Can anyone help me get my head round this alleged rape?

[StormyBrid]

A couple of years ago, there was an incident between two people I used to know but haven't really seen for years. I keep coming back to it and pondering it, because I just don't know what to make of it. I'd appreciate any thoughts.

I'll call her F and him M, for clarity. And all I know is hearsay, but confirmed by many witnesses. For some months there had been escalating flirtation between them, at social gatherings, with alcohol involved. F has a partner. On the night in question, their flirting was commented on by many people - both of them could have been described as up for it. By the time they disappeared into a bedroom, both were incredibly drunk.

No one knows what happened in that room. F says she remembers nothing, but it was clear from, ahem, the state of her trouser region that sex had happened. M says he barely remembers what happened, but that F was very enthusiastically consenting during.

Here's where my confusion comes in. M says F consented, but F was clearly too drunk for that consent to be valid. F says it was rape. So far, so good. But M was just as drunk, and so equally couldn't give valid consent. So surely if he's guilty of rape then she is too? Can two people rape each other at the same time? Wouldn't that cancel out?

The grey area is the rapist's safe space. Most rapes take place within the grey area because that's where most rapists manoeuvre their victims because that's where they know they'll get away with it.

Oh I agree that rapists set their victims up in advance and are very invested in the idea of the 'grey area' as a way of getting to do what they want without consequences.

It's just that, given the specific information about what happened to the OP's friends (that F is saying it was rape because she was drunk but not that M forced her or had sex on her while she was unconscious) I'm a bit uneasy about the idea that it was non-consensual sex, rather than sex F later regretted.

If what witnesses would have reported was "On the night in question, their flirting was commented on by many people - both of them could have been described as up for it. By the time they disappeared into a bedroom, both were incredibly drunk" then what would we be able to say afterwards, if there hadn't been any recriminations? Anyone would call it a piece of drunken foolishness, at worst.

This is why this whole thing is incredibly difficult to be clear about. There's no definite line between having had a few drinks and being too drunk to say yes or no to anything. And to make it all worse from the moral viewpoint, people are sometimes deliberately aiming at drinking to that point, pretty much so they can be irresponsible and not care about it.

Rape is forced sex, not regretted drunken sex. If a man sees a willing partner who is actively participating in sex it's fair for him to presume consent based on that. He's no more a rapist than she would be if he claimed that he was too drunk to remember.

There's a huge difference between two drunken people getting it together and a sober predator purposely targeting someone because they're vulnerable due to being drunk or worse, someone who is visibly near comatose.

It's bizarre how some posters have declared women incapable of being responsible for their actions whereas equally drunk men not only have to be responsible for themselves but also the women they're with. It's a very misogynistic attitude; women like little children, incapable of making their own decisions, men responsible for them.

Not having the psychic ability to predict that the woman they've fancied for ages, who is now all over them and ripping their clothes off will regret their actions tomorrow or claim not to remember does not make someone a rapist. To be a rapist you have to actually force sex on someone.

She can't claim forced sex because she claims she can't remember, there's nothing to suggest that he took advantage of her, he believes he had sex with a willing and active participant, it's not his fault that too much alcohol makes her lose memory of what she did, he couldn't predict that and it doesn't make him a rapist.

Bluebell, the law says that women have to capable of genuine consent to sex - and that means not incapacitated with alcohol.

Therefore, it is not a misogynistic attitude to ensure this, but it is a man ensuring that a woman is genuinely consenting to sex, and not merely consenting to sex because she is under the influence of alchohol/drugs.

Until we have genuine sexual equality in society - ie. women can have sex with whomever, whenever she wants without being judged as easy or a slut, and until women are not seen as the 'gatekeepers' of sex, ie -men will have sex anytime, wherever, and with whomever, and it's women's job to control this- this law is needed.

^Note I never think of women as sluts - I'm saying that society/the patriarchy does.

I agree with you but he was equally drunk so by that standard they were raping each other. If he were sober and took advantage of her drunkeness that'd be rape but they were both drunk, seemingly up for it and less capable of making an intelligent decision. I don't think it's fair to have higher expectations of drunken men than women, equality demands that both sexes have the same expectations and responsibilities.

I do think that men who take advantage of vulnerable women need to be prosecuted, that's so important and I support that. I don't think it should be extended to drunk men who have sex with seemingly consenting and actively participating drunk women, they're both drunk and ninety percent of the population would be both raped and rapist by that standard.

You have to be male, in possession of a penis to be capable of/charged with rape - so they weren't 'raping each other'.

'Slut' should be as socially unacceptable a term as racially abusive terms are. The attitudes behind that and similar words are extremely damaging to women. Sexism and related abusive language should be challenged by the media in the same way that racism is. If it were we wouldn't have nearly as much violence toward women, it would be a much safer and more civilised place.

I agree. But it is not challenged by the media (yet) The same double standards apply to women now, as 30 years ago, when I was growing up.

Just a little observation, what happens when men take advantage of he grey area is grooming. The question is whether an adult with full mental capacity can be groomed.

Bluebell, I posted upthread about the potential sexual assault of the man.

For an assault to have been committed, first M would have to be of the opinion that he was assaulted ie that he had sexual contact to which he didn't have the capacity to consent.

M is not of that opinion therefore he was not sexually assaulted.

M's defence if he were to be charged with the rape of F would be the reasonableness of his belief in her consent. Given the OP, I suspect this would be a successful defence.

"I don't think it should be extended to drunk men who have sex with seemingly consenting and actively participating drunk women, they're both drunk and ninety percent of the population would be both raped and rapist by that standard."

Again, it isn't "drunk", it's drunk beyond the capacity to consent.

But in this thread and/or that "Drunken sex" one, women have said that they deliberately got totally drunk and went and had sex, because they enjoy it that way. Does that make any man they succeeded in doing the deed with a rapist? I doubt if they'd have welcomed an ethical man's response that "You're too drunk for us to do this. Maybe tomorrow."

But in this thread and/or that "Drunken sex" one, women have said that they deliberately got totally drunk and went and had sex, because they enjoy it that way. Does that make any man they succeeded in doing the deed with a rapist? I doubt if they'd have welcomed an ethical man's response that "You're too drunk for us to do this. Maybe tomorrow."

No, Tei, because they feel that they consented. Where consent exists, there is no rape. The first port of call is always "is there a victim ie is there a person who feels that sexual contact was had with them without their valid consent."

However, if I judged my potential sexual partner was blind drunk, I would say that I think we should wait for another day. And I have had men say that to me, back in uni days -when I was several stone lighter and hadn't worked out whisky was a bad idea--

Strike out fail!

So whether something is a bit of drunken fun or a serious crime depends on how one participant (determined by gender) feels about it afterwards even if their memory is hazy, and it would have been impossible to say at the time that it wasn't a crime?

I think the answer to this is that there can't be an answer.

People are very quick to jump on people using rape for women as well as men.

"In UK law etc etc" it would also be helpful as the nature of the crime is a human one to explain the differences internationally.

I think the term is useful at this moment in time - for reasons people have previously mentioned but the law is not a fixed object and i believe, in time, the definition will be either altered to include "any person" or done away with all together.

The US for example does not recognise "rape" in law, it's all sexual assualt, but then i think the US is more sexist than the UK.

The law is not the moral authority - marital rape laws pre 1990s being an example, women WERE raped prior to this, it just wasn't legally recognised.

That's not quite it.

The thing that is different between rape and sex is the presence or non presence of valid consent and that consent can only exist in the minds of the participants (and may or may not be expressed in words, actions etc)

Let's say both parties are sober. One person is rough with the other, leaves bruises etc. Objectively, I might think perhaps there was an assault/rape. But even if this had happened in complete silence with no discussion, if the bruisee was, in his/her mind consenting, there is no crime.

The bruiser would not be able to show he/she had taken reasonable steps to confirm consent but there would still be no crime if the consent was there in the mind of the bruisee.

"one participant (determined by gender)"

No, either or both may judge that they were assaulted.

"impossible to say at the time that it wasn't a crime"

If B has reasonable belief in A's free consent, then it is not a crime.

"If a man sees a willing partner who is actively participating in sex it's fair for him to presume consent based on that. "

Er no it isn't. Telling men it's OK for them to presume consent in any circumstances, is dangerous. They're already told to presume consent unless a woman is shrieking and hollering like a banshee, they don't need more messages telling them they don't have to bother finding out if a woman is consenting.

Please stop saying rape is forced sex. That is not the legal definition and it's not what rape is. You can rape someone without using any physical force at all.

OK, if a woman accepts a man having sex on her because he's threatened to hurt her/fire her from her job/cause some other harm to her or someone else if she doesn't open her legs, then that's rape.

If a woman says yes to sex that she doesn't really want because she thinks (or knows) that the man will be grumpy and sulky if she refuses, or she feels that she kind of owes it to him after he spent all that money on dinner, or because opening her legs is less aggravating than to carry on arguing with him and will get it over quickly, or if she is drunk enough to go 'oh the hell with it, why not?' even though she thinks she might regret it in the morning, that's not rape. It's not very nice; it's selfish and unethical of the man to persist when he's been told No once or the woman is acquiescing with obvious boredom and dislike, but it's not rape.

No, it's not rape because men get to define rape and sex.

They've defined sex as being about men having an orgasm and the default assumption is that women don't need to enjoy it or want it, for it not to be rape.

We need a re-definition of sex which is human centred instead of rapey man centred. One which doesn't call reluctant sex, coerced sex, nagged sex, sex, but recognises it for what it is. I don't know whether the correct term for it is rape; but it should not be accepted as normal sex, which currently it is. Sex which only takes place in a context where both partners want it unequivocally, may actually be the exception rather than the norm. Which would be a fucking terrible state of affairs and one that needs changing big-time.