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?

Agree strawberry, a situation which OP describes could ruin both parties lives.

'In response to your post, I feel very sorry for blokes then, as it seems that both partners can be pissed, the woman can be actively leading proceedings, and yet she can still withdraw consent after the event due to memory loss. How can coercion be proved if one party doesn't remember and the other is denying it.'

The same is true in reverse. A woman could take a man into a room when he was drunk, he could then claim that she sexually assaulted him because he was too drunk to consent, and she could end up in prison. Whether she did end up in prison would be down to the court case and the reasonable doubt bit, eye witness accounts to how drunk he was etc.

There is no reason to feel sorrier for sons than daughters.

Garlic, F may not have reported to the police, but she made her version of events widely known. The fallout was messy. Dozens of people expected to take sides, and M is stuck with the label rapist whether it's true or not. On that basis, I can see why one might worry for one's sons.
why the hell aren't I asleep yet?

Power imbalance makes perfect sense garlic and is a good way to describe it

Almond - I only have a son right now!

Of course, the risk to women is massive which is why I've said no drunken sex to protect both parties.

Stormy, that is awful.

Potentially one person has been raped, and one person has been wrongly accused of being a rapist.

And in the situation you describe, and the hypothetical situations posters have put forward, both could be correct.

SLithy, it depends. The example would be, person X is seen at a party falling over due to drink, slurring their words, being confused as to where they are, losing phone, wallet, keys etc, not being able to hold a proper conversation, not being sure how to get home. Friends all decide person X should go home immediately as they are incapable of being safe in public due to alcohol consumption and need to sleep it off. Person X may keep trying to stagger around to dance, but they are knocking into people, confused etc.

Person Y offers to group that they will take person X safely home. Everyone present has already noted and commented on the incapability of person X to be capable of making sensible decisions like putting their phone/wallet in safe place. When they leave, person X then tells person Y they want to have sex. Person Y has sex with person X with person X's general agreement. I think that is a plausible rape case against person Y (and such cases do go to court with mixed results).

But no bystanders saying person X was incapable, no real case.

If person y is not drunk, I would very quickly be leaning towards rape in that scenario.

For me, the confusion comes when the other person is drunk too, just maybe remembers better.

It is hard though.

In your scenario, person x EVEN IF they are saying I want sex, doing the unzipping, doing the sexual actions etc - they aren't responsible because they are incapable.

But as said up thread, if person x got in a car and drove it - they are responsible.

"have you got a condom ?"

"stuff that, have you got a breathalyzer ?"

And as per another thread, "have you got a contract to absolve me of responsibility in the even of accidental pregnancy"

And who said romance is dead

The two are not exact analogies because they are treated differently in law, with there being an actual amount of alcohol in bloodstream in the case of drink driving.

I was more talking about it as a guide to how people should ethically behave, not a legal case.

The only case where there would be a confusion is where both people said they were too drunk to consent or both had been seen by others to be equally incapable of consenting, and both had equally actively participated.

In the OP's case, M has never claimed he was too drunk to consent, no witness has so far claimed he was too drunk to consent, so in the analogy F has not hit or killed anyone with a car. There is no claim she had sex with a person incapable of consent. If F actively participated (which nobody claimed; M only claimed she enthusiastically consented; that could just mean saying yes repeatedly) then in the analogy she got into a car and didn't kill or hit anybody, because she was too drunk to make a judgement like somebody is too drunk to drive, but there was no victim of her actions while drunk. Drink driving and not killing somebody is not punished as harshly as drink driving and killing somebody.

Sorry almond either you are too deep for me or it's too late for my brain to process this but that went way over my head.

I'm just saying I guess that all things being equal [blood alcohol etc] that the same person choosing to have sex is classed as incapable due to the drink, but if they chose to do something like drive, it's not a mitigating factor.

I think that's what I mean anyway.

With drink driving, you normally make your decisions about transport before you start to drink. The onus is on you to do that while still sober, hence being held responsible for your actions if you then later get into a car and drive drunk. It's not because of a choice you made while drunk and incapable, but because you didn't plan appropriately while sober. And there's enough awareness around the issue for everyone to know that this planning is what they need to do.

I also think that 'being too drunk' is not built into our consciousness as being a real reason for consent to be invalid. Drunken sex is part of our culture. Hence when you get to these situations, the man just looks for a yes then the woman sobers up and thinks "there's no way I'd have done that sober, I feel violated".

M says he barely remembers what happened, but that F was very enthusiastically consenting during.

I think it's the active person, if say, she climbed on top of him. That is consent. She is obviously consenting, it's enthusiastic consent (on her part). But he would need to verbally consent as the passive party.

If he were unconscious but in an aroused state and she climbed on him, she raped him- no matter how drunk she was. (morally raped anyway, I realise it's not the legal definition)

If as you say she doesn't even remember what happened, I would see that as sexual assault. He is claiming not to remember what happens but also some how know she wanted it?

Disagree funnyvalentine. People change their mind all the time with drunk driving, and make different choices after they've had a drink.

Anyway we aren't talking about drink driving. We are talking about sticking a penis into someone else's body. The onus is of course on the person doing that. The onus was on M. Everyone there could see F was incredibly drunk. Why did he think he it was OK to stick his penis into a very drunk woman whether she yes or not?

No need to worry for your sons if you teach them not to stick their penises into very drunk women. And teach them they aren't entitled to sex.

I am another one who fears for my sons.

I'm not. Because even if they did turn in to rapists, they would be incredibly unlucky to be charged let alone go to jail for it.

I do fear for my daughter when she has a 1 out of 4 chance of being sexually assaulted though

I will be teaching the dc to not have drunk sex with anyone. It's really not the end of the world if you can't drunk fuck someone.

With drink driving, you normally make your decisions about transport before you start to drink. The onus is on you to do that while still sober, hence being held responsible for your actions if you then later get into a car and drive drunk. It's not because of a choice you made while drunk and incapable, but because you didn't plan appropriately while sober. And there's enough awareness around the issue for everyone to know that this planning is what they need to do.

Lots of people go out after work and have one more than they expected, we still know that once we have done that to get a cab.

It's so sad that people are saying they fear for your sons
Just teach your sons not to rape women. And if they do then do not feel sorry for them!

Hold on op. This is new info. That she told everyone that ( basically) he raped her and many people believed her.

Given that women don't normally lie about this, and that people usually disbelieve women who accuse men of rape unless they have good reason to believe, this puts a much different light on the situation.

My friends and I have had stacks of drunk sex, some of it regrettable, and no one has accused anyone of rape. Drunk regrettable sec is not rape. The idea that women commonly lie about consent when it comes to drunken regrettable sec is a rape myth. Given that, maybe people can "fear for their sons" a bit less.

Well to be honest I never actually regretted anything as I don't really go in for that but my friends did sometimes!

Sardines it wasn't intended to be new info. Did I not cover it in the OP by saying she named it rape on grounds of drunkenness? At any rate, I didn't labour the point originally because the bit I was focusing on was how their levels of intoxication relative to one another affect how it's labelled. And I was doing my best not to accidentally perpetuate any rape myths. Apologies if that's led to some confusion.

No one has said that women lie about consent. The idea has been floated that consent is given, and due to the levels of alcohol either invalid, or forgotten about the next day.

That doesn't necessarily make a drunk man a rapist.

What do the bystanders say about who was leading who into the bedroom? And how was their behaviour in general and relative to each other after the event? Did anybody comment to them at the time about what had happened - was there any regret afterwards or where they still flirting with each other and comfortable with each other?

Did anybody there at the time think Anything untoward had happened after the event? And where was m's dh through this? I assume not at the party. But when did she first think of him - is that the time she also began to think how do I save my marriage and that blaming m is the easiest way out for her? I do think that the fact she is married is important because unfortunately it means there is a reason for her to want to say she didn't consent regardless of whether she did at the time or not, because of the long term implications on the rest of her life. Whereas if she had been single she wouldn't have that pressure on her if she was single. Did she say anything afterwards about not wanting her dh to find out?

I think if f is telling people that m is a rapist because of this then it is causing problems for him within hissocial group and potentially within a bigger sense if employers or potential employers hear of it.

My understanding is that F has stated she was too drunk to consent and that therefore any consent was invalid; M has not stated that he was too drunk to to consent and that therefore his consent was not invalid.

That's why they haven't assaulted each other, OP.

It is of course possible that, if M felt the same as F, both would have suffered assault, just as each participant in a fight could be charged with ABH on the other, say.

I expect M's legal defense would be that he had a "reasonable belief" in F's consent.

zipzap I'm afraid I don't know the answer to any of your questions. Those answers would certainly help in judging this particular case. It's impossible to know whether he actually raped her or not, and I'm uncomfortable speculating because I don't think a big discussion about whether one particular woman lied is all that useful overall.

The one thing I'm really getting from this thread is that there's a spectrum of intoxication, and at the mildly tiddly end sex is fine while at the falling over in a pool of vomit end sex is very much not fine. But where is the line drawn between the two?