You’d wind up with singles speak-easies. Licensing and prohibition, setting aside the moral implications of legislating when and with whom people can voluntarily sleep with one another, would be no more effective than other forms of prohibition. You could argue that a drug addict’s judgement is too impaired to take a drug, but as long as they don’t see it that way, even if only when they’re doing it, there’s no one to report the crime of the drug use, which is why drug LE resorts to stings and entrapment and are so ridiculously inefficient at enforcement.
Locking up predators can work if we encourage victims to report the crime. Locking up two people who sleep together when they’re past the point of meaningful consent is fundamentally unenforceable. Fortunately, unlike predators, mutually intoxicated sex doesn’t necessarily involve anyone who wants to do something they’ll regret. The best help there is to teach people to drink responsibly and recognize when they and others are too smashed to give meaningful consent, i.e. consent they’d still give if they were stone-cold sober.
It’s the difficulty with exactly that scenario that I’m highlighting. Some people seem fine and are not, others act like crazy people but can concentrate far more capably than it would appear. I would even argue that some people are so impaired by life, without any alcohol at all, that the idea they could provide meaningful consent is questionable. Depression, schizophrenia, interactions of all types of drugs, personality disorders can all contribute to the edge cases to which I refer.
For some given definitions of responsible consent.
Just to underline, if someone says ‘no’, that is an obvious demarcation, it’s the cases when someone says ‘yes’ but is not cognizant enough to mean it to which I’m referring.
I grant it’s not easily to define or identify the internal state of someone else’s mind. That’s exactly why I don’t advocate giving the law the authority to decide it, even if it were feasible, which it isn’t. With the necessary exception of minors who are wards of their guardians and not yet full citizens with the right of self-determination, the best person to recognize one’s own ability to give consent is one’s self. I’m not saying their judgement is perfect, just more likely to be accurate than any law attempting to draw a line around their state of mind. Therefore, the more people can be taught to recognize their own level if impairment, the safer they will be from giving consent they might regret when sober.
We can also teach people to ask their friends in the process of giving consent (going off with someone) if it’s really what they want and whether they’re too drunk and might be better waiting until they’ve sobered up some. This has the double effect of demonstrating to someone that they have support to make the decision either way and gets them to think twice about it.
Right, and I agree. The problem is defining cognizant. I don’t think laws can do that because, as you point out, what impairs judgement varies from person to person. The point, however, is moot since there would be no way to enforce such laws. Even if you passed a law making illegal to knowingly accept consent from anyone who had any amount of alcohol in their body, it wouldn’t be enforceable. Different people have widely differing alcohol tolerances, so any amount above that would invariably miss those handful of people who literally can’t handle a single sip of alcohol, and every increase would miss more people. I have little doubt that some jurisdiction somewhere on Earth will try this at some point, and that it won’t work. If, on the other hand, you teach people to recognize when their own judgement is impaired, that seems like the most effective means of reducing non-meaningful consent.
The goal, IMHO, shouldn’t be to hold people to under what conditions others think it’s okay to consent, but to empower them to make a choice they won’t regret (not that others wouldn’t). In the end, the purpose is sexual self-determination, not external control.
Surely you mean the other party involved, as one has limited insight into their state of mind?
If university campuses are any measure of future implications then I would disagree. Consent can be taken away retroactivly (if in fact it can be considered to have ever really been given), once full cognisance is applied to memories of previous mind states.
I agree with this sentiment. But for an impaired mind, determining those circumstances becomes exactly the problem.
I’m not sure what you mean, but I mean the person who must decide whether to give consent or not is a better judge (not always a good judge) than a one-size fits all law dictating it for them.
Agreed. I’m not saying its a perfect or even great solution, only more effective than a blood-alcohol limit for consent.
That’s why I’m proposing absurd hypotheticals involving ludicrous brain scanning technology. The law lacks severely in determining culpability in situations where one is not capable of having said yes and having meant it in a meaningful way.
Agreed. You can have laws that hold someone culpable for accepting consent from someone visibly impaired. The problem there is that if one person is drunk, the other person probably is too, and you’d have to hold culpable both or all who accepted consent from a drunk person. Even then, as much as rape goes unreported, almost no one would report someone for accepting consent from them while they were intoxicated, most especially if, as in the case, as @Foggen mentioned that started this line of discussion, of mutual intoxication, since they themselves would be culpable for also accepting consent from someone who was intoxicated.
Which leads to unsettling questions of gender, or at least, seems to in some highly publicised cases as of late. I can’t even imagine how that attitude (of male culpability within a drunken tryst) translates to the sphere of trans people. The whole thing is a mire.
That is the elephant in the thread. However, I will say that with rape the gender disparity is an actual reflection of reality. Men do get raped, but normally (not always) its by other men. Women are raped far more often because of A, the usual disparity in upper body strength and B, the rape culture that encourages and protects predominately the rape of women. Rapists should be punished no matter who they or their victims are, but in practice this would still mostly mean men being punished for raping women.
With the question of meaningful consent we’re talking about mental cognizance. And as already pointed out, intoxication is mutual more often than not. Unless you’re going to pass a law that says only men can give consent when intoxicated, there shouldn’t be the same gender disparity regarding meaningful consent. Of course there’s this incredibly sexist stone-age attitude in society that men always want sex and women never do, that it’s something women give to men for whatever other reason than actually enjoying it themselves. Fortunately that attitude is beginning to dissolve as women are less slut shamed for their sexuality and more feel comfortable expressing it.
I think the issue, as we’ve highlighted, is even more troublesome than that, It’s about the appraisal of the other person’s state of mind. Not the intention to rape. Men are statistically more likely to rape, but in the those of edge cases which we are discussing, that of the failure to appropriately appraise the other’s state of mind (woman or man, trans or cis) the issue lies within the sphere of determining that other’s state of mind, specifically when they are appearing to consent.
All of the other types of cases you just highlighted, wherein rape is physically forced (although I suppose physical entrapment can happen in the cases we are discussing also), seem obvious to a conscientious mind. It is the proliferation of alcohol and alcohol culture, even within the mind of the person appearing to consent but not able to, that the troubling edge cases, which seem to be encouraged by currently configured society, seem to fester.
IMHO, it’s not the use of alcohol, but the abuse of alcohol and lack of responsible attitudes around it that allow things like this to fester. So if that’s what you meant by alcohol culture, then I wholeheartedly agree. I would go further and say that there’s a wider culture of irresponsibility regarding everything from food to drugs to finances to sex itself, because instead of being taught to think responsibly for themselves about their decisions, they’re given puritanical after-school special ethics training and sent out to destroy themselves as soon as they find out they were shielded and largely flat-out lied to by the people who were supposed to prepare them.
An interesting idea. Maybe even feasible in today’s era of smart devices provided it didn’t require the normal standard of the witness being present in the flesh. But while it would be an interesting way to make someone think a bit harder about their decision to give consent, it wouldn’t solve the underlying problem of imparied judgement unless, as @miasm suggested, the notary had some means of telepathic inference of the client’s mental state.
I’ve seen a bunch of stories on that as of late. Create a topic, maybe boingboing will publish. I think kids as young as five could pick up the (very) basics.
And or is basic basic stuff.
Didn’t I just read a story about a judge arguing that immigration case law basics could be taught to children as young as 4? Not that I agree on a topic so insidiously politicised but I think the basic idea, that kids can pick up better decision making through exposure to philosophy is sound.
See I can almost understand rapist (like the get in the van/break into your house kind) and child abusers etc. I get it, evil people are going to evil.
That wasn’t who that PSA was made for. It’s made for the pushy bro who keeps either ignores ques, misreads them, or doesn’t understand she isn’t being coy for the thrill of the chase. That your advances are actually unwanted. Those that never would consider what they did was rape, that it was just all part of the game and persistence paid off.
And to your other point, yes I know people who were horribly abused. Including one by a step father from like 10 to 16, and who went to trial and failed getting a conviction. Tragic shit like that.
See, I think they know exactly what they’re doing, and just don’t care because they expect to get away with it. The reason being being that I think when their target doesn’t just give up, they’re perfectly willing to take her by force.
