping) on MeFi isn't tantamount to someone saying they're oppressed. Sometimes it is what it is.
posted by FieldingGoodney at 9:20 PM on January 10, 2007


Fielding, you are a joke. Laws are not defined by dictionaries but by statutes and cases. If you actually were interested in learning the truth, you might want to start with 76 A.L.R.3d 163, which is an overview of what constitutes penetration in prosecution for rape or statutory rape. There you would find a statement like this:

In the following cases, the courts expressly or impliedly held that a mere touching of the sexual organs is insufficient to constitute the element of penetration to sustain a conviction of rape or statutory rape.

Ala -- Hutto v State (1910) 169 Ala 19, 53 So 809
Ariz -- State v Williams (1974) 111 Ariz 175, 526 P2d 714
Kan -- State v Grubb (1895) 55 Kan 678, 41 P 951
Kan -- State v Ragland (1952) 173 Kan 265, 246 P2d 276
Ky -- White v Commonwealth (1894) 96 Ky 180, 28 SW 340
NC -- State v Whittemore (1961) 255 NC 583, 122 SE2d 396
Okla -- Kitchen v State (1937) 61 Okla Crim 435, 69 P2d 411
Or -- State v Hoffman (1963) 236 Or 98, 385 P2d 741
Tex -- Mullins v State (1920) 88 Tex Crim 130, 225 SW 164
Tex -- Enfield v State (1923) 94 Tex Crim 226, 250 SW 162
Wash -- State v Snyder (1939) 199 Wash 298, 91 P2d 570
Wash -- State v Thorne (1953) 43 Wash 2d 47, 260 P2d 331
Wis -- Murphy v State (1900) 108 Wis 111, 83 NW 1112

Or if you really aren't convinced, you'd find that courts in numerous cases have stated or recognized that, as a general rule, in order for there to be sufficient penetration to sustain a conviction of rape or statutory rape, entry into the female private parts must be effected by the male sexual organ.

Ala -- Reynolds v State (1962) 274 Ala 171, 146 So 2d 85
Ala -- Thomas v State (1974) 53 Ala App 232, 298 So 2d 652, cert den 292 Ala 755, 298 So 2d 657
Ariz -- State v Hughes (1969) 104 Ariz 535, 456 P2d 393
Ark -- Poe v State (1910) 95 Ark 172, 129 SW 292
Ark -- Watt v State (1953) 222 Ark 483, 261 SW2d 544 (recognizing rule)
Ark -- McDonald v State (1955) 225 Ark 38, 279 SW2d 44
Cal -- People v Howard (1904) 143 Cal 316, 76 P 1116
Del -- State v Sigerella (1909) 23 Del 311, 82 A 31 (jury charge)
Del -- State v Colombo (1909) 24 Del 96, 75 A 616, affd 25 Del 28, 78 A 595 (jury charge)
Del -- State v Williams (1911) 26 Del 102, 80 A 1004 (jury charge)
Del -- State v Thomas (1920) 31 Del 102, 111 A 538 (jury charge)
Del -- State v Dill (1944) 42 Del 533, 40 A2d 443 (jury charge)
DC -- United States v Bryant (1969) 137 App DC 124, 420 F2d 1327 (ovrld on other grounds United States v Gray, 155 App DC 275, 477 F2d 444)
Fla -- Williams v State (1907) 53 Fla 84, 43 So 431
Fla -- Harris v State (1916) 72 Fla 128, 72 So 520
Fla -- Williams v State (1926) 92 Fla 125, 109 So 305
Ga -- Roberts v Dutton (1966, CA5 Ga) 368 F2d 465 (applying Georgia law)
Ga -- Lee v State (1943) 197 Ga 123, 28 SE2d 465
Ga -- Addison v State (1944) 198 Ga 249, 31 SE2d 393
Ga -- Dean v State (1949) 204 Ga 759, 51 SE2d 840
Ga -- Bonner v State (1949) 206 Ga 19, 55 SE2d 587
Ga -- Long v State (1951) 84 Ga App 638, 66 SE2d 837
Ill -- People v Schultz (1913) 260 Ill 35, 102 NE 1045
ILL -- Interest of Williams (1974) 24 Ill App 3d 593, 321 NE2d 281.
Ind -- Taylor v State (1887) 111 Ind 279, 12 NE 400
Kan -- State v Ragland (1952) 173 Kan 265, 246 P2d 276
Kan -- State v Jones (1970) 204 Kan 719, 466 P2d 283
Ky -- White v Commonwealth (1894) 96 Ky 180, 28 SW 340
Ky -- Taliaferro v Commonwealth (1912) 151 Ky 10, 150 SW 977
Ky -- Hale v Commonwealth (1922) 196 Ky 44, 244 SW 78
La -- State v. Abbott, 697 So. 2d 636 (La. Ct. App. 2d Cir. 1997), writ denied, 705 So. 2d 1097 (La. 1998)
Me -- State v Croteau (1962) 158 Me 360, 184 A2d 683
Me -- State v Bernatchez (1963) 159 Me 384, 193 A2d 436
Md -- Craig v State (1957) 214 Md 546, 136 A2d 243
Md -- Robert v State (1959) 220 Md 159, 151 A2d 737
Md -- Scott v State (1968) 2 Md App 709, 237 A2d 61
Mich -- People v Courier (1890) 79 Mich 366, 44 NW 571
Mich -- People v Bernor (1898) 115 Mich 692, 74 NW 184
Mich -- People v Borders (1972) 37 Mich App 769, 195 NW2d 331
Miss -- Lang v State (1956) 230 Miss 147, 87 So 2d 265, 89 So 2d 837, 92 So 2d 670, cert den 352 US 936, 1 L Ed 2d 167, 77 S Ct 236
Mo -- State v Cottengim (1928, Mo) 12 SW2d 53
Mo -- State v De Moss (1936) 338 Mo 719, 92 SW2d 112
Mo -- State v Garcia (1962, Mo) 357 SW2d 931
Nev -- State v Diamond (1928) 50 Nev 433, 264 P 697
NY -- People v Crowley (1886) 102 NY 234, 6 NE 384
NC -- State v Bowman (1950) 232 NC 374, 61 SE2d 107
NC -- State v Jones (1958) 249 NC 134, 105 SE2d 513
NC -- State v Whittemore (1961) 255 NC 583, 122 SE2d 396
NC -- State v Sneeden (1968) 274 NC 498, 164 SE2d 190
NC -- State v Murry (1970) 277 NC 197, 176 SE2d 738
NC -- State v Cross (1973) 284 NC 174, 200 SE2d 27
ND -- State v Oliver (1951) 78 ND 398, 49 NW2d 564
ND -- State v Kirk (1973, ND) 211 NW2d 757
Ohio -- Teynor v State (1933) 47 Ohio App 149, 17 Ohio L Abs 99, 191 NE 372
Okla -- Walker v State (1915) 12 Okla Crim 179, 153 P 209
Okla -- Kitchen v State (1937) 61 Okla Crim 435, 69 P2d 411
Okla -- Miller v State (1938) 65 Okla Crim 26, 82 P2d 317
Okla -- Boydston v State (1944) 79 Okla Crim 172, 152 P2d 701
Pa -- Commonwealth v Bowes (1950) 166 Pa Super 625, 74 A2d 795
SC -- State v Worthy (1962) 239 SC 449, 123 SE2d 835
Tenn -- Walker v State (1954) 197 Tenn 452, 273 SW2d 707
Tex -- Davis v State (1875) 42 Tex 226
Tex -- Boyd v State (1914) 72 Tex Crim 521, 163 SW 67
Tex -- Watkins v State (1915) 78 Tex Crim 65, 180 SW 116
Tex -- Mirick v State (1918) 83 Tex Crim 388, 204 SW 222
Tex -- Dodson v State (1935) 129 Tex Crim 151, 83 SW2d 992
Tex -- Wair v State (1937) 133 Tex Crim 26, 106 SW2d 704
Tex -- Calhoun v State (1938) 134 Tex Crim 423, 115 SW2d 965
Tex -- Flannery v State (1938) 135 Tex Crim 235, 117 SW2d 1111
Tex -- Vasquez v State (1942) 145 Tex Crim 376, 167 SW2d 1030
Tex -- Keeton v State (1945) 149 Tex Crim 27, 190 SW2d 820
Tex -- Lozano v State (1950) 154 Tex Crim 229, 226 SW2d 118
Tex -- Johnson v State (1969, Tex Crim) 449 SW2d 65
Tex -- Nilsson v State (1972, Tex Crim) 477 SW2d 592
Tex -- Rhynes v State (1972, Tex Crim) 479 SW2d 70
Vt -- State v Machunsky (1971) 129 Vt 195, 274 A2d 513
Va -- King v Commonwealth (1936) 165 Va 843, 183 SE 187
Va -- McCall v Commonwealth (1951) 192 Va 422, 65 SE2d 540
Va -- Strawderman v Commonwealth (1959) 200 Va 855, 108 SE2d 376
Wash -- State v Snyder (1939) 199 Wash 298, 91 P2d 570
W Va -- State v Brady (1927) 104 W Va 523, 140 SE 546
W Va -- State v Higginbotham (1961) 146 W Va 730, 122 SE2d 429
W Va -- State v Vance (1962) 146 W Va 925, 124 SE2d 252 (ovrld on other grounds State v Slie (W Va) 213 SE2d 109) and (ovrld on other grounds State ex rel. Grob v Blair (W Va) 214 SE2d 330)
Wis -- Brauer v State (1870) 25 Wis 413
Wis -- Murphy v State (1900) 108 Wis 111, 83 NW 1112
Wis -- Baldwin v State (1973) 59 Wis 2d 116, 207 NW2d 630
Wyo -- Rhodes v State (1969, Wyo) 462 P2d 722
Wyo -- Kennedy v State (1970, Wyo) 470 P2d 372, reh den (Wyo) 474 P2d 127 and cert den 401 US 939, 28 L Ed 2d 218, 91 S Ct 933

There has been significant statutory reform to make the definition of rape better conform to modern understandings of the crime and the change has been slow. Some of these cases are in the process of being overturned as the statutes upon which they rest are being rewritten. Yet this is the history of the law and state of the law. It is not discovered by running to wikipedia or dictionary.com, it is done by looking at statutes and cases.

I love how you're refusing to actually argue on the merits of an argument and instead picking on what you think is an incorrect statement I made in clarification of an earlier point. And you're wrong and looking to google is just sad.
posted by allen.spaulding at 11:44 PM on January 10, 2007


Um, marital rape is a new thing and has not taken hold in all jurisdictions.

allen, you're flying off on a tangent here. The original article is from the UK - read the United Kingdom - read not the US, nor Thailand (because I live there?).

In the UK, rape is a crime not distinguished by the relationship between the perpetrator and victim.

bbc.co.uk:-

This was despite the fact that current guidelines, last issued in 1986, "do not mention the relationship between victim and offender as a factor that should affect the sentence", he said.

(the article is about enforcing those guidelines)

My original point stands - a groom could be legally charged for raping his bride on his wedding night if these proposals were made law and she was over an arbitrary alcohol limit (which would need to be set). This would be a statutory crime because according to the new law, she wouldn't have been able to consent.

Now, it is irrelevant what the US says about marital rape as this proposal concerns the UK.

Regarding your list of US states and how they define rape - again, wtf? allen, ever been outside the US?

To reiterate, this proposal is based in the UK - the United Kingdom - the island across the pond - the one that sticks out just north of France. It is not the United States. I get it allen, you live in the US - understood - but the original article doesn't revolve around where you live or I live (I guess why you mentioned Thailand two posts up).

Or if you really aren't convinced, you'd find that courts in numerous cases have stated or recognized that, as a general rule, in order for there to be sufficient penetration to sustain a conviction of rape or statutory rape, entry into the female private parts must be effected by the male sexual organ.

OK, that's the case in those US states you mention. Meanwhile, back in the UK, men can be victims of rape (albeit, male on male).

Thus, my other point stands that such proposals are sexist because they are gender-specific in a country where rape is not gender-specific.

allen, try remembering what the thread is about.
posted by FieldingGoodney at 2:27 AM on January 11, 2007


this proposal is based in the UK

What proposal? There is no proposal. As far as I'm concerned, the Evening Standard could have made this up.

In any case, FieldingGoodney, you are wrong. Only men can commit rape in the UK, since a penis is necessary. See the Sexual Offences Act 2003 s 1.

And it only became settled law in the UK in 1991 that there was no "marital exception" defence to rape charges.
posted by grouse at 5:47 AM on January 11, 2007


What proposal? There is no proposal. As far as I'm concerned, the Evening Standard could have made this up.

This proposal:-

A consultation document is to be published by the Home Office in the New Year that will lay down the basis for new laws and try to meet Labour's aim of forcing up numbers of rape convictions.

A Home Office spokesman confirmed yesterday that the Advisory Council has produced a report and added: "The results will be published in the New Year. It will then be for ministers to decide what may be the right policies to take forward."


-------

In any case, FieldingGoodney, you are wrong. Only men can commit rape in the UK, since a penis is necessary. See the Sexual Offences Act 2003 s 1.

I was countering allen's tangential posts about the US - not really relevant where rape in the UK (where the proposal was made) can be male on male. My point being that the proposal is gender-specific where rape in the UK isn't (hmm, second time I've said this now).

And it only became settled law in the UK in 1991 that there was no "marital exception" defence to rape charges.

So what? My point was that consent cannot be given if you're 'too drunk', no matter what the relationship is between the two parties - whether actual consent was given or not. Backing up my point, from the actual news article (which I'm not sure allen or yourself have actually read):-

But it would open the way to prosecutions of husbands or regular boyfriends who have sex with drunken wives or partners as well as fierce arguments over medical evidence and real levels of intoxication of alleged victims.
posted by FieldingGoodney at 7:39 PM on January 11, 2007


"(hmm, second time I've said this now)."

Without backing it up once! I tip my hat.
posted by klangklangston at 7:42 PM on January 11, 2007


FieldingGoodney, the sources you are alluding to are not reliable. An appearance of a "news report" in the Evening Standard, that after two weeks has not been confirmed by any respectable news source, is evidence only of the Evening Standard's ongoing desire to increase circulation. There are personal weblogs I would treat with more credence.

Even if there were such a proposal, the article would be a gross distortion of it. Arguing the minute details of the proposal as reported by the Evening Standard alone is like arguing with a straw man.

It does not do you any favors to provide inappropriate sources, such as an unsupported Evening Standard, or a general dictionary when trying to elucidate a legal term defined in statute, and then accuse others of ignoring them, when they are simply inadequate.

the proposal is gender-specific where rape in the UK isn't

You can only claim that if you think that a penis is not "gender-specific." If a man and a woman have sex in the UK, only the man can be charged with rape. That seems about as gender-specific as it gets.
posted by grouse at 12:18 AM on January 12, 2007


Without backing it up once! I tip my hat

Hmmm....if you mean quoting the UK Home Office that men can be victims of rape under UK law isn't backing up my point, then you sir, may indeed tip your hat.

You can only claim that if you think that a penis is not "gender-specific." If a man and a woman have sex in the UK, only the man can be charged with rape. That seems about as gender-specific as it gets

The proposal is gender specific. Men can be victims of rape under UK law (read the Home Office link I provided earlier - it states it clearly there). grouse, to stop sounding like an ass, just read the sources provided.

An appearance of a "news report" in the Evening Standard, that after two weeks has not been confirmed by any respectable news source, is evidence only of the Evening Standard's ongoing desire to increase circulation.

Actually grouse, what's funny is that the only counter-argument you can provide (which is rather Nifong-esque) is that the proposal probably doesn't exist in the first place.

But let's assume they fabricated the story entirely, inventing a Home Office spokesperson in the process. They made a bit of a mistake stating that the Advisory Council on the Misuse of Drugs would be producing a report this month on their entirely fabricated story. So obviously no report will be produced this month since the story is made up, right?

Also, you think the Advisory Council don't read the media? You think they're just saying "well, look at that! Another made-up story misrepresenting us and making us look foolish! Ah well, I suppose we should just stay silent".

Or.....perhaps you just can't find any suitable point to make, grouse?
posted by FieldingGoodney at 8:39 PM on January 12, 2007


"My point being that the proposal is gender-specific where rape in the UK isn't (hmm, second time I've said this now). "

"The proposal is gender specific. Men can be victims of rape under UK law (read the Home Office link I provided earlier - it states it clearly there). grouse, to stop sounding like an ass, just read the sources provided."

"OK, that's the case in those US states you mention. Meanwhile, back in the UK, men can be victims of rape (albeit, male on male)."

UK rape law isn't gender specific when only men can perpetrate a rape? Do you not know what a "gender" is? Further, let's stop pretending that there's this rampage of raping perpetrated by women, OK? That's such a fucking canard that you must be part of the duck lobby. Women raping men is statistically irrelevant for this discussion.
posted by klangklangston at 9:09 AM on January 13, 2007


Do you not know what a "gender" is?

Well, read my profile and you'll get your answer. It's only in these types of discussions I use this word - because it's become the common parlance.

Women raping men is statistically irrelevant for this discussion.

You quoted me 3 times, and in the 3 times I never spoke of women raping men - in fact, I specifically state that UK law only sees male victims if it's male-on-male.

A man can be a victim of rape in the UK. Only men can be perpetrators of rape in the UK. Work it out yourself.

The proposal (unworkable as it is) is written in gender-specific terms. If you can't use logic to work out the problem here, then I shouldn't waste any more of my time trying to explain it to you.
posted by FieldingGoodney at 7:48 PM on January 13, 2007


""My point being that the proposal is gender-specific where rape in the UK isn't (hmm, second time I've said this now). ""

"A man can be a victim of rape in the UK. Only men can be perpetrators of rape in the UK. Work it out yourself. "

Again, how is UK rape law currently not gender specific?
(And the mention of women raping men negates your complaints about gender specificity. Try to keep up.)

Look, I'm done with this bullshit on my comments page. You're an idiot, and a dishonest idiot at that. Have fun rebutting all alone.
posted by klangklangston at 8:18 AM on January 14, 2007


Again, how is UK rape law currently not gender specific?
(And the mention of women raping men negates your complaints about gender specificity. Try to keep up.)


.....

UK rape law isn't gender specific when only men can perpetrate a rape?

So what's this got to do with the victims of rape? Sorry, I've missed the logic here. My point being that men and women (read: not gender specific) can be victims of rape. Yet the proposal speaks in gender-specific terms regarding the victim ONLY being female that cannot possibly consent if 'too drunk'. Apparently men (who can be victims of rape) can never be 'too drunk' to consent.

klang, it's a blessed relief you've decided to stop being dishonest and an idiot in this thread (I figure your insults are a projected opinion of your continued willful ignorance - I have to say you've described yourself rather accurately here).
posted by FieldingGoodney at 11:48 PM on January 14, 2007


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