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Thread: Alcohol, sex and consent

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    Default Alcohol, sex and consent

    Here's the place to continue the discussion which has been stifling the Buffy Season 9 News thread. Someone should have really done this a week ago...

    Starting with replies to the latest posts on the subject:

    Quote Originally Posted by Maggie View Post
    It all depends on where the crux of the analogy lies. I think the person making the point was just trying to say that we hold people accountable for their actions.

    He could have easily proferred this analogy: A drunk person gets into a car and smashes into a telephone pole. He blames the pole for the damage done to his car and his broken legs. I think most people would think he should take responsibility for his own actions.

    That still isn't a "perfect" analogy because the pole isn't an agent and the sexual partner is. But no analogies are perfect.
    Not only it isn't perfect, it doesn't work at all, unless one's sexual partner is a dead body, or a completely unconscious person... and in the latter case, the partner is the rape victim.

    So let's just strip it down to the basic argument. We hold people accountable for their actions when they are drunk. There seems to be special pleading about how much responsibility a drunk woman has for the choices she makes while drunk.
    No, there is a pleading about how much responsibility a drunk person has for things that happened when they weren't really able to make choices.

    I agree that this is where the real question is. Buffy was nowhere presented as drooling, nearly unconscious drunk. She was quite verbal, and was aware of her situation -- who she was talking to and so on.
    The debate has long ago stopped being just about Buffy and become more about alcohol and consent in general. But regarding Buffy: we didn't see her having sex or about to have sex, either, so I don't know what her state of drunkenness in the panels we did see has with how drunk she was when she had sex (if she did), which she doesn't remember and which we didn't see - and which we don't know (I must have repeated this point some 5-6 times at least).

    Pending more information that subsequent to the scenes we were shown she really was showing material incapacity, I don't think she was raped (if she had sex at all).
    Well I would agree with that and so would, I believe, most people here, but the discussion started about the question "is rape a possibility if Buffy learns she got pregnant at the party and can't remember how". Shipperx's point that several other women agreed to is that they would find this very disturbing, "a nightmare scenario" with rape definitely being a possibility.

    I agree that attitudes can change for better or for ill. I believe I've registered my opinion that the present shift in attitudes is extremely disempowering for women since it seems to carry with it the presumption that we can't make our own choices and own them. (For me. That's how it feels for me. Just speaking for myself).
    That's the thing with making your own choices, it's a choice only when you were actually able to make one. For me, I find it very empowering for women to be able to detect bull$hit and know when they shouldn't be blaming themselves for something that was done to them against their will. It's sad when you think that just a couple of decades ago, women thought that they didn't have the right to say 'no' to their husband, for instance.

    Quote Originally Posted by Vampire in Rug View Post
    I agree with this. My problem with this thread is that some people essentially are saying that every time a drunk person has sex they are being raped.
    I don't know who's been saying that. I haven't noticed anyone on this forum saying that.

    "Drunk" isn't an either/or thing, it spans everything from being tipsy to being barely conscious. Furthermore, it's constantly being implied that drunken sex is always between two people who have had a bit too much to drink. It seems that none of the guys here has ever had the experience of having someone trying to get them drunk on purpose so he/she could take advantage of them. I remember at least one case when it was blatantly clear to me that this was what the sleezebag was trying to do - except that I wouldn't allow him, so I was just laughing inside. The fact that there are quite a few creeps like that is one of the reasons why I'd never allow myself to get that drunk. I'm the kind of person who is very confident about myself and not afraid of any situation, as long as I am in control of my body and mind.

    It seems that most men here haven't had this kind of experience, judging by your reactions to a few of the female poster's arguments about the feeling of dread as to what might happen when you're dead drunk. Haven't you ever even seen someone trying to get a woman drunk or drunker with this specific purpose (which is usually blatantly obvious)? And even when person A isn't the one who has been getting person B drunk, how do you feel when person A is sober and person B is drunk to the point of barely knowing what is going on, and person A thinks "Hey, this is my shot!" and proceeds to have sex with B?

    But some people in this thread seem to think that if a fat, smelly nerd hooks up with someone who would be normally out of his league had she been sober, he's a rapist because he hit on her while she had lowered inhabitions. That might make him a sleaze, but not a rapist. Not unless he actually, y'know, raped her, which I'll repeat, is something that NOBODY in this thread is endorsing.
    Well the disagreement here seems to be about the question: if he's sober or she's drunk, or she's much drunker than he is and he's able to see the situation for what it is while she's barely able to tell where she is, and he thinks "Yay! I've got a shot now!" and proceeds to have sex with her, is that rape, or is it rape only if she is unconscious?

    I'd really like to finally (after posting it twice!) get a comment from someone on this scene from Snapper - the flashback of how the main character got pregnant (she didn't even have a blackout). Was this just the case of "beer goggles"? See this from around 12:47 (at the end) and the beginning of this.
    I wanted to quote this post because I find it quite amazing how wrong it is. People often can and often do consent to sex while drunk. If the second party is drunk also, that might make the situation less sleazy and more acceptable to a lot of people's standards of decency, but I completely disagree that the second party being drunk is his saving grace from being a rapist.
    That's an odd paragraph. If you think that people have consented to sex (i.e. been able to consent), then nobody is a rapist, right? So either you think it's rape, or you don't think it's rape? I don't see how your second sentence correlates to your third sentence. Once we've established that someone is a rapist, that's the end of discussion, I thought the whole issue was about establishing when it's rape and when someone is a rapist or a victim of rape?

    The point about both people being drunk refers to the situation when they're both about equally drunk and equally able/unable to give consent. (Rather than, say, when one person is lying and almost passing out, or when one person forces the other, which is unequivocally rape and therefore not the subject of controversy here). In that case, although it may be non-consensual, how can one say that one person is a rapist and the other is a victim? To use the same analogy as earlier, if two 13-year old kids agree to have sex, the law doesn't treat one of them as a statutory rapist. But if an adult has sex with a 13-year old kid, of course it's a statutory rape.

    So what's the measurement you are going to use? I'm on a "provisional" drivers license, meaning that after a sip of beer I'm legally considered too drunk to drive. As a rookie driver, my blood alcohol level must be zero before I can get behind the wheel. One beer, or hell, certain types of cough medicine or candy put me over my legal limit. Do you want to tell me that if I can't drive after one beer, I also can't consent to sex?
    Since you say you have experience with alcohol, I'm sure you know the answer already. I think that anyone who's ever had a few knows that motor functions are the first thing affected when you start drinking, so that even rather small amounts of alcohol would make you unsuitable to drive. I occasionally drink and get drunk/tipsy, but I've never gotten drunk to the point of not being able to make decisions, know what is going on and carry on a coherent conversation. But I knew I was drunk when I would try to walk and my walk was wobbly and I could barely keep a straight line, despite me being able to think clearly and carry on a normal conversation. I don't drive a car (though I did learn to drive), so I don't have to worry about that, but it's clear why the threshold for drunkenness is far lower when it comes to driving, than when it comes to everything else.

    Quote Originally Posted by Vampire in Rug View Post
    I tend to believe that not most guys are like that, those guys are the disgusting minority, much like Allecto is the disgusting minority for feminists.
    I've never read that person's rant, just seen some crazy quotes from it. Maybe I should look it up just for the LULZ.

    Plus I'm kinda scared about castration, which is always my main concern when there's a woman nearby...
    Online castration is the worst, or so they say.
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    Quote Originally Posted by TimeTravellingBunny View Post
    Here's the place to continue the discussion which has been stifling the Buffy Season 9 News thread.
    You're brave.



    I've noticed that there seem to be two very different viewpoints on the subject, and I'm sure a lot of the bad feeling comes from people going into the argument with one of those viewpoints implicit in their assumptions, and discounting the other.

    #1 There's a clear dividing line: consensual sex (good) and rape (bad). Any sexual act falls into one or the other category; the only possible point of dispute is which one. You could call this the legalistic point of view, since in law - as opposed to ethics - you do need a clear bright line between an illegal act and a legal one.

    #2 There's a grey area in the middle. You have consensual sex (good) and rape (very bad), but you also have actions that fall somewhere between the two (fairly bad). These aren't rape as such, and shouldn't be considered criminal, but are still unethical and unpleasant.

    I'd be interested to see a show of hands as to who believes in each viewpoint. Personally I go with the second - only the Sith deal in absolutes.

    The problems arise when you're discussing situations of questionable consent. Take your film clip, for example. The woman there seemed to be in control of herself; she could walk and talk perfectly coherently, if rather slurred and unsteady. She was the one who initiated the sex by putting her arms around him and pulling him down onto the car bonnet, so she clearly consented. The question is whether she was sufficiently drunk that her consent should be overruled and deemed invalid.

    I imagine the lawyers would earn their fees in court trying to prove that one way or the other. Not being a lawyer myself, I don't know what the law itself would say. Having also not seen the film, I don't know if the woman herself regarded that in hindsight as a rape, or as a decision she made but now regrets?

    However, regardless of the legalities of the situation, what the man did was clearly skeevy and unpleasant. He took advantage of her. The ethical thing to do would have been to disentangle himself from her politely and help her get safely home, or at least put her in a taxi.

    If you come from viewpoint #2, then it's fairly easy to say that such a situation falls into the grey dubcon area. The man can be condemned for what he did, even if you believe that technically it wasn't rape. It was still a wrong thing to do. However, if someone from viewpoint #1 hears that argument, they're quite likely to get angry or upset. To them it's either rape or it isn't, and here's someone saying that it isn't rape. Which means, logically, that they must see this as happy consensual sex - since that's the only other possibility - which in turn means that they're defending the right of predatory men to take advantage of drunken women.

    I strongly suspect that's why nobody answered your question about the film before now. From the perspective of viewpoint #2, anything other than utter condemnation and saying, "Yes, it was absolutely a rape" is going to get you branded as a rape apologist - or at least that's what they would be afraid of, after the argument became so polarised.

    On the other hand, the people arguing for a grey area can be guilty of forgetting that, and become too invested in proving their opponents Wrong on the Internet. They can brush aside the fact that even sex that was technically consensual could lead to genuine distress and trauma afterwards, becasue they're too busy shouting, "Aha! You consented, even if you regretted it later!"

    And so neither group comes out well, and the discussion became mean-spirited and hostile. One side thinks the other is defending rape, or at least diminishing its seriousness. The other side thinks that their opponents are casting the net of 'rape' too widely, to include that grey area of consensual but regrettable activities. For some, that may define them personally as either victims, predators or both simultaneously when they don't recognise themselves in either of those roles; others see it as being disempowering to women. After all, saying that someone was "sufficiently drunk that her consent should be overruled and deemed invalid", as I did above, is the same as saying she should be treated like a child, whose ability to consent is likewise deemed invalid by the law. Even if that's an actual, provable effect of alcohol which applies to men too, it's still got unfortunate implications if you set the bar too low.

    And in the middle of it all, what gets lost is that whether or not you think that what the guy did in your video clip - or what a hypothetical person may have done to drunken-but-lucid Buffy at the party - is technically rape or not, either way it was unacceptable behaviour. I think there are few if any people - on this forum at least - who think that it's not blameworthy; the only debate is about how much.




    the discussion started about the question "is rape a possibility if Buffy learns she got pregnant at the party and can't remember how". Shipperx's point that several other women agreed to is that they would find this very disturbing, "a nightmare scenario" with rape definitely being a possibility.
    I wouldn't argue with that.

    I don't think, from a purely meta-narrative, Doylist point of view, that it's likely that the story of Season 9 will centre on Buffy being raped. But if she finds out she's pregnant in issue 5 or 6 and still can't remember who she slept with, then I absolutely agree that the fear she was raped would be prominent in her mind. Given that Buffy's usual response to trauma is to find someone she can pummel, I can imagine a hunt-down-and-revenge scenario quite easily. (And I imagine Spike's feelings on the subject would be quite intense and complex too.)

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    Stormwreath: #1 There's a clear dividing line: consensual sex (good) and rape (bad). Any sexual act falls into one or the other category; the only possible point of dispute is which one. You could call this the legalistic point of view, since in law - as opposed to ethics - you do need a clear bright line between an illegal act and a legal one.
    With respect to your bright line legal argument, that's not so black and white either. I actually am an attorney, and while you may know what the law says, it's still a factual determination as to whether the facts you have go this way or that way of the legal standard. The law may say "consent is a defense to rape," but it's still a fact question whether what happened constitutes consent or not. If it gets to trial, that's ultimately up to a jury to decide. And it only sets a legal precedent if there's some issue that allows an appeal on a particular point of law- which is probably only distantly related to the actual verdict. So basically, it's up to a jury to decide what consent is, and every jury is different. Go to your local state fair, pick out the twelve people with the least experience with the law, and that's your jury. The guy wearing an "I'm With Stupid" t-shirt will probably be your foreman.

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    Quote Originally Posted by gregor View Post
    it's still a factual determination as to whether the facts you have go this way or that way of the legal standard.
    True. But as I said myself, "Any sexual act falls into one or the other category; the only possible point of dispute is which one." That's a question of fact, which is for the jury to decide.

    Presumably there's a legal ruling or precedent that says that "If you're *X* drunk you can't consent to sex"? (Though of course *X* might be different in different jurisdictions.) So the only question is whether the plaintiff actually was *X* drunk or not; you can't in law have one member of the jury saying, "Well,they weren't *X* drunk but they were *Y* drunk, and I think that should count as rape too!" while another is saying, "But *X* drunk is still capable of coherent thought (or whatever), so I don't think it should count as rape". That kind of ethical discussion is for the legislature, or for Internet discussion fora, not the courtroom. Isn't it?

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    Well, the problem with that idea is that it's not like anyone did a breathalyzer at the time of the sex, so it's not like getting pulled over for drunk driving. It's probably going to be the next day, or at least a couple hours later, that the victim would be in a position to have blood alcohol tested, and that's not the applicable time anyway. So no, it would still be a fact question for the jury: was this person as drunk as she is claiming at the time?

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    Quote Originally Posted by gregor View Post
    With respect to your bright line legal argument, that's not so black and white either. I actually am an attorney, and while you may know what the law says, it's still a factual determination as to whether the facts you have go this way or that way of the legal standard. The law may say "consent is a defense to rape," but it's still a fact question whether what happened constitutes consent or not. If it gets to trial, that's ultimately up to a jury to decide. And it only sets a legal precedent if there's some issue that allows an appeal on a particular point of law- which is probably only distantly related to the actual verdict. So basically, it's up to a jury to decide what consent is, and every jury is different. Go to your local state fair, pick out the twelve people with the least experience with the law, and that's your jury. The guy wearing an "I'm With Stupid" t-shirt will probably be your foreman.
    I was going to say similar -- it's not so much a "bright line" as a fractal shape. There is still, ultimately, a binary answer -- either consent is present or it isn't -- and in that sense it's "black and white", but it's so fact intensive and specific to the circumstances that a jury would be looking at, I think from a lay perspective it would feel much more "shades of grey" if folk actually took the time to understand it.

    My crim pro professor said that one of the reasons rape is such a difficult crime for juries and for attorneys is that, unlike most other crimes, one of the elements, the actus reus of sex, is perfectly legal taken on its own. Contrast murder or assault, the actual act, regardless of mental state, is presumptively not okay in and of itself. Rape is different, because almost everything that matters is the peripheral details of the actors mental state and other circumstances.

    Gregor is right that everything would be facts, and I'll add that everything would be facts that prove the absence of consent, because that is where the burden of proof falls. The fact that this conversation exists out of the "Buffy" context now rather than on its own "Buffy" specific thread discussing the events of 9.01 feels like a tacit acknowledgement that all there is to discuss is general public policy and ethics, because facts in that specific example don't give proof a rape occurred.

    Storm, on your question of whether "X" drunk is too drunk by precedent, it's not likely to function that way because it's a qualitative evaluation. In consent, someone who has one drink but no tolerance could fall over and start snoring and they are too drunk to consent. Or someone could spent a night drinking tequila out of a 1.75 by themselves and still be sufficiently aware of themselves and their surroundings that they aren't too drunk to consent. Drunk driving laws have taken shape around a "legal limit", a numeric threshold at which you're no good to drive legally, but that's not the way consent laws have taken shape -- probably for the very serious public policy reason whereby legislating a strict, objective number that doesn't affect everyone equally on something so private and fundamental as sex would infringe on individual rights too much.

    I'd like to throw a film example at the people, by the way -- who has seen "The Cutting Edge", the perfectly lovely romantic sports/comedy flick starring Moira Kelly and DB Sweeney? About 2/3rds into the movie,
    Spoiler:
    Doug and Kate go out drinking and both get absolutely hammered, but since she is a little bit of a thing with little experience drinking, she's far further around the bend, but she's still completely cogent, and she decides she wants to hook up. Doug demurs, citing her intoxication and earning her anger, up to her kicking him out.

    Now, as a young guy growing up, that stuck with me as... gentlemanly, chivalrous, a sign of his genuine respect and affection for her. But never once does either character, or the filmmaker, give the impression that he would have been committing rape had he just gone ahead, drunk as he was, and relented.

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    I'll add that even though it's frustratingly open-ended and saying what "the law" is involves so many caveats that lay people are pretty right to hate legalese, in my experience most juries get it right. There are GLARING exceptions, and unfortunately the class of sex crimes is one area where the screw-up average is higher.

    Still, the jury system works surprisingly well in the role of fact-finding and evaluating credibility. The problem with sex crimes in general (from a prosecution standpoint) is that there's generally not going to be witnesses for the crucial times, and it's usually going to be a credibility determination between alleged victim and alleged perpetrator. But then you throw in the standard of beyond a reasonable doubt, and you see it's hard to convict someone when you think the victim's statement is more likely true than his, but you aren't sure beyond a reasonable doubt and have to weigh your sympathy with the victim against the possibility of convicting and being wrong. These are very tough cases, no doubt about it.

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    And this thread has just become very relevant again...
    You keep waiting for the dust to settle and then you realize it; the dust is your life going on. If happy comes along - that weird unbearable delight that's actual happy - I think you have to grab it while you can. You take what you can get, 'cause it's here, and then...gone.

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