What I find bizarre is 1) the belief that someone is not responsible for their own actions and decisions if they voluntarily get drunk
That isn't the belief though. Neither is that the law or the intent of the law. The issue is that if there is sufficient evidence that
person B is not able to communicate* that
person B consents, then
person A is regarded in law as to not be able to reasonably believe that
person B has consented. Therefore
person A does not have consent to sexually penetrate
person B
*UK law says "due to person B's physical disability". This can include voluntary intoxication.
2) if people are NOT held accountable for their actions while intoxicated, the belief that this wouldn't be a nightmare in a courtroom if you use a "reasonable person" standard.
You have it confused. It is
person A's actions that person A is accountable for.
Person A must reasonably believe that
person B has actively given consent. A reasonable person test is used throughout
UK law. I am less familiar with other juristictions.
The
reason for a reasonable person test (which to me sounds like so much common sense) is that a huge number of criminal cases--not just sexual offences--would
not be viable if juries had to rely on physical evidence, and yet juries routinely can and do reach verdicts on witness testimony. It is one of the primary reasons for the existence of jury trials. As I have said before, witness testimony, and defendant testimony is the
primary form of
direct evidence in a UK criminal trial. Physical or forensic evidence is
subordinate to it because it is almost always
circumstantial. What I am hearing from you and others is some level of aversion to that ordering of importance, and I am somewhat mystified by it. It is almost as if you think it is somehow the antithesis of "sceptical". It is not at all.
What evidence, beyond the testimony of the victim and defendent, would be presented to prove that a "reasonable person" would find the alleged victim to be incompetent? That is why I asked earlier if you needed to know the BAC of a potential sexual partner: a factual, objective measure of intoxication. We already run into he said/she said problems with non forcible rape over the issue of consent. You want to compound those problems by making consent itself insufficient?
It is not merely what I want to do--it is what the law wants to do.
I'd really hate to be a rich, male celebrity if that was the legal standard.
It already
is the legal standard.
There isn't even something as subjective and broad as a "reasonable person" judgement in the case of drunk driving; those laws are defined in each state by an objective BAC level instead of a subjective impairment measurement.
Correct. "Reasonable person" is deemed unnecessary in the case of drunk driving. Or rather, the state defines it for juries by an objective blood-alcohol content measure.
If you would like to change the law so that someone who is drunk is considered incompetent to make decisions for themselves, would you apply it in all cases, or only in cases related to consent to have sex?
I am
not changing the law. The law
exists. The law is still, however--as it will always be--open to interpretation by judges. The law is not black and white no matter (actually because of) how many acts and amendments are passed and no matter (actually because of) how many ruling case precedents are judged.
Now it is also true that the "too drunk to consent" idea in law itself does have recent precedents of ruling against the complainant. There was a case in the UK [R v Dougal (Swansea--2005)] where a male student was
acquitted at the judge's direction that "drunken consent is still consent". But this was later followed by a
government sponsored campaign to have this legal principle clarified, and a Home Office "
stocktake" of the 2003 Sexual Offences Act (in early 2006) referred to this case as one where there "the matters could not properly have been put to a jury"
We don't apply those standards in any other area of the law: if you are drunk when you sign a contract, you are still legally bound by that contract. If you go to a store with a no returns policy and buy $2000 worth of Hannah Montana clothing while drunk, they have no legal obligation to void the sale at your later request. If you are drunk when you father a child, you are still accountable for child support for 18 years. If you are drunk when you decide to drive your car, you are still ciminally liable. If you are drunk when you commit a crime, you are not absolved because you weren't "competent" to make a decision for yourself. It doesn't matter how drunk you are or whether a reasonable person would construe you to be "incompetent", if you voluntarily became drunk, you are still responsible for your actions.
So what? You are suggesting that the law for sexual offences should be no different from contract and tort law in all other areas? If that is what you think I will not be able to reach you. That type of thinking is what results in the law grossly failing in the area of sexual offences (and others).
I'll have to just chalk that up to a misunderstanding. Nowhere in that scenario did I see anything that stated the sex was unconsenting, and I did not read it to imply as much. The passage I was addressing was itself ambiguous in that regard.
OK it was a "misunderstanding". But please do not be offended that I am struck by this as it seems central to the thread, and the "divide" evident in this thread and another one. I do not know if Darat intended to outline a scenario in which active consent was conspicuously absent (and thus had to be "presumed" by the assailant). But that is immediately how I read it and it was clear and transparent to me that the scenario contained no active consent. But you and maybe PhantomWolf both read that part as "ambiguous" or "open to assumption" in the realm of consent.
Is this at the heart of the difference between us?
