This message was self-deleted by its author

[Whiskeytide]

105. I notice that some of the responses to your OP have missed your point ...

... or have changed your scenario to match their responses. That's not helpful.

Here is a link to a law school journal from 1958 that demonstrates how the issue you raise has been something the law has wrestled with for quite a while.

http://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?article=3836&context=wlulr

My take on it is this:

There are actually two "capacities" to examine - and they're different entirely - the first being an element of the charge itself (which the prosecution must prove), and the second being a defense (which the accused must prove).

1. Was she/he was too intoxicated - i.e., incapacitated - to give consent to the sex act?

2. Was she/he too intoxicated - i.e., incapacitated - to recognize that the other person was too intoxicated to give consent?

If rape is considered a "specific" intent crime, then the answer to the 2nd question is relevant because lacking that capacity would be a defense to the charge of rape. That would mean that the prosecution could prove the rape occurred, but the accused could get off because he/she didn't possess the requisite intent to commit the crime.

If, however, rape is a "general" intent crime, the state of mind of the accused is not really relevant, and failing to recognize the incapacity of the victim is NOT a defense. If the victim did not give consent, a rape occurred. The gravity of that crime overshadows whether the accused knew what she/he was doing at the time.

Our society has long defaulted to excusing rape or minimizing it's significance, and that bias has been reflected in the law as well by allowing defenses based on the capacity or mental state of the accused (like "he/she dressed provocatively and I couldn't help myself", or "she/he let me do it last week so I thought it was okay this week too". These are not just victim blaming defenses ... they also seek to excuse the rape by shifting the focus to what the accused thought, or how the accused perceived the situation). But, gradually, we have been moving away from this and toward a more victim empathetic standard. Not that we're there yet on all of the issues involved, by any means, but that is the trend.

So - can an accused defend a rape charge with "I was too drunk to realize he/she was too drunk to consent"? Probably not - under the law today - in most jurisdictions.

I'm not sure any of this helps clear it up much. There IS a double standard in play here, whether we want to admit it or not. You can see it, perhaps, if you consider a scenario where two college women become intoxicated beyond their capacity to give consent, and engage in sexual activity. The next morning they both report to the police that they were raped by the other. If you're the prosecutor, what do you do with that?

But that double standard is probably justified given that by far the more common scenario is a woman being the victim and a man being the accused. The damage done by the act - both physically and psychologically - is so severe that we have to aim the law at the more common scenario, and place confidence in the system to minimize the likelihood of injustice in those rare cases that defy the norm.

Much of the advice above on how to try and educate your son, and teach him to respect women and boundaries - and to avoid unsafe or uncertain situations -, however, is sound. I think that's really all you can do.