Too Drunk to Consent?

[andyandy]

Ok - so a high(ish) profile case in the UK at the moment - a professional footballer jailed for 5 years for having sex with a woman too drunk to consent:

Quote:

An international footballer is starting a five-year jail sentence for raping a teenager who was too drunk to consent to sex with him.

The Wales and Sheffield United striker Ched Evans was found guilty of raping the 19-year-old following a night out at a seaside town. His friend and fellow professional footballer, Clayton McDonald, was cleared of the same charge.

The court heard that the men, both 23, admitted they had sex with the young woman but the prosecution argued that she was too drunk to consent.

A jury at Caernarfon crown court cleared McDonald, a Port Vale player, after almost five hours of deliberations. His family and friends in the public gallery reacted by shouting: "Yes, yes." Evans wept as the jury then returned the guilty verdict against him.

Jailing Evans, Judge Merfyn Hughes QC said: "The complainant was 19 years of age and was extremely intoxicated. As the jury have found, she was in no condition to have sexual intercourse. You must have realised that."

He told Evans that he might have been used to receiving attention from women owing to his success but this case was "very different". The judge added: "You have thrown away the successful career in which you were involved."

Nita Dowell, senior crown prosecutor in Wales, said: "Ched Evans took advantage of a vulnerable young woman who was in no fit state to consent to sexual activity.

http://www.guardian.co.uk/football/2...nd-guilty-rape

Without getting into the specifics of the case (which I don't know....though it seems odd that one man was cleared whilst the other convicted despite them both having sex with the woman....any more details on this?) it makes me wonder on a few things:

1) Is there a legal definition of "too drunk"? What metric is used?
2) Could a woman ever be convicted of rape under the same law? (Has it happened?)
3) Does the law only apply if one person is sober and the other drunk? What if both people are too drunk? Is there the same liability? Could both people be convicted of rape for the same sex act?

discuss.....

[Professor Yaffle]

As far as I can tell from the cases I have seen, it means basically so drunk that you are lying there not really knowing what is going on. I've never read of a case in which, for example, a woman was very drunk, but enthusiastically participated in the act and then claimed to be too drunk to consent. If that is the case, it seems to answer your other questions about what if both are drunk.

ETA: From your link:

Quote:

Evans denied forcing the woman into having sex and insisted she was conscious. Asked what condition she was in, he said: "She had had a drink but she was not very drunk." He said she was "in control".

But in a police interview the woman said she had no memories of how she got to the hotel. She had drunk wine, four double vodkas and a shot of sambuca.

CCTV footage showed her falling over in a kebab shop. A receptionist at the hotel described the woman as "extremely drunk" and said she was "stumbling" and "slurring".

[andyandy]

Originally Posted by Professor Yaffle

As far as I can tell from the cases I have seen, it means basically so drunk that you are lying there not really knowing what is going on. I've never read of a case in which, for example, a woman was very drunk, but enthusiastically participated in the act and then claimed to be too drunk to consent. If that is the case, it seems to answer your other questions about what if both are drunk.

ETA: From your link:

I can agree that there should be an offence of having sex with someone so drunk that they are basically paralytic - but i am interested in the practicalities of where the line for "too drunk" is drawn. Anyone know the actual legal guidelines? Lots of stumbling and slurring people have sex and suffer memory loss the morning after, but are they all guilty of rape? How did they go beyond that to prove she was basically paralytic? And could a woman be convicted of the same offence?

[tyr_13]

Originally Posted by andyandy

I can agree that there should be an offence of having sex with someone so drunk that they are basically paralytic - but i am interested in the practicalities of where the line for "too drunk" is drawn. Anyone know the actual legal guidelines? And could a woman be convicted of the same offence?

I'm not sure of the legal guild lines and assume (until corrected by someone with more specific knowledge that is) that a jury is needed to determine that. You know, one of those 'reasonable' standards.

As to a woman being convicted of the same offense, I can't think of a reason why not.

[andyandy]

Originally Posted by tyr_13

As to a woman being convicted of the same offense, I can't think of a reason why not.

I ask because I can't see it actually happening - there's just such a different social attitude towards sex depending on whether it's men or women. The first question is how many men would wake up having had sex they don't remember , having been too drunk and regard that as rape? The second question is if a man did regard it as rape, how seriously would the police, the CPS or ultimately a jury take that allegation? The definition of rape when concerning a man and a woman seems pretty rooted in the notion that the man is the perpetrator and the woman the victim.

[Pulvinar]

The woman should be taking at least half the blame-- she willingly handed control of her body over to a drunk. Who would be blamed if he had run into her car at an intersection?

[Tsukasa Buddha]

Originally Posted by andyandy

I ask because I can't see it actually happening - there's just such a different social attitude towards sex depending on whether it's men or women. The first question is how many men would wake up having had sex they don't remember , having been too drunk and regard that as rape? The second question is if a man did regard it as rape, how seriously would the police, the CPS or ultimately a jury take that allegation? The definition of rape when concerning a man and a woman seems pretty rooted in the notion that the man is the perpetrator and the woman the victim.

I agree there is a cultural notion, but most authorities have a broad legal description.

It is quite clear that people drugged cannot give consent. The problem is that culturally we are fine with people drugging themselves with alcohol.

As for if the other person is drunk, well that doesn't prevent them from committing other crimes. However, it is often difficult to even get a police investigation in cases like these. I suspect the celebrity factor might have ironically helped here.

ETA: See later post on Sexual Offences Act.

[JJM 777]

Drunk people get laid. Then the state sends one of them to jail for 5 years. Is this China or what? Modern society can do better, can it? Either sex is legal when drunk or high, for everyone, or then it is illegal when drunk or high, for everyone. Please state try to decide, and be coherent.

[Tsukasa Buddha]

Originally Posted by Pulvinar

The woman should be taking at least half the blame-- she willingly handed control of her body over to a drunk. Who would be blamed if he had run into her car at an intersection?

This is why it is hard to properly prosecute these cases. And it would be more comparable to leaving your car unlocked and then someone stealing it. Was it savvy on your part? No, but that doesn't change the fact that it was theft.

[Tsukasa Buddha]

Originally Posted by JJM 777

Drunk people get laid.

Drugged people also get sexually assaulted. I don't think anyone is saying the line is easy to draw, but it is silly to say there is no line.

Quote:

Either sex is legal when drunk or high, for everyone, or then it is illegal when drunk or high, for everyone. Please state try to decide, and be coherent

There is no need for a false dichotomy. The dividing line usually revolves around consciousness and being able to communicate consent or lack thereof.

I am quite happy to live in a society that prevents people from being drugged and raped. The fact that self-druggers fall under that is only a practical problem for the judge or jury.

[crimresearch]

Originally Posted by andyandy

I can agree that there should be an offence of having sex with someone so drunk that they are basically paralytic - but i am interested in the practicalities of where the line for "too drunk" is drawn. Anyone know the actual legal guidelines? Lots of stumbling and slurring people have sex and suffer memory loss the morning after, but are they all guilty of rape? How did they go beyond that to prove she was basically paralytic? And could a woman be convicted of the same offence?

The law doesn't work that way. TOTC.

[crimresearch]

Originally Posted by JJM 777

Drunk people get laid. Then the state sends one of them to jail for 5 years. Is this China or what? Modern society can do better, can it? Either sex is legal when drunk or high, for everyone, or then it is illegal when drunk or high, for everyone. Please state try to decide, and be coherent.

Since you are waving around the broad brush, then why bother to criminalize the use of rohypnol? Intoxicated is intoxicated, and sex is sex, right?

[geni]

Originally Posted by Tsukasa Buddha

I suspect the celebrity factor might have ironically helped here.

There is a CT or cynical sugestion floating around that the main reason that the policeand CPS went after the case so hard is to serve as a warning to the wider football comunity that they are not above the law. That the players happened to be white may be viewed as something of a bonus.

[Captain_Swoop]

Easy, if a woman is passed out don't have sex with her.

What's the problem?

[Tsukasa Buddha]

Here are some relevant legal notes (Not sure if these specific laws came into play here):

Quote:

In this jurisdiction the position is something of a half-way house. Evidence of intoxication can be considered for some offences but not for others (the case which is usually cited for authority for this is DPP v Majewski [1976] 2 All ER 142 although the roots of the doctrine go back far further: Singh, 1933). Offences are divided into two categories – those requiring a ‘specific’ intent and those requiring a ‘basic’ intent. If the offence requires a ‘specific’ intent, e.g. murder, then the jury may consider evidence relating to intoxication in order to decide whether or not the defendant possessed the required mental state. It should be emphasised that this does not mean that every defendant who is being tried for a ‘specific’ intent offence is going to be acquitted if he was drunk at the time of the offence. The evidence will be considered and only if he did not form the required mental state will he be acquitted (Sheehan and Moore [1975] 2 All ER 960).

If the offence is one of ‘basic’ intent, evidence of voluntary intoxication cannot be considered. However grave the charge, the evidence is deemed irrelevant. Given this structure, it is obvious that the definitions of ‘specific’ intent and ‘basic’ intent are of paramount importance. In Majewski [1976] 2 All ER 142, the judges considered this issue carefully but came up with different definitions. It is certainly true that some of the current categorisations are, therefore, problematic in terms of criminal law theory (Dingwall, 2006: 107-109) but, in practical terms, there is no real confusion as the courts have determined on a case-by-case basis which offences fall into each category.

...

This does not mean that every time B has been drinking she loses the freedom and capacity to decide whether to have sexual intercourse. It is suggested that the freedom and capacity to make such a choice is only lost when she is incapacitated by the alcohol. This is a question of fact for the jury to make. There are also two ‘evidential presumptions’ which could be relevant. If the complainant was asleep or ‘otherwise unconscious at the time of the relevant act’ (s.75(2)(d)) or if ‘any person had administered to or caused to be taken by the complainant, without the complainant’s consent, a substance which…was capable of causing or enabling the complainant to be stupefied or overpowered at the time of the relevant act’ (s.75(2)(f)) then there will be no consent unless sufficient evidence is adduced to raise an issue that there was consent (Finch and Munro, 2004). It is suggested that in these situations it would be exceptionally difficult to raise an argument that B was consenting.

If B does not consent to the penetration, it has to be shown that A does not reasonably believe that B consents. Rape traditionally has been regarded as a crime of ‘basic’ intent (Fotheringham (1988) 88 Cr.App.R. 206) and it seems logical that the defendant’s intoxication cannot be taken into consideration in determining whether his belief that B was consenting was reasonable. The campaign is to be welcomed in that it publicises how intoxicated men cannot rely on evidence of intoxication to show that they believed that the complainant was consenting. At the same time, it has to be recognised that drunkenness and incapacitation are not synonymous, and that only the incapacitated cannot consent to sexual intercourse.

Linky.

Interestingly, the Sexual Offences Act 2003 is not gender neutral. But that is a larger problem than the "drunken consent" one.

Quote:

Rape

In each UK country, a man would commit rape if he intentionally penetrates with his penis the vagina, mouth or anus of another person, male or female, without that person’s consent or if they are under 13. This is the only sexual offence which can only be committed by a man.

Women cannot be charged with the offence of rape as this is defined as penile penetration, but she could be charged with another offence such as causing a person to engage in sexual activity without consent, sexual coercion or assault, or assault by penetration. These may not all apply in each country.

Linky.

[Professor Yaffle]

Actually, women can be charged with rape in the UK (or at least in England) under certain unusual circumstances:

Quote:

An 18-year-old woman has been convicted of rape after she pinned down a victim during a horrific gang sex attack.
Claire Marsh is thought to be the youngest woman in Britain to be convicted of rape after she also punched the 37-year-old victim in the face and ripped off her top as she was gang-raped on a canal towpath.

http://news.bbc.co.uk/onthisday/hi/d...00/2521053.stm

[Professor Yaffle]

This clarification on the law regarding alcohol and rape is relevant:

Quote:

Sir Igor Judge, Lady Justice Hallett and Mrs Justice Gloster said the appeal had required them to "address the effect of voluntary heavy alcohol consumption as it applies to the law of rape".

In making the ruling, Sir Igor said: "If, through drink - or for any other reason - the complainant has temporarily lost her capacity to choose whether to have intercourse on the relevant occasion, she is not consenting, and subject to questions about the defendant's state of mind, if the intercourse takes place, this would be rape.

"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 added that the "capacity to consent may evaporate well before a complainant becomes unconscious".

http://news.bbc.co.uk/1/hi/uk/6497889.stm

[RenaissanceBiker]

Originally Posted by Captain_Swoop

Easy, if a woman is passed out don't have sex with her.

What's the problem?

That's a good rule. What if she passes out during sex?

[RenaissanceBiker]

Originally Posted by crimresearch

Since you are waving around the broad brush, then why bother to criminalize the use of rohypnol? Intoxicated is intoxicated, and sex is sex, right?

I think the issue there is that a person usually chooses to drink alcohol and rohypnol is usually given to an unsuspecting person.

[tyr_13]

Originally Posted by andyandy

I ask because I can't see it actually happening - there's just such a different social attitude towards sex depending on whether it's men or women. The first question is how many men would wake up having had sex they don't remember , having been too drunk and regard that as rape? The second question is if a man did regard it as rape, how seriously would the police, the CPS or ultimately a jury take that allegation? The definition of rape when concerning a man and a woman seems pretty rooted in the notion that the man is the perpetrator and the woman the victim.

Yes, there are huge issues with the treatment of men in cases of sexual assault and rape, cultural attitudes, and assumed states. For many people, the default state of a man for consent and sex is 'yes'. That is to say, unless a man actively denies wanting to have sex in a specific incident (and sometimes even then!), he is consenting for any sex involving a woman. The opposite is assumed for women. Unless she specifically grants consent, then she is in effect saying 'no' even by saying nothing at all. Note that I'm not saying they should meet in the middle for some 'Golden Mean'. I'd say that the default state for everyone should be 'no' until consent is given.

Of course once given, it can be taken away at any time. And consenting to some sexual acts doesn't mean consent was given for other sexual acts. This can go on and on, and is a discussion with legs (but don't touch those legs without permission).

Originally Posted by RenaissanceBiker

That's a good rule. What if she passes out during sex?

Then you're either doing it very wrong, or very right.

Serious answer? It depends on what you mean by 'during'. Personally I'd be pretty disappointed and/or freaked out that someone passed out during such an act. If the person consents and then passes out before beginning, I'd have to say that unless what they consented to included sex while passed out, then don't do it. After all, they are now incapable of articulating which sexual acts they are consenting too. With or without a condom? With or without a camera? With or without Janis from accounting?

[crimresearch]

Originally Posted by RenaissanceBiker

I think the issue there is that a person usually chooses to drink alcohol and rohypnol is usually given to an unsuspecting person.

Usually, but not always. Spiked punch, plying an inexperienced drinker with champagne or fruit flavored drinks, etc.

[fuelair]

I may have missed this, but any explanation why if both had sex with her only one was found guilty?

[Professor Yaffle]

Originally Posted by fuelair

I may have missed this, but any explanation why if both had sex with her only one was found guilty?

Presumably she carried on drinking after having sex with McDonald, or the effects of the alcohol were more pronounced later? I'll see if i can find an article which covers that in more detail.

[BenBurch]

Originally Posted by RenaissanceBiker

That's a good rule. What if she passes out during sex?

And what if she WANTS to be passed-out during sex? This seriously is a fetish some women have. So, she consents beforehand, but by the time she is sedated, she cannot withdraw consent. What's that, legally?

[mijopaalmc]

Originally Posted by crimresearch

Since you are waving around the broad brush, then why bother to criminalize the use of rohypnol? Intoxicated is intoxicated, and sex is sex, right?

I thought that you would understand by now that JJM 777 is either arguing for the sake of argument or has no grasp of the legal concept of consent.

[katy_did]

Originally Posted by fuelair

I may have missed this, but any explanation why if both had sex with her only one was found guilty?

Different circumstances basically. McDonald met the girl in a kebab shop (or stumbled across her might be a better phrase!), and took her back to his hotel in a taxi, where they had sex. At some point he'd sent a text message to his friends saying he'd "got a bird" and they turned up at the hotel; Evans tricked the receptionist into giving him a key, went to the room, had sex with the girl while the other two friends filmed it with a mobile phone through the window, and then left by the hotel's emergency exit.

The jury must have believed that the girl was too intoxicated to consent to sex, but that it was at least possible McDonald believed the girl had consented, and so they gave him the benefit of the doubt. Evans had no such excuse...

[mijopaalmc]

Originally Posted by BenBurch

And what if she WANTS to be passed-out during sex? This seriously is a fetish some women have. So, she consents beforehand, but by the time she is sedated, she cannot withdraw consent. What's that, legally?

And what Martians are really controlling both participants so that neither one actually consented?

[BenBurch]

Originally Posted by mijopaalmc

And what Martians are really controlling both participants so that neither one actually consented?

There are no real Martians. There are real women who have the fetish I described. I know a couple of them. So it's a real issue, and not an "angel on pins" sort of thing.

[TheGoldcountry]

Originally Posted by Captain_Swoop

Easy, if a woman is passed out don't have sex with her.

What's the problem?

A person can be technically "conscious" and still be considered incoherent and unable to think. Take it from a former bartender and drunk, "passed out" is not the guideline that should be used. (I'm not sure what should be used, but it's not as clear as awake/passed out)

ETA: Especially if other substances are involved.

[BStrong]

Originally Posted by RenaissanceBiker

That's a good rule. What if she passes out during sex?

That means you weren't doing a good job of it.

Seriously though, the litmus test is if a participant has no knowledge or recollection of the act ocurring, there may be grounds for prosecution.

Locally there was a case involving several individuals who were students at De Anza college who were investigated for an instance of gang rape:

http://www.sfgate.com/cgi-bin/articl...BACO1LHQ48.DTL

Charges were not filed in part because the victim was so intoxicated she could not give a definitive account of the crime. Other women at the scene put an end to the festivites but could not I.D. the male actors.

[BStrong]

Originally Posted by BenBurch

And what if she WANTS to be passed-out during sex? This seriously is a fetish some women have. So, she consents beforehand, but by the time she is sedated, she cannot withdraw consent. What's that, legally?

That's a new one on me - evidence?

[Last of the Fraggles]

Originally Posted by Professor Yaffle

This clarification on the law regarding alcohol and rape is relevant:



http://news.bbc.co.uk/1/hi/uk/6497889.stm

That's not a very clear clarification really is it?

If she says yes but is too drunk to understand that she'll regret it in the morning where is that on this scale?

Part of me wants to say that if you don't want to have sex with footballers you really should consider not drinking till you pass out in their rooms.

On a more light hearted note has anyone tried the 'too drunk to consent' thing when buying crap you don't want/need off ebay?

[Last of the Fraggles]

Originally Posted by BStrong

That means you weren't doing a good job of it.

Seriously though, the litmus test is if a participant has no knowledge or recollection of the act ocurring, there may be grounds for prosecution.

Locally there was a case involving several individuals who were students at De Anza college who were investigated for an instance of gang rape:

http://www.sfgate.com/cgi-bin/articl...BACO1LHQ48.DTL

Charges were not filed in part because the victim was so intoxicated she could not give a definitive account of the crime. Other women at the scene put an end to the festivites but could not I.D. the male actors.

That's a pretty horrible litmus test if you can only tell whether she was really consenting the morning after and she can recollect it and is ok with it.

[RemieV]

I would guess that there was implied consent in that she went to the one guy's room. The other guy just showed up and doinked her - no implied consent. This absolutely does not appear to be a case of doing something stupid while drunk and regretting it.

[BStrong]

Originally Posted by Last of the Fraggles

That's a pretty horrible litmus test if you can only tell whether she was really consenting the morning after and she can recollect it and is ok with it.

It's a good argument in favor of sober sex.

[Professor Yaffle]

Originally Posted by Last of the Fraggles

That's a pretty horrible litmus test if you can only tell whether she was really consenting the morning after and she can recollect it and is ok with it.

If you're not sure whether or not you are about to rape someone, best not go ahead and have sex anyway.

[TheGoldcountry]

Originally Posted by BStrong

It's a good argument in favor of sober sex.

I don't think anyone would argue with that, unfortunately people always have and always will make those decisions oftentimes when they are inebriated. I don't think a person's rights should disappear because they made the mistake of having one too many.

[mijopaalmc]

Originally Posted by BenBurch

There are no real Martians.

So you assert.

Originally Posted by BenBurch

There are real women who have the fetish I described. I know a couple of them.

So you assert.

Originally Posted by BenBurch

So it's a real issue, and not an "angel on pins" sort of thing.

All we have is your word in an issue where all you have to do is convince a single jury member the alledged victim is a "slut who wanted it" to get acquitted.

[BStrong]

Originally Posted by TheGoldcountry

I don't think anyone would argue with that, unfortunately people always have and always will make those decisions oftentimes when they are inebriated. I don't think a person's rights should disappear because they made the mistake of having one too many.

"If you're drunk, don't park, accidents cause people."

George Carlin

[JJM 777]

Originally Posted by Tsukasa Buddha

I am quite happy to live in a society that prevents people from being drugged and raped. The fact that self-druggers fall under that is only a practical problem for the judge or jury.

"Practical problem for the judge"? Ooh he might get a sleepless night or two.

It is more of a problem to men who may face a long and devastating jail sentence, without having done anything wrong, if the judge believes that he maybe did something wrong.