When is rape not rape?

[Jason]

Well I'm going to take a stroll and I'm a bit drunk hope I don't get raped ...i'd be safe if I had GUNS....... Seth

By GUNS I assume you mean to refer to breasts, colloquially, with bullet-like, stiff nipples poking through a skin tight teeshirt itself thinner than a fine sheet of washi paper.

..
...
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If you pictured the above and now have a semi or full-on erection you're a rapist.

[Pappa]

Seth, in a previous post you also said that the guy should not be prosecuted. Even if the woman "deserved it for her own idiocy" how would the guy not also deserve to go to prison for raping her?

Because, in the scenario I suggest, it's not rape. It's consensual sex where the woman simply forgot that she consented because she was too drunk to remember what she did the night before. In such cases the presumption of innocence applies to the defendant, and what's more, her intoxication should not be used against him, it should mitigate any claim of non-consensual sex, because if the girl can't remember whether she gave consent, she can't truthfully say that she did NOT give consent, and the presumption must be that she did give consent, because she went with the man voluntarily and was voluntarily intoxicated.

Of course, if she didn't give consent, or objected to the intercourse and the man went ahead anyway, that is rape.

But for a woman to wake up in the morning, find she's been fucked and then claim that she was raped merely because she doesn't remember giving permission is a grave injustice and bad public policy.

That's why not getting blitzed out of your mind and then placing yourself in a potential sexual situation is a very bad idea.

You really are back pedalling Seth. Nowhere earlier did you suggest the woman may have forgotten she consented, you just said that "Voluntary intoxication on the part of the alleged victim should be an affirmative defense to a charge of rape in court."

[laklak]

Meh, it's never a problem shagging a really drunk girl. Just shove them out at the next corner, problemo solvado.

[Gawdzilla Sama]

Right, she does not deserve to be raped, but if she is raped she justly deserved what happened to her as a function of her own bad judgment and behavior.

Do you ever actually read the bullshit you write?

No, because I don't write bullshit, although you do, constantly.

[Seth]

You really are back pedalling Seth. Nowhere earlier did you suggest the woman may have forgotten she consented, you just said that "Voluntary intoxication on the part of the alleged victim should be an affirmative defense to a charge of rape in court."

Yup, because the woman's recollection of the events, and the permission, or lack of it for sexual intercourse is unreliable, and therefore the presumption must be that the defendant is innocent.

[Pappa]

You really are back pedalling Seth. Nowhere earlier did you suggest the woman may have forgotten she consented, you just said that "Voluntary intoxication on the part of the alleged victim should be an affirmative defense to a charge of rape in court."

Yup, because the woman's recollection of the events, and the permission, or lack of it for sexual intercourse is unreliable, and therefore the presumption must be that the defendant is innocent.

That would be assuming there was no other evidence at all. The scenario you just put forward is what happens in court anyway (in most jurisdictions).

[pErvinalia]

I'm glad everyone around here is starting to get a proper picture of the true Seth. I can let you in on a secret - it's not the most disgusting thing I have ever heard him say.

Never saw you as much better than him.

You didn't see a lot of things, Gawdzilla. That's why you got banned.

[pErvinalia]

I'm glad everyone around here is starting to get a proper picture of the true Seth. I can let you in on a secret - it's not the most disgusting thing I have ever heard him say.

I think we're all grown ups here and can make up our own minds about these things.

Indeed you are and you are all starting to see what a disgusting philosophy Seth peddles. And I congratulate you for that.

[Gawdzilla Sama]

I'm glad everyone around here is starting to get a proper picture of the true Seth. I can let you in on a secret - it's not the most disgusting thing I have ever heard him say.

Never saw you as much better than him.

You didn't see a lot of things, Gawdzilla. That's why you got banned.

I wasn't banned, dickweed.

[pErvinalia]

Your momma's an astronaut.

Factually true, sort of. A vial of her ashes flew into space with the pilot of Spaceship One thanks to a good friend of mine who works for Burt Rutan at Scaled Composites.

(respectfully)

[Seth]

You really are back pedalling Seth. Nowhere earlier did you suggest the woman may have forgotten she consented, you just said that "Voluntary intoxication on the part of the alleged victim should be an affirmative defense to a charge of rape in court."

Yup, because the woman's recollection of the events, and the permission, or lack of it for sexual intercourse is unreliable, and therefore the presumption must be that the defendant is innocent.

That would be assuming there was no other evidence at all. The scenario you just put forward is what happens in court anyway (in most jurisdictions).

Not quite. As I said, many jurisdictions make it a crime to have sex with someone who is either intoxicated to the point that they cannot make a rational judgment to consent, or is asleep. That means that in these jurisdictions, screwing your wife while she's asleep is a crime.

On that basis, all the prosecution has to do is convince the jury that the girl was too intoxicated to consent, which if the girl is levying the complaint she's certainly going to claim and support with testimony, even if it's false testimony, and the defendant can be convicted, even if she was not that intoxicated and is lying about it just to get revenge because the guy wasn't nice to her in the morning.

I would take voluntary intoxication out of the mix entirely by making it an affirmative defense, which means that if the woman claims rape and lack of consent, all the defendant has to do is show that the woman was voluntarily intoxicated and he's automatically not guilty.

This puts the burden where it belongs; on the woman, to not get intoxicated and place herself in the hands of someone else in a sexual situation where her consent may be implied by her actions, regardless of her level of intoxication.

[pErvinalia]

I'm glad everyone around here is starting to get a proper picture of the true Seth. I can let you in on a secret - it's not the most disgusting thing I have ever heard him say.

Never saw you as much better than him.

You didn't see a lot of things, Gawdzilla. That's why you got banned.

I wasn't banned, dickweed.

Fine. Suspended. Then whimpered off with your tale between your legs.

[rachelbean]

I would take voluntary intoxication out of the mix entirely by making it an affirmative defense, which means that if the woman claims rape and lack of consent, all the defendant has to do is show that the woman was voluntarily intoxicated and he's automatically not guilty.

This puts the burden where it belongs; on the woman, to not get intoxicated and place herself in the hands of someone else in a sexual situation where her consent may be implied by her actions, regardless of her level of intoxication.

I'm pretty sure the burden belongs on the man, not to rape anybody. And if a woman is passed out, probably best not to fuck her

You keep making it sound as if the only kind of date-rape there is, is when a women is consenting and doesn't remember it. Actual rape happens when women are drinking too, and the kind of law your suggesting would pretty much make rape legal as long as a woman was drunk. And how exactly do you prove that unless she reports the rape immediately after it happens? If a woman stumbles into a police station and says she was just raped, should they take her BAC then? What's the level got to be to make it her fault automatically?

[Gawdzilla Sama]

I'm glad everyone around here is starting to get a proper picture of the true Seth. I can let you in on a secret - it's not the most disgusting thing I have ever heard him say.

Never saw you as much better than him.

You didn't see a lot of things, Gawdzilla. That's why you got banned.

I wasn't banned, dickweed.

Fine. Suspended. Then whimpered off with your tale between your legs.

I wasn't suspended, dickweed.

[Seth]

I would take voluntary intoxication out of the mix entirely by making it an affirmative defense, which means that if the woman claims rape and lack of consent, all the defendant has to do is show that the woman was voluntarily intoxicated and he's automatically not guilty.

This puts the burden where it belongs; on the woman, to not get intoxicated and place herself in the hands of someone else in a sexual situation where her consent may be implied by her actions, regardless of her level of intoxication.

I'm pretty sure the burden belongs on the man, not to rape anybody.

True, but at what point is consent valid and is there ever a time when consent may be implied or inferred based on behavior?

And if a woman is passed out, probably best not to fuck her

Probably not, but we're discussing what ought to happen if that does happen.

You keep making it sound as if the only kind of date-rape there is, is when a women is consenting and doesn't remember it.

I had no intention to do so, and do not make that claim at all.

Actual rape happens when women are drinking too, and the kind of law your suggesting would pretty much make rape legal as long as a woman was drunk.

No, it wouldn't make rape legal, it would merely shift the burden of proving a prima facie case of rape occurred to begin with. If she's intoxicated and says "no" then continued sex is a crime. I've already said that. But if she doesn't say no, and her actions can be reasonably construed as consent (like getting naked) then her degree of intoxication should be a mitigating factor when it comes to the defendant, not an aggravating factor. If she's too intoxicated to say no, and yet she still creates a reasonable presumption of consent through her behavior (such as getting naked), why should a man face criminal charges for doing what he is evidently being asked to do?

And how exactly do you prove that unless she reports the rape immediately after it happens? If a woman stumbles into a police station and says she was just raped, should they take her BAC then? What's the level got to be to make it her fault automatically?

Yes, they should take her BAC if they can, but the point of an affirmative defense is that the charge can be laid, and the defendant brought to trial. At that point, he can raise an affirmative defense that the alleged victim was intoxicated and did consent to the act. If he can prove this claim by a preponderance of the evidence, by for example calling witnesses from the bar or others who might have seen her in a state of voluntary intoxication just prior to her leaving with the defendant, then the court is obliged to find the defendant not guilt at that point in the proceedings.

The basis of this ruling is that by becoming voluntarily intoxicated and going with the man voluntarily, the woman shows indications of consent which destroy the necessary guilt beyond a reasonable doubt standard that is required to convict on a criminal charge. This is because her voluntary intoxication renders her recollection of the events too suspect to be permitted as reliable testimony, and absent some independent evidence that she did not consent, like a witness who heard her screaming "no, stop" her version of the events amounts to nothing more than a "she said, he said" situation that cannot rise to the level required by a court to convict.

If he cannot provide evidence of her intoxication, then things go on as usual through the trial.