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False allegations and attrition

Yowza. I was away for a bit and the conversation seems to have gone way further than I recall. Ivor, I just wanted to say that I wasn't ignoring you, there were some things keeping me away from the time to adequately address your comments before and I didn't want to insult your intelligence by offering one-liners or too-brief responses. Looks like you've gotten a lot of what's been discussed addressed anyway.

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Francesca R said:
With respect to complaints that sex cannot safely be engaged in without sworn affidavits of consent and fully clear certified blood alcohol test results . . . that is an unreasonable interpretation of law. But of course people are free to take whatever safeguards they feel comfortable with.
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That really is the point right there: what levels different people feel comfortable with before they engage in sex. That can also take into account that people's comfort levels are subject to change.
 
Francesca R said:
^^Your (1) and (2) do not follow at all from what you posted. I think you are wilfully denying the obvious. I do not know why.
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Yes they do. Quite clearly.

Impairments to reasoning and judgement which would make it impossible for someone to give informed consent include such factors as... intoxication...
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The "..." is in place of other "such factors" that are not relevant to this discussion.

This piece is in two parts. Firstly, it establishes that there are "impairments" to "reasoning and judgement" that "make it impossible for someone to give informed consent". That's all pretty clear. It then goes on to list what some of those potential impairments are. Obviously it's only giving you examples, not an exhaustive list, hence "include such factors as".

"Intoxication" appears on the list. Therefore "intoxication" is an "impairment" to "reasoning and judgement" that "makes it impossible for someone to give informed consent".

Thus

1) Intoxication makes it impossible for someone give informed consent.


Thus the assumption of informed consent in sexual contact could be disproved if it can be shown it would have been obvious to a reasonable person seeking consent for sex that the other person was drunk.
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This is preceded by the ambiguous sentence:

It has been established consent may not be considered informed if a person is intoxicated.
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The word "may" gives this sentence two alternative interpretations:

It has been established consent might not be considered informed if a person is intoxicated.

or

It has been established consent shall not be considered informed if a person is intoxicated.

I argue that the previous statement quoted above establishes that the second interpretation is the correct one. I believe the following statement (also quoted above) reinforces this.

Thus the assumption of informed consent in sexual contact could be disproved if it can be shown it would have been obvious to a reasonable person seeking consent for sex that the other person was drunk.
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The first part establishes:

1) There is an assumption of informed consent in sexual contact
2) This assumption can be disproved/rejected

The second half demonstrates a way in which it can be rejected:

if "it would have been obvious to a reasonable person seeking consent for sex that the other person was drunk".

"obvious" can be dismissed. "obvious" is a statement of ease of assessment, which makes it a redundant double up of "reasonable person" ("reasonable person" is itself a statement of ease of assessment).

if "a reasonable person seeking consent for sex [was aware] that the other person was drunk".

Assuming a reasonable person:

if "it is known the other person is drunk"

Thus

A)There is an assumption of informed consent in sexual contact...
B) ...But... This assumption can be disproved/rejected...
C) ...If... it is known the other person is drunk.

Thus:

2) You cannot assume informed consent if the other person is drunk.

Now, I reject the entire notion of "informed consent" in relation to sex anyway, so the second statement should have read:

Thus the assumption of consent in sexual contact could be disproved if it can be shown it would have been obvious to a reasonable person seeking consent for sex that the other person was drunk.
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That's much more aligned with the law, and the conclusion is quite clearly wrong. Being "obvious to a reasonable person seeking consent for sex that the other person was drunk" is not sufficient. Replace "drunk" with "so intoxicated they are incapable of consenting" and you have my agreement, and the agreement of UK law.
 
Francesca R said:
Can you say what you mean there? It could be taken as "women on this thread have intransigent preconceived ideas about rape". Thanks.
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My apologies for not being clear.

Women seem to have very, very clear ideas about what is and is not rape. There's none of this waffling about with legal terms like "implied consent", "rape" and "unwanted sexual contact" - women come into the courtroom with a well-prepared concept of what all of those mean on a practical level (if not always a strictly legal one). The facts of the case either match their consideration of these factors beyond what they consider a reasonable doubt (in which case they vote guilty) or they do not (in which case they vote not guilty). There is, in short, no grey area present with women upon this issue. Men do not seem to share this particular clarity of thought upon the issue.

As some evidence of this, I would present these three sexual assault threads and the behaviors of both genders therein.

~ Matt
 
MattC said:
Women seem to have very, very clear ideas about what is and is not rape. There's none of this waffling about with legal terms like "implied consent", "rape" and "unwanted sexual contact" - women come into the courtroom with a well-prepared concept of what all of those mean on a practical level (if not always a strictly legal one). The facts of the case either match their consideration of these factors beyond what they consider a reasonable doubt (in which case they vote guilty) or they do not (in which case they vote not guilty). There is, in short, no grey area present with women upon this issue. Men do not seem to share this particular clarity of thought upon the issue.

As some evidence of this, I would present these three sexual assault threads and the behaviors of both genders therein.
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Sexist pig.



(The above was wholly a joke on my part. Probably not v. appropriate. Apologies. <smiley>)
 
http://en.wikipedia.org/wiki/Blood_alcohol_content

BAC%|Behavior|Impairment
0.01–0.029|Average individual appears normal|Subtle effects that can be detected with special tests
0.03–0.059|Mild euphoria; Sense of well-being; Relaxation; Talkativeness; Joyous; Decreased inhibition|Alertness; Judgment; Coordination; Concentration
0.06–0.10|Blunted Feelings; Disinhibition; Extroversion; Impaired Sexual Pleasure|Reflexes; Reasoning; Depth Perception; Distance Acuity; Peripheral Vision; Glare Recovery
0.11–0.20|Over-Expression; Emotional Swings; Angry or Sad; Boisterous|Reaction Time; Gross Motor Control; Staggering; Slurred Speech

I would suggest when a person has drunk enough to be displaying the effects listed in the bottom two rows of the above table, any expression of consent he/she provides for having sex should not be assumed to be valid.
 
Gumboot
Thus the assumption of informed consent in sexual contact could be disproved if it can be shown it would have been obvious to a reasonable person seeking consent for sex that the other person was drunk.
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Are there not 2 possible interpretations of could in the above? One of which would imply the other interpretation of "may".
 
Just to make it clear - I'm "on side" with the law as it is currently practiced in the UK in regards to the consent issue.


That of course does not mean that a sip of sherry means it is always rape. What it does mean is that responsibility for ensuring that any sex that does occur is consensual is the same on both (or more) of the people having the sex. I.e. Both have to be sure consent is being given and being drunk doesn't excuse either side. In the simplest terms - if I am drunk and rape someone I cannot use the excuse that I was drunk as a defence and if I am drunk and someone rapes me they cannot use the defence that I was drunk.
 
It is again curious that everyone (except Darat) is focussing on the responsibility of the victim for her behaviour while her judgement is impaired: and not on the responsibility of the other. To come back to the drunk driving example which gumboot finds so difficult: people are not allowed to drive when they have a certain (fairly low) level of alcohol in their blood. This is because their judgement is known to be impaired and thus they are more likely to be involved in a crash. They are not given the right to use their own judgement about their capacity to drive because their judgement is not to be trusted. That is reasonable, it seems to me. In order to get to your position you are saying that they have to accept the penalty if they do drive the car and are charged with that offence: and that is true. But it is not true that this implies that they were able to make that judgement: the law exists because it is the view of society that they are not able to make that judgement and so their right to do so is removed.

Since in the case of rape the victim is not likely to hurt anyone else we have not, as a society, removed the right to override the individual's decision automatically: there is room for more individual freedom and therefore there is room for a recognition that people have different tolerances for alcohol. So the law does not make a prescription in this area. That seems right to me.

However if a complaint of rape is made then it is relevant to consider the question of capacity to consent. Alcohol impairs judgement at quite low levels of intoxication. Nobody is arguing that any one who ingests any amount of alcohol is incapable of consent: but where a complaint is laid and the person laying it has been drinking there is reason to consider what steps the accused took to establish that he or she was capable.

What you seem to be missing in my analogy is that the accused is not the prospective driver: he is the prospective passenger. For me the responsible adult will attempt to dissuade someone who had been drinking from driving: at the very least he or she should refuse to get in the car as a passenger. If he or she does get in the car and the worst happens I would consider them at least as culpable as the driver. And I cannot see anything wrong with expecting the same standard of responsibility in the situation we are discussing. As I said, you are very happy to demand perfect behaviour from the victim and you have " no sympathy" for someone raped while incapable of consent. It puzzles me why you have a different attitude towards the accused. On your rather high expectations of behaviour he is no more prepared to take responsibility for himself than the other. I do not understand this double standard and I have been asking you about it for quite a while. You have said he is an "idiot": perhaps you meant to convey that you have no sympathy for him either and that your hope is that his experience of a rape trial will teach him not to do that again? If so then I think your position is unrealistic and harsh, but at least it is consistent. It just hasn't come across very clearly to me
 
Fiona said:
It is again curious that everyone (except Darat) is focussing on the responsibility of the victim for her behaviour while her judgement is impaired: and not on the responsibility of the other.

<snip>
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What have I been doing for the past two pages?
 
Fiona said:
What you seem to be missing in my analogy is that the accused is not the prospective driver: he is the prospective passenger. For me the responsible adult will attempt to dissuade someone who had been drinking from driving: at the very least he or she should refuse to get in the car as a passenger. If he or she does get in the car and the worst happens I would consider them at least as culpable as the driver.
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I think this did need spelling out, as is often the case with analogies different people see different things. So, a drunk man who takes a drunk woman's apparent consent at face value is .... is the word reckless? to the validity of her consent? "I was just going along with the flow" is not a valid defence when a drunk group of guys get in a fight.
 
Ivor the Engineer said:
http://en.wikipedia.org/wiki/Blood_alcohol_content

BAC%|Behavior|Impairment
0.01–0.029|Average individual appears normal|Subtle effects that can be detected with special tests
0.03–0.059|Mild euphoria; Sense of well-being; Relaxation; Talkativeness; Joyous; Decreased inhibition|Alertness; Judgment; Coordination; Concentration
0.06–0.10|Blunted Feelings; Disinhibition; Extroversion; Impaired Sexual Pleasure|Reflexes; Reasoning; Depth Perception; Distance Acuity; Peripheral Vision; Glare Recovery
0.11–0.20|Over-Expression; Emotional Swings; Angry or Sad; Boisterous|Reaction Time; Gross Motor Control; Staggering; Slurred Speech

I would suggest when a person has drunk enough to be displaying the effects listed in the bottom two rows of the above table, any expression of consent he/she provides for having sex should not be assumed to be valid.
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I disagree. By that standard, a lot of enjoyable sex by consenting adults would be included.

Also, the "Impaired Sexual Pleasure" has made a lot of males able to last longer, usually to the enjoyment of their partners.

The clear limit is unconsciousness/complete helplessness. Below that, while it may be morally wrong to "take advantage of" someone who might not otherwise consent, it is not neccessarily rape. Don't dilute the concept of rape by including "regrettable sex".

A troublesome situations occurs in case of blackout. It is very possible to get blackout despite being lucid and active. A partner of similar levels of intoxication can't guess that blackout will occur. Can we assume consent was not given in this case?

Also, putting a limit at 0.06 as you suggest is silly. That's below the legal driving limit in many countries. It's also as likely to be effective as total abstinence education, for both sex and drinking.

// CyCrow
 
Wudang said:
I think this did need spelling out, as is often the case with analogies different people see different things. So, a drunk man who takes a drunk woman's apparent consent at face value is .... is the word reckless? to the validity of her consent? "I was just going along with the flow" is not a valid defence when a drunk group of guys get in a fight.
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Fighting and apparently consensual sex are not really comparable.

// CyCrow
 
CyCrow said:
<snip>

The clear limit is unconsciousness/complete helplessness. Below that, while it may be morally wrong to "take advantage of" someone who might not otherwise consent, it is not neccessarily rape. Don't dilute the concept of rape by including "regrettable sex".
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I'm sure Fiona will have something to say about this comment.:)

<snip>

Also, putting a limit at 0.06 as you suggest is silly.

<snip>
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I did not suggest that.

Ivor said:
I would suggest when a person has drunk enough to be displaying the effects listed in the bottom two rows of the above table, any expression of consent he/she provides for having sex should not be assumed to be valid.
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