fretmeister wrote:Seth wrote:
That's exactly what happens if you get drunk and drive, now isn't it? Intoxication USED TO BE a defense to having an accident in a car, but now it's not a defense, it's an aggravating factor that will enhance the penalty. So why should it be any different when it comes to intoxication and consent to sexual activity?
What's different?
The drunk driver is held responsible for her decision making while voluntarily intoxicated, but the same person, in the exact same state of voluntary intoxication, is to be relieved of responsibility entirely when it comes to making bad decisions about sexual activity, and worse yet, the other person in the sexual activity is now to be burdened with a duty of care and charged with a felony crime if he simply does what he was invited to do by the intoxicated person? Really?
That's barbaric, irrational, illogical and stupid.
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There is a clear difference.
A person driving while not having the ability to do so actively does something dangerous to other people. The law is in place to protect other people.
Right, it's there to protect other people from suffering the consequences of the drunk's bad behavior.
A person getting drunk on your couch, for example, is not a risk to you or anyone else.
Ah, but the point is that they ARE a risk to others because they can give consent to sexual activity and then revoke that consent ex post facto and subject the person who relied on that consent to the risk of a prison sentence.
They do not surrender themselves.
Any time you voluntarily incapacitate yourself in the presence of others you are surrendering the care of your body to others as a matter of physical fact.
Even sober a person does not "surrender" themselves to another, they consent to actions, and often only specific actions.
Nonsense. As a sober person you can say to another "you can do whatever you want to me sexually" and your partner has a right to rely upon that consent and not be held criminally liable for satisfying themselves as they please. There is pretty much only ONE limit to that sort of consent, and that is death. The law says that a person may not lawfully give consent to another to kill them. Short of death, even serious bodily harm lies within the realm of valid consent when it comes to sexual activity. Just ask any hard-core masochist...or the courts.
The question here is why should a person be permitted to give general consent to sexual activity and then later revoke that consent and cry rape merely because they made an unwise decision to grant consent while voluntarily intoxicated?
Consent to a blow job does not automatically mean consent to vaginal sex. Consent to vaginal sex does not automatically mean consent to anal sex. The person has NOT surrendered themselves to your every whim. In fact if a person consents to giving you a blow job that does NOT mean they have consented to you even just removing their pants.
Wrong. Consent to any sort of sexual activity is consent to all sorts of sexual activity unless and until you say "no" to a different form of sexual activity. If you consent to giving me a blow job and I remove my pants, and then remove your pants, and then have anal sex with you it's all according to the ongoing consent to sexual activity that you manifest by NOT SAYING NO!
And if you, of your own accord and desire, give consent to sexual activity either before or after you voluntarily intoxicate yourself to the point where you do not, or even cannot say "no" to some particular sexual act, you have voluntarily surrendered your body to the care of your sex partner who is relying upon that consent. It is therefore unreasonable and unfair for you to claim, the next morning, that you didn't give consent and were raped, because you did in fact give consent and then gave over care of your body to your sex partner, who should not be held criminally liable for relying upon your consent. Your decision to impair your judgment and ability to say no, so long as it was knowing and voluntary on your part, should not impose upon your sex partner a greater duty of care any more than getting drunk and driving imposes a duty that other people on the highway get out of your way.
You are responsible for your decisions and the consequences that flow from your decisions. Society does not owe you protection against your own bad decision making when you choose to voluntarily intoxicate yourself and thereby impair your judgment, and it CERTAINLY shouldn't burden others with criminal liability for relying upon sexual consent and proceeding on that understanding merely because you later regret, or don't remember giving that consent.
Just as you face the risk of jail if you drive while drunk, and your impaired judgment is not a defense to a DUI, you face the risk of unwanted sexual penetration if you place yourself in the care of another while voluntarily intoxicated, and the burden of your care should not be shifted to others.
The Law Commissions's Report was wide ranging and dealt with "assault" in general and under what circumstances an assault can be consented to.
Tattooing is an assault. Boxing is an assault. A love bite that breaks the skin actually meets the requirements to a conviction for grevious bodily harm.
In R v Wilson a woman wanted her buttocks branded by her husband. He did so with a heated butter knife. She got an infection and required medical assistance. The husband was arrested and convicted. Aftger several appeals the conviction was over-turned and the House of Lords decided that the case was merely about amateur tattooing 'gone wrong'
See what I mean? It appears that the husband was wrongfully arrested because SOMEONE ELSE (presumably a doctor in the socialist NHS) decided that the wife was "assaulted" even though she herself not only consented but demanded the act be done.
In my book "assault" only takes place if there is no consent at all. That's not the case where a person places themselves in a sexual situation where consent is either express (Fuck me hard, baby!) or implied by one's own actions (undressing, engaging in reciprocal sexual activity, etc.). The state of intoxication should be irrelevant when it comes to the giving of consent to sexual activity so long as some sort of consent is given, either express or circumstantial. This is my view because I DO NOT see voluntary intoxication as an excuse that one should be permitted to use to not just excuse bad behavior but to impose criminal sanctions on others in retrospect. That's a gross miscarriage of justice and such laws encourage people to act irresponsibly while subjecting others who rely upon their actions or words to the threat of criminal prosecution. That's just morally wrong.
In R v Brown and others a group of 6 gay men would regularly meet for SM sex. They consented to all manner of things. Glass being pushed into the urethra and then the shaft being hit with a hammer to break the glass within it. Masterbation with stinging nettles. Nails being pushed through the foreskin and into boards. However one of the tied up "willing" participants (no doubt you consider they had "surrendered" to anything) did not want to be branded on his groin, just above his penis. None of the men EVER needed medical attention (distinguishing it from Wilson). The Police only found about the group when a video was discovered. The Police originally thought it was a snuff film. The men were convicted despite their consent to all but 1 act (between only 1 'assaulter' and 1 'victim'). This case also went to the House of Lords where the conviction was upheld. The court decided that there are some things that simply cannot be consented to, even when stone cold sober. Many years after the case also went to the European Court of Justice who confirmed the convictions. Interestingly enough, the 1 count that was not consented to was not really considered - the main issue was whether a person can be allowed to consent to something intending to harm them, and if so is the harm the aim or a side effect (as per Wilson, the aim was a brand)
And that's utterly wrong and a gross miscarriage of justice likely founded not in objective jurisprudence but most likely in sexual prudery and anti-homosexual revulsion on the part of the court.
Of course one of the considerations in the UK that likely has significant effect is that the people of the UK are not free people, they are vassals of the Crown, and their bodies do not belong to them, they belong to the state, which has the power to dictate what they may do with their bodies. The existence of socialized medicine in the UK also gives the state the power and authority to dictate what activities the slaves of the UK may engage in because such activity as you mention may result in the need for medical care paid for by the state (as in Wilson), and therefore in order to control the costs of providing medical care, the state may regulate personal, private sexual activity, or any other activity that it deems unnecessarily risky to the public purse...like mountain climbing, motorcycle riding or anything else that has a risk of injury.
Here in the US, short of death voluntary consent is pretty much a complete bar to government imposition of criminal penalties. Even in spousal abuse situations, while domestic abuse is grounds for arrest of someone in most states (a bad policy) the state cannot prosecute an alleged abuser unless the victim agrees to testify against him at least to the extent of saying that the abuse was not consented to.
This is because we are a free people and we are held liable for our own actions and decisions, even if they are bad decisions.
In 2005 a Swansea Crown Court rape case led to the change in the law. The Judge ORDERED the jury to bring back a verdict of Not Guilty and stated that "Drunken Consent is still consent"
Good for the judge.
In 2007 the Court of Appeal, headed by Sir Igor Judge (Now the Lord Chief Justice) confirmed the issue is one of capacity and not drunkardness.
Therefore if a person is very drunk indeed but nevertheless appreciated and understood that they were consenting to sex then that would not be rape. But if the voluntary intoxication led to an inability to understand what they were consenting to, then that would be rape. The issue of capacity being dealt with the assistance of suitable medics.
Bad for the Court of Appeal. How is a (likely drunken) partner to be able in the heat of sexual passion to assess the other person's "inability to understand?" This places an unreasonable burden on a sex partner to engage in psychological assessment of the person to determine their "ability to understand" at every stage, or, it seems, one must drag one's sex partner to the ER and as a "suitable medic" if she's still "able" to understand. What an asinine notion that is. The false presumption here is that voluntary intoxication is something that just happens, like a stroke, seizure or coma. It doesn't. It's undertaken willingly and the consequences of ingesting intoxicants ARE WELL KNOWN and are in fact the usual intended physical result of deliberately and knowingly ingesting the substance. Therefore, on is "able to understand" that by drinking to excess or taking drugs, one can and almost inevitably WILL have one's "ability to understand" impaired. This is in essence consent to whatever happens when one places oneself in the care of others, especially in a sexualized situation. Free people are allowed to impair their own judgment and leave those decisions up to others if that's what they choose to do initially.
As I said, getting fucked while drunk or stoned might not be what you might have wanted in the stone-cold sober light of the morning after, but you have no one but yourself to blame for getting drunk or stoned, and it is a gross miscarriage of justice for you to lay the blame on someone else and subject them to the risk of years imprisonment merely because you decide at a later time that you weren't competent to consent to whatever happened to you. It might be a good reason not to trust that person again in the future, but it's not a criminal act on their part, IMHO.
The issue af carelessness as to whether a person consents began in a case where a husband invited his friends (3 IIRC) to have sex with his wife. He told them that she will scream and shout but that was "how she gets off" The men accepted the invitation. They argued that they were not at fault as they trusted the husband. As expected the case went to appeal after appeal. The final judgment confirmed that they had been careless as to whether the woman had given consent or not and the convitions were upheld. The court confirmed that, objectively, they could not have been sure whether the "consent" was valid.
That case does not apply because the victim DID NOT give consent. If, however, the three had arrived at the flat, sat with the couple drinking liquor and talking about sex and progressively engaging in sexual advances as the wife became voluntarily intoxicated and THEN she screamed and shouted when they had sex with her, I would accept their claim that she knew what was happening, chose to get drunk, and was engaged in sexual role-play and was not in fact raped.
Earlier this year we had the huge media circus of footballer Ched Evans being convicted of rape while his colleague being found not guilty. The woman gave consent to the other chap while drinking. She had the capacity to make that decision at that time. Therefore he did not rape her. She did not have the capacity to consent to Evans so he was convicted of rape.
That was a wrongful conviction because the woman chose to get drunk, consented to sex, then handed herself over to two men who relied upon that consent. To expect them to be constantly assessing her "ability" or "capacity" to FURTHER consent when she voluntarily consented in the beginning then voluntarily got herself plastered is ridiculous and wrong. She has a duty to care for herself and state her objections once she's consented to sex with anyone. If she chooses to drink herself into incapacity, her consent should remain valid because SHE HAS A RIGHT TO RENDER HERSELF INCAPACITATED in such situations, and her partners have a right to rely upon her prior consent without fear of criminal prosecution. If she doesn't want to risk it, then she SHOULD NOT RENDER HERSELF INCAPACITATED. It's just exactly that simple.
The amount of debate on this subject is enormous. There are volumes of it in Hansard and you can read it if you wish. After decades of debate on the subject the law has crystalised to confirm that if an "attacker" cannot be sure that valid consent has been given then they have been careless as to the capacity of the "victim" and are therefore guilty of rape.
And I say that any consent is valid consent when the person voluntarily becomes intoxicated, and that one's partner has (or ought to have) a right to rely upon that consent absolutely, and that the partner has no duty other than to avoid killing the intoxicated person insofar as sexual activity is concerns because to do otherwise is to burden the partner with a duty of care that the individual her/himself has utterly abandoned.
The result of the debates and the appellate court decisions ultimately led to the Sexual Offences Act 2003:
Under Under section 1(1) Sexual Offences Act 2003 a defendant, A, is guilty of rape if:
_ A intentionally penetrates the vagina, anus or mouth of B (the complainant) with his penis;
_ B does not consent to the penetration; and,
_ A does not reasonably believe that B consents.
I note the blatant sexism here that implies that only a man can commit rape.
The provisions for anus and mouth were added exactly because of the "surrendering" argument you present. A woman properly consenting to vaginal sex has not consented to anal sex automatically. Historically the offence of buggery carried a much lower sentence, and penetration of the mouth was deemed a "sexual assault" not much worse than grabbing someones breasts even if there was ejaculation.
The existence of the word "reasonably" above is to allow an objective view of capacity. The burden is on the "attacker" to show that they believed consent had been given AND that it was reasonable to believe that the consent was valid.
In a general context I agree with this, but voluntary intoxication should be a mitigating, not an aggravating factor. In other words, express or implied consent to ANY sexual advances or activity taking place while voluntarily intoxicated should be deemed consent to ANY and ALL sexual activity during that voluntary intoxication. This is good public policy because it protects partners from wrongful prosecution and encourages people not to become voluntarily intoxicated in sexual situations, lest they have something done to them they would regret later.
The end result is that if a man is unsure whether the consent is valid, then he MUST stay on the side of caution and assume that capacity is impaired. The superior position of responsibility when considering doing something with the body of another human being is to be cautious.
I disagree with this stance because a free person has the right to compromise their personal safety and health through voluntary activity, and I do NOT find that voluntary intoxication is an acceptable excuse for abandoning one's personal responsibility and accountability for one's own personal safety and health. If anything, I find voluntary intoxication to be a mitigating factor when it comes to the behavior of others towards the intoxicated individual, because social policy that allows people to abdicate personal responsibility and lay the blame on others for their bad judgment is bad public policy that results in gross miscarriages of justice.
The analogy is that because the drunk driver is "unable" to properly judge his ability to drive safely, a burden should be placed on everyone else to get out of his way on the highway, and if you allow him to crash into you, YOU should be jailed for failing to be "cautious" when dealing with a drunk driver. That, of course, is utter nonsense, but the analogy is exact. In the rape situation, the duties and burdens are exactly that, a nonsensical pandering to people who ought to know better and ought to accept the consequences of their drunken behavior without imposing criminal penalties on others merely because something happened that they didn't like.
Your arguments have been raised time and time again since the first noteable consent case in 1991 (RvR) and have been found to be lacking.
No doubt you will be pleased to note that non-penile penetration is also covered by relatively new legislation. So when you get blind drunk and a woman straps one on and penetrates your anus you will have a valid reason to go to the police.
Well, at least that's sexual equality in action, so that's something.
"Seth is Grandmaster Zen Troll who trains his victims to troll themselves every time they think of him" Robert_S
"All that is required for the triumph of evil is that good men do nothing." Edmund Burke
"Those who support denying anyone the right to keep and bear arms for personal defense are fully complicit in every crime that might have been prevented had the victim been effectively armed." Seth
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