[quote] Drunk women can consent to sex, judges rule
By Joshua Rozenberg, Legal Editor, Last Updated: 2:27am BST 27/03/2007
Sir Igor Judge: rape ruling
A drunken woman can still consent to sex, the Court of Appeal ruled yesterday.
Three senior judges were giving reasons for clearing a 25-year-old man of raping a student, aged 19, after both had been drinking heavily.
Sir Igor Judge, sitting with Lady Justice Hallett and Mrs Justice Gloster, said sex would amount to rape if the complainant had lost her capacity to choose as a result of drink.
“However, where the complainant has voluntarily consumed even substantial quantities of alcohol, but nevertheless remains capable of choosing whether or not to have intercourse, and in drink agrees to do so, this would not be rape,” he said.
The judges could not set a level of alcohol consumption that would negate consent, they explained.(more at link) Telegraph UK[/quote]
I didn’t read the whole article, but I don’t see anything unreasonable or offensive about the portion you posted. It’s a UK case, but the language you posted is consistent with US law. . . and reasonable in my opinion.
As with the ability to enter into a valid contract, the key question is not whether the alleged victim was drinking or on drugs or was tired or had a headache; the question is whether she had the capacity to consent. It’s not automatically rape to have sex with a woman who had one drink. If she’s still perfectly alert, coherent, aware of what she’s doing, and voluntarily decides to have sex, why should it matter that she had one beer? But if she’s totally plastered to the extent that she lacks the capacity to give meaningful consent, that’s a different matter. And that’s exactly what your article says.
Good. If she’s blottoed then her consent doesn’t count.
Good. If a woman wants to get drunk and screw, it should be her legal right, so long as that’s her voluntary, knowing choice, and a man shouldn’t be guilty of rape for obliging her.
Same principle with drugs. If she voluntarily takes a whole medicine cabinet full of drugs, but is still conscious and alert and aware enough to decide, knowingly and of her own volition, that she wants to screw a guy then “you go girl,” it’s her legal right and it’s his legal right to give her what she wants.
But, if as a result of those drugs she is so disoriented and out of touch with reality that she does not truly know what she is doing and is not capable of giving knowing, voluntary consent, then it’s rape, because she lacked the capacity to consent (just as a mentally retarded person or a child or a senile person may also lack the capacity to consent).
Admittedly, it can be a tough judgment call whether she had the capacity to give meaningfull consent or not if she was loaded, but that’s a different matter – that’s an evidentiary problem – but that evidentiary problem should not override a perfectly reasonable principle of law, that one can enter into a contract (or agree to have sex) if one has the legal and actual capacity, and one can’t do so if one doesn’t.
Of course, if the guy slipped her the drugs without her knowledge, that’s also another matter and is surely a crime in and of itself. However, whether the drugs are sufficient to override her control and her capacity to give meaningful consent is also another question that must be asked.
I agree with MT; the judge’s reasoning seems quite sensible to me.
I did laugh when I saw the thread/article title, though. ‘Drunk women can consent to sex’ No sh*t? That’s been known to happen has it? What stunning insight are we going read next?
— ‘Drunk men can be obnoxious, experts reveal’?;
— ‘Drunk airline pilots can represent a serious safety risk, says FAA’?;
— ‘Fred Smith can sometimes strike me as a little condescending, reports local Forumosan’?
Why does the law only apply one way? That’s so sexist. I mean, it’s not as if under the influence of alcohol, men have sex with women they wouldn’t shag when sober. I’ve been taken sexually advantaged of and I demand my rights.
But, seriously, if in this case both parties were under the influence of alcohol, why is it that only the woman could be ‘raped’? By the same logic, the man was ‘raped’ as well. I don’t know how a case of mutual rape would work out, legally speaking. Either pack’em both off to jail or let’em both off free.
Off-topic: what a peculiar thing to say. It’s a UK case, but it’s consistent with US law so therefore it’s “reasonable?”
Bizarre.[/quote]
It’s not bizarre. And it would be unfortunate to twist the statement’s meaning so that this thread devolves into another [color=black]“You arrogant Americans think everything is about your country”[/color] / [color=blue]“Want some dip to go with that chip on your shoulder? Your jealousy and insecurity are pathetic.”[/color] / [color=black]“And you wonder why everyone hates Americans…”[/color] blah blah blah wankfest.
Here’s the deal:
—1— MT is familiar with how the US legal system works. It is normal that in looking at a legal question he would ask himself how it would be dealt with under US law.
—2— MT went out of his way to say “in my opinion” (i.e. he’s giving his feedback on what seems reasonable to him, and that judgment is naturally going to be informed by his background).
—3— MT is one of the most thoughtful and open minded posters on this forum. You’ve been here a long time. You know that. Painting his statement as some kind of expression of arrogant American cultural imperialist bias… is absurd.
—4— MT is responding to TainanCowboy, who perhaps was posting the article as if to say “Look how silly these British judges are!” – implying that such a ruling would not happen in the US. (Note: I’m not saying TC had this in mind – I’m saying under the circumstances it’s not unreasonable that MT may have interpreted it this way.) And in response, MT is saying “No, TC, that’s not silly. And for your reference the US system does it the same way.”
Honestly, porcelainprincess, like MT, you are a thoughtful and reasonable poster. There is truly no reason to take MT’s statement in the direction you seemed to be taking it.
Hobbes, thanks for standing up for me. PP definitely miscontrued my words.
Off-topic: what a peculiar thing to say. It’s a UK case, but it’s consistent with US law so therefore it’s “reasonable?”
Bizarre.[/quote]
What I meant is that:
(a) I’m a US lawyer and don’t know much about UK law, and
(b) The OP apparently posted the article because he found it to be an odd bit of law, but I believe it’s consistent with US law, which would make it not so odd if both countries’ laws were basically the same on that point, and
(c) Not only do I believe that both countries’ laws are the same in that regard, but I believe it’s a reasonable legal position (on the other hand, I could have felt that both countries’ laws were the same and both were unreasonable, but I don’t).
I’m surprised that you apparently felt I was suggesting that US laws are inherently reasonable or UK laws or inherently unreasonable, or something like that, because I don’t believe that and I wasn’t trying to suggest it. I prefer to judge a law’s reasonableness on a case by case basis and that’s what I did here. I wasn’t making any broader statement.
