A question about rape

[philosslayer]

Yes, I'm going to go there based on a recent set of events, and an honest desire to hear opinions.

The scenario. A young man and a young woman are drunk. Like, falling down drunk. But being young and amorous, they mutually agree to have sex. During the sexual episode the young woman passes out. The young man, in his inebriated condition, continues.

Passers-by notice, pull him off, and he is arrested. He has no previous record of this sort of behavior, and there is no indication that the young woman objected in any way to the episode before her lapse into a less than conscious state.

Based on these facts:

1) Is it rape?

2) If the answer to question 1 is yes, what should the punishment be?

[glasshouses]

1. Legally it falls under the definition of rape but it would really depend what the woman says

It's also important to note did she pass out during the intercourse or before it.

If she passed out before it and he knew this and undressed her to have intercourse then it's rape in my opinion

[philosslayer]

4. She passes out DURING the episode

Not beforehand. They are equally drunk, and both consenting.

[glasshouses]

9. I don't know if the law agrees with that or not?

That's why I said it depends on what the woman says after

[Nuclear Unicorn]

75. "it would really depend what the woman says"

Rape laws are gender neutral.

[uppityperson]

2. Legally, consent can not be given when "falling down drunk", for either party.

In which case yes, it is rape. Next question is is it rape for both parties?

Give them both community service with dvsa group, also go to AA meetings.

[glasshouses]

3. interesting

"Next question is it rape for both parties?"

[philosslayer]

7. So if my wife and I get hammered...

And decide to have sex, we're both guilty of raping each other?

[phil89]

12. And according to some people

you'd need AA. There's some bizarre interpretations of reality out there.

[Warren DeMontague]

22. Some people apparently never went to college.

Breaking News: There is a tremendous amount of getting drunk and having sex, out there.

To call all drunk sex "rape" is a serious misapplication of the word, I think.

[whathehell]

28. Some people apparently never heard that public sex is illegal.

Maybe they should start from there.

[Warren DeMontague]

30. HEAVENS WHAT WILL THE CHILDREN THINK

Was the question in the OP about "public sex"?

Or maybe you meant to respond to a different thread?

[whathehell]

34. Overreact much? Hint: It's not a personal judgement, it's just a fact.

and it seems you need to re-read the OP.

The OP mentioned "passers-by" and while it MIGHT have occurred in

a frat house, the words "passers by" leaves the possibility of open space


Pssst: Check out the rest of the thread -- I'm not the only one who

made this point.

[Warren DeMontague]

37. Admittedly, it's an odd example.

Still, the core philosophical point is, if all drunk sex is "rape"- even if it takes place in public (bad judgment, yes) -that is a serious misuse of the word IMHO.

[whathehell]

42. Yes.

You do have a point about "drunk sex", though.

Since both were drunk, I don't know how a court would rule, should it

came to that.

[Boudica the Lyoness]

68. I saw this on a British TV comedy

One Uni student told another that she doesn't drink and the student said, "How do you have sex then"?

[glasshouses]

29. Apparently

[uppityperson]

47. the law is odd sometimes. Intoxicated people cannot give legal consent which makes

things complicated at times.

[Major Nikon]

14. True, however...

In order for it to be rape in most states the perpetrator must know the other person couldn't give consent. If both are equally drunk, how would either one know the other couldn't give consent? The whole 'mutual rape' thing seems pretty hard to demonstrate legally.

[uppityperson]

48. I agree, it is not always simple.

[BlueJazz]

5. "Passers-by notice, pull him off"

Rape is never funny ...but where in the heck were they doing it? On the sidewalk ?

[philosslayer]

6. I'm not suggesting anything is funny

They're drunk. They're either outside, or in a place where others can witness what they are doing.

[BlueJazz]

8. I didn't think that, philosslayer. Just the way it was worded struck me as strange. My bad.

[glasshouses]

10. Like a Frat house type setting

[phil89]

17. I doubt they would

stop the activity if it were in a frat house.

[glasshouses]

24. I just can't think of another place something like that would happpen

I guess on the dunes of the cape with your lady

[sendero]

56. In that case ..

.... it's not rape but it is indecent exposure.

[Jamastiene]

72. Well, first off, no one would stop him.

Crowd hive mind debases into voyeurism and even sometimes joining in, almost every single time something messed up happens. I have never seen a crowd that tries to stop anything, even if he was violently raping her and she was screaming her head off. If she was passed out, most men in the crowd, that would inevitably gather to watch, would nod their heads at each other without saying a word and join in and most straight women would say that's fucked up and either leave or watch while cuddling with their boyfriends.

That is more like how people REALLY are, unlike your made up scenario. The human species, on average, is nowhere near as altruistic as you seem to think. And yes, it is still rape. What kind of man wants to have sex with a passed out woman to begin with? Never mind, I know the answer to that.

[Hassin Bin Sober]

25. I'm pretty sure this is in reference to the recent Stanford case.

Varsity swimmer raping unconscious woman outside a party. To bicyclists stopped him and held him for the cops.

[whathehell]

27. Yes, that was my thought as well...First: There are laws -- Don't do it in public

Most people don't do it in areas which have "passers-bye".

[Warren DeMontague]

31. Okay, but are drunk people allowed to have sex, or not?

I think there are a lot of drunk fuckers who would appreciate a clear answer.

[glasshouses]

33. right

Your self and your lady drink a bottle of wine then have sex according to some it's legally rape .

[Warren DeMontague]

35. Thank the prim church lady of temperance, I don't drink anymore.

And whenever my wife drinks, she passes out on the couch, she's such a lightweight.

I'm lucky if I can move her upstairs so she doesn't wake up with a sore neck. It's hardly bam-chick-wow-wow time.

[glasshouses]

39. I know rape is a serious issue that happens but

from reading some of the responses it sounds like the legal definition has finally reached the absurd level in this country.

[uppityperson]

50. You err n assuming those who quote the law agree with it in every case.

There is the law, intoxicated people cannot give consent, and there is reality, 2 or more drunk people have sex and both/all are OK with it.

[Warren DeMontague]

57. I think the law says generally that someone too intoxicated to give consent, cant consent

Tautology-style.

But I dont think that is the same as simply saying "intoxicated", which is hardly a solid legal standard- unless you're talking motor vehicles and breathalyzers.

[whathehell]

45. I hope you're not referring to me as "the prim lady of temperance", LOL

Although stories like this DO make me glad I'm a very light drinker,

it's not because I'm prim or anti-booze (I am half Irish, after all) but

because I never developed a taste for it, and being drunk isn't a "fun" experience

for me, I don't know why, it's just how I turned out...The only "addiction" I've

ever had was to cigarettes, and I quit those seventeen years ago.

[Warren DeMontague]

53. Nah-making a joke about the fact for my wild n crazy facade, I'm actually pretty damn straightedge

at least, these days.

A cup of kicking horse espresso is about as hard as I tend to party.

I think most people have an off switch with booze, but some people -for whatever reason, liver enzymes driven by genetics is my guess, maybe 10% of the population- can't and shouldn't touch it without it causing problems.

[whathehell]

69. Gotcha..

The hard-partying tends to wind down after a given number of years.

Have a good weekend.

[Warren DeMontague]

73. Downton Abbey Marathon

and then I need all day Sunday to recover.

[whathehell]

77. Love Downton Abbey!

I know about marathons -- Mr. Whathehell and I once watched three seasons of MAD

MEN in one weekend!

[bettyellen]

60. but is it Brown Chicken Brown Cow time?

http://www.bing.com/videos/search?q=brown+chicken+brown+cow&qpvt=brown+chicken+brown+cow&FORM=VDRE

[Warren DeMontague]

63. Thats ....insane.

And thanks for the "meet the feebles" flashback.

[bettyellen]

64. LOL. Well you guys gave me a chuckle, so I thought I would return the favor.

you can't unsee those horny puppets.

[Warren DeMontague]

65. Thats what I mean about meet the feebles

Talk about doing stupid shit when drunk, I watched that thing once in 1997 and cant. Unsee.

[whathehell]

44. That's actually a funny question..

especially since drunk people often do what they want, allowed or not.

Maybe they should check with local law enforcement.

[cyberswede]

11. A young driver, in an inebriated condition, runs over a pedestrian and continues driving.

Is it a hit & run?
What should the punishment be?

[Nye Bevan]

16. Second degree murder, plus DUI and leaving the scene of an accident.

I would say maybe 20 years in prison.

[philosslayer]

23. Driving while drunk is a crime

Having sex while drunk is not. Your comparison makes no sense at all.

[Warren DeMontague]

32. having sex while drunk is EXACTLY like running over a pedestrian, silly!

We need a war on drunk sex. Maybe a drunk sex czar.

[madinmaryland]

49. Dude! Human civilization would die out if having sex while drunk was illegal!!

[Warren DeMontague]

54. You laugh, but this is sort of true.

[cyberswede]

59. Drunk sex isn't the issue; continuing to fuck a passed-out person is

Clearly my analogy is pointing out that a person being too drunk to notice they committed a crime doesn't absolve them of that crime.

Analogies compare issues, they don't equate them, btw.

I honestly don't understand why people have a problem with the idea that if you're fucking someone and they pass out, then you should stop fucking them.

[Warren DeMontague]

62. I dont understand why people have a problem with the idea that cannibalism is bad.

Oh, Im not saying you have a problem with the idea that cannibalism is bad, in fact no one in this thread has said they think cannibalism is good. In fact, if you ran around DU I suspect you would have a pretty tough time finding ANYONE who supports the idea of eating people.

I just dont understand why people have a problem with the idea that cannibalism is bad!

[cyberswede]

66. Cannibalism is bad; so is fucking someone without their consent.

...or should I say "cannibalism is EXACTLY like fucking a passed out person, silly!"

The difference is, while nobody has posted various loopholes that might excuse cannibalism, some *have* posted various loopholes that attempt to excuse fucking a passed-out person.

http://www.democraticunderground.com/10026152633#post36
http://www.democraticunderground.com/10026152633#post191
http://www.democraticunderground.com/10026152633#post9
http://www.democraticunderground.com/10026152633#post162
http://www.democraticunderground.com/10026152633#post40

[Warren DeMontague]

71. The goofy example in this OP specifically mentioned "consent", did it not?

Last edited Sat Jan 31, 2015, 05:40 AM - Edit history (1)

As for the rest, I don't think they're attempts by sneaky would be passed-out-people-fuckers to "find excuses" so much as they are appropriate inane-level responses to stuff like Trumad's inane thread, which is where you found all those, right?...

Honestly, with that, I'm not sure what he's trying to accomplish.

Really, to me, the only appropriate answer to that OP is "okee dokee! whatever you say, coach". Beyond that the thing seems oddly designed to do nothing but ferret out inappropriate responses so that others can make lists of them for future linking and reference.

Not that anyone would do that, of course.

I sure as shit wouldn't go into that thread and mention that something like that happened to me at least once - I passed out, etc, while with someone I was enthusiastically and openly consenting with - when I was in college, and... well, anyway, despite the magic of youthful priapism my feelings on the matter have not changed since that time.

But no, I would not mention that in that thread; been around the DU block too many times to fall for that. Just look what happened to the poor fucker who did.

I don't honestly think any passed out sex is going to be enabled OR prevented based upon what the cranky, statistically generally middle-aged DU demographic does or doesn't say.

[cyberswede]

58. Fucking someone without consent is also a crime.

The OP used the instance of the fucker being too drunk to notice that the fuckee passed out.

I merely pointed out that a person being too drunk to notice that they comiitted a crime (be it drunk driving or fucking someone without consent) doesn't excuse them from it.

[phil89]

13. If the male passes out

would the female be guilty of rape if she doesn't end the encounter?

[Nye Bevan]

15. Neither was in a position to give informed consent, so both are guilty of rape.

They are both also guilty of indecent public behavior, or whatever it's called.

[glasshouses]

19. So two drunks having sex are both guilty of rape

interesting times we live in........

[Nye Bevan]

20. It's constantly stressed here that drunk people cannot give consent.

And if there is no affirmative consent, then it is rape.

[glasshouses]

26. Then there's a lot of rape going on in this country

What is the definition of a blood alcohol level for this to apply?

[Nye Bevan]

38. I know, right?

But try saying on DU that it is possible to give consent while under the influence of alcohol, and wait for the onslaught of fury.

[glasshouses]

41. I think I just did up a few posts

[tblue37]

18. I imagine that if the woman arrived at the police station some time later

completely sober and told the police that she had entered into sexual intercourse intentionally, willingly, even though neither he nor she was in any condition at the time (because they were both incapacitated by alcohol) to satisfy the letter of the law in terms of being able to give consent, the charges would be dropped. If no passers-by had observed the circumstances, which from the outside certainly would seem to be rape (and would be if she had not willingly entered into the intercourse before passing out), then the issue would never have come up at all if the woman was a willing participant before she passed out.

Of course, unless that is an extremely rare occurrence for them, people who get that completely wasted should probably consider whether they might have a bit of a problem with alcohol.

[Vattel]

21. It depends on several factors.

If (a) the woman agreed to his continuing should she pass out, then it is not rape. If (b) the man was understandably unaware that she had lost consciousness, then it is not rape. But if neither a nor b is the case, then (barring really weird circumstances) it is rape. The penalty should not be too harsh, though, since the woman had agreed to have sex with him and the sex began when she was still conscious. (By too harsh, I mean something like multiple years in prison.)

Note: The mere fact that the woman was falling down drunk when she agreed to sex does not mean that the man raped her. He was also falling down drunk when he agreed to have sex with her, and so she is hardly in a position to complain about his having had sex with her.

[DemocratSinceBirth]

36. If you or your partner have to get falling down drunk to have sex you need to check yourselves./NT

[noamnety]

40. Well, let me ask you this.

Is the guy who is "too falling down drunk" to notice he is having sex with an unconscious person suddenly sober enough to get up and try to run away when confronted?

Because if we're talking about the swimmer/rapist, it's pretty clear he was capable of understanding he was doing something unacceptable and capable of rational thought (how to escape and not face consequences) as soon as witnesses appeared.

[philosslayer]

43. I'm not talking about the swimmers case

I don't know the detailed specifics. I'm talking about the scenario described above.

[undeterred]

46. Passers-by?

Reason #1 why this is a strange scenario.

[elehhhhna]

55. cripes thank you

[MannyGoldstein]

51. If I were single now, I wouldn't date without a contract,

a breathalyzer, and a Notary.

[hunter]

52. You wouldn't ride a motorcycle drunk...

... it's like that. There's too much risk of something bad happening.

On the other hand mildly drunk sex between adults with already established sexual relationships can be really fun.

There's your answer. Don't be an idiot.

[flvegan]

61. Did the woman press charges?

Intent is a funny thing.

[DebJ]

70. That's what I was thinking. If she doesn't say it is rape, then how is there a case?

Unless she was under age of consent, but that's not stated.

[elleng]

76. There isn't;

she has to 'complain.' Passers-by might complain about the event taking place somewhere in public, tho, I suppose. That wouldn't be 'rape.' 'Nuisance?' Public nudity? Obstructing traffic?

[Nuclear Unicorn]

74. What if the man decides to press charges?

[mythology]

67. Yes it's rape

If somebody is passed out, it's rape. If they were so inebriated that they passed out while you were having sex, they weren't in any condition to consent in any meaningful fashion. If you're so drunk you can't tell if somebody passed out, you weren't in any condition to consent or understand if they consented.

As for the sentence, I would say that the prosecutors should confer with the victim to see if he or she wished to press charges. I would also take the witness reports and things like b.a.c. into consideration. Was the non-passed out person obviously wasted? That would grant at least some consideration.

So the potential legal ramifications could be something as simple as counseling to a lengthy prison sentence, depending on a variety of factors.

I think it's also very different if the two people involved are in a partnership. People in the thread have said that by the definition of two people sharing a bottle of wine and then having sex equals rape. Most people wouldn't consider that rape because there's a history and a larger presumption of consent in an ongoing relationship than with strangers. Likewise waking a partner up with a sexual activity designed to tease them (I'll leave that up to your imagination) isn't rape even though they didn't explicitly consent to that act, provided you stop if they wake up and say no.

I also think it's a poor form of arguing to claim that two people who share a bottle of wine and then have sex in an ongoing relationship is equal to having 10 shots of tequila a piece and then having sex with a random stranger who passes out. It's taking a very mild case that virtually nobody would argue is rape and then using that to criticize calling something rape when one person is actually passed out and thus can't give even inebriated consent.

But all of this can be solved by not getting falling down drunk. If I'm not that drunk I can't misinterpret a woman's consent, or not notice if she passed out. Besides, my self-esteem couldn't handle it if a woman was so uninterested she passed out.