Consensual drunken sex = rape?!

[ManyAntsDefeatSpiders]

Dangerous sex as state enters bedroom

IF you are a man, sex got a whole lot more dangerous. Consider this scenario.

A woman meets a man in a bar or at a party. She likes the man. He likes the woman. She may not normally be a sex on the first night kind of girl. But they have a number of drinks. Fuelled by alcohol, they put aside their inhibitions. The woman goes home with the man. She says yes to sex. In the morning, the man makes it clear it was a one-night stand. The woman is deeply offended and regrets her drunken decision. She claims rape. Under new rape laws introduced in NSW this year, that man is likely to be convicted as a rapist. He is likely to go to prison.

Rape reform in NSW means that post-coital regrets can now be refashioned into rape claims that send innocent men to prison. That's why Gold Coast Titans footballer Anthony Laffranchi is a fortunate man. He walked free from a rape charge last week after the prosecution failed to establish lack of consent. He and his then Wests Tigers NRL teammates met a woman at the Sapphire Club in Kings Cross in September 2006 and continued to party at a teammate's apartment. The footballer said he had consensual sex. The woman, who was "significantly affected" by alcohol, claimed she was raped. Had Laffranchi met the woman after January this year, he would probably be a convicted rapist facing a long stint in prison.

Let us be clear. Rape is wrong. It is a crime that calls for imprisonment. It can destroy a victim's life. But let us be clear about something else. Wrongful claims of rape are made. And they can destroy a man's life. No one knows whether a rape occurred that night when Laffranchi had sex with the woman. But under the old laws of rape, the defendant's actual state of mind was critical. If the accused had an honest belief that sex was consensual, the rape charge failed. And when the evidence became a simple contest between "he said, she said", a reasonable doubt would lead to an acquittal. Criminal law says that is as it should be; we are talking about a serious crime and imprisonment.

Not anymore. Now the rules have changed. Now, in a contest between he said it was consensual and she said it was rape, a jury may be forced to convict the man of rape without any further corroborating evidence.

The new laws say that if a woman is "substantially affected" by alcohol, she may lack the capacity to consent to sex even if she says "yes" to sex. More disturbing, even if a man honestly believes consent was given, his state of mind is now irrelevant. Now, the man is effectively deemed to have knowledge of lack of consent if there are no reasonable grounds for believing consent was given. And it gets worse. When asked to determine whether the man had no reasonable grounds for believing the woman gave consent, the jury must ignore the fact that the man was drunk.

In other words, the fact that the woman who says "yes" to sex is drunk is highly relevant: it may vitiate her consent. But the man's intoxication must be ignored when working out whether he had "reasonable grounds" for believing consent was given. It is a curious law that says alcohol only affects the cognitive abilities of women.

These new rape laws degrade women. They treat them as helpless victims, stripping them of the power to make decisions about sex after consuming alcohol. Down a few too many Bacardi Breezers, and the law says you are no longer responsible for your actions. Is this really the message we want to send to young women?

And for men, it's even more serious. As the President of the NSW Bar Association, Anna Katzmann SC, has pointed out, these new laws mean that the intoxicated man will be treated just like "the true rapist, the aggressor who inflicts himself on his victim, knowing they do not consent". There is no gradation of penalties.

Why is this happening? Lawyers point to the perfect storm. The intoxicated man is trapped between a strident but misguided feminist agenda and the law and order lobby driven by perceptions that rape conviction rates are too low.

In reality, the low conviction rates reflect nothing more than the reasonable doubt that arises when, absent other evidence about an alleged crime in private, a woman claims rape and a man claims sex was consensual.

Stephen Odgers, a senior Sydney silk who chairs the Criminal Law Committee of the Bar Association, told The Australian that, while we all want a civilised world where people treat each other with mutual respect in all walks of life, including sexual interactions, the new rape laws are a "very blunt and brutal instrument" to educate and civilise us about sexual relations. He fears that the new rape laws, in effect, can be used to criminalise those who merely treat others with disrespect after a night of sex. "And people will end up going to jail for long periods as a result." That is why his committee, made up of almost equal numbers of prosecutors and defence lawyers opposed the reforms.

So how does a man navigate the consent nightmare? Bring a witness into the bedroom? Perhaps bring along a lawyer to guide him through every stage of consensual sex from foreplay to orgasm to ensure that the final, breathless and drunken "yes, yes, yes" is genuine consent? Similar rape reforms in South Australia led independent MP Ann Bressington to suggest earlier this month that perhaps "parliament could devise a sex contract which men could carry around in their pocket, next to their condoms". Bressington is concerned that otherwise sensible rape reform has gone too far, leaving "very little room for a decent defence of a man who has been falsely accused".

False accusations are helped along, says Heather MacDonald in the winter edition of City Journal, by feminist victimology and rape industrialists intent on redefining drunken sex where a bloke wants to get inside a girl's knickers in terms of the classic case of domination rape by power-hungry men.

If you are a man, you are entitled to be frightened by the new order. While society is still committed to a 1960s model of sexual liberation, encouraging men and women to explore their sexual desires, the state is also entering the bedroom trying to educate us about appropriate sexual conduct. Unfortunately, we may discover that civility cannot be legislated by criminal sanction without innocent men going to prison.

Janet Albrechtsen | April 30, 2008Link. (http://www.theaustralian.news.com.au/story/0,25197,23619670-7583,00.html)

I thought this was a well written article that puts forth agreeable arguments.

I think that similar legislation is being considered in England too, but correct me on that if I am wrong.

Thoughts?

Edit: As pointed out below this article is quite misleading in areas.

[Herman]

Is this serious?

If it is, then I can only say "holy cow".

What's wrong with these people? They seem to want to find a rapist in every corner. And of course, in order to appease these "neo-feminists", they have to make it seem as if all men were rapists.

Instead of passing silly laws like this one, they should instead be focusing on actually giving proper sex education, not just "he has a penis, she has a vagina". There are so many psychological and physical aspects to sexual relations, men-women relationships and so on, that just describing what genitalia we have isn't enough.

[ManyAntsDefeatSpiders]

Yes, I don't think sex education is anywhere near as satisfactory as it could be.

My sexual education consisted of a twenty year old video showing a woman giving birth!

This was at a time when I was already having sex and frankly the video probably had more to do with trying to scare us out of having sex, rather than showing how to prevent pregnancy in the first place...

This was a Christian school mind you...

[Plagueround]

Fosters. Australian for rape.

(Ok, tasteless joke...but now that it's out of my system.)

Good article, and hopefully these laws don't last long. It's discouraging when things like this happen because they are neither progressive or feminist, and making men feel like some sort of chauvinistic pig anytime they are around women certainly isn't going to help society move toward equality.
It enforces patriarchal stereotyping and treats woman like incapable idiots. Alcohol lowers inhibitions, but it doesn't make a person completely unable to assert their limits (unless of course they pass out, but if a person passes out they can't consent).

[Guerrilla22]

The concept of what exactly constitutes consent has plauged legal systems for years. Sometimes there definitions could be rather absurd. This seems to be one of these instances. In some states in the US someone could only be charged with rape if the victim literally said "no". Which is pretty absurd also.

[ManyAntsDefeatSpiders]

In some states in the US someone could only be charged with rape if the victim literally said "no".

Wow, that's news to me.

I suppose that's the opposite side of the coin where it disadvantages plaintiffs...on one hand this denies implied consent for men (hell, it denies explicit consent)...on the other that denies implied dissent for females because there are numerous ways in which you can explicitly and impliedly deny sex without using 'no.'

I mean, you could rape someone who was sleeping without them saying no...yet it is implied that you don't want them to fuck you whilst you are unconscious!

[Plagueround]

Yes, I don't think sex education is anywhere near as satisfactory as it could be.

My sexual education consisted of a twenty year old video showing a woman giving birth!

This was at a time when I was already having sex and frankly the video probably had more to do with trying to scare us out of having sex, rather than showing how to prevent pregnancy in the first place...

This was a Christian school mind you...

I'm not sure what's more damaging: No sex ed at all, or sex ed at a religious school.
My sex education classes were in a catholic school. Our principal came in and talked about his breeding dogs. :(

[Vageli]

I'm not sure what's more damaging: No sex ed at all, or sex ed at a religious school.
My sex education classes were in a catholic school. Our principal came in and talked about his breeding dogs. :(

This seems to be the case throughout the country: either teaching misinformation or abstinence-only teaching. On second thought, abstinence only teaching seems to be the de facto in the States.

[Bilan]

This is disgusting and absurd, and I am thoroughly fucked off that such a ridiculous law can be passed anywhere.

I agree, this insults women, and treats them like children, who can't be held responsible for their actions.

I am so sick of this fucking country.

Also, I thikn the consent issue is quite a problem in itself, but I certainly think there are ways in which one can tell if someone has not given consent - whether through directly saying it, or through body language.

[Saorsa]

It's tricky issue... but I think we need to look at stuff like this in the conext that women remain an oppressed group within our society, and women who come forward with rape claims have to deal with huge stigma, questioning that no man would be subjected to and generally sexist attitudes.

The assumptions seem to be that rape victims somehow "ask for it". They get asked questions like "had you been drinking", and "what sort of clothes were you wearing", or "were you dancing in a flirtatious manner with the accused" and so on.

I think that that sort of thing is much more dangerous than the potential for men to be wrongly accused. If women continue to be made to feel that if they come out with rape claims, they will be subjected to a humiliating inquisition, they won't come out with claims at all, and rapists will go free.


And for men, it's even more serious. As the President of the NSW Bar Association, Anna Katzmann SC, has pointed out, these new laws mean that the intoxicated man will be treated just like "the true rapist, the aggressor who inflicts himself on his victim, knowing they do not consent". There is no gradation of penalties.

I think that's a good point... at the very least, it should be like manslaughter/murder. Premeditated rape is worse than drunken rape.

But by the same token, should we let a guy who runs over a 6 year old girl go free or get off on very light charges, because he was drunk? I don't think so. He should be tried for manslaughter at the least, lesser degree murder at the most. A similar method should be taken towards rape.

[Guerrilla22]

I mean, you could rape someone who was sleeping without them saying no...yet it is implied that you don't want them to fuck you whilst you are unconscious!

Yeah exactly. I'm not sure if any states still have this definition of consent, but it wasn't changed in Michigan untill the 1990s.

[Bilan]

It's tricky issue... but I think we need to look at stuff like this in the conext that women remain an oppressed group within our society, and women who come forward with rape claims have to deal with huge stigma, questioning that no man would be subjected to and generally sexist attitudes.

True.



The assumptions seem to be that rape victims somehow "ask for it". They get asked questions like "had you been drinking", and "what sort of clothes were you wearing", or "were you dancing in a flirtatious manner with the accused" and so on.

These are questions certainly of cunning and cruel lawyers, and of which are certainly used for humiliation, and come back to the basic attitude of a patriarchal society, that women can some how ask for themselves to be raped because of what they're wearing - a picture of subservience comes to mind.

But is the question 'had you been drinking' really a question of 'asking for it'?
I don't think it is. I think that your judgement, and theirs, has to be put into question.
Regretting your actions the next day is awful, but it does not constitute rape, I do not think. Whether it constitutes rape depends on whether the person feels as if they were pressured into it, or if when asking (by whatever means) the partner to stop, they refused. (I'm sure it can manifest in other ways, too).



I think that that sort of thing is much more dangerous than the potential for men to be wrongly accused.

Certainly both lead to humilation, degradation, and one to jail time...



If women continue to be made to feel that if they come out with rape claims, they will be subjected to a humiliating inquisition, they won't come out with claims at all, and rapists will go free.

Indeed





But by the same token, should we let a guy who runs over a 6 year old girl go free or get off on very light charges, because he was drunk? I don't think so. He should be tried for manslaughter at the least, lesser degree murder at the most. A similar method should be taken towards rape.

That's a grossly different issue, comrade. Namely, one though, was a mistake, was an act where he wilfully put others at risk, and furthermore, the 'guilt' can not be disputed - the child was run over by 'the guy', and was killed by his actions -the evidence is in the child's death.

The issue of rape, in this circumstance, is completely different, because, both were intoxicated, and their judgements were, like that from the car accident, slightly (or majorly, depending on how drunk they are, and how much it affects them, etc) 'out of whack'. Neither was necessarily raped, nor did either necessarily give their full consent.

If two people engage in that sort of activity, especially when intoxicated, people can only go from indications from the partner on whether or not they give their full consent to the actions - that is, through body language, 'words', or (if there's any) other form of communication.

[Kropotesta]

oh shit

[Tower of Bebel]

Why can't a drunken woman be a rapist in such a case? This example is indeed degrading women to all-time victimes; the weaker sex.

[ManyAntsDefeatSpiders]

It's tricky issue... but I think we need to look at stuff like this in the conext that women remain an oppressed group within our society, and women who come forward with rape claims have to deal with huge stigma, questioning that no man would be subjected to and generally sexist attitudes.

I don't deny this.

But I also think there is a huge stigma towards those whom are accused of rape. Even if their innocence is proven (or perhaps more correctly, their presumed guilt not substantially proven).

And essentially what this does is remove the presumption of innocence, or at the very least, access to justice.


The assumptions seem to be that rape victims somehow "ask for it". They get asked questions like "had you been drinking", and "what sort of clothes were you wearing", or "were you dancing in a flirtatious manner with the accused" and so on.To be fair I don't think these sorts of questions would be allowed or would be severely restricted in there application. Questions concerning the character of an accused and of the alleged victim are allowed - indeed they are important in assessing good character which is pretty relevant when assessing a 'he said she said' case (of course, such scenarios often do not meet the required burden of proof anyway). But there are laws which restrict the types of questions to be asked:


“Under the common law, an alleged sexual assault victim was open to cross-examination regarding his or her past sexual history with the accused and persons other than the accused, and even regarding his or her general reputation in the community for chastity. In addition, the accused was permitted to adduce evidence of this type as part of his or her case in chief. These rules have been the subject of great controversy . . . As a consequence, all states have enacted legislation that limits the extent to which the character of an alleged victim may be impugned in sexual assault cases. This legislation, commonly referred to as the ‘rape shield’, protects alleged victims from revelations concerning their prior sexual conduct. . .” (from some random evidence text book).

Here is the legislation concerning questions regarding the sexual history of the victim:


Sexual reputation of complainant, evidence of
In proceedings for a sexual offence, evidence relating to the sexual reputation of the complainant shall not be adduced or elicited by or on behalf of an accused.

Sexual disposition of complainant, evidence of
In proceedings for a sexual offence, evidence relating to the disposition of the complainant in sexual matters shall not be adduced or elicited by or on behalf of an accused.

Sexual experience of complainant, evidence of
(1) In proceedings for a sexual offence, evidence relating to the sexual experiences of the complainant, being sexual experiences of any kind, at any time and with any person, not being part of the res gestae of the proceedings, shall not be adduced or elicited by or on behalf of an accused unless leave of the court has first been obtained on application made in the absence of the jury (if any).
(2) The court shall not grant leave under subsection (1) unless satisfied that ¾
(a) what is sought to be adduced or elicited has substantial relevance to the facts in issue; and
(b) the probative value of the evidence that is sought to be adduced or elicited outweighs any distress, humiliation or embarrassment which the complainant might suffer as a result of its admission.


I think that that sort of thing is much more dangerous than the potential for men to be wrongly accused. If women continue to be made to feel that if they come out with rape claims, they will be subjected to a humiliating inquisition, they won't come out with claims at all, and rapists will go free.I disagree.

What, happens, in my view, is an anti-feminist backlash occurs against such unjust laws, and what we fear most, that females are presumed to be liars, eventuates.

Ultimately, such laws encourage what they intend to fight.

And I think the fact that women don't speak up so much about rape more has to do with the relationship between the victim and the accused rather than the nature of said laws...


But by the same token, should we let a guy who runs over a 6 year old girl go free or get off on very light charges, because he was drunk? I don't think so. He should be tried for manslaughter at the least, lesser degree murder at the most. A similar method should be taken towards rape.I am not aware of any cases, but judges take such considerations into account following the rules of sentencing...


Whether it constitutes rape depends on whether the person feels as if they were pressured into it, or if when asking (by whatever means) the partner to stop, they refused. (I'm sure it can manifest in other ways, too).

To be fair, I don't think the standard of 'being pressured' into having sex is enough to constitute rape...

Of course, there are circumstances where the pressure may amount to forcing that person to have sex with you. For example, threatening that person or extorting that person in some other financial way...

However, I interpret 'pressure' as 'peer pressure' or a weak form of inducement. Indeed, people are pressured into sex all the time...However, there is the world of difference between pressuring your girlfriend into having morning sex with you and she (reluctantly) agreeing and on the other hand being raped by your boyfriend...

In the first scenario, the person did consent to the sex regardless of whether they really felt like having sex. In the second scenario there was no consent whatsoever.

(Of course, a caring partner would really only want to have sex if you were also in the mood. So they were being a chauvinistic jerk rather than a rapist)

And that really summarises how I feel we should approach the issue of rape: if it is not consensual, its rape. Simple. :)

[ManyAntsDefeatSpiders]

Incidentally, I am not sure if I posted this in the right section.

Based on my understanding of the logic behind these laws, it may well be suited better to the discrimination forum, even though this is a 'political' issue.

So yeah, if a moderator feels the need to move it, by all means do so. :)

[Bilan]

To be fair, I don't think the standard of 'being pressured' into having sex is enough to constitute rape...

I think it depends on the situation.
If you pressure someone into doing something they don't want to do, their consent is superficial and is only to get someone else to stop doing something - like nagging, or what have you.



Of course, there are circumstances where the pressure may amount to forcing that person to have sex with you. For example, threatening that person or extorting that person in some other financial way...

However, I interpret 'pressure' as 'peer pressure' or a weak form of inducement. Indeed, people are pressured into sex all the time...However, there is the world of difference between pressuring your girlfriend into having morning sex with you and she (reluctantly) agreeing and on the other hand being raped by your boyfriend...

In the first scenario, the person did consent to the sex regardless of whether they really felt like having sex. In the second scenario there was no consent whatsoever.

Morning sex isn't really what i was thinking of - more like, people losing their virginity, first time sex with a partner, etc.
It's breaking through a persons personal boundaries by pressure - and some form of force.
It might be a bit of a grey area, but I personally would consider it 'wrong' to do.




And that really summarises how I feel we should approach the issue of rape: if it is not consensual, its rape. Simple. :)

Agreed ;)

[Saorsa]

Yeah I admit my analogy was flawed, in that in a case of drunken sex BOTH parties are drunk, whereas in the case of the guy who ran someone over only he was drunk.

I'm just a wee bit wary of articles that start talking about "feminist agendas". I think I'll stay neutral on this one.

[Kami]

And that really summarises how I feel we should approach the issue of rape: if it is not consensual, its rape. Simple. http://www.revleft.com/vb/../revleft/smilies/001_smile.gif

Absolutely; I stress that this is regardless of all other factors (e.g gender). For something so simple there's an awful lot of people here who don't get it -.-

[ManyAntsDefeatSpiders]

I think it depends on the situation.
If you pressure someone into doing something they don't want to do, their consent is superficial and is only to get someone else to stop doing something - like nagging, or what have you.

Well yeah, you can effectively remove someone' ability to consent or otherwise if you understand what I mean.

Consent is superficial to babies as well...

I'm confusing myself though. :s


Morning sex isn't really what i was thinking of - more like, people losing their virginity, first time sex with a partner, etc.
It's breaking through a persons personal boundaries by pressure - and some form of force.
It might be a bit of a grey area, but I personally would consider it 'wrong' to do.

Well, yeah I think it is a grey area...

But, looking at this overall, would it be better to be 'pressured' into having (what is) consensual sex, rather than label them rapists?

I mean, I would agree that you need to treat you need to treat your partner with respect and look at their personal characteristics. But I think that likening that social pressure to rape is going a bit too far (not that I am saying you're doing that).

Essentially, as long as the concept of virginity exists, and as long as sex is enjoyable there is always going to be some sort of social pressure to have sex.

Obviously this ignores a lot of the baggage of being labelled a slut or conversely a virgin regarding the fair gender. ;)


Yeah I admit my analogy was flawed, in that in a case of drunken sex BOTH parties are drunk, whereas in the case of the guy who ran someone over only he was drunk.

I'm just a wee bit wary of articles that start talking about "feminist agendas". I think I'll stay neutral on this one.

I agree on the last point (and will point out for the benefit of the non-Australians here that this is by no means a radical newspaper :lol:)

[F9]

Why can't a drunken woman be a rapist in such a case? This example is indeed degrading women to all-time victimes; the weaker sex.

cant say more.I completely agree comrade.Stupid fucking laws!

Fuserg9:star:

[chegitz guevara]

The man's state of mind is irrelevant as to whether or not rape occurs. Whether or not someone is capable of granting consent is a fact to be determined in court. If you're so slobbering drunk that you'd agree to anything, you do not have the mens rhea to grant consent. If you're just a little tipsy, you do. If you're passed
out drunk, it should be obvious consent hasn't been granted.

[bcbm]

The man's state of mind is irrelevant as to whether or not rape occurs. Whether or not someone is capable of granting consent is a fact to be determined in court. If you're so slobbering drunk that you'd agree to anything, you do not have the mens rhea to grant consent. If you're just a little tipsy, you do. If you're passed
out drunk, it should be obvious consent hasn't been granted.

And if both parties are slobbering drunk, it is still rape?

[chegitz guevara]

If both parties are slobbering drunk, I find it highly unlikely the man will be able to function.

Assuming he could function, a reasonable shot at defense would be the rapist lacked mens rhea to commit a crime. I was a little over broad in my previous statement. The rapist would have to be in a state to know right from wrong, and when you're almost dead drunk, you may not be able to do that.

[Andy Bowden]

The majority of rapes go unreported and unpunished. Thats the situation in the UK at least, and in just about every other country. Don't know of any exceptions. Police and Judges often try to turn the situation round into the "she asked for it" idea - women wear short skirts, she enticed him etc.

This is still around by the way, an Italian Judge ruled a woman "brought it on" by wearing a short skirt. And in the UK a Judge ruled that having unconsented sex wasn't rape because the couple were married.

I'm very wary* when articles talk about feminist agendas re rape, specifically the focus that is given on to allegations of women making it up, instead of the abysmally low conviction rate, and the attempts to blame women for it.

Maybe I'm a little too trusting but I don't think 94% (the % of rapes reported which do not result in a conviction) of women are misandrists who have faked rape claims. I think Judges are sexist bastards who can get to fuck, and theres a culture of apologism for rape from sexist arsehole journos.

* For wary read "incredibly cynical"

[ManyAntsDefeatSpiders]

Don't know of any exceptions. Police and Judges often try to turn the situation round into the "she asked for it" idea - women wear short skirts, she enticed him etc.I am sorry, but you are going to have to back that statement up - you should provide some sort of evidence that judges argue such in a majority of cases.

When they do argue such they are normally fired. Rightfully so.


This is still around by the way, an Italian Judge ruled a woman "brought it on" by wearing a short skirt. And in the UK a Judge ruled that having unconsented sex wasn't rape because the couple were married.And the law has subsequently changed...

An Australian judge argued a similar vein and was removed.


I'm very wary* when articles talk about feminist agendas re rape, specifically the focus that is given on to allegations of women making it up, instead of the abysmally low conviction rate, and the attempts to blame women for it.

Maybe I'm a little too trusting but I don't think 94% (the % of rapes reported which do not result in a conviction) of women are misandrists who have faked rape claims. I think Judges are sexist bastards who can get to fuck, and theres a culture of apologism for rape from sexist arsehole journos.I would be very wary of those statistics (if you could provide me with a link that would be good)

Simply put, the way they can measure the statistics can put a very slanted view on things.

For example, they may base the percentage on the number of people convicted of rape, versus the number of reported sexual assaults.

Of course, that would naturally make the conviction rate very low!

But this is no different to any other crime. Can you imagine what the conviction rate would be for reported stealing?! :lol:

Owing to the ineffective manner of the police force, conviction rates are going to be low for most crimes...but I do agree that the level of reported rapes is low and that necessarily has to do with the relationship between accused and the victim and a bunch of other factors.

[Severian]

Link. (http://www.theaustralian.news.com.au/story/0,25197,23619670-7583,00.html)

I thought this was a well written article that puts forth agreeable arguments.

I think it completely misrepresents the proposal. The real proposal is this:


Rape does not automatically become non-rape just because a woman is drunk or unconscious.


To quote Australian Attorney-General John Hatzistergos:
"If a person is drunk it does not automatically mean that consent can't be given. What it means is that the onus is on the other person, usually a man, to show he had reasonable grounds to believe the woman had consented. "It's difficult to take the Bar Association seriously on this matter when, in their own submission, they concluded that just because a woman was asleep or unconscious (it) doesn't negate consent."
source (http://www.news.com.au/dailytelegraph/story/0,22049,22726261-5001021,00.html)

This kind of lying misrepresentation is common for rabid anti-feminists who think that men are persecuted in present-day society, and government is run by crazed man-hating feminists, oh no white men are so persecuted blah blah blah.

What's weird is that some people on this board are so ready to believe this crap. Yes, this is also a proposal in Britain, And there was also a thread on this board where rabid anti-feminists completely misrepresented that proposal too. (http://www.revleft.com/vb/uk-women-lose-t52326/index.html?t=52326)

So again; why are some supposed "revolutionary leftists" on this board so very ready to swallow these anti-feminist lies whole?

[Severian]

I'm reposting this:

Just when you think you’ve read every stupid thing that someone could possibly say about rape (http://thecurvature.com/2007/11/08/fertility-fertility-peak-attrativeness-blah-blah-blah/), your husband goes and sends you this: NSW, Australia, is working on a law that states rape when a rapist is drunk is still rape, and rape when the victim is drunk is still rape (http://www.news.com.au/dailytelegraph/story/0,22049,22726261-5001021,00.html). Which is, of course, excellent. What’s not so excellent is the reaction to it. And no, I’m not talking about the reaction at Fark (http://forums.fark.com/cgi/fark/comments.pl?IDLink=3192567) (Trigger warning: please, don’t read that Fark thread unless you have the world’s largest stomach for misogyny and rape apologism. Just . . . don’t.). I’m talking about the reaction by the NSW Bar Association. Get those rape apologist bingo cards (http://htti75.photobucket.com/albums/i281/MidnightLouise/bingo3.jpg) ready, cause the squares are gonna get called fast.

The NSW Bar Associations reckons the “No means no” law goes too far and will lobby Upper House members to vote against it when it is up for debate next week.
The law will define the meaning of consent for the first time, making it clear that being drunk or under the influence of drugs does not mean consent has been given.
It will also introduce an “objective fault test”, meaning a man can no longer use the defence that he thought he had consent if the circumstances appear unreasonable.
“It will turn our sons into criminals,” new Bar Association president Anna Katzmann SC said yesterday.
“For years women have been insisting ‘No’ means ‘No’. What troubles us about this new legislation is that it introduces a new regime where ‘Yes’ may mean ‘No’.”
Ms Katzmann gave the example of a woman on a first date who might not want to have sex but after both she and the man had drunk too much said “Yes”.
The next day she feels guilty and tells her mother, who goes to the police.
“That would be rape under the new laws,” Ms Katzmann said. “The fact that he was drunk cannot be taken into account. The fact that she was drunk is no excuse for him.”
Chair of the Bar Association’s criminal law committee Stephen Odgers SC said the law made sexual assault a crime of negligence.
“The stupid, the negligent, the intoxicated, the crazy will be treated as if they are the same as the true rapist, who knows there is no consent to sexual intercourse,” Mr Odgers said.
. . .

So, Ms. Katzmann. I really don’t know how to break this to you gently, but it must be said: if this law turns your son into a rapist, your son is already a fucking rapist. And his ass deserves to be in jail, and you are an utterly irresponsible person, not to mention an utterly irresponsible lawyer, to suggest otherwise. And when I use the word “irresponsible,” it’s because I’m really biting my tongue.
To be clear, the situation that Ms. Katzmann outlines would not be rape under the new laws, at least not as she describes it. Two drunk people having sex is not rape. The situations she describes would be rape, if, say, the man kept feeding the woman drinks when she said “no” until she said “yes.” Or, if the man kept pestering the drunk woman and harassing her until she said yes under duress. Or, if the woman was slipping in and out of consciousness and didn’t know what she was saying “yes” to, or if the woman simply failed to say “no” because she was so drunk, that would be rape. But what Ms. Katzmann outlines certainly would not. Two drunk people having consensual sex and one regretting it the next day is not rape, nor has it ever been rape, nor would it be rape under these new laws, nor has anyone ever suggested that it might be considered rape — except for the rape apologists who use it as a scare tactic.
As for “The fact that he was drunk cannot be taken into account. The fact that she was drunk is no excuse for him.”: well Halle-fucking-lujah! It only took us how many millenniums to get that one down? And now there are still some asshats fighting it?
The fact of the matter is that this law A. says that being drunk is not an excuse to rape and B. “well, she didn’t say no” is no longer a legally acceptable defense. Basically, it is requiring affirmative consent to sex — which should have always been the standard, but almost universally still is not.
As for Mr. “The stupid, the negligent, the intoxicated, the crazy will be treated as if they are the same as the true rapist, who knows there is no consent to sexual intercourse” Odgers . . . I am a person who believes in non-violence, but in reality has a short fuse. I don’t exactly make a habit of hitting people, but let me just say that Mr. Odgers is pretty fucking lucky that he’s not standing next to me right now.
But for those who still don’t get it, let me spell it out: the stupid, the negligent, the intoxicated, and (in very many cases, but certainly not always) the crazy are the true rapists. In fact, they are most rapists. Of course, we have to take into account that what Mr. Odgers is implying is “negligent” is very different from what sane people would call “negligent.” Personally, I would not define “failing to make sure you have obtained consent before you fuck somebody” as “negligence.” But I’m about 99.9% sure that Mr. Odgers would. If he doesn’t, I have absolutely no clue what else he could possibly mean.
Has anyone else noticed that we still convict murderers when they are drunk at the time of killing? As we well should. But, wait, that’s right — rape is different. Rape is just about claiming forced sexual access to a woman’s body. No harm done, right? We wouldn’t want to lock up “our sons” for something as trivial as that, now would we?
Let me just say that, no, I don’t have a son. If I did, and he was a rapist, I would certainly hope that I’d want him in jail. I do have two brothers, and I’m protective of them both. But if one of them raped someone and it’s up to me, it’s goodbye, off to prison for them, and don’t expect a fucking visit. Same with my husband, or my father, or any other male I know or have ever met.
What, exactly, is wrong with people?
Thank god, though, that all people (and for that matter, it’s important to note, not all men) are so incredibly fucked in the head:

Opposition attorney general, former Crown prosecutor Greg Smith, said the Attorney-General John Hatzistergos needed to spell out the law better.
Mr Hatzistergos said the introduction of an objective fault test was canvassed during the State Government’s exhaustive consultation process and had wide support, including police and the Rape Crisis Centre.
“Although Mr Odgers might like to draw a distinction between the stupid or drunk rapist and normal rapists, for rape victims they’re categories that don’t matter,” he said.
“If a person is drunk it does not automatically mean that consent can’t be given. What it means is that the onus is on the other person, usually a man, to show he had reasonable grounds to believe the woman had consented.
“It’s difficult to take the Bar Association seriously on this matter when, in their own submission, they concluded that just because a woman was asleep or unconscious (it) doesn’t negate consent.”
Mr. Hatzistergos sure as hell seems incredibly reasonable, highly pragmatic and certainly not on a rampage to lock up innocent “sons.” Thank you for that, Mr. Hatzistergos. Really, you shouldn’t have to thank someone for having integrity and a conscience — but apparently, you do.
For the record, I lived in Sydney, which is in NSW, for three years. My husband lived there most of his life. We both have a lot of happiness and pride that the legislature would put forth a bill like this. And we’re both incredibly horrified and ashamed that this kind of reaction would exist.
I will try to keep abreast of this story, and when there are updates, I will definitely blog about them.

source (http://thecurvature.com/2007/11/09/nsw-bar-association-does-not-understand-the-meaning-of-rape/)

[Qwerty Dvorak]

The man's state of mind is irrelevant as to whether or not rape occurs. Whether or not someone is capable of granting consent is a fact to be determined in court. If you're so slobbering drunk that you'd agree to anything, you do not have the mens rhea to grant consent. If you're just a little tipsy, you do. If you're passed
out drunk, it should be obvious consent hasn't been granted.
Em, you do realise what mens rea means right? And why it can't be used in that context?

Either way, the man's state of mind most certainly is relevant as to whether or not rape occurs, at least here in Ireland. In order for rape to occur the man has to either know that the women does not consent or be reckless as to whether or not she consents. If the man holds a genuine belief, however unreasonable, the the woman consents to sex then he lacks the mens rea to commit the crime. However, in cases where the woman is too drunk to consent it is extremely unlikely that a jury will find that the accused honestly believed that the woman consented, since the jury may have regard to whether or not a reasonable man would have so concluded in the circumstances when assessing the defendant's claim.

[ManyAntsDefeatSpiders]

I'm sorry Severian but that first source that you linked is certainly not representative of the laws either.

To quote the Premier of the state where it was introduced:


“The change is to remove the old fashioned ideas about consent being given ‘reluctantly’ or after a ‘deal of persuasion’,” he said.

“We’re getting rid of that because they’re just old fashioned, outdated ideas about consent. [The new laws] make it very clear that the consent has to be free and voluntary.”

This of course is what we have been arguing against from the beginning - implied consent can occur regardless of the person being drunk..

But I will look at detail at the laws later on...I just got home from a night shift.

[Qwerty Dvorak]

I must add that in general I am quite surprised by the reaction of many on this board to the law. I'm wrecked so I'm not going to dig up the relevant laws, but AFAIK the courts here and in the UK have for a long time held that women cannot consent while drunk. It's common sense really, not pro- or anti-feminist. It should be noted that no court is going to make a finding of rape where a woman consented to sex after a drink or two. The level of intoxication must actually be such as to render the victim incapable of making decisions for herself. And if you have sex with a woman who is that drunk then you are a rapist.

[Severian]

I'm sorry Severian but that first source that you linked is certainly not representative of the laws either..

You say without providing any actual source yourself, and quoting only some guy's argument for the law, not any actual description of the law!

Here, I'll quote the actual fucking law for you. If you've got an ounce of honesty you'll retract and change the thread title to "Drunk rape is still rape and I was wrong."


Consent in relation to sexual assault offences
(1) Offences to which section applies
This section applies for the purposes of the offences under
sections 61I, 61J and 61JA.
(2) Meaning of consent
A person consents to sexual intercourse if the person freely and
voluntarily agrees to the sexual intercourse.
(3) Knowledge about consent
A person who has sexual intercourse with another person without
the consent of the other person knows that the other person does
not consent to the sexual intercourse if:
(a) the person knows that the other person does not consent to
the sexual intercourse, or
(b) the person is reckless as to whether the other person
consents to the sexual intercourse, or
(c) the person has no reasonable grounds for believing that the
other person consents to the sexual intercourse.
For the purpose of making any such finding, the trier of fact must
have regard to all the circumstances of the case:
(d) including any steps taken by the person to ascertain
whether the other person consents to the sexual
intercourse, but
(e) not including any self-induced intoxication of the person.
(4) Negation of consent
A person does not consent to sexual intercourse:
(a) if the person does not have the capacity to consent to the
sexual intercourse, including because of age or cognitive
incapacity, or
(b) if the person does not have the opportunity to consent to
the sexual intercourse because the person is unconscious or
asleep, or
(c) if the person consents to the sexual intercourse because of
threats of force or terror (whether the threats are against, or
the terror is instilled in, that person or any other person), or
(d) if the person consents to the sexual intercourse because the
person is unlawfully detained.
(5) A person who consents to sexual intercourse with another person:
(a) under a mistaken belief as to the identity of the other
person, or
(b) under a mistaken belief that the other person is married to
the person, or
(c) under a mistaken belief that the sexual intercourse is for
medical or hygienic purposes (or under any other mistaken
belief about the nature of the act induced by fraudulent
means),
does not consent to the sexual intercourse. For the purposes of
subsection (3), the other person knows that the person does not
consent to sexual intercourse if the other person knows the person
consents to sexual intercourse under such a mistaken belief.
(6) The grounds on which it may be established that a person does
not consent to sexual intercourse include:
(a) if the person has sexual intercourse while substantially
intoxicated by alcohol or any drug, or
(b) if the person has sexual intercourse because of
intimidatory or coercive conduct, or other threat, that does
not involve a threat of force, or
(c) if the person has sexual intercourse because of the abuse of
a position of authority or trust.
(7) A person who does not offer actual physical resistance to sexual
intercourse is not, by reason only of that fact, to be regarded as
consenting to the sexual intercourse.
(8) This section does not limit the grounds on which it may be
established that a person does not consent to sexual intercourse.

Emphasis added.

Link to big 'ol .pdf of the full text of the law, off the parliament's website. (http://www.parliament.nsw.gov.au/prod/parlment/nswbills.nsf/0/ed6daef33665d79bca25738b0016907c/$FILE/b2006-087-d24-House.pdf)

Note that it says: "The grounds on which it may be established that a person does
not consent to sexual intercourse include:" substantial intoxication, etc.

It does NOT say: "A person does not consent.... :(a) if the person has sexual intercourse while substantially intoxicated by alcohol or any drug."

That's up in paragraph (4), the automatic cases like unconsciousness, sleep. Instead, intoxication is in section 6 along with other judgement calls like intimidation that is not a threat of force, or positions of authority and trust.

With intoxication it may be established, i.e. proven that there's no consent. The prosecution can make the argument, the jury can decide if there is consent or not.

***
And of course the intoxication of the accused is irrelevant; it's ridiculous that any supposed revolutionary would suggest otherwise. As the blogger I quoted points out: being drunk is not a defense in murder cases.

Chegitz guevara, an erection is not necessary to sexual assault. That would imply that only some kinds of sex can be rape....totally archaic.

****

Note also: nothing in the law distinguishing women from men. It's always "person".

Contrary to bullshit posted in this thread like "Why can't a drunken woman be a rapist in such a case? This example is indeed degrading women to all-time victimes; the weaker sex." (Rakunin).

Oh no! The law might make some distinction between men and women!

No, bourgeois law won't. It maintains a fraudulent stand of formal equality.

"The law, in its majestic impartiality, forbids rich and poor alike to sleep under bridges, to beg, or to steal bread."

But nobody with a revolutionary bone in their body would be scared of the idea that the law might distinguish between people in oppressed and oppressing categories.....in order to establish equal right and equal power in reality, not just on paper.

[ManyAntsDefeatSpiders]

CRIMES ACT 1900 - SECT 61HA

Consent in relation to sexual assault offences 61HA Consent in relation to sexual assault offences
(1) Offences to which section applies This section applies for the purposes of the offences under sections 61I, 61J and 61JA.
(2) Meaning of consent A person (http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s4.html#person) "consents" to sexual intercourse if the person (http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s4.html#person) freely and voluntarily agrees to the sexual intercourse.
(3) Knowledge about consent A person (http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s4.html#person) who has sexual intercourse with another person (http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s4.html#person) without the consent of the other person (http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s4.html#person) knows that the other person (http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s4.html#person) does not consent to the sexual intercourse if:
(a) the person (http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s4.html#person) knows that the other person (http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s4.html#person) does not consent to the sexual intercourse, or
(b) the person (http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s4.html#person) is reckless as to whether the other person (http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s4.html#person) consents (http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s61ha.html#consents) to the sexual intercourse, or
(c) the person (http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s4.html#person) has no reasonable grounds for believing that the other person (http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s4.html#person) consents (http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s61ha.html#consents) to the sexual intercourse. For the purpose of making any such finding, the trier of fact must have regard to all the circumstances of the case:
(d) including any steps taken by the person (http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s4.html#person) to ascertain whether the other person (http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s4.html#person) consents (http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s61ha.html#consents) to the sexual intercourse, but
(e) not including any self-induced intoxication of the person (http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s4.html#person).
(4) Negation of consent A person (http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s4.html#person) does not consent to sexual intercourse:
(a) if the person (http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s4.html#person) does not have the capacity to consent to the sexual intercourse, including because of age or cognitive incapacity, or
(b) if the person (http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s4.html#person) does not have the opportunity to consent to the sexual intercourse because the person (http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s4.html#person) is unconscious or asleep, or
(c) if the person (http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s4.html#person) consents (http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s61ha.html#consents) to the sexual intercourse because of threats of force or terror (whether the threats are against, or the terror is instilled in, that person (http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s4.html#person) or any other person (http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s4.html#person)), or
(d) if the person (http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s4.html#person) consents (http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s61ha.html#consents) to the sexual intercourse because the person (http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s4.html#person) is unlawfully detained.
(5) A person (http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s4.html#person) who consents (http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s61ha.html#consents) to sexual intercourse with another person (http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s4.html#person):
(a) under a mistaken belief as to the identity of the other person (http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s4.html#person), or
(b) under a mistaken belief that the other person (http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s4.html#person) is married to the person (http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s4.html#person), or
(c) under a mistaken belief that the sexual intercourse is for medical or hygienic purposes (or under any other mistaken belief about the nature of the act induced by fraudulent means), does not consent to the sexual intercourse. For the purposes of subsection (3), the other person (http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s4.html#person) knows that the person (http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s4.html#person) does not consent to sexual intercourse if the other person (http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s4.html#person) knows the person (http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s4.html#person) consents (http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s61ha.html#consents) to sexual intercourse under such a mistaken belief.
(6) The grounds on which it may be established that a person (http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s4.html#person) does not consent to sexual intercourse include:
(a) if the person (http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s4.html#person) has sexual intercourse while substantially intoxicated by alcohol or any drug, or
(b) if the person (http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s4.html#person) has sexual intercourse because of intimidatory or coercive conduct, or other threat, that does not involve a threat of force, or
(c) if the person (http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s4.html#person) has sexual intercourse because of the abuse of a position of authority or trust.
(7) A person (http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s4.html#person) who does not offer actual physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting to the sexual intercourse.
(8) This section does not limit the grounds on which it may be established that a person (http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s4.html#person) does not consent to sexual intercourse. Let me make a few comments on this legislation firstly (I posted this section because it is formatted better than Severian's)

Section (2) is somewhat worrying. In the equivalent legislation in WA for example, there is no mention of 'freely and voluntary consent'; it is merely labelled as 'consent' so I am not sure how exactly the courts wish to interpret that particular phrase but it may tie in with Mr Iemma's above statement that 'reluctant' sex is rape or 'pressured' sex is rape.

Secondly, section 3(e) precludes any evidence of the accused that he or she was drunk. Fair enough; the test is not a subjective one but should be whether it was reasonable for the accused to assume consent. However, this is somewhat altered by section 3(c).

Thirdly, section 6(a) does make it a possible 'defence' that if you prove the person was so substantially drunk that consent was not given. Firstly, that really does not get at the heart of what consent really is - it is measuring it by another standard of 'substantially drunk' rather than whether the person's actions or statements evidenced consent. Of course, as Severian said, it is up to a jury to accept this or not.

Fourthly, regarding section 4(a) where a person does not consent when they have a cognitive incapacity. Now, at the very least I know that in WA, being so drunk has been held to being a cognitive incapacity. If the court follows such an approach, then being so drunk will make consent irrelevant automatically. Once again, this ignores the consent of the victim...However, I think that this section would most likely apply to areas of mental illness or insanity..

Indeed, someone can be so substantially drunk and still consent to sex. This was pointed out in the original article:


The new laws say that if a woman is "substantially affected" by alcohol, she may lack the capacity to consent to sex even if she says "yes" to sex.Regarding the law, this is true.

Of course, like Ron, I doubt that a court is going to convict someone if they have consensual sex after a few wines...

What I would be worried about is an argument being put forth that the woman was so drunk and hence it was rape. I think trying to legislate to that sort of behaviour more has to do with conservative anti-sex feelings or a paternalistic approach to women - it has the effect that men should not have sex with a drunken woman because he may well find himself facing a court. This necessarily demeans the ability of a woman's ability to make decisions whilst drunk, relative to a man's.

Now, whilst, as Severian pointed out, the law is gender neutral, obviously the victim for the vast majority of cases is going to be a woman...

***

All this being said, the original article was misleading as to the actual law. And I apologise for that and thank Severian for pointing that out to myself.

Ron Burgandy:
I must add that in general I am quite surprised by the reaction of many on this board to the law. I'm wrecked so I'm not going to dig up the relevant laws, but AFAIK the courts here and in the UK have for a long time held that women cannot consent while drunk. It's common sense really, not pro- or anti-feminist. It should be noted that no court is going to make a finding of rape where a woman consented to sex after a drink or two. The level of intoxication must actually be such as to render the victim incapable of making decisions for herself. And if you have sex with a woman who is that drunk then you are a rapist.See - it is not the consent which is the defining thing but the level of intoxication of the woman which, they argue, precludes her from giving or denying consent.

Now, call it what you may, but that simply is not rape - no doubt you can be raped whilst heavily intoxicated, but they should look at the relevant facts of the case.

Merely having no recollection of the previous night's events is not good enough to substantiate a rape claim.

[TC]

The man's state of mind is irrelevant as to whether or not rape occurs. Whether or not someone is capable of granting consent is a fact to be determined in court. If you're so slobbering drunk that you'd agree to anything, you do not have the mens rhea to grant consent. If you're just a little tipsy, you do. If you're passed
out drunk, it should be obvious consent hasn't been granted.

If being intoxicated means that you don't have the 'mens rea' to consent to sex (which, btw is not a correct use of the term) then surely it means you don't have the mens rea to rape someone; both are ridiculous. Choices made while in an altered state of mind are still acts of free personal will.

Lots of people 1. get horny when drunk and are more likely to want to have sex when very intoxicated 2. are less inhibited when very drunk and are therefore more likely to have the sex that they want when sober but feel too inhibited by social sanction to ask for it.

This is aimed at effectively introducing intolerable artificial risks for casual sex (which is largely speaking, drunk sex). If people regret having sex that they consented to while drunk or on drugs, that sucks, but its not rape, and allowing the legal possibility for criminal prosecution as rape in such a scenario, and its demeaning to women to suggest that they're not responsible for their actions while drunk, demeaning to rape victims for equating consensual sex with rape, and the practical consequence is that a drunk woman is as much "jail bait" as a 16 year old, since men (and this obviously would be only used to prosecute men, in practice, get real) would risk jail if they 1. had consensual sex 2. pissed them off at a later point, and that risk is too high for it to be worth it for most, effectively restricting adult women's sexuality the same way the state restricts underage teenager's.

Its moralistic, patronising, sexist towards both men and women, paternalistic and patriarchal.

[Bilan]

Its moralistic, patronising, sexist towards both men and women, paternalistic and patriarchal.

Hit the nail on the head in one sentence.

[Os Cangaceiros]

Personal responsibility does not simply vanish once an individual becomes intoxicated.

This principle applies to both men and women.

[chegitz guevara]

Personal responsibility does not simply vanish once an individual becomes intoxicated.

This principle applies to both men and women.

Yes and no. It greatly depends on the level of intoxication. To argue that we are completely in command of our faculties while drunk is the height of stupidity. That's why we tell people they aren't allowed to drink and drive, or do surgery while drunk, etc. Our ability to reason and our ability to know right from wrong and our ability to freely consent are also similarly impaired. People are much more easily taken advantage of while they are drunk. To argue otherwise is to ignore material reality.

Legally, it also depends on the level of intoxication. You're in a lot more trouble for killing someone in a fight if you were sober than if you were drunk.

[TC]

Yes and no. It greatly depends on the level of intoxication. To argue that we are completely in command of our faculties while drunk is the height of stupidity.

To say that you can consent and remain responsible for your actions while drunk does not imply that you're 'in compelte command of your faculties' the two are not related.


That's why we tell people they aren't allowed to drink and drive, or do surgery while drunk, etc.

Err no people aren't allowed to drink and drive or perform surgery while drunk because alcohol affects motor control and coordination and those activities are dangerous without fine motor control and coordination.

If someone drinks and drives and kills someone they're held *more* responsible for it then if they were sober because its reckless endangerment to begin with rather than the result of a lesser negligence.


Our ability to reason and our ability to know right from wrong and our ability to freely consent are also similarly impaired.

I disagree, people might make different decisions and consent to things they wouldn't otherwise when intoxicated but having fewer inhibitions or reduced concerns does not imply a lack of free consent.


People are much more easily taken advantage of while they are drunk. To argue otherwise is to ignore material reality.

I'm sorry but I've been drunk and messed up on drugs enough in social situations to think that your line is what ignores material reality. Its true that you do things you regret when drunk or on drugs, its not the case that regretting something or doing something you wouldn't otherwise means you weren't responsible for it at the time.


Legally, it also depends on the level of intoxication. You're in a lot more trouble for killing someone in a fight if you were sober than if you were drunk.

Thats just not true, at least not in any common law jurisdiction; Intoxication is only a defense in specific intent crimes and battery or assault (depending on location) are general intent crimes.

[Os Cangaceiros]

Yes and no. It greatly depends on the level of intoxication. To argue that we are completely in command of our faculties while drunk is the height of stupidity. That's why we tell people they aren't allowed to drink and drive, or do surgery while drunk, etc. Our ability to reason and our ability to know right from wrong and our ability to freely consent are also similarly impaired. People are much more easily taken advantage of while they are drunk. To argue otherwise is to ignore material reality.

Legally, it also depends on the level of intoxication. You're in a lot more trouble for killing someone in a fight if you were sober than if you were drunk.

If I get drunk and run someone over with my car, I will be prosecuted.

If I take a liberal dose of PCP and proceed to beat someone senseless, I'll be prosecuted.

[TC]

http://news.bbc.co.uk/1/hi/health/7389980.stm

New bbc article on this:

------------------------------------------------

Europeans get drunk 'to have sex'


http://newsimg.bbc.co.uk/media/images/44638000/jpg/_44638914_teens_drinking226.jpg Alcohol was strongly associated with underage sex


Young adults in Europe deliberately binge on drink and drugs to improve their sex lives, research suggests.
The UK has one of the worst reputations for binge drinking and underage sex but there are striking similarities between countries, a study found.
A third of 16 to 35-year-old men and 23% of women questioned said they drank to increase their chance of sex.
The study - of 1,341 young people in nine countries including the UK - is published in BMC Public Health.
Young people were also more at risk of unsafe sex while under the influence of alcohol or drugs, the study found.

http://newsimg.bbc.co.uk/shared/img/o.gif http://newsimg.bbc.co.uk/nol/shared/img/v3/start_quote_rb.gif Despite the negative consequences, we found many are deliberately taking these substances to achieve quite specific sexual effects http://newsimg.bbc.co.uk/nol/shared/img/v3/end_quote_rb.gif


Professor Mark Bellis

The researchers said although it was well known that use of alcohol and drugs was linked to risky sexual behaviour, this study showed many young people were "strategically" binge drinking or abusing drugs to improve their sex lives.
They questioned young people in nine cities, one each in the UK, Germany, Austria, Czech Republic, Greece, Italy, Portugal, Spain and Slovenia - who all routinely went to pubs, bars and nightclubs.
Early use of alcohol and other drugs was closely linked to having sex under the age of 16 years, in all countries, especially in girls.
Almost half of participants in Vienna, Austria had drunk alcohol and had sex by the time they were 16 compared with 36% in Venice, Italy, 37% in Palma, Spain and 30% in Liverpool.
The same was true for those who took drugs under the age of 16 but there were variations in popularity of different drugs among different countries.
More than a quarter of youngsters taking cocaine said they used it to prolong sex and drug use in general was linked to having multiple partners.
'Risky'
Drunkenness and drug use were found to be strongly associated with an increase in risk taking behaviour and feeling regretful about having sex .
Those who had been drunk in the past four weeks were more likely to have had five or more partners, sex without a condom and to have regretted sex after drink or drugs in the past 12 months.
Cannabis, cocaine or ecstasy use was linked to similar consequences.
Study leader Professor Mark Bellis, director of the Centre for Public Health at Liverpool John Moore's University said: "Millions of young Europeans now take drugs and drink in ways which alter their sexual decisions and increase their chances of unsafe sex or sex that is later regretted.
"Yet despite the negative consequences, we found many are deliberately taking these substances to achieve quite specific sexual effects."
He added that strategies to reduce substance abuse and encourage safe sexual behaviour needed to take into account the fact that the two were inextricably linked.
Simon Blake, chief executive of Brook, said: "When it comes to drugs and alcohol young people learn from us, the adults who help determine the culture in which young people are learning about sex, and learning about drugs and alcohol. "Sex and relationships education also needs to include more discussion about the association between alcohol, drugs and unsafe sex."
Frank Sodeen from Alcohol Concern said: "The report is a good reminder of the multiple dimensions of drink-related harm."
He added local authorities need to think as broadly as possible about projects to reduce alcohol use and incorporate issues such as sexual health.



---------------------------------------------------------



People are more likely to have sex while drunk because they like getting drunk to have sex.

[Severian]

All this being said, the original article was misleading as to the actual law. And I apologise for that and thank Severian for pointing that out to myself.That's ManyAnts retraction.

Which he buried deep in the middle of his post. On the second page of a thread.

Oh. And he also pointed a half-assed retraction at the bottom of his original post.

Which is still titled "consensual drunken sex=rape?!", so anyone who only reads the first page of the thread, not to mention anyone who read the thread before I came along, may still believe this pack of rabid anti-feminist lies that this law supposedly bans consensual sex just because someone involved is drunk.

Which is why this crap can get revived, even though I previously pointed out it's a pack of lies in the first thread on the subject.

I'll be starting another thread to give the truth a little equal billing.

I said if ManyAnts had an ounce of honesty, he'd make a retraction and change the thread title. Obviously he doesn't. So what is the rest of his post worth? Not much.


Section (2) is somewhat worrying. In the equivalent legislation in WA for example, there is no mention of 'freely and voluntary consent'; it is merely labelled as 'consent'

What the fuck?

You object to the Section 2 which simply says "A person (http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s4.html#person) "consents" to sexual intercourse if the person (http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s4.html#person) freely and voluntarily agrees to the sexual intercourse."

How the fuck can any sane and decent person object to that? How can you be OK with consent that isn't free and voluntary?

At first, I thought you might be simply gullible and ignorant.

But now you know what the law says, you have no excuse, and it's harder and harder to avoid the conclusion that you're simply an apologist for rape and rapists.


Indeed, someone can be so substantially drunk and still consent to sex. There is nothing in this law which says someone can't.

It just says that under some circumstances someone can be too drunk to consent.

This is obviously reasonable. Besides being unconscious, there is also semiconsciousness. There is being too drunk or high to know what's going on or what you might be saying yes or no to. There's being in a daze.

Rape does not become OK just because the victim is in one of these states.

Now, exactly how drunk or high does someone have to be before they become incapable of consent?

There's no way to set a standard in advance that will apply to any case..

The only reasonable answer is to leave it up to a jury. Which is exactly what the law does. It allows it as a possible ground of proof.


Regarding the law, this is true.And now you're just lying again.


What I would be worried about is an argument being put forth that the woman was so drunk and hence it was rape. I think trying to legislate to that sort of behaviour more has to do with conservative anti-sex feelings or a paternalistic approach to women - it has the effect that men should not have sex with a drunken woman because he may well find himself facing a court. If someone is so drunk that her ability to consent is in question, you should worry about that.

If you do not want to worry about that, you are a wannabe rapist.

You do not explain why you shouldn't have to worry about making sure your partner is "freely and voluntarily consenting", you just say that it's bad: "conservative anti-sex" and "paternalistic."

No, requiring free and voluntary consent is simply anti-rape.

It does restrict the full expression of some people's sexuality, of course: but those people are called rapists.


.Now, whilst, as Severian pointed out, the law is gender neutral, obviously the victim for the vast majority of cases is going to be a woman...By this logic, you might as well say that outlawing rape itself is paternalistic and sexist; that it calls into question a woman's ability to consent to sex and assumes that women are weaker and more likely to be coerced into sex.

Apparently noticing the existence of systematic sexism, and trying to deal with it....is sexist.

Rush Limbaugh, etc., use the same bullshit logic to argue that affirmative action is racist, blah blah blah.

But at least those bullshit artists don't simultaneously put out bullshit where they pretend to be revolutionary leftists, communists, etc.....frankly it's a lot less infuriating.

I am fucking sick of having to deal with this kind of right-wing crap here from posters who should have been restricted long ago.

[ManyAntsDefeatSpiders]

That's ManyAnts retraction.

Which he buried deep in the middle of his post. On the second page of a thread.

Oh. And he also pointed a half-assed retraction at the bottom of his original post.

Which is still titled "consensual drunken sex=rape?!", so anyone who only reads the first page of the thread, not to mention anyone who read the thread before I came along, may still believe this pack of rabid anti-feminist lies that this law supposedly bans consensual sex just because someone involved is drunk.

Which is why this crap can get revived, even though I previously pointed out it's a pack of lies in the first thread on the subject.

I'll be starting another thread to give the truth a little equal billing.

I said if ManyAnts had an ounce of honesty, he'd make a retraction and change the thread title. Obviously he doesn't. So what is the rest of his post worth? Not much.

Not that it particularly matters, but I'm female.

Thank you.


What the fuck?

You object to the Section 2 which simply says "A person (http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s4.html#person) "consents" to sexual intercourse if the person (http://www.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s4.html#person) freely and voluntarily agrees to the sexual intercourse."

How the fuck can any sane and decent person object to that? How can you be OK with consent that isn't free and voluntary?

At first, I thought you might be simply gullible and ignorant.On the contrary, I simply pointed out how in different states they simply refer to 'consent' rather than 'free and voluntary' consent.

So I was questioning why this was introduced.


But now you know what the law says, you have no excuse, and it's harder and harder to avoid the conclusion that you're simply an apologist for rape and rapists.So everyone who opposes such laws is a rape apologist? :rolleyes:


It just says that under some circumstances someone can be too drunk to consent.

This is obviously reasonable. Besides being unconscious, there is also semiconsciousness. There is being too drunk or high to know what's going on or what you might be saying yes or no to. There's being in a daze.

Rape does not become OK just because the victim is in one of these states.
No it doesn't but it is assessing how drunk the person is, rather than whether the person was actually raped.


If someone is so drunk that her ability to consent is in question, you should worry about that.

If you do not want to worry about that, you are a wannabe rapist.Thanks for that.


No, requiring free and voluntary consent is simply anti-rape.

It does restrict the full expression of some people's sexuality, of course: but those people are called rapists.I would say that quite a vast majority of women (and men) have had sex whilst heavily intoxicated.

Are the vast majority of the population rapists?


By this logic, you might as well say that outlawing rape itself is paternalistic and sexist; that it calls into question a woman's ability to consent to sex and assumes that women are weaker and more likely to be coerced into sex.Another fallacy.


I am fucking sick of having to deal with this kind of right-wing crap here from posters who should have been restricted long ago.I've being posting for less than a week.

And by all means start a restriction thread if you have not done so already.

[Severian]

There's been some debate on a new law....I'd like to start with an accurate description of what the law actually involves.

This sort of law reform is designed to not let assholes who rape unconscious and semi-conscious women off the hook, just because they can claim that “She didn’t yell No and fight, your honour, so I figured she was up to it! And she wiggled a bit, halfway through!” They can’t just assume that an absent-No means Yes; they have reasonable grounds to assume valid consent. They can’t get away with it any more just because they didn’t quite realise that raping comatose women is not ok. (Duh, chaps.)
This sort of thing is so prevalent that it even happened on television recently, on a Big Brother show (http://feministing.com/archives/008028.html). There are so many men in the world who think this sort of behaviour is just fine and dandy, that this bloke didn’t think twice about shoving his fingers into a passed-out woman on national TV. Rape culture everywhere.
Back to the Telegraph. Attorney-General John Hatzistergos said:

“If a person is drunk it does not automatically mean that consent can’t be given. What it means is that the onus is on the other person, usually a man, to show he had reasonable grounds to believe the woman had consented.
“It’s difficult to take the Bar Association seriously on this matter when, in their own submission, they concluded that just because a woman was asleep or unconscious (it) doesn’t negate consent.”
“Reasonable grounds”. All this means is that the absence of screaming, clawing, and “NONONO” can’t be considered consent for sex anymore in New South Wales. It’s close to a legal adoption of the “enthusiastic participation” standard for consent, which is simple basic commonsense. Anyone who doesn’t adopt this standard SHOULD be on shaky ground.
We don’t have an epidemic of false rape convictions; what we have is endemic unreported rape, courtroom revictimisation, and a low conviction rate relative to rape rate. This law is one tiny, tiny step to attempt to start to address some of those problems. I notice there is more outcry around the traps about the step in this direction than there has ever been about women getting raped and revictimised in the first place, which shows where our society’s priorities lie - apparently, the poor widdle rapist sons of lawyers, as far as the Bar Association is concerned. I have more concern for the people who they rape, and I’m not going to apologise for it.
We live in a country where a gang of near-adult teenage sociopaths get a few months of “therapy” for gang-raping a girl with an intellectual disability, pissing on her, setting her on fire, and selling the DVDs, and almost no-one seems to know about it, let alone care much. Where’s the Bar Association on that one? And now we’re boohooing over rapists, instead of over their victims. Priorities, priorities.
So, instead of postulating that this law defines being over 0.05 as automatically rendering any person completely incompetent and incapable of consent, and whining that we’re therefore all rapists, now, perhaps a good idea would be to read the actual Bill.
You can read the actual Bill here (http://www.parliament.nsw.gov.au/prod/parlment/nswbills.nsf/0/ED6DAEF33665D79BCA25738B0016907C?Open&shownotes). (PDF download at the bottom of the page.)
From the Explanatory notes (emphases are mine):

The object of this Bill is to amend the Crimes Act 1900:
(a) to define “consent”� for the purposes of sexual assault offences as free and voluntary agreement to sexual intercourse, and
(b) to include in the cases when consent to sexual intercourse is or may be negated: incapacity to consent, intoxication, persons who are asleep or unconscious, unlawful detention, intimidatory or coercive conduct and abuse of a position of authority or trust, and
(c) to provide that a person commits sexual assault if the person has no reasonable grounds for believing that the other person consents to the sexual intercourse.
[…]
Meaning of consent
Consent is an element in each of the offences under sections 61I, 61J and 61JA.
Proposed section 61HA (2) provides that a person consents to sexual intercourse if the person freely and voluntarily agrees to the sexual intercourse.
[…]
Proposed section 61HA (6) provides that the grounds on which it may be established that a person does not consent to sexual intercourse include:
(a) if the person has sexual intercourse while substantially intoxicated by alcohol or any drug, or
(b) if the person has sexual intercourse because of intimidatory or coercive conduct, or other threat, that does not involve a threat of force, or
(c) if the person has sexual intercourse because of the abuse of a position of authority or trust.
Proposed section 61HA (7) provides that a person is not to be regarded as consenting to sexual intercourse by reason only of the fact that the person does not offer actual physical resistance to the sexual intercourse. This replaces a similar provision currently contained in section 61R (2) (d).
There is absolutely nothing in this that says that if a person is “over the limit”, they are automatically legally incapable of consent. It says that substantial intoxication may be grounds to establish a lack of legal consent, and that men may no longer fuck passive/incoherent women and assume that a lack of a fighting “No” meant that they were gagging for it.
Why the flying fuck is this controversial?
from here (http://viv.id.au/blog/?p=1126)


And for those who want the full text:
Right here (http://www.parliament.nsw.gov.au/prod/parlment/nswbills.nsf/0/ed6daef33665d79bca25738b0016907c/$FILE/b2006-087-d24-House.pdf)


Note, BTW, that this law actually took effect in New South Wales, Australia, at the beginning of 2008. No word of any epidemic of locking up innocent men for drunk consensual sex. Big surprise, huh?



****



There've been two different threads that completely misrepresent this new law, and a similar proposal in Britain:
Here (http://www.revleft.com/vb/consensual-drunken-sex-t78003/index.html)

and

here (http://www.revleft.com/vb/uk-women-lose-t52326/index.html?t=52326)

And in both cases, I come along late enough in the thread that a lot of people don't see the factual correction and probably only see the lies at the top of the thread.

So I wanted to post this, and start with an accurate picture of what the law actually says.

Lemme just say that you gotta ask why anyone on a "revolutionary left" board would be repost such a pack of reactionary lies, and continue even when called on it....this really, really pisses me off.

Really, they're worse than the straight-up right-wingers: people who have essentially the same politics, but pretend they are communists or something based on completely abstract ideological labels.

[TC]

Rape while intoxicated is still rape, but intoxication is utterly immaterial in terms of whether or not a sex act is consensual or rape, and this law claims otherwise.

To allow intoxication to provide grounds on which it may be established that someone did not consent (as opposed to verbally withdrawing consent, or valid grounds such as being the subject of intimidation) has the same effect because it means that to demonstrate that sex was rape, it doesn't need to be argued that the "rapist" had reason to think the "victim" did not consent in the ordinary common sense definition of "consent" but only that the "victim" was intoxicated as this can now be used to evidence lack of consent.

This is in effect saying that drunk sex is 'rape'; naturally in order for someone to be prosecuted there needs to be a complaint made, but before this law and laws like it, it would be impossible to prosecute someone when were not being reckless with regard to the others consent (in the normal sense of willing participation); with this law they can be prosecuted if the other person was drunk. A complaining witness doesn't have to say "I said stop" or "I was passed out", they can just say "I was visibly drunk" and it has the same effect.

That puts men in the same position towards drunk women as they are with under-aged girls: do they trust them with the ability to destroy their lives through criminal prosecution? The consequence of this is that for a drunk woman to ask for sex is to ask anyone they have sex with to expose themselves to criminal liability; clearly has a negative effect on women's sexual options.

[Die Neue Zeit]

TC, thanks for clarifying. :) I read the back-and-forth between Severian and ManyAnts, but was still left confused. :(

[TC]

Merged as the topics are *identical.*

[Severian]

Not that it particularly matters, but I'm female.

You're right. It doesn't matter.


So everyone who opposes such laws is a rape apologist? :rolleyes:

Is that a general hypothetical question? :rolleyes: yourself.

It might be possible to come up with a legitimate objection to what the law actually says, I don't know, but obviously we haven't seen that here.

Instead we've seen a lot of lies about what the law actually says, followed by some totally ridiculous objections, followed by a repetition of the old lies about what the law actually says.

Any reasonable objection, BTW, would probably have to be based on the need to safeguard the democratic rights of the accused. Which of course do need to be protected, when it comes to rape, murder, or any other crime. There needs to be a fair trial and a presumption of innocence.

Instead, there's been a lot of concern trolling about "anti-sex" this and "patronizing" that.

[Severian]

Rape while intoxicated is still rape, but intoxication is utterly immaterial in terms of whether or not a sex act is consensual or rape, and this law claims otherwise.

Obviously it is a material consideration. You don't have a serious argument here.

That's why you and other opponents of this law have had to misrepresent it from the start, and pretend it makes drunk sex automatically rape.

Again: it doesn't. Not for any level of intoxication.

But it does make that a consideration which can be taken into account, in determining whether consent was given.

[Guerrilla22]

Under this law, would the insertion of one's fingers into a vagina while a female is in an unconcious state qualify as sexual assualt?