Oregon feminists,
Please read this and contact your state senators !
Did you know that under current Oregon law, if a person chooses to get drunk and is raped, their rapist can only be charged with sexual assault or sexual abuse? Legally in Oregon it's not rape if the victim is drunk by her own accord!
House Bill 2343 will change the definition of "mentally incapacitated" so that it won't matter if the victim chose to drink or do drugs. The bill has already passed the Oregon house and is expected to pass the senate with minimal opposition. However, the bill was featured on the public radio program Think Out Loud this morning and had a shocking number of people opposing it.
Please remind you senators that a person's mental state has NOTHING to do with another person's decision to violate their body. Victims should never be blamed for the crimes against them! Society should not be telling rapists that it is their job to "teach a lesson" to anyone.
There is more information on the Oregon Sexual Assault Task Force Website. Find your Oregon State senator here.
Cross posted at my blog.
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I am an Oregon voter and I just emailed my state Senator and Representative (just for good measure).
I also emailed my State Senator. Thank you for this post. Nothing like some local action!
I chimed in to my State Senator as well. Thanks for letting us know!
I emailed my senator and then sent everyone I know on Facebook a message to do the same...thank you internet for making activism so easy.
I should also mention that it is Senate Bill # 210.
I do hope they change it. I'm not an Oregon voter but do you think people contacting them from other states will help put pressure on?
Am I reading this correctly? This seems like another attempt to avoid responsibility, avoid next day guilt, and make other people responsible for 'chaperoning' your behavior. This seems like one of those laws intended to force people to carry "consent to have sex" forms or something, & get them signed before having sex. Or am I reading this wrong?
I think you're reading it wrong. This has nothing to do with next day guild or the supposed women who have regrets and decide to put themselves through the hellish legal system. This is not going to change the "he said, she said" nature that most rape cases go through. That will continue to be standard. We still have the court system, we still have innocent until proven guilty, we still have police, prosecutors, friends and family that discourage victims from pressing changes.
What this is saying is that when a person presses charges against an attacker, their drinking history won't affect which charges are brought up.
Essentially, drinkers and drug users are punished by having crimes against them deemed less serious that crimes against their sober counterparts. As a hypothetical example: A man at a bar finds a female acquaintance of his completely loopy and nearly passed out. He doesn't know how she got into that state, in fact he doesn't care, but he sees an opportunity to take advantage of her. He takes her into his car and rapes her. Under the current law, if the woman had been seen drinking, then the man cannot face rape charges, instead it is sexual abuse which carries lesser sentences. If however it can be proved that the woman had been drugged or was sober, then he can be charged with rape.
Thanks for the clarification. It seems reasonable. Divining consent when 1 or both parties has been driking is terribly difficult, and I worry that we send innocent people to jail--or accuse innocent people of horrible things--when we rush to judge. Even when both parties are drinking we seem eager on this board to blame the guy. Sometimes it seems that not only does "No means no", but everything short of a signed document means no as well.
That said, it sounds like a smart law.
I have no problem checking in with my partner when I want to have or am having sex, to make sure everything is ok. It's hot. It's sexy, it avoids any confusion.
I find it laughable when people start bringing up consent forms
"What this is saying is that when a person presses charges against an attacker, their drinking history won't affect which charges are brought up."
I'm not so sure about that. Whether, and how much, the person had been drinking would certainly pertain to whether or not their consent was voided by their intoxication.
This proposed change to the law would mean that a person who took a drug recreationally and consented to sex when they were mentally incapable of doing so, would press the same charges as a person who was drugged by someone else.
Essentially, drinkers and drug users are punished by having crimes against them deemed less serious that crimes against their sober counterparts.
This isn't the case as far as I can understand from the law. My understanding was that mental incapacitation is there if the person does consent but is not in fact capable of doing so because they have an impaired mental state.
It looks like this should pass through the Oregon legislature with little problem, but I would avoid reading the comment section on the Think Out Loud article unless you are a masochist. Lots of discussion about "degrees" of rape. Because overdoing it on the alcohol and having someone you know take advantage of your helpless state is hardly violating at all!
How sad that they so easily acknowledge that women should basically expect to get raped if they let their guard down any time they are around men. Even if we just said "Fuck the victim, she was irresponsible", isn't there a societal interest in punishing men who think it's okay to have sex with unconscious/highly inebriated people? Something tells me if these men woke up from a night of hard drinking to find someone had fucked them in the ass they wouldn't merely accept it as a consequence of drinking too hard.
Thanks for this post. I created a Facebook group a month or so ago about this bill: http://www.facebook.com/group.php?gid=85527806722&ref=ts.
It has information on the bill as well as links to state sites that will help you determine who your local representatives are.
I think the problem comes in when BOTH parties are intoxicated. If two people get sloppy drunk and then have sex, are they both rapists, or are neither of them rapists? It has to be one or the other. I agree that if a stone cold sober man has sex with a drunk woman, that it's rape, but I think it's a much more nuanced conversation when we're talking about equal degrees of incapacitation. If a woman lacks the ability to consent while drunk, surely her drunk sex partner lacks the ability to form the intent to rape? Where is the line between rape and regrettable sex?
I don't think the people who are concerned for the ramifications for men are just knee-jerk anti-woman lunatics (though some of them seem to be).
I think its clear that when a woman is passed out drunk she doesn't have the ability to consent. But what about when she's not passed out, or if she's not puking? Just garden variety drunk, say .08 (normally 2-3 glasses of wine for a 120-140lb woman), what then? I think that accounts for the majority of the gray area & law enforcement doesn't historically deal well with gray area.
That is genuinely a difficult issue, and I hope that future psychological/medical research and court decisions will lead to better ways of determining whether someone is capable of consent. However, this law is about ensuring legal respect for the fact that a seriously incapacitated person cannot consent, and that raping such a person is rape no matter how the person became incapacitated.
If the women is passed out drunk, it's already rape in Oregon under the existing law. I've read the actual statute (something I like to do, since news reporting is often sloppy) and it's quite clear: sexual intercourse with someone who is unconcious or physically unable to communicate their unwillingness is first degree rape. Quite why the DA is claiming otherwise, I don't know, but I don't trust politicians and prosecutors to be honest about the impact of new laws anyway.
The proposed change would only affect the situation where the victim is physically capable of communicating their lack of consent but doesn't due to being "mentally incapacitated" as a result of drinking or taking other substances. (See also mpla's comment.)
I'm not sure if this means that, if a woman had sex while drunk and regretted it in the morning, their partner could be convicted of rape because their judgement was impaired by the booze. It's possible, though. (Men, of course, would be unlikely to be able to make use of this in any case.)
The statute (which seems to be quite detailed) by my understanding works like this:
Passed Out counts as 'helpless' and therefore its first degree and as it is a separate part of the statute it shouldn't matter why the person passed out
Mentally incapacitated because of drugs or alcohol, unintentionally, same level
Mentally incapacitated intentionally, and threatened, forced, etc. same level
Mentally incapacitated intentionally, having consented to sex while intoxicated, but sex that one would not have agreed to otherwise, lesser charge
this last one would be modified to be the same level
Further it is an affirmative defense (According to the proponents of the law change) that one does not know of the mental incapacitation because the accused was mentally incapacitated as well. So if two people are drunk that they don't know the extent of the other persons drunken state it couldn't be successfully prosecuted because both parties have affirmative defenses.
The law doesn't strike me as based on an attitude of punishing victims but seems to be couched more from the view point that an intoxicated persons consent is more valid if they chose to enter that state, then by the result of accident or the criminal act of someone else.
But given the affirmative defense I'd agree with the proponents that there shouldn't be cases of two equally drunk people prosecuting each other. I'd think instead the real challenge is determining at what point a person loses the legal capability of appraising and controlling their conduct. The unintentional aspect of the current law likely removed a number of circumstances from the case law which will only now be examined. Although thats not necessarily a problem, just something to watch.
Jackie - are you basing your example in Oregon case law? because I just read the Oregon criminal code section on sex crimes and I don't see where you're getting your interpretation. (full disclosure: I am not licensed in Oregon, but I am an attorney with some experience in sex crimes prosecution)
I think this proposed law is a terrible idea. I do think the laws on rape in Oregon need to be better, but I would change the definition of rape to focus on a lack of consent, rather than the use of forcible coercion. (ie - less on how much force was used and more on whether the complaining witness said yes)
This proposed change seems to recognize a level of drunkenness where people are making decisions that they wouldn't make but for the alcohol and saying that those decisions aren't legally valid. I worry that, if inacted, that attitude towards intoxication would bleed into the rest of criminal law and be used as a defense for someone arguing that he/she wouldn't have made the decision to commit criminal acts but for being drunk. If that happened, it would be even worse for rape victims because there's a strong corollation between being drunk and committing rape.
Current Oregon law already allows for prosecution of people who sexually penetrate someone too drunk to communicate consent or non-consent (that's physical helplessness). The general rule that a person who choses to drink / take drugs is responsible for the choices they actively make while under the influence (a very different thing from being responsible for anything that other people choose to do to you after you drink) is a rule I don't think we want to weaken. There are other, better ways to protect rape victims.
Jackie - are you basing your example in Oregon case law? because I just read the Oregon criminal code section on sex crimes and I don't see where you're getting your interpretation. (full disclosure: I am not licensed in Oregon, but I am an attorney with some experience in sex crimes prosecution)
I think this proposed law is a terrible idea. I do think the laws on rape in Oregon need to be better, but I would change the definition of rape to focus on a lack of consent, rather than the use of forcible coercion.
This proposed change seems to recognize a level of drunkenness where people are making decisions that they wouldn't make but for the alcohol and saying that those decisions aren't legally valid. I worry that, if inacted, that attitude towards intoxication would bleed into the rest of criminal law and be used as a defense for someone arguing that he/she wouldn't have made the decision to commit criminal acts but for being drunk. If that happened, it would be even worse for rape victims because there's a strong corollation between being drunk and committing rape.
Current Oregon law already allows for prosecution of people who sexually penetrate someone too drunk to communicate consent or non-consent (that's physical helplessness). The general rule that a person who choses to drink / take drugs is responsible for the choices they actively make while under the influence (a very different thing from being responsible for anything that other people choose to do to you after you drink) is a rule I don't think we want to weaken. There are other, better ways to protect rape victims.
If a woman is drunk to the point she can not get consent, she either passed out, or cant articulate a yes or no and is therefore unable to give consent. Therefore the law is irrelevant. It is rape because the woman did not give consent, just like it is rape if you hump a sleeping woman.
What I find really f*cked-up is that we *need* a clarification law like this.
What part of "informed consent" didn't these bozos understand, before?
Like laws banning text-messaging while driving on the highway, these should not be needed, and be considered covered under existing laws(*)
But I guess when we have a Supreme Court Justice who thinks it's good law to allow the strip-search of a 13-year old when looking for f*cking advil I suppose we need to have these laws on the books.
(*) note that I am *not* comparing texting-while-driving with the crime of raping someone when they are unable to give informed consent, except that both are actions that apparently need laws to address the specific conditions.