Skip to main content

In this day and age where we understand basic things like women are people and not property. And that we live in a civilized society which means the law does not require someone constantly standing over you to prevent you from doing harm to others. To have to not only see Tweets like this:

But knowing it was prompted by the Stubenville case makes it infuriating.
Follow me over the fleur-de-Kos for more NSFW discussion about consent.

One of the current defense stratagems is to claim the unconscious or semi conscious victim did not proactively say no to being sexually assaulted.

I understand how we got here. We have fundaloons imposing religous based 'abstinence only' education on our children. What this means is the discussion of sex is just not done. No talking about sperm or condoms or STI's. No talking about anal or oral sex. No talking about sex what so ever.

IWO they want our children to be complete imbeciles:

Because science makes understanding sex and reproduction is not some 'gift' imposed upon us by a mythical sky idol. And if children have access to condoms then little Gay boys can no longer be quietly eliminated by catching a disease they should have learned about in school instead of learning about saving him self for a marriage that his neighbors are trying to outlaw.

And little girls can be tied to a child early on and slut shamed at the same time.

But bring in male privilege and partying unsupervised.

So we have a situation where alcohol is involved alcohol being itself a neurological depressant. Combine this with the drugs that inhibit further and consent nonetheless consciousness is not going to be easily found.

My ability to read legal pages is limited by my budget of zero. But I found a site that outlines a general legal attitude about intoxication and rape:

1002. Rape of Intoxicated Woman or Spouse

The defendant is charged [in Count __] with raping (a woman/ his wife) while she was intoxicated.

To prove that the defendant is guilty of this crime, the People must prove that:

    1. The defendant had sexual intercourse with a woman;

    2. He and the woman were (not married/married) to each other at the time of the intercourse;

    3. The effect of (a/an) (intoxicating/anesthetic/controlled) substance prevented the woman from resisting;


    4. The defendant knew or reasonably should have known that the effect of (a/an) (intoxicating/anesthetic/controlled) substance prevented the woman from resisting.

Sexual intercourse means any penetration, no matter how slight, of the vagina or genitalia by the penis. [Ejaculation is not required.]

A person is prevented from resisting if he or she is so intoxicated that he or she cannot give legal consent. In order to give legal consent, a person must be able to exercise reasonable judgment. In other words, the person must be able to understand and weigh the physical nature of the act, its moral character, and probable consequences. Legal consent is consent given freely and voluntarily by someone who knows the nature of the act involved.

Additionally it is clear in many other types of legal cases that intoxication precludes consent. Such as this abstract on emergency medical issues regarding consent from intoxicated patients:
In general, patients who present to the Emergency Department with an altered mental status are deemed legally incompetent to make medical decisions regarding their care. The alcohol impaired individual who refuses treatment is often not capable of understanding the risks, benefits, and alternatives of treatment; therefore, an informed decision can not be made. The legal limit for driving in terms of blood alcohol has very little to do with the capacity to make informed decisions. Intoxication is not used to indicate a level that increase the risk of injury while driving, but rather, a term used to describe a level which produces clinically identifiable impairment which may alter sensation, coordination, judgment and insight. If blood alcohol levels are obtained and they are well in excess of the legal limit to drive, you must assume that capacity has been lost. Both judge and jury continue to put stock in the 'legal limits'.

Some states have specifically legislated that there shall be no legal recourse against physicians for examining and treating a patient without his or her consent if the patient is intoxicated or under the influence of drugs, or otherwise incapable of providing informed consent. In Mississippi, the law defines who may consent to medical treatment. It excludes those of unsound mind, related to “natural state, age, shock, anxiety, illness, injury, drugs or sedation, intoxication, or other causes of whatever nature.”

In states without such statutes, case law supports the underlying philosophy that intoxicated patients are incapable of giving consent. In Miller v. Rhode Island Hospital, the Rhode Island Supreme Court held that a patient’s intoxication may render him incapable of giving informed consent, and in emergency situations, that consent may be waived. In this case the plaintiff, Miller, had a blood alcohol level of .233 and was involved in a MVA. The attending surgeon decided that with the nature of the accident and the patients intoxication a diagnostic peritoneal lavage was indicated, which he performed over the patient’s objection. In Blackman v. Rifkin, the Colorado court found that intoxication coupled with head trauma permits emergency physicians to restrain a patient and imply consent necessary to treat his condition.

Consent also requires an ability to understand the conditions one is consenting to. We do live in a society where phone contracts are longer than Howl designed to confuse the reader of those contracts. So informed consent is a concept that is hard to fathom in this culture. But a semi-conscious person is not expected to be informed in any case.

Now before I close there is a concept in the BDSM community called consensual non-consent. This is a way to ensure that all parties are cognizant of the encounter in a role play situation where one or more of the participants is either physically restrained in such a way as to not be able to consent or if the role play itself involves a forced encounter scenario. But the important part of this is all parties are aware that it is exactly supposed to be occurring and they are willing participants despite their verbal entreaties otherwise at the time. Since drugs are not used in BDSM play having a drunk/drugged unconscious person is not going to be one of the scenes.

Originally posted to Sex, Body, and Gender on Sat Mar 16, 2013 at 08:17 AM PDT.

Also republished by Sluts and Anonymous Dkos.

Your Email has been sent.
You must add at least one tag to this diary before publishing it.

Add keywords that describe this diary. Separate multiple keywords with commas.
Tagging tips - Search For Tags - Browse For Tags


More Tagging tips:

A tag is a way to search for this diary. If someone is searching for "Barack Obama," is this a diary they'd be trying to find?

Use a person's full name, without any title. Senator Obama may become President Obama, and Michelle Obama might run for office.

If your diary covers an election or elected official, use election tags, which are generally the state abbreviation followed by the office. CA-01 is the first district House seat. CA-Sen covers both senate races. NY-GOV covers the New York governor's race.

Tags do not compound: that is, "education reform" is a completely different tag from "education". A tag like "reform" alone is probably not meaningful.

Consider if one or more of these tags fits your diary: Civil Rights, Community, Congress, Culture, Economy, Education, Elections, Energy, Environment, Health Care, International, Labor, Law, Media, Meta, National Security, Science, Transportation, or White House. If your diary is specific to a state, consider adding the state (California, Texas, etc). Keep in mind, though, that there are many wonderful and important diaries that don't fit in any of these tags. Don't worry if yours doesn't.

You can add a private note to this diary when hotlisting it:
Are you sure you want to remove this diary from your hotlist?
Are you sure you want to remove your recommendation? You can only recommend a diary once, so you will not be able to re-recommend it afterwards.
Rescue this diary, and add a note:
Are you sure you want to remove this diary from Rescue?
Choose where to republish this diary. The diary will be added to the queue for that group. Publish it from the queue to make it appear.

You must be a member of a group to use this feature.

Add a quick update to your diary without changing the diary itself:
Are you sure you want to remove this diary?
(The diary will be removed from the site and returned to your drafts for further editing.)
(The diary will be removed.)
Are you sure you want to save these changes to the published diary?

Comment Preferences

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site