Is rape always rape? (1 Viewer)

[nerdasdasd]

http://www.youthlegalserviceinc.com.au/factsheets/AgeofConsent.pdf
"If you engage in sexual behaviour with someone who appears to be so drunk or stoned that they do not know what is going on, then this is not consent. This may be indecent assault or sexual assault and both are very serious offences."

 

[LoveHateSchool]

Is this really a thing?

Wouldn't a fucking huge portion of people who bang be drunk though?
Are you saying these are all cases of rape as those involved "can't give consent"?

Yes it is a thing under Australian law. If the person is drunk to where reasonable consent cannot be given, it is rape.

Not entirely, but I can think of about a million greater injustices.

If you drive into a dodgy neighbourhood, leave the key in the ignition and leave the doors wide open, nobody gets accused of "victim blaming" when everybody blame the guy for leaving his care open with the key in the ignition.



I didn't bring that up.



From my above post: "So basically, if women get too drunk they're unable to make correct desicions about having sex, but men, who are as drunk or even more drunk are expected to realise that these women can't make sound decisons.
Which is to say, drunk men have to understand drunk women's state of mind better than the drunk women can themselves. "

Should women be allowed to drink drive when their BAC is above a certain point? After all, if a drunk woman can't consent, then how can she know that it's wrong to drive? I'm not being faceteous, I'm genuinely curious.



I didn't bring that up.



Agreeing to sex (or even initiating it) and then deciding ex post facto that you didn't consent because you were drunk trivialises consent.

I'll address your top comment. So being a woman and having something to drink, you are inviting rape now? So pray tell what other circumstances make it any less rape? Does clothing fall into this category for you? The amount of victim blaming is phenomenal in this comment. Fault lies with the one that commits the crime. Even in your tenuous car example, this is still true that fault lies with the stealing party as you can't be seen to 'invite' personal theft.

The three was directed at the guy in the article, not you directly.

To your other point, it's not about understanding their mind, it's about understanding what consent is.

 

[enoilgam]

Also guys, this is 61HA of the Crimes Act 1900 which deals with the issue of consent in NSW: http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s61ha.html

 

[SylviaB]

To your other point, it's not about understanding their mind, it's about understanding what consent is.

Yes, I'm saying if a woman can't understand if she's consenting or not because she's drunk, how can a drunk man be expected to?

 

[Tasteless]

http://www.youthlegalserviceinc.com.au/factsheets/AgeofConsent.pdf
"If you engage in sexual behaviour with someone who appears to be so drunk or stoned that they do not know what is going on, then this is not consent. This may be indecent assault or sexual assault and both are very serious offences."

Yes it is a thing under Australian law. If the person is drunk to where reasonable consent cannot be given, it is rape.

I guess the threshold is difficult to prove legally / and is also potentially subject to the judgement of someone else who may be drunk which is a bit :/
"So drunk or stoned they dont know what's going on, then it is not consent" makes perfect sense, I was thinking 'drunk' might not necessarily mean to that extent in the earlier post.

 

[enoilgam]

I guess the threshold is difficult to prove legally / and is also potentially subject to the judgement of someone else who may be drunk which is a bit :/
"So drunk or stoned they dont know what's going on, then it is not consent" makes perfect sense, I was thinking 'drunk' might not necessarily mean to that extent in the earlier post.

From the Act:

(6) The grounds on which it may be established that a person does not consent to sexual intercourse include:

(a) if the person has sexual intercourse while substantially intoxicated by alcohol or any drug

From my interpretation of that, being drunk does not always negate consent. It "may" negate consent and the person must be "substantially intoxicated". So drunk for the purposes of determining drunk driving and consent are most likely different.

 

[lochnessmonsta]

But how are males supposed to know what this level of 'substantial intoxication' is? You can't ask the girl, because if they are substantially intoxicated they can't make rational decisions, and hence couldn't tell you. This gets even more complex if the male becomes intoxicated, how are they supposed to know, unless everyone is carrying breathalysers in their pocket and a girl is out of bounds if she blows a .1 or something.

"Wanna have sex?"
"Yes"
"Are you sober enough to consent?"
"Yes"

 

[Nooblet94]

So getting drunk around drunken men, it's your fault if you get raped??

I can't even fathom his arguments against it.
1) It doesn't matter if it's your boyfriend, consent must always be provided.
2) Last time I checked drinking wasn't a crime and also comes under the you can't give consent if you are a drunk/under the influence of drugs.
3) 'Leading on' isn't consent. Hence not an excuse for rape.

Anything that trivialises the notion of consent is an absolute abomination and tantamount to victim blaming.

What if a guy that "rapes" a girl is drunk? He can't legally give consent either, so why is it that he's the one that's charged. Surely the girl is equally responsible.

Yes, I'm saying if a woman can't understand if she's consenting or not because she's drunk, how can a drunk man be expected to?

Dis.

 

[townie]

So basically, if women get too drunk they're unable to make correct desicions about having sex, but men, who are as drunk or even more drunk are expected to realise that these women can't make sound decisons.
Which is to say, drunk men have to understand drunk women's state of mind better than the drunk women can themselves.

Interesting point, had never considered this.

 

[kaz1]

So women don't have to take any responsibility for their actions when they are drunk?

 

[Trebla]

Another issue you guys might want to consider is the concept of female-on-male rape. If a man is drunk to the point where he cant consent to sex, can a women be held responsible for rape? I'm not offering an opinion on this, but it's an interesting little issue which we looked at in Criminal Law at uni (prior to a few years ago, female on male rape was impossible as rape required "penetration" back then). It's a rare occurance and extremely difficult to prove, but it does happen.

Also, if both parties are drunk and engage in 'consented' sexual activity and this consent would not be granted by both parties in a sober state then who is the rapist?


Consider the situation where person A wants to engage in sexual activity with person B (let's ignore the gender to prevent stereotype bias). It is expected that if person B denies consent, that person would communicate this to person A and if person A continues to advance then that is getting into rape territory. That' pretty black and white and I'm sure everyone knows this.

Now this where things get complicated.

Assume person A would not advance if no consent is given by person B. In the event that person B grants 'consent' to person A but is in a drunken state, how is person A supposed to know if this consent is the real intention of person B in his/her sober state? Person B might actually consent in the sober state anyway or may not consent in that state.

Now let's further complicate this kind of situation where person T is drunk and is making advances to person S. These advances may or may not be reflective of what person T would do in a more sober state. If person S provides consent to those advances then is person S raping person T? (if person T would not do such a thing in a sober state - and this information is not known by person S nor was it communicated by person T to person S)

There is also the grey area of how do you tell how drunk a person has to be such that his/her decision making is not reflective of those in his/her sober state - it is too subjective. A person might be drunk but not drunk to the point of being unable to make proper decisions but from another person's perspective this may be different.

The unfortunate reality is that this situation is almost always viewed as a person 'taking advantage' of another person when it can be much more grey and complicated than that. Of course those 'taking advantage' situations do exist but it would be incredibly naive to think that ALL situations are like that.

 

[someth1ng]

So getting drunk around drunken men, it's your fault if you get raped??

I can't even fathom his arguments against it.
1) It doesn't matter if it's your boyfriend, consent must always be provided.
2) Last time I checked drinking wasn't a crime and also comes under the you can't give consent if you are a drunk/under the influence of drugs.
3) 'Leading on' isn't consent. Hence not an excuse for rape.

Anything that trivialises the notion of consent is an absolute abomination and tantamount to victim blaming.

According to Ryan (1997), the key elements of consent include:

- understanding what is being proposed without confusion (not being tricked or fooled);
- knowing the standard for the behaviour in the family, the peer group and the culture (both parties have similar knowledge);
- having an awareness of possible consequences, such as punishment, pain, pregnancy or disease (both parties similarly aware);
- having respect for agreement or disagreement without repercussion; and
- having the competence to consent (being intellectually able and unaffected by intoxication).

(3) Knowledge about consent A person who has sexual intercourse with another person without the consent of the other person knows that the other person does not consent to the sexual intercourse if:

(a) the person knows that the other person does not consent to the sexual intercourse, or

(b) the person is reckless as to whether the other person consents to the sexual intercourse, or

(c) the person has no reasonable grounds for believing that the other person consents to the sexual intercourse.

In a way, it's saying that leading someone on can be consent.

The bottom line is that if you're responsible, you have nothing to worry about.

 

[enoilgam]

In a way, it's saying that leading someone on can be consent.

The bottom line is that if you're responsible, you have nothing to worry about.

You will find that the courts have a very high standard when it comes to implied consent (and rightfully so might I add).

 

[someth1ng]

You will find that the courts have a very high standard when it comes to implied consent (and rightfully so might I add).

Yeah, it's not surprising - I said it can be a form of consent but in on way did I say that it was. As we should all know, "no" means "no" and continuing constitutes rape.

 

[Lolsmith]

All of these hypothetical situations are all well and good, but some still involve behaviour that has better alternatives. A better way to go about this is if you think a chick is too wasted then you shouldn't have sex with them. Either because you think they can't consent or that they will regret it later and that might run afoul for you later, I don't really mind, but creating that system of values is important.

 

[someth1ng]

All of these hypothetical situations are all well and good, but some still involve behaviour that has better alternatives. A better way to go about this is if you think a chick is too wasted then you shouldn't have sex with them. Either because you think they can't consent or that they will regret it later and that might run afoul for you later, I don't really mind, but creating that system of values is important.

Yes but with that logic, you would just stay at home and sleep - perfect preventative measure.

 

[townie]

All of these hypothetical situations are all well and good, but some still involve behaviour that has better alternatives. A better way to go about this is if you think a chick is too wasted then you shouldn't have sex with them. Either because you think they can't consent or that they will regret it later and that might run afoul for you later, I don't really mind, but creating that system of values is important.

That's all well and good but I think at least in some of the hypotheticals raised, and indeed in reality, if a woman is that wasted there's a good chance that you are as well and given that impedes your ability to think clearly those cautionary thoughts might not even occur to you.

 

[Lolsmith]

Yes but with that logic, you would just stay at home and sleep - perfect preventative measure.

Why not take this to its logical conclusion and say that we might as well all kill ourselves on the off chance of doing harm to others

That's all well and good but I think at least in some of the hypotheticals raised, and indeed in reality, if a woman is that wasted there's a good chance that you are as well and given that impedes your ability to think clearly those cautionary thoughts might not even occur to you.

From what I've seen, people don't just take on a new set of values due to alcohol. They might be less inhibited, but they don't do things that they consider wrong. You don't just turn into a rapist because the booze told you to.

 

[SylviaB]

You don't just turn into a rapist because the booze told you to.

except you're using rape in a non-standard way here

i.e. most people wouldn't consider it rape

 

[townie]

From what I've seen, people don't just take on a new set of values due to alcohol. They might be less inhibited, but they don't do things that they consider wrong. You don't just turn into a rapist because the booze told you to.

It's not necessarily taking on a new set of values.

You're equating "I have been told by X that they do not want to have sex with me, but I'm going to have sex with X anyway" with "Whilst X hasn't said they don't want to have sex with me, they are fairly intoxicated and its possible they might not be in the right state of mind to give consent"

The former, drunk or sober is clearly not a thought you should be having or acting on.

The latter is something you will probably consider when sober, but is very possible you won't when drunk.