This raises an interesting legal issue because there is a precedent of implied consent. Try this on for size... If you are convicted of drunk driving, even if you made the decision to do so while legally intoxicated, then you are considered to be guilty even if your decision making at the time was deficient. The legal fiction is that by getting drunk you made the decision to drive, even if that decision isn't made for hours afterwords. By the same reasoning (and I am not advocating this concept, just exploring it) it could be said that she consented to have sex when she started drinking even though she may not have yet met the man. Here's another interesting interpretation. If being drunk made her unable to consent, would not being simarialy drunk make him unable to consent? Were they raping eachother? Or does the law only apply to women?
erm... what is? The fact that a woman can voluntarily get drunk out of her face and then use her lowered reasoning as an accusation of a crime? That the man had sex with a barely conscious woman? That people get that drunk that they need to invent laws to govern people's conduct when they should in modern society really be capable of looking after there selves by keeping cognisant?
I think alot of men are currently at risk of being accused of rape when the woman making the accusation may well have consented but been too drunk to remember this in the morning, i think im correct in saying that the sentence in the UK can be as high as 8 years in prison. I think their is a diference between trying to get some one out of their face enough so you can have sex with their unconcious body, and someone who has consenting sex with someone ( lets say they are both drunk ) and then later that consent is removed after the act due to regret on behalf of the woman or the woman forgeting she gave consent. This highlights most notably the problem that my country has with alcohol and what consequences it can lead to.
To be fair, this kind of thing happens to a lot of students - they get utterly wasted, have sex with someone and don't remember a) agreeing or b) anything about it. 99.9% of them just take it as being a student, because, at the time, there's almost no doubt that they did consent to it, so legally it's a non-issue, and taken as part of being mashed. The real problem comes when someone makes an issue out of it, like this, and then the law gets questioned. I have no doubt that the law should cover people who are too intoxicated to consent, but when it gets to the point of removing people's liability when drunk, it's too far. There's no real middle-line that can be drawn either, because if you say women who are intoxicated are already consenting, then you'll get people being exploited against their will. Have it so that they cannot consent while intoxicated, and you'll get hundreds of cases of two drunken people having a one-nighter and regretting it in the morning.
Cthippo is right. The issue is one of valid and informed consent. The woman was drunk, and therefore arguably was unable to give valid and informed consent. However the man was drunk also. Therefore arguably his decision to proceed having sex with the drunk woman was also impaired and not valid and informed. Theoretically at least it could be argued that the woman took advantage of the man as much as he took advantage of her. What's good for the goose, is sauce for the gander. But a drunk driver does not get out of jail free for arguing that he was not able to make a valid and informed decision on whether it was such a good idea to get behind the wheel of a car. He remains responsible for his actions. Therefore it could similarly be argued that both man and woman are responsible for their decision to have sex. The argument that both really already had decided how the night was going to end before they became inebriated is a valid one. The issue, it seems to me, comes down to just how drunk, and therefore how incapable of consent to a specific act either party was. Remember, valid and informed consent or decision making is specific to the decision/consent issue in question; it is not generalisable. It is also specific to the exact time at which the decision/consent took place. A person who has capacity for consent on one thing may not have it on another; when they have capacity at one point in time that is no guarantee they have it later (or before). A person is incapable of driving safely well before they are incapable of making a valid and informed decision on whether they should drive (or have sex, for that matter). When it comes to sex, it's the other way around: a person's loss of capacity to consent is before the point at which they are unable to have sex (sex not requiring particularly highly tuned cognitive skills or alertness). When the woman has passed out, it is fair to say she is well past the point of making valid and informed decisions about it (doesn't matter if she agreed earlier; consent is specific to the moment of consent). The man may have been unable to make a valid and informed decision about whether to have sex with a nearly unconscious woman also, but the fact was that he was still sober enough to perform, so he probably was at least more conscious of what he was doing. Relatively speaking, he was the more responsible of the two. However I agree with the judge that this is much more a case of drunken stupidity on both sides, than rape on his. Just like you can reasonably expect a driver to take measures to prevent ending up drunk behind the wheel when he is still sober and able to use common sense (e.g. take a taxi, and leave the car at home), you can reasonably expect people to not get paralytically drunk when they are in a potentially vulnerable situation (out on the town). Better chalk this one up to experience. The true test of capacity is whether both will learn from it.
At the end of the day, does it not come down to his word Vs hers? Unless they're into the group thing, they were the only ones in the room when the 'crime' happened. Even then, both their words are dubious as they were intoxicated. Basically, if you get so drunk that you can't control yourself or your actions etc then how can you possibly know if you consented or not? I think rape is a horrible crime and I wouldn't want any woman (or man) to have to go through it. But being forced while you're sober and blacking out due to drink or drugs and waking up with the person you got wasted with are completely different IMO. I know I've woken up next to a fair few munters in my time but I've never thought of accusing any of them of rape. I just blamed my own stupid ass for getting so drunk that I went through with it.
A closer motoring scenario might be that a pedestrian has a duty to take care when crossing the road; if they don't and get knocked up down the driver's responsibility is greatly reduced.
