Responding to my last post, On Guilt or Innocence While Intoxicated a commenter named Samantha who shortens it to Sam at the end pointed out that my argument that the line dividing competence to consent to sexual overtures breaks down at the same point one is intoxicated enough that reasonable third parties would ask for their car keys.

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.

Brief quibble: It might be more accurate to say it doesn't help much with establishing the guilt or innocence of perpetrators.  But I think it can still be used consistently and fairly to determine whether the party or parties were to "tipsy" to competently consent or competently distinguish a prospective partner's consent.

I don't think this is all that big a problem because to a large extent it's already been solved in other contexts. 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.