this post was submitted on 20 Feb 2024
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Yes, but did Josie unreasonably believe that Jake would consent to sex with her while sober?
Police don't charge Josie because they don't think a conviction is likely, because they don't think they'll be able to prove beyond reasonable doubt the question I suggested juries are likely to be (actually) considering.
Yeah but isn't the whole crux of the thing that people aren't responsible enough to give consent while drunk?
But if you're not responsible for your actions while drunk, then why is the man responsible for his actions while drunk? Is a drunk man considered responsible enough to determine the sobriety of the people he's with?
I mean sure don't have sex with a lady if she's way too drunk, but that can be difficult to determine. I've been in situations where I was out with a woman who was so drunk she could barely walk and yeah, obviously that was a no go (though the next morning it all worked out). But what is the limit on how many drinks a lady can have before she's no longer able to consent? Is this a scenario where there needs to be a breathalyzer involved?
And yeah, I've woken up with women I wouldn't have been with had I been sober. Was I raped? Nah, I was just being a drunken idiot.
Not exactly how I'd frame it but go on...
Wait what, who who said that? That's not a conclusion based on your premise. All we said is that intoxicated people can't consent.
Would it be reasonable to believe they would consent to sex with you while sober?
Was it reasonable for them to think that you would have consented to sex with you while you were sober?
The poster did. If your actions as a prosecutor are to punish one party who is at the same level of drunkenness as the other, who you're letting go, for the same actions (sex with a drunk person), then yeah, you're saying at least sometimes, you're not responsible for your actions while drunk.
Being drunk leads to poor reasoning and poor decision making whether you're male or female. Either apply the same standard or don't. If she wants to pursue action against him, or the state does, then they both face the same penalty, considering the same crime.
You also seem to default to making judgements about what another person's theoretical state of mind would be if they weren't drunk in this situation. That might work for prosecution, but it's a shit heuristic for actually preventing anything. I don't know most people's states of mind when we're both sober, and now you're expecting a drunk person to figure out another drunk person's sober mindset?
People are responsible for their actions, and the foreseeable consequences of their actions.
If it was not reasonable for her to believe he would consent to sex while sober, she should not have had sex with him.
It's my hypothesis that prosecutors will only bring charges if they think they can convince a jury that a person was not reasonable to believe the other party would consent to sex while sober.
Yeah which is why posters like this are good. Don't have sex with drunk strangers. Don't have sex with drunk platonic friends. Don't have new types of sex with existing serial sexual partners unless it's reasonable for you to believe they would consent while sober.
No I'm asking them not to try. If your judgement is impaired by alcohol, don't try to assess if someone has consented to sex with you.
In the event of a court trial? That likely would come into play. The argument that the defendant was also too inebriated to make an informed decision. I don't know what the legal equivalent of "mulligan?" is but.. yeah
But... how do you prove that you were drunk enough? Were their witnesses? Why the fuck would there be witnesses in your bedroom while you are hooking up? It very much becomes "he said, she said" with the path being character assassination. And if that comes across as "massively fucked up and unfair" then... I strongly suggest researching how the average rape trial goes.
As for "how drunk is drunk enough?" That is very much a question. And is why it is good to have "the talk" with a potential partner. If they are at all slurring their voice or seem "drunk" then you take a raincheck. And if this is some rando who drank half a bottle of whiskey but still seems good to drive? Maybe be a bit more selective on who you stick it in?
Honestly? You know you. But understand that we have decades (probably closer to a century or two?) of indoctrination to make people blame themselves for "being taken advantage of". How many sitcoms have "the walk of shame" where one of the main characters drank too much, "slept with" someone they didn't want to, and is now shamed as a slut or a fool because they woke up the morning after with them in their bed? And how often is the abhorrent admirer portrayed Urkel-style with "I'm gonna wear you down"? And that applies to men, women, and everyone in between.
Because yes, it is very much a question. And... because of the legal system and society, it is almost never in a victim's interests to actually press charges. But people need to learn: "I drank too much at a party and someone I didn't want to have sex with convinced me to have sex" is not "I was stupid". It is "I was coerced into sex". And whether an individual considers that rape is very much a personal thing. Legally? it is. But I am not going to blame anyone for wanting to avoid that word for the purposes of their own sanity.
It's just a messy situation no two ways around it. Lots of judgment calls when people are too intoxicated to have good judgement.
Generally as a society we do consider people somewhat responsible for their actions when they're drunk. Like you can't say "I was too drunk to know that I shouldn't drive home." If I'm too drunk to be able to say no to someone, that's my responsibility. Other people are drinking too, and it's not their responsibility to make absolutely certain that when I'm saying "yes" to someone I might not normally go with.
Sure there can be ugly situations where someone is coercing someone, but there can also be innocent situations where someone is just flirting and things go a little further than normal because alcohol is involved. And there's everything in between.
And the shame of being considered a slut comes into it. I don't really feel all that ashamed of waking up with someone I wouldn't have normally been with if I was sober. We had sex, nothing to be ashamed of there. I had sex with someone I wouldn't have normally been with. If there's no shame in it, why would I be angry with that person?
What if Jake wouldn't have consented if sober, because although he thought Josie was a smoking hot sex goddess and would probably consent to some hanky panky next week, he had only broken up with Janie a few days prior and wouldn't want to hurt her by moving on too soon, does that still make it rapey?
Was it reasonable for Josie to believe he would consent to sex while sober?
If Jake had explained to Josie that he was really hurting about breaking up with Janie, and didn't want to do anything that would jeopardize his chances of fixing that relationship, then it would not be reasonable for Josie to believe he would consent to sex while sober and therfore she shouldn't have had sex with him.
Unfortunately our society's sexist gender conditioning have ingrained lopsided expectations that people have to navigate.
Is it unfair that it's more reasonable to believe a drunk man would soberly consent to sex? Yes. But that doesn't change what's reasonable for Josie to believe. We don't know what information was available because it's a hypothetical, we can imagine all sorts of scenarios.
If you're not able to assess if a person would soberly consent (because you're drunk, or because they're drunk) do not have sex with them.
Your answer is great, but it really addresses whether Josie ought to hook up with Jake, not whether doing so would be rape.
As a young man in my 20s, there were plenty of times I ought not have had that 6th beer, ought not have ate some more cake, ought not have driven quite so fast.
To me, if someone cheats on their partner while drunk, even if they would not have done that while sober, that does not make them a rape victim. It may well make both participants repugnant scum, but the term "rape" is a serious one and I don't think it really applies in my this specific example.
In 1998 that might be a reasonable concern, but I think nowadays it definitely begs the question. Young men are pickier than they used to be, less prolific in general.
Right, so if it's not reasonable to believe that a person would consent to sex with you while sober do not have sex with them.