Comment by eloff
4 years ago
> No. The idea that being around a member of the opposite sex (and does this apply to members of the same sex? e.g. men raping men, and women raping women?)
I specifically used the word person because I think this could happen between any two people of any sex. I'm certain it even happens to men, by women. Just men are much less likely to regret it the next day.
> levies some kind of 'responsibility' to be on the lookout for rape is absolutely victim blaming
If you gave consent because you were drunk, that's not really rape, it could be poor judgment. The perpetrator might reasonably think you're sober enough to make your own decisions. Especially if they are also inebriated.
Just calling it victim blaming is missing that this is a pretty gray area.
> If you gave consent because you were drunk, that's not really rape, it could be poor judgment.
No, it's lack of judgement. Total inability to judge, in fact.
> The perpetrator might reasonably think you're sober enough to make your own decisions. Especially if they are also inebriated.
It doesn't matter what the perpetrator thinks. And especially? Is the perpetrator less guilty of rape depending on his blood alcohol level?
> It doesn't matter what the perpetrator thinks.
It does matter in most jurisdictions. Rape is usually not a strict liability crime. Conviction requires both an act (actus reus) and criminal intent (mens rea) on the part of the defendant. (Statutory rape, on the other hand, often is strict liability with only an actus reus requirement).
Generally if an act can be legal or illegal and the defendant believes that they are doing the legal version, the mens rea requirement is not met and the defendant is not guilty. Many jurisdictions do require that the defendant's belief be in good faith and their mistake be one that a reasonable person could make.
For an example of the kind of thing the prosecution must typically prove, here are California's jury instructions for "rape of intoxicated woman or spouse" [1].
[1] https://www.justia.com/criminal/docs/calcrim/1000/1002/
Thank you for lending an expert opinion backed by facts to a conversation that otherwise has been devoid of it.
> It doesn't matter what the perpetrator thinks.
I think it may be the only thing that can decide the difference between a crime here or not. If the other person gives consent, then how you judge their ability to make their own decisions here is the difference between having intent to rape or not having intent. Intent matters in a lot of crimes, I don't think it matters in rape cases - I could be wrong.
> Is the perpetrator less guilty of rape depending on his blood alcohol level?
So the victim has no responsibility if blood alcohol level is too high for good judgment, but the perpetrator is responsible no matter their blood alcohol level and judgment? That seems self-contradictory.
> Intent matters in a lot of crimes, I don't think it matters in rape cases
As in other forms of battery, intent matters in rape, but it is thr defendant’s intent to commit the requisite form of physical interaction, not the defendant’s intent with regard to the absence of consent by the alleged victim.
> > > Is the perpetrator less guilty of rape depending on his blood alcohol level?
Interestingly, legally, the answer (in the US) is yes if the intoxication makes him incapable of being cognizant of the nature of the act, because it makes him incapable of thr requisite mental state. But there is a huge caveat: in general, voluntary intoxication has been specifically adopted into law as not defeating the mental state requirement for a crime (or, equivalently, as satisfying it for any mental state up to and including specific intent).
> So the victim has no responsibility if blood alcohol level is too high for good judgment, but the perpetrator is responsible no matter their blood alcohol level and judgment? That seems self-contradictory.
Well, no, its not self-contradictory. If your voluntary intoxication causes harm to yourself, you suffer the consequences as much as if you had chosen the outcome (and that’s true whether or not someone else is punished for their role).
If your voluntary intoxication causes unlicensed harm to someone else, society has decided that you suffer the consequences as much as if you had chosen the action, as well. No inconsistency.
> So the victim has no responsibility if blood alcohol level is too high for good judgment, but the perpetrator is responsible no matter their blood alcohol level and judgment?
Exactly. That's why they're called 'victim' and 'perpetrator'.
If the victim got triple blackout drunk, the only person they'd hurt is themselves. But the rapist, in addition to physical damage, inflicts deep, lasting psychological damage upon their victims. It's not just "regret".
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