A not completely unreasonable objection to the general assumption that in no- or badgered-consent situations both parties can be equally intoxicated yet one party can be consdered a victim and the other a perpetrator. The objection does become unreasonable when an analogy is drawn between a drunk driver who's held accountable for passing out behind the wheel and a drunk victim who passes out where he or she can be assaulted. For both not-unreasonable and unreasonable objections here's how that thing works:
If I roll a drunk for his wallet he’s a victim, no matter how drunk he was. And if I’m drunk when I roll him I’m still a mugger, no matter how drunk I was. Same if a drunk murders another drunk — doesn’t matter how drunk the parties were, the victim’s the victim and the murderer’s the murderer. Now, you can argue whether that’s fair or unfair, but you can’t say it’s an unusual distinction.
Similarly, in almost all law a contract or agreement signed while drugged or intoxicated can be invalidated with the completely reasonable argument that when drunk or drugged one is not capable of making sound decisions. And again, it doesn’t matter whether the counterparty to the signature was drunk, nor does it matter how drunk that party was.
So. Even if I was drawing an analogy between being too drunk to drive and too drunk to either consent or accurately discern consent in others, instead of making a pharmacological distinction, it still wouldn’t matter. Or wouldn’t matter if there wasn’t the historical assumption that a woman who gets drunk “deserves” to be assaulted because she would have been "more careful" had she remained sober.
But!
Again, I making a pharmacological distinction not drawing an analogy: if you're so drunk your friends are asking you for your keys you're also too drunk to make a competent decision about your own or a prospective partner's consent.
Tags:
Figleaf, Of course we
Submitted by samantha (not verified) on Sat, 2012-12-22 10:48.Figleaf,
Of course we shouldn't be saying that all victims must be sober in order to "count." But where it seems to me that this gets complicated is that after a mugging, one person is missing the wallet and the other one has it; after a shooting, one person is dead and the other is alive. But after intercourse between two drunk people, both people had sex (or, were raped?). I agree with the upshot that people too drunk to consent or to get consent shouldn't be having sex, period, but this doesn't much help with establishing the identities of perpetrators and victims.
-sam
Hi Sam. Technically it
Submitted by figleaf on Sat, 2012-12-22 17:02.Hi Sam. Technically it doesn't help with establishing the *guilt or innocence* of perpetrators and victims. But based on considerable case law on the liability of bartenders and hosts when they serve to someone who's intoxication later leads to injuries or death, the fact that it's vague isn't as important as one might reflexively make it. Specifically, a guideline, rule, or law doesn't have to handle *every* edge case to severely narrow the area in which edge cases -- what's sometimes called the 'gray area" -- occurs. Judges, prosecutors, and defense attorneys have established some pretty effective methods for determining drunkenness and liability after the fact, even in cases where "hard facts" like blood alcohol levels are in question. And therefore it shouldn't be that difficult to apply those same established criteria to questions of whether or not a victim was deemed competent to drive, and therefore whether he or she was competent to autonomously decide to have sex.
Now mind you, this seems to be the only area where establishing an accuser's intoxication or sobriety might be used against his or her assertion of having been attacked. (For instance how many non-sexual assault victims have to demonstrate that they were sober before someone will accept their accusation that the didn't want to be in a fight? Even if the accused said no, it was all in good fun and it wasn't fighting it was consensual sparring.) But that's actually neither here nor there -- another edge case and an analogy to boot. But in the main, anyone with experience in the field of host/bartender liability would have no trouble in the field of intoxication assault.
Oh, and speaking of bar fights and assault there's another metric where bartenders (probably more than lawyers or judges) are likely to have perfectly average judgment: assessing whether someone in a bar fight was just the loser of a two-party fight or the victim of a one-party fight. Even when both parties to a fight are equally intoxicated body language, behavior, shock response, between someone who actively participated in a fight but lost and someone who hadn't wished to fight at all is readily apparent. Even a day later when they've sobered up. I'm not about to say "oh, let's just be all subjective about it" but I'm very confident that it's an assessable and teachable skill. That, now that I think about it, might be an interesting public-safety research project.
Bottom line, though, is that based on several years of third-hand, second-hand, and I'm now very ashamed to say first-hand experience in college bar culture in the mid-1970s (the era Mary Koss was prompted to begin her research, incidentally) the issue isn't *quite* as clear-cut as some proponents say but it's *waaaay* less ambiguous than almost any detractors say.
Final point: in general very fact that opponents of something quibble vigorously about edge cases suggests they know pretty darn well there are broad areas that the resisted distinction will cover perfectly well. An example from bartender liability law would be bartenders who flip out about patrons who cause accidents after only half a glass of something... when they'd routinely set a drink next to a patron who'd ordered it and then passed out at the bar. (One of my colleagues used to joke "aww he ain't drunk, I just seen his lips move.") Again, edge cases, sure, but lots, and lots, and lots clear-cut liability behind those edges.
-- fl