It’s Time to End ‘Rape Culture’ Hysteria

[qazplm]

26. legally no it isn't

"drunk" is not a legal term in this area. There are no jurisdictions that I'm aware of that only require a woman to be "drunk" in order to be incapable of giving consent.

The word "drunk" is very nebulous. The words used in the legal world like "substantially incapacitated" "impaired" and the like aren't tremendously better defined but they are a lot better defined than "drunk."

Juries struggle with this all of the time. .08 isn't going to get you there in most cases, but it obviously is something less than so drunk that you are literally passed out. Where that line lay between those two is something that legal communities and juries have struggled with and continue to struggle with.

Then you have blackout. A state whereby to someone on the outside, you appear capable of making decisions. You aren't passed out, and you are making decisions, but your ability to form short-term memories has been blocked by too much alcohol. So on the one hand, you've consumed enough alcohol that one might fairly argue you are "substantially incapacitated" and can't consent, on the other hand, to another person, you are walking, talking, and making decisions, even engaging in behavior indicating interest in sex.

Which is where the mistake of fact defense comes in. The person was drunk, couldn't consent, but you "reasonably mistook" that fact. And that adds another layer to the complexity, particularly for juries. Ok, she was legally not able to consent because of alcohol, but what if she looked like she was?

Now, you lay out a scenario where a sober (or near sober) guy goes out and cruises for drunk women. I agree that scenario is more likely to lead to rape because of the inherent power disparity between someone inebriated and someone sober. However, you are going to have a hard time proving in most cases that a guy went out to "cruise" drunk women.

In my experience prosecuting and defending these cases, most of the time, the accused and the alleged victim had some sort of prior relationship (dating, friends, acquaintances) and they didn't just meet up at the bar at last call (although I'm sure that happens). In most of the cases I've seen, both parties are at least somewhat intoxicated to varying degrees.

It's not a clear-cut, obvious thing, because if it were, my and my prosecutor's conviction rate would have been higher. I had cases where I believed the alleged victim but simply did not have the evidence to put forward BRD about intoxication, and when I did it usually involved the narrower slice you described (sober guy, drunk woman, no prior relationship).

I think the term "rape culture" is over-stated. First, it isn't an "American" problem, it's a human problem. Second, alcohol and sex have gone together since time immemorial. Not defending it, we grow as humans and realize some things we did for a long time are now wrong. However, the relationship between the two is there. I do think we have an alcohol problem in general in this country, and believe if we could find a way to de-glamourize it like we are just finally beginning to do with smoking, we'd benefit the entire country in a myriad of ways, including the sexual assault problem.