If I ever have sex, I'm going to have her sign a waiver. Then have it witnessed by two independent objective neutral parties. Sad part is, I'm only being halfway sarcastic here.


Not so fast there, doc. Depending on the level of drunkeness, diminished capacity kicks in, I'd imagine, and then any consent given goes out the window because they aren't mentally capable, due to the diminished capacity, to actually give consent.

But I'm not a lawyer, so I may have the law all wrong.

Drunken sex *is* a ridiculous minefield. I don't think enough people understand, legally, how it can be. And before I get strung up as a victim blamer, which I'm not attempting to do, and I think is wrong, just hear me out for a moment. Also, remember I'm not a lawyer. I'm just throwing a few random thoughts out there for discussion's sake.

The lack of memory and confusion which, as I'm sure any of us who've had a few more than we really should have, makes it incredibly difficult for the legal folks to work with. Mostly, because of the whole reasonable doubt thing, I'd imagine. Barring any decently solid evidence that consent was not given, or other corroborating physical findings, a lot of these things, I'd imagine, boil down to a he-said-she-said scenario. Which is absolute judicial  hell. I know it sounds cheesy, but even I've seen enough Law and Order episodes to know that trying to build a case for conviction solely on a victim/witness who's judgement and memories are obscured by alcohol, is insanely difficult. Why? The track record for sober, alert people recalling details of events correctly has been shown to be generally fairly unreliable. Now add the effects of alcohol into the mix. Hell legal nightmare.

Take the idea that every day, hundreds of people get liquored up and take strangers to bed and have perfectly consensual, pleasurable sex together. Now, take a woman who gets liquored up, and finds she's had sex what she doesn't recall having or giving consent to the next day. You have to be able to convince a judge and a jury that beyond any reasonable doubt, that she did not, at some point, consent to the sex that was had. I'll be perfectly frank, I wouldn't want to be on that jury. But if I was, I'd have a hard time, without any real supporting evidence, to convict a man of rape, based solely on a witness/victim testimony alone, let alone one who's memory and judgement were so impaired by alcohol. I'm not saying I particularly agree with that, I'm just saying, I can understand the legal difficulties in pursing and getting convictions in these cases. And of course, even if she *did* consent, but didn't remember it, if she was to the point of inebriation where she enters the realm of diminished capacity, then you can't really accept that consent, can you?

There's another big hazy zone. At what level of alcohol consumption does one enter that realm of diminished capacity, and lose their ability to provide legal consent? Four drinks? Six drinks? A blood alcohol level of 0.8?

At the end of the day, I still stand by the idea that no consent = rape. Period. End of story. It's less a question of what constitutes rape, and more a question of what can you classify as mentally capable consent. And like I said, I sure don't want to be the legislator calling the shots on that one.


Again, please don't jump all over me, I'm just throwing out some ideas into trying to explain the difficulties in this issue. Because it's an incredibly difficult issue. Again, I am in no way shape or form trying to victim-blame here. I'm merely trying to discuss some of the reasons why the mix of alcohol into these situations, creates such a mess when dealing with consent in the legal world.

No, sex + alcohol = not a very good idea.

Indeed. However, with regards to "drunk" you still have to decide upon a point at which an individual's level of intoxication qualifies as impaired enough so as to render them incapable of giving consent. Which, really, is kinda subjective. Do we go with the established 0.08 BAC as it is for impaired driving? I think that one might work pretty decently, actually. Not perfect, but decently.

Edit: And, then, the question becomes, how does a man judge when a woman is impaired enough that her consent can't be counted upon? Obviously, if she's half-passed out in your arms, I think that would be rather self-evident.
But what for those folks who can hold their alcohol really well? Ones whose judgment may be completely shot, but don't exhibit many physical signs of heavy intoxication? [It happens. I know, myself, there are times I can be completely out of my skull, but you'd barely know it to look at me.]

I know it seems like I'm splitting hairs, but, you have to remember, this is the judicial system we're talking about. We're talking lawyers here. And, no offense to Vorsaga, but lawyers and the legal system are all about splitting hairs, because sometimes the difference between a successful million dollar lawsuit and a loss, is something as small as a single word in a document somewhere.

And pf course, now I've got the mental image of walking a woman home from the bar, getting to her door, having her invite me inside, and responding with "I'd love to baby, but I'm gonna need you to blow on this first...." *and whipping out a breathalyzer*.  >.<


Edit: Actually, I'm really very curious to see what some of the legal-oriented folks around here have to say on this one. I'm sure they know far better than I do how things are defined and what can pass and what cannot.

I can't think of any legal reason why both parties aren't culpable for rape.  You're responsible for what you do when you're drunk, but you're not able to consent.  That's true for both parties.

At that point, it really depends on if one of the parties decides to charge the other with rape.  I'm sure there are plenty of folks out there who have woken up with a hangover next to someone they can't remember asking to bed, who might regret fucking that stranger but who don't think any sort of crime was committed.  Yet another murkyness brought up by this proposal.

AFAIK, under English Crown law you *are* guilty until proven innocent.  There is no presumption of innocence.

Maybe we should just label all sex rape and enforce it the way we do the statutory variety.

A group in Massachusetts went to jail a few years back for BDSM-related activities under the premise that "one cannot legally consent to assault".