'If a woman is drunk a man should not be prosecuted for rape'

[YouBetterWerk]

Wanker barrister on This Morning saying this right now. Great woman with counterpoints at least.
I just threw my cornflakes at the TV.

-It's not possible for a victim to be guilty of any crime they are a victim of. Rape is a crime therefore is no different.
-If two people get drunk, and are incapable of consenting this is still true. Alcahol is no defense for any other serious crime, again Rape is a serious crime and therefore no different.
-The only thing a drunk woman could conceivably be guilty of is the sexual assault of the man she slept with if he was also simultaneously too drunk to consent. This does not however absolve him, if she did not consent he raped her, and as the victim therefore she is still not responsible for her rape, nor he for his sexual assault.

I think that covers it, in law people should be responsible for any harm that they do to others. The only thing women (or any human being for that matter) should be responsible for is harm they commit on others, not on that done to them.

If we want to have meaningful dialogue about rape crime we need to focus on the harm that is done (considerable), and treat it exactly the same as drink driving.

Victim blaming gets in the way of doing this and needs to stop.

Exactly.

Yy scallops. That man did not think the woman loved him, thought he was fantastic etc.

And if people are worried about hundreds of drunk but legitimately consensual encounters coming to court, well (a) it ain't gonna happen and (b) juries have capacity to decide about the legitimacy of consent and the strength of the man's defence of his belief in that consent with capacity. Just as in the CE case, they will convict if they think the belief not truly held or unreasonable and release (as with CM) if not.

That man did not think the woman loved him, thought he was fantastic etc.

I know what you are saying, Knicker, but what has that got to do with anything? Does a woman have to be in love to 'give' herself to a man? Or can she have a few scoops, feel a bit horny and fancy a shag with a bit of rough? I mean, women get just as frisky as men, right? And are just as entitled to a one-off, no-strings shag as a man is. Love and admiration don't come into it. Indeed, my wife my love me, admire me, fix my car for me - doesn't mean she wants a jump right now, does it?

And I know the previous example was of someone totally twatted, but in the wider picture I don't know what scale we use where there is an easily defined line where on one side you are able to consent, and on the other, you aren't. A comprehension test, walking along the white line in the middle of the road, mg of alcohol per ml of blood? I honestly don't know.

How do other countries define 'ability to consent'? For me, that is what it comes down to, and the UK law always seems such a mish-mash of cobbled-together nonsense and adversarial bullshit. Surely somewhere else has a better system of deciding these things.

"Does a woman have to be in love to 'give' herself to a man? "

Of course not. My point was, as you agree, that she was totally twatted and he well knew it. The language she used was a guide to that - if she'd been saying "this bloke is Harry potter, he really is!" it would be equally indicative of her state.

It comes down to capacity and it is always going to be and must be about judgement. Let's say it's not alcohol. Let's say it's SEN, or a manic episode, or early onset dementia. In each case, if it comes down to a "does this man or woman have the capacity to consent to sexual contact", it will be a judgement.

It might be reinforced by objective measures, such as blood alcohol levels the following morning or a previous psychiatric report, but even then there isn't going to be some rule we can all point to in order to hang our responsibility to our fellow human beings on a number on a chart.

Agreed. My question was a genuine on to any legal eagles out there - is there a better legal process anywhere about disputed consent than 'who can afford the best barrister'? I know some countries don't use juries in every type of case, but have panels of judges or experts instead. Does anywhere make a better of job of something this contentious?

Had Mengog not intervened and had that man put his penis in that woman, and it got to court, that evidence would have been used both by the prosecution, to show the man knew the woman was too drunk to have capacity ... and by the defence to show the basis for the man's belief in her consent.

I think we should talk about too drunk (drugged, sleepy, otherwise impaired) for capacity rather than too drunk to consent - I think there's a general understanding that at some point you'd be too drunk to have capacity to decide to buy a house, or get a train to your parents' house, or cook some pasta or whatever. And that point is individual in each case.

Nothing bad happens if you don't proceed to sex if you aren't sure of capacity. Something bad might happen if you do. So why risk being a rapist?

With mengogs case - I don't know if maybe differential drunkenness would be better? As then it would be hard to argue why he didn't he just put her in taxi or get her to call her friends as she obviously was in a state, or would that be argued anyway?

With both people very drunk won't the mans ability to 'perform' more likely to have stopped before his ability to consent? Personal experience

I do find it worrying though how some men appear so aggrieved about changes in policy and that maybe in their pasts they have taken advantage of a women and just cant comprehend themselves being a sex offender.

Nope,not differential drunkeness.

If both are too drunk to have capacity, then each has committed a crime on the other, there's not a no crime situation to be made by getting drunk as well.

Arguing about degrees of drunkenness makes no difference. I was not drunk when I was attacked but was accused of drunkenness because I'd had one glass of wine. Surely the point is no one should penetrate or interfere sexually with another person as the default way of being. That is the way I live my life, it does not matter how drunk or not the people I encounter are, or what they are wearing.

In this case Breezy I meant more from the other way around, because the guy is much more/is sober than the women he has automatically had un-consensual sex with her regardless of her saying or acting otherwise.

Decent men don't sleep with drunk women who throw themselves at them, because they don't want to take advantage of the drunk woman's state, IMO.

Thumb has a great point.

The question then becomes when does taking advantage become rape.

I suppose in my example at what point do you not become responsible for your own action due to extreme intoxication? Did I even have a right to intervene, when the female was telling me she didn't want me to.

Ah, I see what you are getting at, BD. Like the motorist always being at least 50% at fault in a cycle-car accident in some EU countries.

I'm not sure I like that, TBH. The important state is the capacity of the complainant and the state of the defendant should no more be mitigating than in other crimes eg GBH.

To add by the time we drove her home, she had passed out and had to be carried inside.

If the worst had happened I would have confidently said the female was far too drunk to consent, regardless of her actions, and the man knew this.

"The question then becomes when does taking advantage become rape. "

I think taking advantage is probably rape a pretty high proportion of the time.

The wonder is that taking advantage, sexually, is so widely seen as the norm.

"I took advantage of my friend being drunk and got her to give me £100"

"I took advantage of my cousin's slow reactions while stoned and asked if I could hit him, he mumbled yes so I punched him in the face"

"I took advantage of my mum being asleep and borrowed her new car, she woke up briefly when the car keys jangled and didn't say anything so no problem."

It's clear that the three victims in the above cases did not give true permission for the actions. Why different for sex?

so mengog you could see that she wasn't capable of consenting, and therefore any man who doesn't want to be a rapist would be able to see the same

Well they would if they accepted that being too drunk to give proper consent counted as non-consent, and that they would then be guilty of rape, Petula, but as right at the beginning of this thread shows, there are still men who don't elieve and understand that, and don't think they would be guilty of rape. They don't think of themselves as rapists, just lucky.

yes i realise that - as i said above many men don't realise that by not prioritising consent above their own sexual gratification they are at very high risk of being a rapist

Petula - I agree as a 32 year old responsible member of society.

However, maybe as a 17-18 year old, on a night out, after a few beers the line may have become blurred.

So you are saying 17-18 yr olds are more likely to be rapists, Mengog and can't control themselves?

Because they should be able to control themselves. And it is disgusting if they won't. I suspect they manage not to slip their dicks into other men. No blurred lines there. and nor would there be if they saw women as full human beings, not fuck toys.

Taking advantage of someone by sticking your penis into them is always going to be rape. When isn't it rape? That is what men need to understand. None of this blurred lines crap.