Ok,
here's another theoretical consent question. So I went for a drink with a friend and at the bar I started talking to a student, 22-23. She was pretty drunk, "touchy feely"-drunk and "I may not remember everything that happened last night"-drunk but not "unconscious drunk", clearly not, both my friend and I had one beer at this point. So this girl is instantly all over my friend, tries to stick her tongue down his throat, rubbed her pelvic are against his thigh, and even actually suggested sex in the toilet about 5 minutes after saying hello. He's got a girlfriend, so nothing happened, here except that she almost violently insisted on me taking her number an call her, presumably to stay in contact with my friend. It was good fun, particularly given that there was another guy standing right behind her paying for her drinks whom she completely ignored.
So here's my question. What's the feminist consent position on this kind of sex with girls in bathrooms... she was, well, well beyond enthusiastically participating, she was definitely the sexual "aggressor" (in ways no guy would ever attempt to be, in my opinion). But she was also rather drunk, while my friend was pretty sober. So assuming he would have had sex with her, according to all her expressed!!! wishes, would there, in your opinion, still be a consent question? How drunk do you think women are allowed to be to make such decisions for themselves? How drunk is ok to take their decisions seriously when they are as direct as in this case...
0 TrackBacks
Listed below are links to blogs that reference this entry: Enthusiastic consent.
TrackBack URL for this entry: http://www.feministing.com/cgi-bin/movabletype/mt-tb.fcgi/16362
I think it is definately consent. Reverse the roles in case you hesitate.
The way you describe it, it sounds like consent to me.
Just out of curiosity, and maybe it's not my business, but did your friend tell this girl he has a girlfriend?
daytrippinariel,
about 20 times. After that, she turned to me, insisting on giving me her number, before we both left. She actually followed him on our way out trying to kiss him, and no, I'm not kidding ;)
I thought your question was going to be whether the girl was being aggressive past the point of sexual harassment, i.e., had the GUY consented. It sounds to me pretty obvious that the girl consented.
For realz?
You wrote that she was "I may not remember everything that happened last night"-drunk." Can we all agree that means she's not in total control of her faculties?
Can we all agree that any amount of "drunk" is to drunk for informed consent? A beer or two, ok. But DRUNK?
According to your phrasing it seems she'd have to be "unconscious drunk" to be unable to consent.
Give me a friggin' break? Are you for real?
For my part- no, I can't agree. I don't accept the argument that drinking means you aren't responsible for your actions and can't give consent.
I think that having sex with an intoxicated stranger isn't a great idea because he or she may regret it in the morning, true. And I'd rather not have my sexual partners regretting the experience. Regret and consent are two entirely separate issues, however.
Being drunk doesn't nullify my consent. I frankly find the idea of someone deciding that I am incapable of consenting to sexual activity paternalistic, overly protective, and offensive.
I also find the idea that simply by being drunk I am presumed to be consenting to sexual activity disgusting, but that's not what we're talking about here. If I'm *initiating* sexual activity, enthusiastically, I don't want someone saying "No dear, you don't know what you're doing, you can't decide to have sex right now"
But if she would regret it then how is that consensual? Shes obviously not in her lucid mind, and when drunk you do stupid things. A sober person would be best to pass it up. I cant even orgasm when I'm drunk,(or it takes a seriously long time) I doubt she could either, so I dont think she was in a lucid state. I mean, you go after sex for the pleasure, if youre not getting any, then why ask it, especially of a stranger who may be horrible in bed?
I've had sex while I was extremely drunk (in very similar circumstances) that I regretted the next day-- I would never say it wasn't consensual. I would say that the term "regret" itself implies a person understands they made a choice to do something.
This. I can regret lots of decisions for lots of reasons. That doesn't mean I was somehow forced or coerced into making them.
*I* am responsible for my actions, my decisions, and their consequences while I am drunk. Me. Not anybody else. If I choose to get into a car, or have sex, or say something stupid while I'm drunk, and I feel bad about it the next day- that's *my* fault, not anyone else's. I am not a child. If I don't like the decisions I make while I'm under the influence, I won't voluntarily take that substance.
Again, this is a separate issue from someone trying to say that you're "asking for it" if you're drunk. Raping a person who is intoxicated is still rape. If I have sex with a man who has had a few beers and initiated sexual activity with me, I really don't think I've raped him.
It's really difficult for me to orgasm even sober. It can take a really long time, particularly with a new partner. As a result, I've had a lot of orgasmless sex which I enjoyed tremendously.
You don't need to have an orgasm to feel pleasure. And I certainly do feel pleasure, even when I'm very drunk.
Just saying.
She could also be just acting a role that society has prescribed for young females. It may not really even be authentic sexuality. Who cums when theyre drunk?
Based off of conversations and personal experiences... a lot of guys cum while drunk... absolutely shitfaced in fact.
Sometimes its harder, sometimes its easier...
Well, I do. I don't think I'm alone!
But as far as "It may not really even be authentic sexuality."...that's true of a LOT of things. I think the odds of finding an expression of authentic sexuality, particularly with a stranger, are actually pretty slim. Not impossible, by any means, but if rape now includes any situation where one partner is putting on a show or faking it, I think we've gone off the deep end.
Right, I (as well as plenty of women) can cum too, but its not as pleasurable when not drunk. I'm no lightweight in the orgasm zone either (24 x in one hour-but thats a TMI)-at least when sober.
But you may not even know if the guy youre going after is any good or may rape you and you dont even know it. There is different levels of drunk that DO put a woman at danger. I mean, this is freshman orientation 101 stuff. Duh.
I think the place you are coming from and the place others on this discussion are coming from a different direction.
Some are talking about having drunk sex primarily with people that they all ready know... which might make cumming while shitfaced quite enjoyable.
You and others seem to associate drunk sex with hooking up and one night stands. Which brings the baggage you are referring too.
So it is not really a duh. It is two groups that think they are talking about the same thing but are really just talking past one another.
No, I think it's a legitimate question that we should encourage EVERYONE (not just men) so that we can actually answer it (and think about it.)
My college has a "drop of alcohol or substance and you are not allowed to give consent" rule, which may seem ridiculous (heck, it may BE a bit ridiculous) but I think the point is a good one. We should THINK about whether a person can give consent if they have had any judgment impairing substances at all.
Obviously, people pick up others at bars all the time, and the chances that they will have had some amount of alcohol are high. Nonetheless, in this particular case, one should ask their much soberer self if they really want to engage in sexual activity with what sounds like is a very sloppy drunk.
Also ask yourself what sex is to you--- is it an emotional and erotic connection with someone (which I think you can definitely have on one night stands), is it purely physical pleasure (which might be better accomplished by jerking off), is it about social currency, bragging rights, and self-esteem (in which case, do you gain that much by actually having sex with someone that drunk, or don't you still get all those boosts just by knowing that the other person did want to, but you chose not to. not in a mean rejection way, but in a thoughtful way.)
I think we should think harder about what sex means to us, and if we would really be getting that with the person in question.
How does that sound?
I really like your comment, but I always find myself tied up in knots with questions like this about consent and substances.
You put it very well by saying "we should THINK about whether a person can give consent if they have had any judgment impairing substances at all". Whenever I ask myself that question, the question that always comes to my mind then is: What about people using long-term mind-altering medications?
I have been put on end number of mind- and personality-altering medications that make me a completely different person than I am without them, and I know I made decisions while on those drugs that I would not have made otherwise. At the same time, that was who I was while I was on those medications, and it seems dehumanizing and just plain wrong to say a person cannot consent to any sexual activity because they need permanent mind-altering medication.
This is where I always find myself stuck when I start thinking about substances and consent. If we can only give consent in some pure, unaltered, authentic state - well, none of us are ever in or have ever been in such a state, so that's ridiculous. But to say we can give consent under any condition (provided any substances we've taken were our own choice without any coercion) is also seriously disturbing and problematic beyond words. I never know where to draw the line.
When in a sexuality class at my university a student offered a comment taken from her abnormal psychology class she took and said that sometime people with bipolar disorder sometimes go into extreme sexual phases and go and have indiscriminate sex at bars and snap out of it the next day only to find out that they have an STD or are pregnant and dont even remember how that happened. even though they may have not been drugged or drunk could that be considered rape? I'm sure the people they had sex with could have picked up that the person was acting a little strange. What if they went into that phase and their husband knew about it and had sex with them anyways? Would that be rape? The latter I say would be.
Very insightful comment, thanks.
The issue of consent and intoxication has always been important to me, because I was very into substances in high school, and also sexually active. The most complicated situation I was in was this: I was very fucked up on various things, including a drug with amnesiac properties. I woke up the next day with vague memories of hooking up with a guy that I was friends with and had casually hooked up with before. I assumed nothing was amiss - I was into the guy, trusted him, and did remember, vaguely, agreeing to hook up with him. I'd taken that amnesiac before, had also forgotten a lot, but since I only ever took it around close friends, I wasn't worried. The memory was a source of amusement.
But then, years and years later, he told me more about that night, in a recounting-past-exploits kind of way. From what he told me now, I was very very far gone, really past the point of consent. Now, I did say yes, I was enthusiastic, and the hook-up was fun and mutually satisfying. But I was very, very, very, very intoxicated.
I still don't know what to make of this.
but to answer the question of-- would this be rape, or taking advantage of someone sexually.... I'm inclined to agree with deardona in that-- yes, drunk = can't give consent. But what do you think?
beckeck06,
well, if she can't consent on that level of drunkenness, would she still be responsible for her actions? I mean, she was aggressive in a way that most people here would probably describe as some form of sexual harrassment. My personal point of view is that, yes, she was able to consent since this wasn't a maybe/maybe-not decision that needed careful consideration, she was about to jump my frind on the spot.
(Legally, I think, there's no question here that as she could have bought a car in that state, so I'm really more interested in the theoretical legitimacy nature of this).
But I was actually interested in some other opinions - particularly since this seems to be one of the cases where enthusiasm doesn't really help deciding. And yes, people usually meet in various states of intoxication - alcohol, after all, is a very efficient social lubricant (gaba). Where do you draw the line? And to which extent would a sober person be have to be more responsible (I think that's the case) than an equally drunk person? And wouldn't that be kind of a completely absurd adverse incentive with respect to alcohol?
I do think that this girl was sexually assaulting you two, and is responsible for her actions insofar as that.
I guess in this case maybe it wouldn't be rape since she was initiating... I still think its best to be careful with people who are drunk.
Yeah, but she was drunk. So it isnt authentic initiation. People do stupid and aggressive things when drunk.She also probably felt freer to be sexual with males in a way that would definitely be inappropriate with females because she expects that guys expect that from her or want it. Being as he was sober, going with a drunk person would be reprehensible.
Would you say the same thing if the genders were reversed? Are drunk men incapable of sexual harassment or assault?
Of course not. What she was doing was indeed assaultive, but in the case of assault why would a person want to take the assaulter home and have sex with them? Also physical differences do exist and its far more scary to have a guy assaulting than a female. I doubt he really felt it was assault, or else the question of sex wouldnt be here. This is a discussion about stranger sex when drunk, not assault.
"So assuming he would have had sex with her, according to all her expressed!!! wishes, would there, in your opinion, still be a consent question? "
At the risk of being unpopular, no. Not at all. Consent is pretty clear, even when people are drunk or inebriated. If one says no, but is too drunk to physically resist someone's advances, it's rape. If one says yes, but passes out before sex, there's not consent. If they pass out during the sex, there can be no implied consent to continue. If one is too inebriated to say anything, there's no consent.
But if one says yes, is conscious throughout the sex and never withdraws consent (by saying no, being unable to say anything, or passing out) it's not rape. There argument that it is embody two assumption, which I will address.
1. There are only certain circumstances under which any woman can consent to sex, regardless of what that individual woman thinks.
Some people say a beer or two won't nullify one's ability to consent, others say that so much of a drop make consent impossible. But any attempt at setting a threshold embodies an arbitrarily set assumption that a woman can't determine what she does or doesn't want.
2. The possibility or materialization of regrets the next morning is a criteria for being raped.
Don't buy it at all. The possibility that one will regret sex later is always present to some degree, sober or not. It's a risk that consenting individuals take potentially anytime they sleep together. People can have major regrets for having their heart broken. I may loathe my ex-boyfriend now, but does that mean all of the sex I had agreed to during our relationship is now transformed to rape?
One can't and shouldn't be able to retro-actively withdraw consent because it's unfair to the accused party. It's like if you freely give someone a gift, regret it the next day so you turn around and call that person a thief.
The idea that every hook-up should be a totally sober one is nice, but it's far removed from a reality where many (maybe most) hook-ups are facilitated by alcohol. And most people don't claim it was rape or feel that they were raped. So what do we do with that? Do we police women's feelings about their experiences, insisting that we know better their desires then they do?
I completely agree.
I agree.
I have a feeling that if it was a drunk man in this case rubbing up against and trying to kiss girls, it would seem obvious to the feministing community that he was responsible for his actions and should be held accountable for sexual assault.
This woman was initiating the contact, which I think is a very important detail. She was not preyed upon by anyone. In fact, nobody was trying to have sex with her at all.
The idea that inebriation totally eradicates your ability to consent all the time seems problematic to me. By this logic, my boyfriend has raped me countless times. Or...have I raped him? What if both people are drunk, and can't consent? Who raped who?
Yeah. That girl may have been drunk, but she was initiating everything. If she went all by herself and grabbed someone's car keys and drove their car and crashed into someone else, would she not be responsible?
But its more like if a sober person gave a drunk person the car keys. Reagrdless of whether or not the drunk person wants to drive the sober people should keep that from happening.
There isn't always a sober person to take your keys.
Exactly, so then dont drive. Dont have sex unless youre 100% sure its consensual, especially with a stranger. Who knows what substances she could be on? She may not even be drunk. It could be a date rape drug and she could have been previously raped while on it and then even if she had sex with another person afterwards, she may hallucinate and think it was 'you' who raped her. Its just not smart all around.
Or that could be her normal behaviour. I've heard a story from a guy with a lazy eye that while totally sober the bouncer at a club continually refused him entry night after night. He tried to explain he was sober but the bouncer wouldn't have it.
If you are too strict you may make it impossible for a girl to have consensual sex in the same way everyone else can because she looks like she might have had a drink or two.
So, what do you do with someone who may have an IQ on the lower side or imperfect motor control or a lisp? Nobody is going to want to have sex with them if they think they might have a substance impaired judgement. The case you are arguing has ablist consequences.
I agree with your comment. I also think the logic inebriation is always rape trivializes the experience of people who did not consent to sex and were raped. I've had sex inebriated many times with boyfriends and would not consider this anything close to resembling rape. I was a more than happy participant.
Further, I hear this exact logic as an argument among those who refute the number of sexual assault and rape cases. Because we use the logic that inebriated sex is always rape they'll state something along the lines of "rape doesn't really happen that often. Women just agree to have sex when they are drunk and regret it the next morning and want to call it rape. Then the man gets in trouble even though she said 'yes'". This is completely problematic thinking and I hear it all the time. This is why I think we need to educate people to look at cases on an individual basis instead of saying "well she was intoxicated so she can't possibly think for herself and he took advantage of her." This makes all women the victims and demonizes men.
And also, I think very, very few people who report rape are "drunk and regretting it" since rape is such a hard thing to report emotionally and can have social consequences in many cases for the victim. I'm just stating an argument I hear from those, who for whatever reason, want to argue that sexual assault statistics are flawed.
I remember reading a proposal in a law review article to create a new category of crime for cases where a woman has sex while inebriated (or otherwise in a state where her judgment was compromised) but where she never explicitly says "no." It would presumably be considered to be a lesser crime than rape. I haven't thought it through very carefully, but I think there might be some merit to the idea. Although having sex with a woman without her consent is always wrong, it does seem like a man who has a drunken hookup and honestly believes his partner was consenting should not be placed in the same category as a man who drags a woman into the trees and rapes her at gunpoint. And DAs might be more willing to prosecute these cases as well.
I'm not necessarily defending this idea at this point, but I figured I would toss it out there for discussion...
Try to use more gender neutral language. If it's wrong when a man does it to a woman, then it's wrong when a woman does it to a man, a woman does it to a woman, or a man does it to a man.
Valid point. The reason that I used the language that I did was because that under common law, "rape" always refers to a crime committed by a man against a woman. And that is true to this day in over half of U.S. states; their rape statutes explicitly assume that the perpetrator is male and the victim is female. In cases of same-gender violence (or female-against-male violence), the perpetrators have to be prosecuted under a different statute. But you're right; just because the laws are currently written that way does not mean that they should be written that way.
But youre a couple. This is between strangers, one of whom isnt in a lucid state of mind to really choose.
Ok, so what if the guy had been intoxicated as well? What if he was more intoxicated? Does that make her the rapist because she was more sober? Are they both guilty of raping each other? Or are you claiming there is some threshold above which you can't consent, in which case do you have to breathalise your potential partner?
Sexual assault should not make anyone want to have sex with the assaulter. How did you mix the two up? I doubt a woman would be asking if she should have sex with a guy who was sexually assaulting her.
Hi.
If you don't know for sure that tomorrow morning this stranger you just met isn't going to wake up, freak out, and say you raped her, then don't have sex with her. People always point the finger at women for not being careful enough, and I assume we all know why that reasoning is flawed, flawed, flawed! but men can act with more caution, too, and that will be a hell of a lot more effective than women dressing more conservatively/not talking to strangers/etc.
Agreed. Same thing when men complain that the woman was lying about being on the Pill. Wear a condom.
I think the question of intoxication and consent is very much like the question of age and consent. No one is going to deny that a drunk woman may really want to have sex, and no one is going to deny that a 16- or 17-year-old may really want to have sex. They may even really want to have sex with YOU, you being sober and 25. And it MAY be the case that when this woman or teenager wakes up the next day, she doesn't regret her decision, or maybe she does regret it, but can shrug it off. Or it MAY be the case that she wakes up feeling incredibly regretful, extremely violated, and maybe even suffering from the kind of psychological damage that rape inflicts, either because she really DIDN'T have the presence of mind to know what she was doing or because the reality of the power dynamics are setting in and she rightly feels taken advantage of.
So, basically, having sex with someone who is intoxicated or underage may be no big deal or it may be completely horrendous, and there is no real way to tell, even on a case-by-case basis (because human psychology is complicated, you know? ) That's why it's both unethical and ILLEGAL to have sex with someone who is intoxicated or underage; the potential benefits (of having enjoyable sex) do not outweigh the potential risk (of one party suffering severe psychological pain.) If you're the dude some drunk and/or 16-year-old female is coming on to, you really aren't making a huge sacrifice by saying, 'No, I'll go have sex with someone else.'
And from someone who was drunk last night and under 18 two years ago, I'd like to address everyone else who falls into those categories: laws against having sex with the intoxicated or underaged are not paternalistic or insulting or in any way denying your sexual agency. They're protecting those of us who do need to be protected and asking the rest of us to make a small sacrifice and go have sex with other intoxicated or underaged people.
Ethics and the legal system require that we think about people other than ourselves. So lets all suck it up, shall we?
Agree.
So if a guy who's intoxicated hits on a girl when she's sober, and they go have sex... she's raping him?
That seems a little dodgy - ditto vice versa. Unwise, certainly. Rape? Not sure.
I used the pronouns I did because the specific example given in the OP was a drunk woman coming onto a sober man. Also, most cases of rape-- including those in which the victim is intoxicated and the underaged-- have male perpetrators and female victims. That doesn't mean I don't believe a man can victimize a man or a woman can victimize a woman or a woman can victimize a man or a genderqueer person can victimize a man or woman or, etc., etc..
To say that a man can't be victimized by a woman is sexist, and I don't just mean 'sexist' as in, 'What about the men?" I mean 'sexist' in that women DO have sexual agency; we are not weak or perpetual victims, and men are not always stronger than us. It's insulting to everyone to claim otherwise.
I don't know... No offense, but this question kind of bothers me... It almost sounds like you are saying, "What can I get away with without getting slapped with a rape charge?" In my opinion, whether or not this girl is competent to give "consent" is totally irrelevant. I think the law in most states is that if a woman's judgment is impaired as a result of an intoxicating substance then she is not competent to give consent, and it sure sounds like her judgment was impaired in this case. But as I said, it's entirely beside the point.
In my opinion, the overarching rule is IF YOU HAVE ANY DOUBT WHATSOEVER ABOUT WHETHER A WOMAN IS CONSENTING TO SEX, THEN DON'T HAVE SEX WITH HER! Period. Even if she is throwing herself at me and I know that I could not possibly be legally charged with rape, I am not going to have sex with her if I think she might regret it in the morning. I would never have sex with a woman in the situation you described because it is clear that the alcohol is impairing her judgment. I think there is a good chance that she is "consenting" to sex, but I don't know this woman at all. For all I know she isn't just drunk but under the influence of a date rape drug and would be horrified the following morning if she had sex.
Now if it was a girlfriend or someone that I'm in a relationship with who was drunk and we'd had sex a million times before, then that's another story entirely. In that case there would not be a doubt in my mind that she is consenting. But if it's someone that I don't know well (or don't know at all), I would be extremely leery of hooking up if they had had even a drink or two... Sure, they are probably still competent to give "consent," but I'm not 100% sure. And I would never want to put a woman through the trauma of feeling like she was raped (even if I thought she consented at the time) just for one night of pleasure.
I appreciate that you are obviously very conscience of the women you are around and making good decisions.
On the other hand, I think this is a somewhat paternalistic attitude because I don't feel it is really your place to tell me as a woman that I cannot consent to sex or other activities if I am intoxicated. Drinking impairs your judgment, yes. But, I never decide it is a good idea to drive when I'm drinking. Technically, though, I can legally drive a car if I am under the 0.08 limit which is one or two drinks depending on height/weight and food consumption. But I can't consent to sex? And it seems like these standards only apply to women, not men. Do men not get taken advantage of?
We should be empathetic of other people, of course and be careful and take responsibility for ourselves and help others. At the same time, it's my sex life and if I've had a few drinks, as an adult who can legally drink, with the intent of having sex and realize that there could be consequences for my decisions (STDs, other shady activity) why is it your place to tell me that I cannot give consent?
I think you misunderstood what I am saying. I'm not saying that a woman who has had any alcohol whatsoever is incapable of giving consent and that anyone who has sex with a woman with alcohol in her system is a rapist. (As I said in my earlier post, if I was in a relationship with a woman I might still have sex with her even if she was extremely drunk.)
I'm saying that I am very uncomfortable with statements like, "A woman can consent if you she only had one drink," or "A woman is consenting if she is drunk but pursues you aggressively," because unless you know her very well, you don't know what she's thinking. There are almost certainly women out there who would have sex after one drink and end up feeling violated in the morning. And if you make a blanket statement that women who have had only one drink are capable of giving consent, then you are also saying that these women were not raped even if they don't believe they gave consent. There certainly are women who can consent to sex even after consuming large quantities of alcohol, but the fact that these women exist does not give men carte blanche to have sex with any intoxicated woman and assume that she is consenting.
So I think the message to men should be that if you have any doubt at all that a woman is consenting to sex, then don't have sex with her. And I would advise men not to have sex with a woman that they don't know if she has been drinking at all. Maybe these women can give consent, but I think one shouldn't be having sex unless one is 100% certain, and that generally will not be the case for someone that one just barely met.
also, chances are these women are not going to press charges because if they were drunk and coming on to you, they know they won't win. So the question is really about you feeling bad that you made her feel violated. Because you aren't going to be charged with rape. Only 20% of rapes get reported (and that number is probably an overestimate) and that is really not the kind that does.
That's precisely my point. Whether or not I can "get away with it" is immaterial. I don't like the idea of telling men, "Well, in this case it doesn't really matter if she's consenting or not, because even if she isn't, there's no way that rape charges are going to stick." The message should be, "Unless you are 100% certain that she is consenting, don't have sex. Having sex with a woman against her will is wrong even if you can't be charged with rape for it."
This isn't what I am encouraging. I'm saying that people can be *very clear* about consenting even if they've had a couple of drinks. If the consent isn't clear or is an obvious then it's rape. I'm not implying that men should evaluate the decision on what they can and cannot get away with.
I don't buy that your somehow completely incapable of making decisions when you are drinking.
I agree. If you want sex with people you dont know that well then assert to the person you want to have sex with that its 100% consensual so that they have no doubts. Persue sex without being drunk.
I'm a woman and feel he's right on. I dont feel its paternalistic, just cautious and realistic. I'm the same way with women (as a bi female).
I think he's not saying that it's not possible for you to consent; he's saying that he doesn't know whether you are consenting or not, which means *he* can't consent.
Daytripp, I hate to break it to you, but it's *not always about you*. It's fine and dandy if you can consent under the influence, but many people cannot, and (as I said above) ethics and the legal system require us to play it safe and not risk traumatizing someone just because *you* feel you can have sex.
And guess what? You still CAN have sex; either wait til the morning or find someone as drunk as you are.
First of all, I don't think it's fair for you to say I'm trying to make it about me. Because I'm not, I have not ever been someone who goes out and has one night stands. However, I don't think it is fair for people to say that "oh you've had a drink, you can't possibly make decisions for yourself." That's ridiculous in my opinion. Let's say I get drunk and decide to drive home and get pulled over. I am at fault. But if I drink decide to hit on someone and then have sex with them and consent clearly but then the next morning decide it was a bad idea, even though I clearly consented, then I'm not at fault because my decision making was impaired. Yet my decision making wasn't impaired when I drove the car home. It's different, of course, if I do not consent to sex and the person is forceful in their advances and consent was questionable. This would be rape.
I understand there's a difference between a sober person having sex with a drunk person. But then you go on to say "find someone as drunk as you" but "you can't consent to having sex while drinking". So who's the victim here? And why is it that only inebriated women are being taken advantage of in these arguments? Are inebriated men victims?
It just seems like it fuels the idea that women are victims of sex and men are sexual aggressors, in my opinion. Some people like to drink and hook up and I don't think a blanket statement of "all sex is without consent under the influence."
edb,
"IF YOU HAVE ANY DOUBT WHATSOEVER ABOUT WHETHER A WOMAN IS CONSENTING TO SEX, THEN DON'T HAVE SEX WITH HER!"
Of course. As I said, in this case, I would not have doubted her consent (although, had she been interested in me, I would not have had sex with her because I need more of an emotional connection). My question was whether other people would see a possibility (based on my account) for her to be *aggressively active* and not being able to consent at the same time because of her being drunk. And apparently, there are a variety of differing approaches here. Very interesting variety.
Like many issues like this, I don't want to make grand generalizations, I just want to add my two cents.
I don't drink, never have and don't plan to, and I have on occassion found myself in the company of a drunk and attractive woman who was, for lack of a better term, hitting on me. In one case someone I was very interested in dating. In such cases, I essentially do take the "you are not in your right mind to consent" route, which... I don't know what to say, perhaps it's ablist, but these are people who I know as sober, and them being drunk is an aberration from their normal state, whether or not that includes mind-altering medications.
And I rebuke their advances because... to me it doesn't seem fair. That I'm sober and they aren't 100%. And more importantly, that I can't be sure, not completely sure, that they are "of sound mind and body" (relative to their normative state) as the saying goes, when consenting. And that bothers me. I suppose it's not worth the risk, in my opinion.
Among signifigant others who have consented in the past, there is far more leeway simply because the parties know more about each other. It's always a risk, methinks, but it gets far far smaller the better you know the person. Hence the biggest risk is with strangers, or people who haven't consented to similar acts before.
At least that's how I see it.
In the case of the original poster... I support the legal concept that one cannot consent legally to sex while intoxicated. I think it's a fair place to draw the line, and we certainly need a line to try to protect women from (usually) men getting to choose what is legal consent and what isn't.
Complicated issue, it be.
'Ableist?' Last I checked, being drunk was not a medical condition.
Next you'll tell me statutory rape laws are ageist...
I don't know. I think that if she was coming on to the other person, to the extent that she really was sexually assaulting him, and he chose to have sex with her, I would call it bad judgment, but I don't see where it could be called rape. However, I know that I have on a few occasions go wayyyy further than I would have wanted to, simply because I was drunk. Gosh, this is a tough one. I do think however, that since your friend was in a relationship that it wasn't appropriate of him to let her on his leg in the first place, and that he should have stopped her from doing that
Seems pretty straight forward to me. If the woman is black-out drunk (obviously there's leeway with smaller amounts of alcohol) and the man is completely sober then there can be no consent. I'd feel the same with the genders reversed.
How to say it right...
There is no other term that I think typifies feminist hypocrisy than 'enthusiastic consent'.
As you may have been able to determine from my name and my direct (masculine) communication style, I am a dude.
And so many times in my relationships and in the relationships of the dudes around me I have seen women completely violate the concept of 'enthusiastic consent'
You should see the rage and entitlement of a woman turned down for sex. The amount of manipulation and coercion they will undergo to get what they want, a ducking.
And when that is brought to the attention of the feminist community most of them don't give a fuck. They make excuses. They don't believe that men would submit to that coercion. That women could apply the screws like that. Patriarchy blah blah blah.
I don't give a fuck about patriarchy in that context. I know that on an individual level, deep in the filth of a lot of woman's heart, they are exactly the same as the people they claim to despise.
Hell hath no fury like a woman not dicked when she wants it.
Welcome to men slowly becoming their own sexual gatekeepers, being dragged unwillingly it seems.
I think I've only seen 1 post about here in feministing community specifically about a woman feeling entitled to sex from her male partner even though he rejected her. In that posting, the OP was met with strong criticism for her view. So which feminists are you talking about when your address this forum, just out of curiosity?
And I want to thank you for even bringing up the point about female rejection, because when I bring it up even around these parts I'm assured from mostly male readers that there is no such animal. There is no such thing I am told, because women apparently expend little energy and have have fewer social and psychological costs when it comes to obtaining sex; and thus, any rejection that may occur toward the female is simply unworthy of any further analysis because males have it much worse.
Hell hath no fury like a woman not dicked when she wants it.
I have no reason to argue here, as this perfectly consistent with behavior of someone who believes that her self worth in life is tied to her sexual desirability. And yes, I would agree that when society puts women on a pedestal based on their sexuality and attractiveness, that this leads to a sense of entitlement.
Can you now put my on your list of feminists who give a fuck? Or is my perspective not quite what you had in mind?
Spike, I don't think anyone who considers direct communication the exclusive property of males is interested in any sort of communication on a feminist forum.
Poor form.
It was only after hanging out if forums that look at gendered behavior that I learned that some behavior like language and space usage was considered masculine or feminine.
I also observed that feminist get angry when they see a dude using his space or structuring his language in a 'masculine' way, but think it is kick-ass when a woman does the same thing.
Y'all were the ones that started observed differences between male and female behavior and attributed it to gender differnces (rather than some other variable, like confidence) and then ya slam me for using the same convention... and you twist the words, like I said it was an exclusive property of males.
poor form.
So which feminists are you talking about when your address this forum, just out of curiosity?
One of them was edb, who replied to my comment lower down. She typifies what I was speaking about when it comes to the hypocrisy around enthusiastic consent.
If it only involves "coercion" or "manipulation" I would say that is obnoxious and socially unacceptable although probably not criminal.
So, the message I get is when women do some behavior that violates enthusiastic consent it is obnoxious and socially unacceptable, when guys do it its rape.
An observation... many feminist, to some degree or another, positively idealize the masculine situation and negatively idealize the feminine condition.
And of course, it is a natural human response for people to look more favorably on a group they are a member of. This goes on voluntary membership groups and involuntary groups (biological sex, race, etc).
And when you combine the positive/negative idealization with the and feminist (being mostly female) looking more favorably on women, you get a group of people, as a whole, that minimize their own misbehavior.
One way they do it is by blaming their own bad behavior/traits on an outside force... in feminist instances it is amorphous patriarchy.
And you also get feminist like edb.
And you get a lot of them. Because having a boogie man responsible for your bad behavior is better than looking at oneself and members of one's own involuntary group. And it is comfortable to have the tools to minimize ones own misbehavior and pass judgment on others.
First, of all, I'm a "he," so your accusation that I have some sort of hidden agenda to tear down men and elevate women is pretty laughable to begin with.
Second, when did I ever say that a man is guilty of rape if he uses verbal manipulation to try to convince a woman to have sex? Trying to verbally coerce someone to have sex is obnoxious and pathetic regardless of whether you are male or female, but it's not criminal unless you threaten physical violence or blackmail or something like that. Once again, I feel like you you are just creating a straw man by putting words into my mouth.
Not really laughable.
Ya have heard of white liberal guilt and all of that? I have stumbled across males that apparently believe that all men are rapist and they hate the fact that they were born tainted: male.
Heck, one of them seems to be have been the OP, who's wrote regarding his feminist mother
"I'm a guy, who's been seriously shamed about his sexuality by his feminist mother and co-educating prudish grand-mother. Anything that was even remotely related to sexuality was either dirty and amoral or potentially violent against women. I mean, I was basically told as a pubescent boy that what I wanted the most was both amoral and dangerous to the girls/women I would wanted to do it with.
http://community.feministing.com/2009/09/how-to-kiss-a-girl.html
So, not so laughable now.
Its actually pretty fucking serious.
Yeah, that was also me... it's not a joke. And I didn't get the feeling my question was treated as such by the commenters.
Of course, it got 17 replies and this thread is approaching 100. So, yeah, different perspectives, and all. Basically, yes, I think feminists often don't sufficiently consider the male perspective while asking men to particularly consider their perspective (as a way of dealing with male privilege, etc). It's, partly, a rather convenient theoretical construct to avoid asking some questions with respect to female responsibility. So, in that respect, I think, Steven is right to a degree.
Because having a boogie man responsible for your bad behavior is better than looking at oneself and members of one's own involuntary group. And it is comfortable to have the tools to minimize ones own misbehavior and pass judgment on others.
There is already a baseline shift (and historical precedence for it) in responsibility that relies on misappropriation of biology and religion (supernatural mythology extolling masculine superiority).
You remind me of people who are scared of vaccines. You seem to be more concerned with the dangerous of the cure than the actual disease.
So. Steven, what do you suggest I do in the face of the belief by so many that they themselves answer only to the highest callings and not to their fellow humans? Back to square 1 right? Because of evolution and all that stuff?
I request clarification.
I feel like you are creating a straw man here. Number one, you have seen this happen "so many times"? I'm just going to say that I am skeptical that what you are describing is a common occurrence and that you are just saying that to a win an argument. But there is obviously no way to prove that one way or another, so I don't see much point in arguing over it.
Number two, as the other poster said, show me anywhere where someone in this community (or any other feminist community) has ever said that the behavior you described is acceptable. If it only involves "coercion" or "manipulation" I would say that is obnoxious and socially unacceptable although probably not criminal... At the point where the woman uses threats or blackmail or violence or initiates physical contact, then I think she has crossed the line into sexual assault, and I think that the man in question would be justified in filing charges if he chose to do so. If you can find any post anywhere where anyone said anything different, please show it to me. Otherwise I am going to assume that you are just creating a straw man to try to make feminists look bad.
If it only involves "coercion" or "manipulation" I would say that is obnoxious and socially unacceptable although probably not criminal... At the point where the woman uses threats or blackmail or violence or initiates physical contact, then I think she has crossed the line into sexual assault[.]
That is no where near the standard that feminist apply to men when it comes to calling a pattern of behavior rape. And it breaks the back of the argument of requiring enthusiastic consent.
That is the hypocrisy I am wrote about... right there in your rebuttal. One standard for your or (female) behavior and one standard for my (male) behavior.
And you probably don't see it like that. You probably have bag of reasons you can use to minimize the inappropriate sexual behavior of women. Or to justify your double standards.
Once again, please show where I (or anyone) said that verbal manipulation by itself is rape... I think you are so desperate to prove that feminists support some kind of double standard that you are simply putting words into our mouths.
Guh.
Aight. The name of the post we are discussing is "Enthusiastic consent" A term that has come into recent vogue to create a standard for what constitutes an appropriate level of consent for sex....
Of course, recently coined, and perhaps somewhat esoteric terms are bedeviled by multiple definitions and applications.
But, working within the framework of enthusiastic consent, a topic I addressed my comment:
One one side is enthusiastic consent... on the other... non-consensual sex.
Enthusiastic Consent occurs without coercion or manipulator. So with enthusiastic consent the criterion for consensual sex sex with manipulation is... non-consensual sex... and there is another word for sex that is non-consensual.
What these and other recent conversations (here in the community side) are pointing to is the gradual shift of the sexual gatekeeper roles in our society from a group to the individual.
There is no easy answer here without asking the women in the OP's story herself how she feels about the situation. Because I really don't see how there can be a "feminist position" without understanding her point of view.
I'm also curious as to why you, jayjay, described the night as "good fun" with the added point that some guy paid for that gal's drinks yet she ignored him?
Spike the cat,
I agree on the gatekeeper thing.
"I'm also curious as to why you, jayjay, described the night as "good fun" with the added point that some guy paid for that gal's drinks yet she ignored him?"
Social dynamics. Can be great fun. Because it was both such a stereotypical setup and the opposite at the same time. This guy who was trying to get into her pants by doing what desperate guys tend do, while she ignored him royally for doing just that and, in turn, decided to aggressively pursue my friend who was among the least available people in the room, and kept doing so (with increasing intensity) despite his telling her repeatedly that she should leave him alone. Of course, the guy who was trying to get into her pants didn't know that, so he then tried to befriend my friend and me, effectively begging my friend to not accept her offer. It was a bit surreal, a bit sad, and quite a bit hilarious, certainly from the meta perspective that I was in. And, since my friend knew nothing was going to happen, and there was no risk/fear of any real physical harm (which I think is the main difference between men and women in such situations) he could definitely book her aggressive advances as flattering (though a bit annoying from a certain point on). So, yes, good fun. And the scenario for an interesting question - personally, while I wouldn't have had sex with her had she chosen to be interested in me at that point (because I'm one of the crazy dudes who need an emotional connection with a woman for any kind of physical intimacy, and that just wasn't there and is really unlikely to happen in such situations) I most definitely believe she was able to consent and - while I asked to get other opinions, I'm really a bit confused about the extent to which some commenters go to deny her ability to be responsible for her own actions. It's a bit like what dormouse said above -
"I have a feeling that if it was a drunk man in this case rubbing up against and trying to kiss girls, it would seem obvious to the feministing community that he was responsible for his actions and should be held accountable for sexual assault."
So, well, I'm sensing a bit of a double standard in some commenters' replies.
I don't know if it's really a double standard because of what was said before- a guy in that position is considerably more threatening and difficult to avoid. Most women would be, at worst, annoying. It's a technical double standard, I suppose, but if you tried to judge the man and the woman on the exact same grounds, that could be more problematic.
As for the basic question... legally, as mentioned, in at least some places it doesn't matter what a person does (goes for male or female)- drunk means no consent is possible. As far as the law goes, this isn't really paternalistic; in cases like this, it's simply better to have the rule on the books so it can be used. It would be problematic if such a law was stringently enforced, however, because if guys became aware that there's a serious danger of prison time for sleeping with a drunk woman no matter what she does, it could well end up precluding women from being able to go out and get a drunk hookup because the local dudes would be too paranoid to do anything with them. (Well, maybe not preclude. But it would be a lot harder.)
Morally, though, whether it's acceptable consent or not depends on the situation. If a woman goes out, gets hammered on her own, then crawls all over a guy who blesses his lucky stars and takes her home (or to the stall or whatever), that's consent. She put herself in that position in the first place, so if she doesn't like what she did after the fact, she needs to learn not to get wasted in public without friends around who will drag her away from something she normally wouldn't do. It's utterly unrealistic to expect a guy who doesn't know her to be able to tell if her actions constitute something she's going to feel great or awful about the next day.
However, if a dude strikes up a conversation, buys her drinks, and gets her loaded to the point where he's essentially pulling her out the door because she'll have trouble getting there alone, he's got much less of an argument. Likewise, if a guy sees someone that is clearly drunk and makes the first move, that's also somewhat different. Now, if it reaches a point where he says (essentially), "So you wanna go back to my place?", she replies, "Hell yeah, let's get the fuck out of here," and her attitude doesn't change at some point, I still don't believe you can call that rape in general. She made the choice to go out in public and do something that could significantly alter her thought processes in a place full of strangers. But it is a sketchier situation, since the guy is obviously trying to take advantage of that. It's a case-by-case basis when you reach this point.
No, I don't see this as a double standard at all. I think there is a fundamental difference between the acts that one commits when drunk and being acted upon when drunk. In the situation that you described, I think your friend would be well within his rights to file sexual assault charges. Sure, if this actually went to trial the girl could use her inebriated state as a mitigating circumstance, but I don't think that being drunk gives her a "get of jail free card."
However, the fact that a person may be responsible for their own actions when they are drunk does not give you carte blanche to do whatever you want to them. If you got a friend to sign a business contract when they were extremely drunk, the courts would invalidate the contract immediately. And I doubt they would change their mind if you said, "But he signed it enthusiastically when he was drunk; in fact he was begging me to sign it!" And if you can't consent to a business contract while severely inebriated it seems dangerous to assume that a person can consent to sex. In short, the fact that being drunk does not give you the right to harm other people does not mean that being drunk gives other people the right to harm you.
I know Catherine MacKinnon has written extensively about the patriarchal assumptions behind rape laws... In her view, "consent" is always defined from a man's perspective: "If a woman does x, y, or z, then she is assumed to give consent." The assumption is that what the woman is thinking or feeling does not matter; a man is allowed to have sex as long as certain conditions are satisfied. No offense, but I feel like that is what you are trying to do here... Unless you know for a fact that a woman would be willing to have sex even if she were not intoxicated, then you should not be having sex with her. Any time you make a law that says that "x implies consent" then you are saying that the woman's feels/desires do not matter as long as x is satisfied.
edb,
"If you got a friend to sign a business contract when they were extremely drunk, the courts would invalidate the contract immediately."
I'm not a lawyer, but as far as I know, courts have thrown out cases where people claimed "drunk" in an attempt to nullify contracts and that was not considered a sufficient reason. But my question wasn't really legal, if was more about legitimacy.
I think that matters with respect to your second point -
"The assumption is that what the woman is thinking or feeling does not matter; a man is allowed to have sex as long as certain conditions are satisfied."
that's, no offense, a problematic way of looking at things. Imagine the situation I described in a lesbian bar and nothing changes. People *never* know things other people think *for a fact*. They have better or worse bases for assumptions about other people's interests and intentions. Maybe you've had sex with your drunken girlfriend 100 times and the 101st time she really didn't mean what she meant the previous 100 times. You had good reason to assume otherwise, but you certainly didn't know for a fact. So, the question, really, is to which extent people's actions can be seen as valid expressions of their intent. And, as for the feelings and thinking of the woman - your proposition is equally ignoring her feelings and thinking, just the other way around. It's saying, as someone said above - "sorry, dear, I know you think you want, but you're really not in a position to make decisions right now". Now, this may be true, but - and this may become a bit philosophical - what makes her possibly different *sober* intentions and feelings, more important than her current drunk ones? Why would the sober intentions necessarily be valued as more important than the drunk intentions? What about sayings like "drunk people tell the truth"...? The point is, at some point, given that no one can read minds, consent is always an assumption about a free willed decision and just as free willed decisions are a social construct, consent is. There needs to be an X in this, simply because more than one person are involved by definition.
Well, I see your point, and that is a big part of the reason why rape laws are inherently problematic. Absent the ability to read minds, you can never be 100% certain that your partner is consenting. Still, I am uncomfortable with the idea that you can say that you are allowed to have sex with your partner as long as a certain set of conditions are satisfied because that implies that consent is irrelevant once those conditions are satisfied. I'm not really sure what the general answer is. However, the law in most (all?) states says that if a woman's judgment is impaired by an intoxicating substance, then she can file rape charges. As a result, I would say that one should not have sex if there is any doubt whatsoever about whether her judgment is impaired.
"Still, I am uncomfortable with the idea that you can say that you are allowed to have sex with your partner as long as a certain set of conditions are satisfied because that implies that consent is irrelevant once those conditions are satisfied."
Except the question at hand, even framed in the terms of conditions, is, "At what point can I take the conditions to mean that she has consented?" Consent is not irrelevant; it is, in fact, the entire point of asking about where the line should be drawn.
If someone were to suggest that such consent indicates a point of no return, where the woman can't rightfully change her mind, your point would have more merit. But that's not what's being said.
"However, the fact that a person may be responsible for their own actions when they are drunk does not give you carte blanche to do whatever you want to them." and "I think there is a fundamental difference between the acts that one commits when drunk and being acted upon when drunk."
This helped me put my finger on where it is that I have a real problem with the "no consent while drunk" argument and why I find it so offensive.
When I have sex with someone, they are not acting upon me. They are not doing something to me. I am an equal participant. Having sex while I am intoxicated IS an 'act I commit when drunk', not me 'being acted upon when drunk'. I don't need to be protected from acts *I* choose to commit. Being drunk does not automatically turn me from a being with her own sexual agency and responsibility into a victim-object that needs to be protected from herself and others.
Saying that I can't choose to have sex is just the flip side of saying that I can't choose NOT to have sex. Either way, my voice is considered irrelevant. And that IS pretty damn paternalistic and demeaning.
But nobody ever said that no woman (or man) can ever give consent when they are drunk. I certainly didn't say that. What I said was that there are cases where a woman might appear to give consent when she is drunk but consented only because of her inebriated state. I have heard of numerous instances where a woman had sex after drinking but woke up in the morning horrified... Even though her partner and all witnesses said that she appeared to be an enthusiastic participant at the time, in the morning, she felt traumatized and experienced the symptoms that rape victims often experience. Does that mean that this woman has no right to feel this way? That we should just tell her, "Too bad. If you were going to feel violated in the morning, you shouldn't have gotten drunk. You weren't raped; it was your own fault. Now suck it up and quit whining." I would like to think we all agree that she should not be treated like that. But if we make a blanket statement that, "If a woman only has one drink, she can give consent," or, "If a woman initiates sex after drinking heavily, she has given consent," then I think you are basically telling a woman in these circumstances that she deserves to feel the way she does, and I have a problem with that.
I fully believe that women (and men for that matter) can give consent after drinking. But I think that if a person chooses to do that it is highly advisable that they make their feelings clear to their partner, ideally when they are still sober. And I think it is extremely dangerous to have sex with a person that you don't know when you have only seen them drunk, because in all probability you have no idea how they will feel in the morning. In such cases, I think it is better to err on the side of caution.
edb,
"What I said was that there are cases where a woman might appear to give consent when she is drunk but consented only because of her inebriated state. I have heard of numerous instances where a woman had sex after drinking but woke up in the morning horrified..."
Yeah, sorry, but, as I understand it, that's exactly what UnHingedHips meant - you can't take consent back because you regret it in the morning. I think there's a difference between giving advice to people along the lines of - "really, if you're afraid she may think differently about her decision later, you should probably clarify that or simply refrain" - and saying that consent given in the moment can be walked back while hungover. Those are two different things. If you believe that people should be allowed to retroactively withdraw consent then, well, you are, in fact, saying that women are not allowed to give consent while drunk, because, then, drunk consent would be given under the condition of sober affirmation. For all appropriate and legimate advice to be cautious about the interpretation of drunk consent, particularly by sober people, there can only be consent or not consent. Not conditional consent.
Ummm... Legally if your judgment is impaired by an intoxicating substance, you can't give consent in the first place. You are not "withdrawing consent" if you never consented to sex. And the fact that some women may be capable of consenting to sex after a few drinks does not mean that all women are competent to do so. In most states, the law says that a woman cannot give consent if her "judgment is impaired" as a result of the alcohol. At one point is judgment impaired? Hard to say. It probably varies a lot from person to person. But unless one is 100% certain (or as close to 100% certain as one can be without reading minds), then I think it is a bad idea to assume that judgment is not impaired. Do you really want to risk putting someone through the emotional trauma of feeling like they were raped just to have a one-night-stand? I personally thing that is wrong regardless of whether or not it is illegal (and my interpretation of the law is that it is illegal as well).
Just because I don't agree that a person in the situation you described was raped doesn't mean I advocate being a complete arsehole or invalidating her feelings and regrets. If you consented to sex and later decide that it was a horrible, horrible mistake, of course you have every right to feel any multitude of awful feelings about it. That still doesn't make it rape.
So then every woman who gets extremely drunk and has sex is necessarily consenting to it? What if the person who had sex with her tells all his friends to make up a story about the woman groping him and enthusiastically consenting to sex? Does that mean that it's always okay to have sex with someone who is extremely drunk as long as there are no witnesses to prove that she wasn't "consenting enthusiastically"? I think at the point where you say that "extreme drunkenness+sexual advances=consent" you open the door for all kinds of problems...
"So then every woman who gets extremely drunk and has sex is necessarily consenting to it?"
That is not at all the logical conclusion to UHH's argument. If a woman consents to sex while drunk, and maintains that consent throughout sex she consented to sex. That's all she was saying. Not every woman who gets extremely drunk and has sex consents to it, but that doesn't mean a drunk woman can't consent to sex.
No.
If you are drunk and do not consent to sex, that's rape.
If you are drunk and you DO consent to sex, that's NOT rape.
If you make up a story about how the person you just had sex with consented when really they didn't because they are drunk enough that they'll believe you, you are still a rapist.
Is my position really that hard to understand? All I am saying is that alcohol does not somehow have the magic property of either removing or creating apparent consent.
Well, what do you mean by "apparent consent"? Sure, if a woman is in control of herself in spite of a drink or two and consents to sex, she does not have the right to claim rape if she feels differently in the morning. But if she is so drunk that she can't even remember what happened then I think it is quite likely that she is not mentally capable of consent, and she can still call it rape even if she doesn't resist (or even encourages) the sex while she's drunk.
edb,
so two people having sex based on the assumption of mutual consent while drunk are, in your understanding, potentially conditionally raping each other, depending on the what they think the next morning?
So switching genders, your argument works like this: So a guy wakes up and thinks, damn, she looked better when I had those beer goggles, I must have been drunk damn drunk. I'd never have consented to having sex with her when sober. Whoa, wait, but she was sober. She should have known that I was drunk and would never have consented to sex otherwise even though we were all over each other last night. She raped me!
Seriously?
This. This is what I said at the beginning of the thread. According to the OP he BELIEVED the woman, whom he had never met before, to be blackout-level drunk.
Can a woman give consent at some level of intoxication before blackout-level drunk? (Which, by the way, is a level well beyond the legal limit for driving, a level where her frontal lobes controlling decision-making are physically inhibited.) Yes she can, but that's not what the poster asked.
I don't know if she was truly consenting or not, but we can't assume from her behavior - given the described circumstances - that she was consenting or otherwise would have.
Also, I'd like to mention that according to the OP we aren't talking about one or two drinks, mental illnesses/medications, people that know each other or committed couples. We are talking about a person who is not drunk having sex with a complete stranger who is is extremely drunk. I would feel the same about this scenario even if it were male-on-female, lesbians, gays or any other combination of adults.
It's not paternalistic to postpone sex until you can be sure of the other person's mental state.
What I said was that there are cases where a woman might appear to give consent when she is drunk but consented only because of her inebriated state ..... Even though her partner and all witnesses said that she appeared to be an enthusiastic participant at the time, in the morning, she felt traumatized and experienced the symptoms that rape victims often experience.
Lets flip the script a bit...
What to do with the guy that had sex with her, and all those that thought the sex was consensual or thought the sex was going to be consensual when the woman woke up?
You're right. Those men never had the option NOT to rape a woman if she consented the entire time. That's why merely regretting it in the morning is not a criteria for being raped.
Yeah, the never had the option to not have sex with the woman. At the point where she was drunk and coming on to them, they lost all control of their hormones and had no choice but to take them back to their room for sex. Sorry, but the way I see it, they certainly did have the opportunity to not rape the woman. All they had to do was not have sex with her in the first place. And while regretting it in the morning by itself may not be a criteria for rape, it's an entirely different story if alcohol is involved.
Then it's rape. The law is clear that if a woman's judgment is impaired as a result of an intoxicating substance then she is not competent to give consent. If she appears to give consent but decides in the morning that wasn't what she wanted, then legally her partner can be charged with rape. Whether the charges would stick is another story. But that's not the point. The point is, once again, I don't think you should be having sex with someone who is extremely inebriated no matter how enthusiastic they appear to be unless you know for certainty that they would have consented even without the effect of the alcohol. Otherwise you could be legally guilty of rape, or more importantly, guilty of making a person feel like they were raped.
I asked... what to do with the guys and those that stood by...
You wrote, in response but without answering the question Otherwise you could be legally guilty of rape, or more importantly, guilty of making a person feel like they were raped.
What. do. you. think. should. happen to. the. one. that. had. sex with. the. woman. and. those. that. stood. by?
Not what could happen.
And you may not know that someone is, in your words, extremely inebriated. I was a DD for my sister-in-law's friends 21 birthday party. I saw my sister-in-law have a couple of drinks and several hours later I saw her throwing up, and even later she reported blacking out.
I had no idea she was that drunk. You cannot necessarily tell if someone is 'extremely sometimes.
I knew dudes who were such fucking alcoholics that they could be at .2 something and present themselves as more sober than someone that was .08. That did not mean they would not black out part of the night.
What do you do with them?
"The law is clear that if a woman's judgment is impaired as a result of an intoxicating substance then she is not competent to give consent."
That's not what the law says. And I think it is dangerous for you to be suggesting that it is.
What the law says is that if a person is too drunk to give consent then it is rape.
The law does not say that a person who is drunk can not give consent.
There have been a lot of great comments, and I'm glad to see intellegent debate about enthusiastic consent, etc.
However, I'd liked to pick on one little statement in the OP: "she was definitely the sexual "aggressor" (in ways no guy would ever attempt to be, in my opinion)"
As a female who has definitely experienced unwanted sexual attention from men in bars on that level, I'm crying bullshit on this one. Be careful about the assumptions you make.
Just saying.
I agree, and you would never find a woman who would even consider having sex with the man that was rubbing up against her and assualting her. Nor would she ever find it flattering.