Ted wroteNow, actually, the way the law works is that not only does the being raped be not able to give consent, but that the rapist has to know that the the other person was not able to give legal consent.
The context here is the idea that Ted is disagreeing with a set of statistics. He is not arguing that the definition of rape used in itself is incorrect - he is arguing that some (perhaps many) of the cases classified as rape weren't actually rape because they were cases where both the victim and the attacker were drunk. He has used a thought experiment to attempt to demonstrate that cases where both parties are drunk to the point where they are unable to give informed consent could be classified in one of two ways - mutual rape or no rape at all. He then claims that the law says that there was no rape, and as such the statistics are faulty.
His claims are problematic for multiple reasons. The first is the straightforward misstatement of the law - a limited number of jurisdictions within the US require that the attacker either was aware or should have been aware that the victim is unable to consent. Ohio law was used in the study, and has no such condition. Ted is already misrepresenting facts in order to discredit figures he disagrees with.
The second is the association between the idea that the rapist has to know that the victim is unable to give consent and the idea that if the rapist is drunk, the rapist is unable to know that consent can't be granted. The scenario Ted's discussing is one where both parties are, according to him, "partially inebriated". They're still functional - Ted is just asserting that judgement is impaired to a point where someone may not be able to grant informed consent. Leaving aside the idea that partial inebriation is sufficient for that condition to arise (which is unlikely - it's typically used in scenarios where the victim is entirely unable to function), it's absurd to argue that mere partial inebriation is insufficient to know whether or not someone is able to provide consent.
The third is a pretty fucking fundamental problem. It's the idea that you have a scenario where two people are both drunk enough that they can't provide consent and yet simultaneously initiate sex with each other. That's the scenario required for Ted's putativeOr did Alice and Bob rape each other? Let's throw them both in jail! outcome to arise. It's an absolute straw man. The logical outcomes of the scenario where you have two drunk people are that either no sex occurs at all, mutually consensual sex occurs or one of the parties initiates sex without consent. Ted's carefully constructed a straw man where an impossible scenario could have absurd consequences, and then saved us with a reading of the law that means we have to ignore the statistics he finds so offensive.
Anyway. Let's look at an actual example of such a law:Any person who subjects another person to sexual penetration (a) without the consent of the victim, (b) who knew or should have known that the victim was mentally or physically incapable of resisting or appraising the nature of his or her conduct, or (c) when the actor is nineteen years of age or older and the victim is at least twelve but less than sixteen years of age is guilty of sexual assault in the first degree.
Note the lack of any kind of symmetry requirement. Going back to something you wrote earlier:For an extreme example, suppose that one side was completely passed out in his/her own room, and a stranger walked in. I'm quite sure he'd consider sex in that situation to be rape no matter how drunk the stranger was
The distinction between Ted's claim and an actual example is the "should have known" present in the law and not present in Ted's claim. The rapist in your case should have known that they were no longer able to judge consent, and so the law would be unlikely to accept that as any kind of defence. But the same argument applies to the case that Ted describes! Either Ted believes that being drunk is sufficient to be unable to determine whether someone is able to provide consent, or he doesn't. He explicitly claims that he does.
I'm done here. You're trying to invent some distinction that means he only believes what he wrote in certain circumstances, but that distinction isn't backed by law or by anything Ted wrote. His claims are absurd, offensive and factually wrong, and arguing otherwise is ridiculous.
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Re: My overall take on the discussion
Date: 2012-11-13 05:35 am (UTC)Ted wrote
The context here is the idea that Ted is disagreeing with a set of statistics. He is not arguing that the definition of rape used in itself is incorrect - he is arguing that some (perhaps many) of the cases classified as rape weren't actually rape because they were cases where both the victim and the attacker were drunk. He has used a thought experiment to attempt to demonstrate that cases where both parties are drunk to the point where they are unable to give informed consent could be classified in one of two ways - mutual rape or no rape at all. He then claims that the law says that there was no rape, and as such the statistics are faulty.
His claims are problematic for multiple reasons. The first is the straightforward misstatement of the law - a limited number of jurisdictions within the US require that the attacker either was aware or should have been aware that the victim is unable to consent. Ohio law was used in the study, and has no such condition. Ted is already misrepresenting facts in order to discredit figures he disagrees with.
The second is the association between the idea that the rapist has to know that the victim is unable to give consent and the idea that if the rapist is drunk, the rapist is unable to know that consent can't be granted. The scenario Ted's discussing is one where both parties are, according to him, "partially inebriated". They're still functional - Ted is just asserting that judgement is impaired to a point where someone may not be able to grant informed consent. Leaving aside the idea that partial inebriation is sufficient for that condition to arise (which is unlikely - it's typically used in scenarios where the victim is entirely unable to function), it's absurd to argue that mere partial inebriation is insufficient to know whether or not someone is able to provide consent.
The third is a pretty fucking fundamental problem. It's the idea that you have a scenario where two people are both drunk enough that they can't provide consent and yet simultaneously initiate sex with each other. That's the scenario required for Ted's putative outcome to arise. It's an absolute straw man. The logical outcomes of the scenario where you have two drunk people are that either no sex occurs at all, mutually consensual sex occurs or one of the parties initiates sex without consent. Ted's carefully constructed a straw man where an impossible scenario could have absurd consequences, and then saved us with a reading of the law that means we have to ignore the statistics he finds so offensive.
Anyway. Let's look at an actual example of such a law:
Note the lack of any kind of symmetry requirement. Going back to something you wrote earlier:
The distinction between Ted's claim and an actual example is the "should have known" present in the law and not present in Ted's claim. The rapist in your case should have known that they were no longer able to judge consent, and so the law would be unlikely to accept that as any kind of defence. But the same argument applies to the case that Ted describes! Either Ted believes that being drunk is sufficient to be unable to determine whether someone is able to provide consent, or he doesn't. He explicitly claims that he does.
I'm done here. You're trying to invent some distinction that means he only believes what he wrote in certain circumstances, but that distinction isn't backed by law or by anything Ted wrote. His claims are absurd, offensive and factually wrong, and arguing otherwise is ridiculous.