quote:So you are saying that Bob should be held less responsible for his actions because he was drunk.
Nope. When having sex with a drunken partner, a sober person should be held to a higher level of accountability.
When both parties are drunk it is a different situation.
Bob should be held accountable for his actions. And his intent. Because of his actions he brought up on criminal charges. Because his intent was to get consent, they are not the charge felony rape.
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Let me make something clear. I do not think Olivia is to blame for her rape. I think she placed herself in a dangerous situation voluntarily and increased the likelihood of something bad happening to her quite a bit. Can you see the difference?
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quote:So you are saying that Bob should be held less responsible for his actions because he was drunk.
Nope. When having sex with a drunken partner, a sober person should be held to a higher level of accountability.
When both parties are drunk it is a different situation.
You don't seem to realize it, but you are seriously contradicting yourself. Holding a sober person to a higher level of accountability is exactly the same as holding a drunk person less responsible.
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So Olivia should have stayed sober, but things are better for Bob because he was drunk. Is that right?
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quote:Holding a sober person to a higher level of accountability is exactly the same as holding a drunk person less responsible.
There is a difference between these two statements:
Sex between drunken people is a different situation then sex between one intoxicated person and one sober person.
And.
Bob is held less responsible because he is drunk.
Bob is held to a standard according to his intent to get consent AND his actions, that is, he had intent to get consent, but didn't get clear consent, and was wrong, so he is guilty of a crime, the crime should not be the felony rape.
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quote:To "attack a straw man" is to create the illusion of having refuted a proposition by substituting it with a superficially similar yet unequivalent proposition (the "straw man"), and refuting it, without ever having actually refuted the original position.
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So what was the "nope" here? I don't understand the difference.
quote: Originally posted by Stone_Wolf_:
quote:So you are saying that Bob should be held less responsible for his actions because he was drunk.
Nope. When having sex with a drunken partner, a sober person should be held to a higher level of accountability.
When both parties are drunk it is a different situation.
But if Bob's drunkenness does mean that we hold him less responsible all a potential Bob needs to do is get drunk if he isn't sure of getting consent. "Gee, Judge, I didn't know that she didn't want me to have sex with her because I was plastered." That is a dangerous road.
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I'm having trouble getting this idea through here...so please try and work with me.
If Bob had been sober AND gotten explicit verbal consent, it would still be rape, or at least sexual assault, because when one person is sober and the other is drunk it is a different standard then when two people are drunk.
Now, if Bob had gotten explicit verbal consent when they were both drunk, or had tried and failed, and not had sex with Olivia, there would be no problem. The intoxication is not the issue, it is the consent.
Bob didn't get consent = crime. Bob mistakenly thought he had consent = lesser crime then felony rape.
Intoxication is only the set up.
If we started talking about Brian instead it would just make it so much better.
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quote:Originally posted by kmbboots: But if Bob's drunkenness does mean that we hold him less responsible all a potential Bob needs to do is get drunk if he isn't sure of getting consent. "Gee, Judge, I didn't know that she didn't want me to have sex with her because I was plastered." That is a dangerous road.
It seems like we often give judicial consideration to people who are cognitively impaired (even temporarily). Do you think we shouldn't? Would your opinion change if, instead of being drunk, Bob was mentally retarded?
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quote:It seems like we often give judicial consideration to people who are cognitively impaired (even temporarily). Do you think we shouldn't? Would your opinion change if, instead of being drunk, Bob was mentally retarded?
Yes, we give it judicial consideration. But this is a lot of judicial consideration here. This is taking it from felony rape to...well, actually I don't know if we've spoken about whether the charge it would then be would also be a felony, but a less severe felony. Initially it was to be a misdemeanor with probation, that was what SW proposed.
And if that's the case, then generally it's my understanding we don't give that much judicial consideration. To use another intoxication example, if someone plows into a building while they were drunk, or beats someone while they're drunk, we don't say, "You were intoxicated, your intent was good, so it's not a felony anymore." No, we say to them, "Your crime was in getting so drunk you 'couldn't control yourself'* and then not controlling yourself."
quote:Bob didn't get consent = crime. Bob mistakenly thought he had consent = lesser crime then felony rape.
Look, the problem here is twofold. One, allowing 'thought I had consent' as a defense is a potentially risky thing. Because although it makes us uncomfortable, lots of rapists do feel they've got consent even when they clearly don't. Or that they don't need consent. That's one of the things that makes them rapists, wrong-headed views or disregard for consent. The other problem is that...well, this is something that you've gotten upset with having pointed out, but: 'thinking you've got consent but not having it while sober=rape' whereas 'thinking you've got consent but not having it while intoxicated= <felony rape'.
Talking about Bob is actually helpful, because unlike the strange stroke example, this example is one that is not uncommon at all. Bob isn't an evil guy. But he made a pretty awful mistake. Not willfully, but he still made it even though he was drunk. If we don't let that be an excuse when people make other bad mistakes when drunk, either morally or legally, why is it such an excuse (justification, mitigating factor, pick your synonym) in this case?
*And as for the 'not in control of myself', well personally I'm leery of that. Plenty of people fail to rape or even be sexually aggressive all the time while drunk. Obviously it is possible to avoid the assumption of opt-in even while intoxicated. I've done it myself even when the opportunity presented itself-while completely s@#t-faced, and I'm hardly a paragon of chastity, virtue, or self-control. So it is possible. And it's important to get rid of this idea 'not fully in control of one's self' when it comes to sexuality, because we don't grant that very much at all elsewhere.
quote:Originally posted by kmbboots: Mental retardation is rarely voluntary.
Why is it important if he chose to be cognitively impaired or not? Does having chosen it increase his level of responsibility for his actions?
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Bob has a responsibility to make sure he knows whether or not Olivia is consenting. He mistook her non-verbal signals as consent -- he failed so he raped her. Being drunk doesn't change his responsibilities. Its not a mitigating factor unless he was for some reason forced to consume alcohol against his will.
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quote:Originally posted by kmbboots: Mental retardation is rarely voluntary.
Why is it important if he chose to be cognitively impaired or not? Does having chosen it increase his level of responsibility for his actions?
Of course. Unless someone forced him to drink or spiked the punch without telling him, drinking is choosing to have your judgement impared. Because he chose to be impared, he is responsible for what he does while he is impared.
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quote:Do you feel the same holds for a woman? If she originally said "no," then got drunk and subsequently said "yes," is she responsible?
If she gets intoxicated voluntarily, then yes, she's got some responsibility. That doesn't change Bob's responsibility not to have sex with someone who cannot consent, though. Now if she had said to Bob, while they were both intoxicated, "Yes," that would change things in that scenario, perhaps many people would agree.
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quote:Originally posted by Rakeesh: Now if she had said to Bob, while they were both intoxicated, "Yes," that would change things in that scenario, perhaps many people would agree.
Perhaps so. Perhaps even if she simply gave a clear non-verbal cue, like removing all her clothes, it might change many people's opinion.
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Why do you think that removing all her clothes constitutes consent? What if she only removed some of her clothes?
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quote:Originally posted by kmbboots: Why do you think that removing all her clothes constitutes consent? What if she only removed some of her clothes?
I didn't say that I did. I said many people's opinions might be different if she had given such a non-verbal cue. I'm not sure of my own opinion.
As for removing some of her clothes, I would imagine most people would take removing her hat as signaling something quite different than removing her shirt and that again being different than removing her pants (and underwear).
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quote:...if someone plows into a building while they were drunk, or beats someone while they're drunk, we don't say, "You were intoxicated, your intent was good, so it's not a felony anymore."
How was their intent good in those examples?
quote:allowing 'thought I had consent' as a defense is a potentially risky thing.
True.
quote:...lots of rapists do feel they've got consent even when they clearly don't. Or that they don't need consent. That's one of the things that makes them rapists, wrong-headed views or disregard for consent.
I'd say thinking you had consent is a world away from thinking you don't need it. Also, thinking you had it vs thinking you had it when you clearly don't.
quote:...this is something that you've gotten upset with having pointed out, but: 'thinking you've got consent but not having it while sober=rape' whereas 'thinking you've got consent but not having it while intoxicated= <felony rape'.
That's not why I was upset. And as far as I can tell, people have not spoke against what I considered a fair punishment, or at least, indicated that they themselves agreed that "a lessor charge was warranted" without specifying what.
quote:Bob isn't an evil guy. But he made a pretty awful mistake. Not willfully, but he still made it even though he was drunk. If we don't let that be an excuse when people make other bad mistakes when drunk, either morally or legally, why is it such an excuse (justification, mitigating factor, pick your synonym) in this case?
But we do, which is why a drunk driver who kills someone is charged with manslaughter and not murder.
quote:Why is it important if he chose to be cognitively impaired or not? Does having chosen it increase his level of responsibility for his actions?
Yes, to a certain point, because all should be held accountable for their actions, and even honest, well meaning mistakes can hurt people.
quote:Bob has a responsibility to make sure he knows whether or not Olivia is consenting. He mistook her non-verbal signals as consent -- he failed so he raped her. Being drunk doesn't change his responsibilities. Its not a mitigating factor unless he was for some reason forced to consume alcohol against his will.
Rabbit, so you think Bob should be prosecuted at the same severity level as someone who forceably rapes a stranger?
quote:If she gets intoxicated voluntarily, then yes, she's got some responsibility.
This is a view I share, and have caught a lot of strife for...would you please elaborate on what responsibilities are Olivia's in this situation?
quote:Perhaps so. Perhaps even if she simply gave a clear non-verbal cue, like removing all her clothes, it might change many peoples' opinion.
I believe Boots specifically said it would not change her opinion earlier had she derobed.
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quote:How was their intent good in those examples?
Well in the first case, obviously his intent was to drive home safely. He didn't intend to be driving dangerously, at least in his own mind. Society is perfectly comfortable, however, with saying to him, "Yeah, alright obviously you didn't intend to plow into a building. That's not what's important here." As for the second, his intention was probably not 'get drunk at a party and start a fight'.
But in the scenario you posed, unlike other situations in which intoxication plays a factor, we should primarily judge Bob by his own intent, as stated to himself-here we don't say, "You say that's your intent, but..." Which immediately begs the question, "Why is this different?"
quote:But we do, which is why a drunk driver who kills someone is charged with manslaughter and not murder.
Which is why he's charged with manslaughter, not speeding for example. Or just reckless driving. Or something like that.
quote:This is a view I share, and have caught a lot of strife for...would you please elaborate on what responsibilities are Olivia's in this situation?
Alright, now if I had quoted you like this in this thread, historically you'd have gotten pretty angry, saying bite me, or accuse me of dishonesty, or borderinline dishonesty, or whatever. Just wanted to throw that out there. I don't think you were doing those things, to be clear. But you get pretty pissy when they're done to you. Something to keep in mind next time you start telling people to bite you.
The bit you quoted was in response to Peter's scenario in which she voluntarily gets drunk and then while drunk gives explicit, verbal consent. In that situation, her responsibility was in hampering her judgment by intoxication and then making a bad mistake while it happens. In this case the mistake is specifically giving consent.
That's not the same thing as, "I got really drunk on my own, and a guy I was with at the time assumed I'd given consent without me ever explicitly doing so." One is a situation in which you're drunk, and specifically invite behavior you'll regret. The other is a situation in which you're drunk, and then something happens to you while you're intoxicated.
And in both situations, Bob still has a responsibility to take her intoxication into account.
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quote:If we don't let that be an excuse when people make other bad mistakes when drunk, either morally or legally, why is it such an excuse (justification, mitigating factor, pick your synonym) in this case?
And if we do let that be an excuse for having non-consensual sex, we're essentially making it legal to rape someone as long as you are drunk. After all, the only evidence of what Bob was thinking when he raped Olivia, is Bob's word and as boots has said, most guys who commit date rape think the woman is consenting.
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quote:Well in the first case, obviously his intent was to drive home safely
Agreed.
quote:As for the second, his intention was probably not 'get drunk at a party and start a fight'.
I don't agree here. His intent was to get drunk...as to the fight, who knows what his intent was, but I doubt it was positive, and just lumping it into "I didn't mean to fight." doesn't strike me as accurate enough to be relevant, or in other words, count as "good intent".
quote:Which is why he's charged with manslaughter, not speeding for example. Or just reckless driving. Or something like that.
So you think Bob should get a stiffer penalty then I laid out? At the time I believe you indicated that it was "closer to your own opinion" without suggesting what you felt would be fair.
quote:Alright, now if I had quoted you like this in this thread, historically you'd have gotten pretty angry, saying bite me, or accuse me of dishonesty, or borderinline dishonesty, or whatever. Just wanted to throw that out there.
The bit you quoted was in response to Peter's scenario in which she voluntarily gets drunk and then while drunk gives explicit, verbal consent.
Ahhh, I misunderstood. And btw...I don't think I've ever gotten upset about that, it was you who was upset at me for truncating your quotes.
quote:And in both situations, Bob still has a responsibility to take her intoxication into account.
posted
Has any on here read Guerrillas by V.S. Naipaul? I ask not because I recommend the book (I don't), but because there is a rape described in the book that is quire relevant to the discussion.
(Spoilers)
This particular rape is relevant because the victim goes to the rapists house with the intent of having sex with him, she initiates the act, she disrobes and climbs into bed with him with the full intent of having sex. And then she is raped. Given the details of the story, I'm confident that everyone here would agree that she was raped and that he was guilty of aggravated sexual assault. I'm not going to go into the details because that would violate the forum rules, so unless you read the book yourself you'll have to trust me on this.
The devil is in the details. Consenting to kissing, fondling, petting, being naked with someone, and even coitus is not giving consent to any and everything that person might do to you. Presuming that consent to one step implies consent to the next is a bad presumption.
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quote: So, Rabbit, what do you think is a fair sentence/crime for Bob?
I think I'd need to know a lot more detail than is available in this hypothetical scenario. Depending on the state or country where the crime occurred, there are likely different degrees of felony rape.
Since Bob did not use a weapon or physical force and did not inflict any injuries on the woman aside from rape itself, I would expect this would be 2nd or 3rd degree felony sexual assault, which would normally mean at least some prison time. Depending on the details, I expect Bob should probably get a sentence on the lighter end of what the law allows. I think a sentence comparable those commonly given for vehicular homicide or negligent homicide would be appropriate (though I don't know what that is).
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quote:Fair enough. I would personally not want him to loose the right to vote or own weapons, but I can see why this would also be a fair shake.
Ouch!! I think anyone convicted of a violent crime (and this is definitely a violent crime) should loose the right to own weapons.
Voting rights is a different issue. Right now it varies from state to state but personally, I think its reasonable to prohibit people who are in prison or on parole from voting, but once they've served their full sentence its a lot more problematic.
I think mandatory sex-offender lists have turned out to be a very bad idea in general. They'd be a lot more useful if we were far more selective about who got put on such lists.
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posted
What The Rabbit wrote except I think that felons who have served their sentence should be allowed to vote (and that people should know that they can vote).
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quote:Originally posted by kmbboots: What The Rabbit wrote except I think that felons who have served their sentence should be allowed to vote (and that people should know that they can vote).
I mostly agree with that. Its the nasty white collar criminals, people like Ken Lay and Gordon Liddy who I think should loose their voting rights for life.
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Seriously, I sincerely doubt that convicted rapists, robbers and murders would be likely to use their vote to try to change the laws against rape, robbery and murder. Even if they did, they'd never be successful.
On the other hand, I have every reason to suspect that people like Ken Lay and Gordon Liddy would use their votes to weaken laws against the kind of crimes they commit. And they are smart enough and well connected enough that they might have some success doing it.
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quote:Originally posted by Rakeesh: If that's the aim, prohibiting them from campaign contributions would be much more effective that stripping them of a single vote.
I dont see such a thing being possible, though.
I don't see why things like prohibiting a convicted felon from contributing to campaigns or political parties, lobbying, or making public political commentary couldn't be included in a sentence. We sentence people to be killed. Is the right to "free speech" more sacrosanct than the right to life?
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Imagine it from Olivia's point of view. She, unable to even speak or move effectively, had a man shoving his penis into her.
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quote:Originally posted by kmbboots: Imagine it from Olivia's point of view. She, unable to even speak or move effectively, had a man shoving his penis into her.
I'm going to jump to the potentially more awkward scenario where I imagine a man doing that to me as another man. I'd feel humiliated and violated and angry. I'd be mad at myself for being so irresponsible as to put myself in a situation where that could happen, as well as with the other man for taking advantage of me and being similarly irresponsible in his alcohol consumption.
HOWEVER, if I could be honestly convinced that my actions previous had included those that are typically trending toward a sexual encounter and that Bob really misunderstood my personal limits, then I doubt that I'd seek jail time or a felony conviction, knowing how either can be life-destroying. Much would depend on my assessment of Bob's character when measured against the details of the incident. Intent is the overriding factor for me and is much more important when seeking justice than the effect.
Now I say this in a moment of detached reflection. I can't be sure how I'd respond in the aftermath of actually being violated.
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quote:Originally posted by kmbboots: Imagine it from Olivia's point of view. She, unable to even speak or move effectively, had a man shoving his penis into her.
And that violence could be permanently life altering if she ends up pregnant or with a nasty STD.
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quote:And that violence could be permanently life altering if she ends up pregnant or with a nasty STD.
And I acknowledge that pregnancy isn't a factor in my hypothetical. But I don't feel a lot of emotion about "morning after" pills.
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quote:Originally posted by kmbboots: Imagine it from Olivia's point of view. She, unable to even speak or move effectively, had a man shoving his penis into her.
I'm going to jump to the potentially more awkward scenario where I imagine a man doing that to me as another man. I'd feel humiliated and violated and angry. I'd be mad at myself for being so irresponsible as to put myself in a situation where that could happen, as well as with the other man for taking advantage of me and being similarly irresponsible in his alcohol consumption.
HOWEVER, if I could be honestly convinced that my actions previous had included those that are typically trending toward a sexual encounter and that Bob really misunderstood my personal limits, then I doubt that I'd seek jail time or a felony conviction, knowing how either can be life-destroying. Much would depend on my assessment of Bob's character when measured against the details of the incident. Intent is the overriding factor for me and is much more important when seeking justice than the effect.
Now I say this in a moment of detached reflection. I can't be sure how I'd respond in the aftermath of actually being violated.
That means that women (and vulnerable men) had best not act in a way that could be seen to "trend toward a sexual encounter". Got a list of those? I imagine it is a pretty long list.
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quote:HOWEVER, if I could be honestly convinced that my actions previous had included those that are typically trending toward a sexual encounter and that Bob really misunderstood my personal limits, then I doubt that I'd seek jail time or a felony conviction, knowing how either can be life-destroying. Much would depend on my assessment of Bob's character when measured against the details of the incident.
And if you think you lead Bob to believe you were consenting and don't think Bob deserves jail time or a felony conviction and you are an adult, no on else is going to step in and press criminal charges against Bob.
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quote:Originally posted by kmbboots: Imagine it from Olivia's point of view. She, unable to even speak or move effectively, had a man shoving his penis into her.
Being unable to move or speak is horrible, but that's not Bob's fault.
And someone shoving a penis into you is how sex works from a receiving point of view (I would say female, but gay males are "shoved into" as well).
Are you saying that any sex if there isn't consent is violent?
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posted
Please understand that in answering the hypothetical I'm not advocating policy. Rape is incredibly messy as a legal matter. The public response is viscerally and powerful, people are frequently falsely accused and legitimate claims are called false as a matter of course.
quote:Are you saying that any sex if there isn't consent is violent?
That's a generally accepted premise of sexual violence. That it's unwanted, not that you are physically harmed.
That said, there is something to be said for social factors in the harm caused by sexual activities. Clearly, for some people being raped is worse than it is for other people. There isn't an objective amount of harm that is cause by the act regardless who it occurs to. I had a girlfriend in high school whose greatest fear was to be raped. She would rather have been killed than be raped. I've known other women who considered rape a lesser harm than death. I'd certainly prefer the former, by a significant margin.
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I looked up "sexual violence" and it appears you are right...widely accepted...doesn't have anything to do with actual physical violence necessarily...confusing, but widely accepted.
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quote:I looked up "sexual violence" and it appears you are right...widely accepted...doesn't have anything to do with actual physical violence necessarily...confusing, but widely accepted.
This is a pretty important concept to understand: having someone insert a portion of their body into yours without permission, or even touch you without permission (I mean this generally, not just sexually), is violence. I think part of your disconnect here has been because when you heard or read the word 'rape', you thought the overtly violent kind, or the maliciously-intended over-drugging kind. With roofies or savage beatings. But much like that's just not the only kind of rape there is (legally anyway-I can't compel you to change your mind about your own, personal definition for the word), violence does not only entail bruising.
Imagine if someone approached you on the street. They've got 40-100lbs on you, a foot of height, and are a great deal stronger than you are. They slide one of their fingers in your mouth. Or, hell, up your nose or in your ear. Have they done violence to you?
Absolutely. (Though really the size issues don't matter-I'm just trying to get you to imagine it from the perspective of someone who, most of their lives, has lived in the physically weaker position from the very people more likely to do them harm). Putting hands on someone's body without permission is doing violence. It's not, y'know, really awful savage violence - not just putting hands on someone, anyway - but that's one of the thresholds.
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Here's a few stories that highlight the kind of attitude that is being rejected. I don't say these are decisions you support, but they highlight why it's important to be very clear not just to the individual people involved in a case, but society in general, what consent is and what happens when it's violated-even when it's not violated in extremely violent ways.
That second story is especially interesting for the purposes of this discussion. (It's a few weeks old, but I got linked to it today, courtesy of a webcomic fan.) In it, a school kicks a cheerleader off the squad because she refuses to cheer specifically for the athlete who raped her.
Just to get a few caveats out of the way, the details there are that she accused an athelete of raping her at a party, and eventually he plead to misdemeanor assault and the rape charge was dropped. He was sentenced to...two years of probation, community service, and anger management. (Sound familiar?)
About a quarter year later, she's still on the squad (she was advised not to change her lifestyle in school), and the time came to cheer for individual athletes on the free throw line. To use their name specifically. When she was supposed to do that, she instead remained silent and refused.
She was pulled out by the school superintendent and told she had to cheer him using his name - the guy who plead guilty to assault, mind - and when she refused, she was kicked off. Even if the school's position is that they can't know for sure he raped her, they still require her to cheer by name for the guy who is on the books as assaulting her, personally.
That's the kind of attitude women face. Now do you think that decision was reached out of a respect for the letter of the law, because he only assaulted her according to what had been proven...or because he was a good athlete in a sports-driven community, and the ladies needed to just get with the program and put things like assault/rape behind them?
Again, I hasten to point out that I'm not saying you would support that kind of decision. I'm mentioning these stories because I think it's important to remember, even a decade into the 21s century, in the 'first world' United States, we still handle rape pretty shabbily. I believe the way you do that, in part, is sending a clear message to our culture that...well, rape happens. A lot. It's past time to get our heads out of our asses and recognize that, because we're doing a pretty sh@#%y job of handling things so far. Hoping it's not true, and relegating rape to the mustache-twirling villains of the world, isn't going to cut it.
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