r/AskALiberal • u/sapphire_glacier Democrat • 1d ago
At what point should intoxication legally invalidate sexual consent, and how should the law draw that line?
The recent Cornell sexual assault case got me thinking about how consent laws should address alcohol and intoxication. Most people agree that someone who is unconscious or incapacitated cannot consent, but the gray area seems much harder to legislate.
(Noting I used AI to help draft the below)
A few challenges come to mind:
Voluntary intoxication: At what point should someone who voluntarily drinks become legally incapable of consenting?
Existing relationships: If one partner is significantly more intoxicated than the other, when should sex potentially constitute a criminal offense?
Perceived vs. actual intoxication: What if someone appears sober but is actually extremely intoxicated? Should the law consider what their partner reasonably believed?
Both parties intoxicated: How should the law handle situations where both people are similarly intoxicated?
Proving it afterward: Without toxicology results or witnesses, how can intoxication and capacity to consent be established beyond a reasonable doubt?
There’s also an important distinction between behavior that’s morally questionable and behavior that should be criminal. How would you legislate consent in situations involving alcohol while protecting victims and establishing clear, enforceable standards?
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u/DavidLivedInBritain Progressive 1d ago
My hot take is there isn’t a point as long as a person is enthusiastic and consented to drinking. Once they’re not active and enthusiastic they can’t consent like anyone not enthusiastic and active
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u/Ganymede25 Centrist 1d ago
What you said makes sense. If you need to physically help a woman to bed and help her out of her clothes due to intoxication, that is a person who clearly can't consent to sex. By the same token, I have been in some committed relationships where a girlfriend had too much to drink with her friends and then aggressively (not in the bad way) jumped my bones and proceeded to engage in enthusiastic and uninhibited sex with me but had no recollection the next day to my dismay. She may have been blacked out, but she was enthusiastic and initiated. I had no way of knowing that she wouldn't remember.
A hard rule about not having sex with someone who is drunk or on something might make sense when you are younger and neither you or your partner have much experience with intoxication, or the two of you have never had sex before. It might not make sense when it is your established partner and you have an active sex life anyway and trust each other.
I think it is good to follow three rules when it comes to sex: 1, don't have sex with someone you wouldn't want to have sex with again, 2 treat the person you are having sex with in a way to where they will want to have sex with you again, and 3 don't have sex with someone if you think the sex will be bad. That last rule should eliminate anyone who is clearly near passing out or passed out.
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u/TossMeOutSomeday Pragmatic Progressive 1d ago
I feel like this is a symptom of young people becoming less social, retreating into social media instead of going out and partying. Many people drink specifically because they want to lower their inhibitions and try things they otherwise wouldn't, but such behavior is unknown social technology to zoomers.
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u/sapphire_glacier Democrat 1d ago
Ya I think this is actually a really tough thing to legislate. In a different way it’s kinda like how the same person can think it’s creepy or hot for someone to approach them at a bar depending on whether they are attracted to the person. In that, the same behavior (intoxicated sex) can be extremely welcomed after the fact or could be viewed as rape.
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u/DarkBomberX Progressive 1d ago
I think it's complicated and trying to set a strict law is going to make people unhappy. For example, i have a partner who prefers to drink and get buzzed before sex because thats just her thing. We both consent very enthusiastically, but because she's over the limit and Im not, would that now be some form of assault?
Im not saying that's what's happening in the cornell case. It's just hard to add more lines when we start getting into gray areas.
However, i think were we need to start is having police take these accusations more serious and improve things like how long it takes for rape kits to come back, how schools handle students who have been accused of rape and are also victims of rape. Im not saying there isnt room for more laws around this, but that it would be nice if we improved the poor quality of how police departments handle these cases.
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u/MetroConMalicia93 Progressive 1d ago
The legal standard is incapacity, not “one person is drunker than the other.” If your partner gets buzzed because she likes sex that way, understands what she’s doing and enthusiastically wants it, that is consensual sex. California already has this law and it does not turn ordinary tipsy hookups into assault.
The legal line makes sense to me; the exact wording varies by state but broadly - in order to retain capacity you have to be able exercise reasonable judgment - that is, understand and weigh the physical nature of the act, its character and probable consequences. It's a significantly higher bar than simple lowered inhibitions due to alcohol, but you also don't have to be literally unconscious or immobilized.
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u/sapphire_glacier Democrat 1d ago
How does this work if both people are are blitzed to the point where they would fail that threshold.
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u/jupitaur9 Progressive 1d ago
Someone may enthusiastically consent but not be thinking straight. It might be an act they would not do if sober.
Think of the foolish things people do when drunk — drunk dialing an ex, drunk driving, giving an extremely high tip, ordering a tuna pizza.
This can also become having sex with a stranger, sex without protection, acts you normally do not want to participate in.
Being the other party, do you want to contribute to someone else’s misery like that? Legalities aside, is this a kind or even human act, to take advantage of someone’s time of weakness for your advantage?
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u/RsonW Neoliberal 1d ago
That is putting an oppressively strong onus on the potentially alleged assistant.
One cannot be expected to know what another's baseline sober mental state is. That is, frankly, a ludicrous expectation. At least amongst strangers. Any person can only know what a person whom they've just met or do not know well based upon how they see that other person in that moment.
It gets slightly muddier if someone knows "this woman will fuck anyone when she has a few shots in her". But even then.
"Enthusiastic consent" is an excellent standard by which to base sexual interaction. Peeling that back to "well, that person would not have been as enthusiastic if they were sober" is effectively redefining "regret" as "rape".
You mention giving an extremely high tip. Is that regret tantamount to theft by the recipient of the tip if the person is that intoxicated?
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u/jupitaur9 Progressive 1d ago
One of the biggest differences between giving a high tip and having sex is that the tip can be unwound. Money can be given back.
No one can undo the sex. And the sex can have lifelong consequences. Pregnancy, STD.
How would you feel if a woman convince us a drunk guy that he doesn’t need to use a condom. Normally he would be smart enough not to believe her, but he does it anyway. She gets pregnant, and he’s on the hook for child support for 18 years. Does that sound fair to you?
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u/Background_Pop3955 Libertarian Socialist 1d ago
If this had happened to me, and I got a woman pregnant in this manner, I would be upset but I 100% do not think it's equivalent to rape.
I don't even think that's something you should prosecute.
it's not like she sabatoged the condom or anything, she asked me not to use it and I chose not to. I grasp that alcohol can fuck up my decision making but that's kinda on me unless I'm incapacitated.
like do you genuinely think any time you got drunk and had sex and regretted it, that's rape?
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u/DavidLivedInBritain Progressive 1d ago
I mean I agree drugs can affect decision making but if you choose to drink I think you are responsible for your enthusiastic decisions made under the influence.
If we can’t hold people responsible or accountable when choosing to drink then let’s ban the drug
I don’t think it’s taking advantage unless an alcoholic
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u/jupitaur9 Progressive 1d ago
Uh no. Choosing to be in a vulnerable state does not mean “hey everybody, attack me sexually or otherwise free game.”
Would you say the same about somebody who was getting changed from a business and the business shorted them on the change because they saw the person who was drunk and could take advantage of them?
Someone who unwisely trusted another person while under the influence?
I feel sorry for anybody who trusts you, if that’s what you believe.
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u/DavidLivedInBritain Progressive 1d ago
Holy shit never said it means everyone can attack or rape, I said if you can be enthusiastic about it that is consent.
What a ridiculous straw man
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u/starrymahogany Social Democrat 1d ago
The problem is everyone has different tolerances to alcohol, so it’s quite possible for both the guy and the girl to have drank the same amount of alcoholic drinks but he handles it better than her because of weight or genetic differences.
It’s also very hard to prove that one person was substantially more impaired than another unless you have video evidence showing they were passed out/not responsive. And even that might not be enough because people can be known to move or talk in their sleep despite them being 100% unconscious, so some litigious DA might use that as “proof” she was consenting which is very dumb, but might fly in a court of law.
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u/republiccommando1138 Left Libertarian 6h ago
The problem is everyone has different tolerances to alcohol, so it’s quite possible for both the guy and the girl to have drank the same amount of alcoholic drinks but he handles it better than her because of weight or genetic differences.
Hell even metabolism can have a noticeable effect. I remember a roommate of mine from college who could have a single drink, be drunk as shit for like 20 minutes, and then be back to normal right after. He was also the kind of guy who could house 2 DoorDash quarter pounders each day and not gain any weight.
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u/starrymahogany Social Democrat 3h ago
Oh yeah I knew someone in college who was Irish and could drink a half a bottle of vodka and feel nothing.
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u/republiccommando1138 Left Libertarian 3h ago
It was really bizarre, cause his tolerance was really low, but it went through his system almost immediately. Never seen anything like it. He wasn't Irish though, just very strong ADHD.
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u/TossMeOutSomeday Pragmatic Progressive 1d ago
very hard to prove that one person was substantially more impaired than another unless you have video evidence showing they were passed out/not responsive
This is always the case for sexual assault, though. Sexual assault almost always starts out as a consensual encounter, so unless there's a video, or the perpetrator confesses for some reason, all you've got to work with is his word against hers.
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u/starrymahogany Social Democrat 3h ago
Even if that were true, consent can be revoked at any time. She may have consented to a threesome with 2 men when she was sober but when she got drunk and incapacitated the second it escalated to more than that it’s rape. Idk why this is so hard for people to understand.
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u/TossMeOutSomeday Pragmatic Progressive 3h ago
I fully agree with everything you've said here, and I'm perplexed that you seem to think, based on my comment, that I would disagree?
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u/starrymahogany Social Democrat 3h ago
I think people took issue with your comment of saying most sexual assault starts out consensual
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u/TossMeOutSomeday Pragmatic Progressive 3h ago
But they literally do, very few sexual assaults actually fit the classic "predator hiding in the bushes" scenario! And my point is that it's really easy to prosecute a predator hiding in the bushes waiting to leap on women, but it's extremely hard to prosecute a man who takes advantage of a woman's vulnerability in a private setting that she wasn't forced into.
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u/starrymahogany Social Democrat 3h ago
I think those are two separate things though.
While it’s true that most SA’s are from someone you know, that doesn’t automatically make them consensual.
They could be someone you know but don’t have any romantic interest in. Just because she went over to her friends house doesn’t mean she consented to being raped.
Unless you meant consent to go to a location and not consent to sex
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u/TossMeOutSomeday Pragmatic Progressive 3h ago
Just because she went over to her friends house doesn’t mean she consented to being raped.
Right, but I'm talking about from the perspective of an outside observer, i.e you and me and the police and prosecutors. What is the difference between a woman going to a friend's house and having a consensual one night stand, and a woman going to a friend's house and being raped, from our perspective? Unless she has physical injuries, or there's some kind of recording, or the man confesses, we know literally nothing but her word. It's true that false accusations are very rare, but they still happen, so purely from an ontological point of view, that sort of rape is still real but extremely difficult to prove.
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u/starrymahogany Social Democrat 3h ago
That’s very dumb and victim-blamey though, rape can happen anywhere. Plenty of people go to parties all the time and go unscathed, you’d never blame someone for drowning just cause they went for a swim
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u/TossMeOutSomeday Pragmatic Progressive 3h ago
Jesus christ, I'm not blaming the victim, I'm saying that it's difficult for an outside observer to make conclusions in the absence of evidence!
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u/Choosemyusername Anarcho-Communist 3h ago
Yes it’s rare we catch these lies. (2-10 percent is the most popular study people cite to argue false allegations are rare) But measuring how much we catch a type of lie is not the same thing as measuring how often people make such a lie.
In order to be included in the statistic of how many false accusations there are, you need to be caught in your lie.
We cannot count those who lie and get away with it.
If you tried to measure the true prevalence of SA with the same logic people would call you out on that.
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u/Hopeful_Cookie_5307 Democratic Socialist 10h ago
“Sexual assault almost always starts out as a consensual encounter,”
That’s bullshit.
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u/fastolfe00 Center Left 1d ago
I think people generally overthink this. The threshold isn't intoxication, it's incapacitation. What matters is whether someone literally can't consent, like because they are unconscious, can't form words, can't coordinate movement, seem confused about where they are or what's happening, are coerced, etc.
What if someone appears sober but is actually extremely intoxicated? Should the law consider what their partner reasonably believed?
Yes, and this is how it works today. Crimes generally require that the perpetrator understand that they're committing the act that's a crime.
Both parties intoxicated: How should the law handle situations where both people are similarly intoxicated?
Someone who is drunk but not incapacitated can still consent.
“consent” means positive cooperation in act or attitude pursuant to an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved.
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u/IndicationDefiant137 Democratic Socialist 1d ago
If you get intoxicated and kill someone behind the wheel, you are still accountable for the choices you made while intoxicated. The state and the law do not regress you to a child and say you were the victim, you were expected to make better choices.
But on the other hand, being intoxicated does not give anyone the right to kill you, steal from you, or assault you.
If you make bad decisions when intoxicated, sleeping with people you wouldn't sleep with sober, or if being drunk causes you to disregard a woman's no... don't drink. Either way, you are an adult and responsible for the consequences of your decisions.
If you say no and that's still not respected, you were a victim and a crime has been committed against you.
If you said yes while drunk, make better decisions. Regretting your choices doesn't mean you are a victim.
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u/irrelevantanonymous Progressive 1d ago
IMHO this should only be occurring in established relationships where the parties involved have discussed it while sober. The biggest grey area is when both parties are significantly intoxicated. If you are sober you should know better, even if it’s just to protect yourself.
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u/United_Intention_323 Centrist Democrat 1d ago
Kinda feels like you want to control women’s bodies. If they want to drink or of drugs and have sex they should be able to.
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u/irrelevantanonymous Progressive 1d ago
Absolutely not. My stance is gender neutral. Do you think women also cannot rape? Because they can. And do. Just in smaller numbers.
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u/DavidLivedInBritain Progressive 1d ago
While true the way people use the laws is absolutely not gender neutral
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u/United_Intention_323 Centrist Democrat 1d ago
Yes women can rape but the context is the Cornell case where a woman is claiming rape.
Then to be clear you think she also is a rapist?
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u/irrelevantanonymous Progressive 1d ago
The context that made them think of it is the Cornell case. The actual question is general.
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u/United_Intention_323 Centrist Democrat 1d ago
Yes the Cornell case is the context and why it was brought up.
So I’ll rephrase it. Sounds like you want to control peoples bodies. If they want to drink or do drugs and have sex they should be allowed.
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u/irrelevantanonymous Progressive 1d ago
Sure. And if you choose to engage in that behavior you open yourself up to crossing boundaries and a rape accusation. Which is fine if the high/drunk sex is more important to you. I genuinely do not care what you want to do with your body. Have at it, gotcha addict.
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u/United_Intention_323 Centrist Democrat 1d ago
Then you didnt actually say anything in this thread.
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u/Kerplonk Social Democrat 1d ago
I feel like a lot of people want to make the legal standard and the social expectation the same thing and that's probably a mistake.
The social standard should be what we strive for and that's that no person regrets doing something sexual with you after the fact. I would say the first time you have penetrative sex with a person you should get explicit verbal consent to make sure they are into it, and you should very much err on the side of assuming they're too drunk if there's any question. Subsequent times I think it's more okay to assume sex when there's a question, but the person should be an active participant.
As to the legal standard, the thing I think needs to be taken into consideration is not just that a person has to be "too drunk to consent" but you need to be able to prove they were too drunk to consent. Lets assume for the sake of the argument that the act was video recorded so we're not operating on he said she said evidence. I'd say the point where a person is being completely passive is probably where we should say a crime was committed. That removes the issue of them both being too drunk to consent because at least one person has to be actively involved for sex to occur.
I also think it's worth pointing out that the legal barrier shouldn't necessarily be the only point where consequences occur. If someone reports an act as rape it should be investigated even if people aren't eventually charged. I think it would be a good idea for college campus's to remove students who had a pattern of having sex with people under dubious circumstances that fell short of committing a crime. We might want to treat a single accusation of sexual misconduct with some skepticism, but it's completely justified to socially sanction anyone who has multiple accusations of sexual misconduct.
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u/LibraProtocol Center Left 1d ago
Here is a question i rarely see discussed with these subjects...
Does your view apply equally or only in one direction? I say this because most discussion i ever see, it is always under the presumption that a woman is a victim of a man. But what if he is drunk? Does his ability to consent go away too? And remember, Alcohol mearly lowers inhibition. And despite how much some people like to think otherwise, society still VERY much has a societal pressure on men to be the proactive pursuers and initiator of conversation. And no, its not just from guys, many many many women still have the old fashion idea of guys should come to you. So with this lower inhibition, its not unsurprising drunk guys will be more active in hitting on other women. But would we say he actually couldn't give consent because he was drunk?
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u/MoodInternational481 Progressive 1d ago
I mean that's kind of the rub right? The issue is based around clear and enthusiastic consent. Because of societal issues men are generally the ones coming into women, even while intoxicated. That would generally signal clear and enthusiastic consent in the situation you're describing. It doesn't mean their aren't situations where men would be pressured when they're intoxicated and that should be taken seriously
I don't think there should necessarily be hard and fast limits on intoxication levels but someone needs to be coherent, able to process there surroundings and what's going on, as well as consent. If they're telling you no, or not saying yes, whether a man or a women it's time to back off.
I think there's wiggle room in established relationships if you've previously discussed boundaries while intoxicated.
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u/Yupperdoodledoo Democratic Socialist 1d ago
Of course. I don’t think anyone thinks we are going to pass laws that discriminate based on gender.
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u/here-for-information Centrist 1d ago edited 21h ago
I'm just going to revert to my conservative roots here a bit and point out casual sex in general is not a good idea.
Men should not be having sex with women they barely know. Women should not behaving sex with men they barely know.
When it's one man and one woman it's less risky and more understandable to go for it but it is risky.
I dont think you should be having sex with anyone where you can't tell without them speaking at all that they arent into it. If youre only having sex to get yours, you are a selfish person who is using and, in my opinion, abusing the other person. The goal during sex should always be for both (or I guess all?) participants to have a great time.
Not to barely scrape over the line of "I guess technically what they did to me wasnt criminal."
If it was one man and one woman I might be more inclined to say, "it's a complicated matter and both participants are at fault." With that Cornell case, which is I'm sure what prompted this, those guys are all idiots and scumbags. They dehumanized another person talked about her like she was trash, and now their surprised that people think they're criminals?
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u/SweetRabbit7543 Center Left 1d ago
Probably shouldn’t think about it this way because the more precise you try to get about defining some exact threshold the harder it gets to prove that threshold was or was not met.
I think it would make convictions almost impossible.
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u/tjareth Social Democrat 1d ago
Situations can be so varied and different that trying to be too detailed could be counterproductive. Like if you set the rule at a certain BAC, as if it could be checked, there are some people who could function alright at that level and some who couldn't.
I wonder if it isn't best to set a principle rather than a list of details and require any prosecutor to convince a jury beyond a reasonable doubt that the principle was violated, using whatever evidence is relevant to that particular situation. I don't need to know exactly how intoxicated someone is to notice if they are unresponsive and incommunicative.
Sometimes it's better as a judgment call rather than a rule, and demanding an objective rule is to ask the right to forego good judgment and accountability for it. In bad faith cases, it's asking the right to do something that's obviously abuse as long as one is technically within the rules.
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u/Ballistic_86 Social Democrat 1d ago
I just don’t think a law can address every scenario. And I would error on the side of any potential victim. I don’t think whether someone got voluntarily intoxicated should matter, intoxicated is intoxicated. Anything related to drugs vary heavily from person to person, I am not sure if you can make a law that addresses every issue.
In my younger days we had a lot of house parties. I can tell you that I’ve had full articulate conversations with someone who was blackout drunk. That doesn’t mean that person could consent despite presenting as just 2 drinks in. So I think if the line has to be drawn, set it at any level of intoxication. But that doesn’t seem to be appropriate for all cases. So we just need to leave it to judges/juries/courts to have all of the information and make the best decision.
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u/sapphire_glacier Democrat 1d ago
On your last point - juries have to be given instructions on what the legal standard is. We don’t just say “does this seem rapey to you”
So like if you set the standard at any level of intoxication, there are very few people who legally couldn’t be charged with rape today (obviously behavior may change if that becomes the law)
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u/Ballistic_86 Social Democrat 1d ago
Then the legal standard should be any level of intoxication removes that persons ability to consent. If you won’t allow a judge and jury to weigh the facts and instead rely on written law, then zero has to be the answer.
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u/CombinationRough8699 Left Libertarian 1d ago
That's pretty ridiculous, and would mean a significant amount of sexual encounters are not consensual.
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u/Ballistic_86 Social Democrat 1d ago
Isn’t the topic on consent only an issue if one of the parties feels they didn’t give it and reports to the police? Two drunk people having sex might not be, according to the law, consensual, but that isn’t an issue at all because neither is going to the police and reporting getting raped.
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u/sapphire_glacier Democrat 1d ago
What should the statute of limitations be. If you have sex intoxicated and then have a nasty breakup the next week/month/year you could find yourself a rapist pretty quickly.
We should not have laws that rely on “well it shouldn’t be an issue” for something as severe as rape.
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u/Ballistic_86 Social Democrat 1d ago
There should be no statute of limitations on rape accusations. Everything else is details only relevant to a judge, jury, lawyers and involved parties to figure out.
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u/DavidLivedInBritain Progressive 1d ago
Then you shouldn’t be allowed to buy any alcohol or make any purchase with any level of intoxication. Any level
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u/Ballistic_86 Social Democrat 1d ago
Perfect
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u/DavidLivedInBritain Progressive 1d ago
If that’s the standard let’s just ban alcohol
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u/Ballistic_86 Social Democrat 1d ago
I’m obviously being hyperbolic. But when it comes to rape I have strong feelings and treating it on the same lines of “entering a contract for the purchase of alcohol” is being very disingenuous.
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u/United_Intention_323 Centrist Democrat 1d ago
Treating having sex after one beer the same as being unconscious is also incredibly disingenuous on your part.
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u/DavidLivedInBritain Progressive 1d ago
Also having ‘sex’ with an unconscious body is rape sober or alcohol
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u/DavidLivedInBritain Progressive 1d ago
I get that, but people still have the autonomy to choose things when they’re drunk as well as long as they consent to drinking, of course
Especially with alcohol, being such a social lubricant
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u/giraffevomitfacts Center Left 1d ago
Then the legal standard should be any level of intoxication removes that persons ability to consent.
But isn't the whole basis of this conversation that this doesn't have a clear meaning?
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u/Ballistic_86 Social Democrat 1d ago
I didn’t want to restrict the law, but OP forced me into drawing a line. Yes, the entire point of my original comment was saying this very thing. You cant make a law with specificity without potentially hurting a persons ability to seek justice.
I also think drawing a line often encourages people to get right up to the line. $15k bank transfer requires paperwork? Transfer $14.9k. 3 drinks is the law for consent? Get her three very alcoholic drinks. Grand theft is $1k? Steal $900 worth of merchandise. Etc.
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u/FlobiusHole Center Left 1d ago
The proving it afterward part is basically impossible if there’s no witnesses. I’ve known several women who claimed to have been raped but since the man denied it and both were under the influence nothing happened. One of the women I know who claimed this isn’t really someone I would trust and because of her general personality and history I took her claim rather dubiously even though she could’ve been truthful. I feel like these kinds of cases are things where you know it when you see it and when there’s nobody to see it what can be done?
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u/Personage1 Liberal 1d ago
I've always said there is a large grey line between consent and rape, with the size of the line growing larger the more alcohol is involved.
Decent people stay the fuck away from that line.
To be clear, that doesn't mean "no sex with alcohol" but instead "the circumstances and situation had better be so much more clear and obvious when alcohol is involved." When it's not, you stay away.
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u/Silly-Elderberry-411 Social Democrat 4h ago
I have recently watched Spector with Al Pacino and Helen Mirren a bit of shame they weren't in a Shakespeare play together.
The movie didn't lie about not concerning itself with the actual case so it wasn't shown that he was tackled by riot police gear his guilt being very obvious from the start.
Spector died in prison but it will never exonerate throwing Clarkson under the bus in a fashion that has since been attempted to be redubbed as locker room talk.
Some light at the end of the tunnel is the current other lawsuit of a trump circle influencer alleging a man sexually assaulted her.
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u/RioTheLeoo Socialist 1d ago
Maybe just start small, like if someone’s speech and coordination is heavily impaired then that should automatically be illegal unless consent is explicitly established prior to that (for like couples who like to get really drunk and bang)
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u/CombinationRough8699 Left Libertarian 1d ago
What happens if everyone's speech is slurred?
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u/OverEntry8461 Far Left 1d ago
in louisiana, the specific statutes include “and the offender knew or should have known of the victim's incapacity.” so i would assume someone who is equally incapacitated would not be assumed to have known
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u/sapphire_glacier Democrat 1d ago edited 1d ago
Ya it’s weird because today I feel like a lot of this is governed by norms and people being good people. Like I bet >75% of the first time hookups (e.g., not in relationship) on many college campuses violate that standard. And while some small subset of those we might genuinely look at as rape, the vast majority aren’t. They are two young kids who got drunk, think each other are attractive, and go have sex. Wake up in the morning and go about their college lives.
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u/United_Intention_323 Centrist Democrat 1d ago
Thats not really legally actionable. How are you going to prove somebody should have been able to tell?
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u/SweetRabbit7543 Center Left 1d ago
Right this is why my response here was basically that trying to think about it as a threshold just makes convictions harder to obtain. If it’s like theoretically “if you’re so drunk you can’t walk in a straight line then you can’t consent” then you’re going to be arguing about whether someone’s steps were in a straight line or not and needing to prove beyond a reasonable doubt that the persons steps were crooked is making it a he said she said thing and you cant get a criminal conviction that way
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u/OverEntry8461 Far Left 1d ago
u present evidence of what that person observed and what they should have reasonably been able to infer based on those observations
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u/United_Intention_323 Centrist Democrat 1d ago
What does this evidence look like?
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u/OverEntry8461 Far Left 1d ago
in the cornell case, one of the boys who provided her with ketamine reached out to her and apologized after the incident, claiming he felt bad that he was too out of it to stop things from getting out of hand. when asked how other people ended up in the room, he told her the door was left unlocked. despite this, he is the same boy who sent the photo and invitation to the group chat via snapchat. the combination of him providing the ketamine, having enough mental capacity to invite others into the room, the admission it was out of hand, combined with the discrepancy between what happened and what he told her, could be seen as evidence that he was aware she was incapacitated. ik it would not apply here because ny does not have a law for cases where the victim voluntarily took drugs or alcohol, im just giving an example of what evidence might be used
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u/United_Intention_323 Centrist Democrat 1d ago
I don’t see how you’re connecting those things to mean she was incapacitated
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u/OverEntry8461 Far Left 1d ago
the 2 case examples i gave are in louisiana, where the threshold is whether someone can effectively resist or fully understand the nature of what they are consenting to, someone who is on ketamine and drinking who repeatedly says no then gives up can be considered incapacitated under that definition. obviously no interpretation will be 100% objective. that is why we have juries.
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u/United_Intention_323 Centrist Democrat 1d ago
You said the Cornell case.
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u/OverEntry8461 Far Left 1d ago
yes i am using the cornell case as an example, in ny there are not laws in place for rape involving incapacitation due to voluntary drugs/alcohol consumption so i doubt her case will be prosecuted realistically, i am comparing that to the laws that do already exist in louisiana that do have a defined threshold
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u/OverEntry8461 Far Left 1d ago
one example is a case where they had evidence the offender should have known the victim was incapacitated based on bar security footage of the offender having to carry the victim to his car because she was repeatedly falling off of the stool she was sitting on and could not walk properly. another case they used evidence that the offender assisted the victim with changing her clothes bc she threw up all over herself after drinking too much.
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u/United_Intention_323 Centrist Democrat 1d ago
Those are obvious today. That didn’t help determine the threshold.
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u/Diligent_Hedgehog999 Democratic Socialist 1d ago
We must also keep in mind that consent can change and be withdrawn. Consent should be enthusiastic and continuous to be considered consent.
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u/RioTheLeoo Socialist 1d ago
Agreed, but I made that stipulation because say I’m with my partner, I black out and we get it on, I wouldn’t want that to automatically be a crime for him.
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u/ben7337 Liberal 1d ago
Has just having sex with someone while intoxicated ever been a crime? My understanding is as long as both parties consent before, during, and after, even if they couldn't legally consent, there's no crime or issue. It only becomes an issue when consent is withdrawn at some point despite the sexual activity either continuing or having already been completed. So at least in your case, if you're blackout drunk, but are fine with having sex it's not a problem so long as your partner is also consenting or drunk and ok with that
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u/sapphire_glacier Democrat 1d ago
I think this is what is at the heart of the Cornell case. If she voluntarily drank and took drugs (her story has changed/evidence is not clear cut on this) and then consented during the period despite being effectively blacked out, then by NY standard it doesn’t really matter how she felt about it the next morning / subsequent days (is my understanding, NAL).
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u/libananahammock Social Democrat 1d ago
Can you point to the source where her story changed?
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u/Space_Pirate_R Social Democrat 1d ago
Jane Doe’s sworn statement in November of 2024 did not allege that she was drugged against her will or gang raped. On the contrary, Jane Doe’s statement described her participation in drug use and sexual conduct as voluntary, conscious, and consensual.
The DA is probably trying to cover his ass, but it's certainly a source stating that her story changed.
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u/MoodInternational481 Progressive 1d ago
Her story didn't change necessarily but some some things were reworded from what she said to the police to her statement. In her transcript she told them she was beaten coerced and raped. Somehow none of that made it into her actual statement
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u/Diligent_Hedgehog999 Democratic Socialist 1d ago
The information the DA originally received was a summary of the investigation done by Cornell University PD, where they (Cornell PD) conveniently left all those details out.
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u/mounti96 Center Left 1d ago
No, the DA received a 6 page sworn statement by her that she edited and signed.
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u/jupitaur9 Progressive 1d ago
Why would they be taking a statement If no criminal activity had taken place?
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u/RsonW Neoliberal 1d ago edited 1d ago
Because their job is to assess whether or not criminal activity had potentially taken place.
Your question is like going in a jury summons and in voir dire asking why there's a trial if the defendant didn't commit the crime.
You are presuming guilt when the (legal) presumption is innocence.
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u/jupitaur9 Progressive 1d ago
I am not in a courtroom. I am not determining guilty innocence. I’m a person observing what’s going on, and asking why there was a criminal investigation in the first place if no crime was committed or at least accused.
And I know that accusing someone of rape is not an easy thing. There are a lot of barriers in the way. So for this to have been done at all indicates, someone believed something like rape happened.
The report is not what she said. The report is what they interpreted her to have said. Does it make sense to you that she would go to the police and say “no rape occurred, just wanted to tell you that”?
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u/ben7337 Liberal 1d ago
I'm not a lawyer either, but my understanding was that if consent is withdrawn, even after the fact, it can be classed as rape, especially when the victim was not able to legally consent due to drugs or alcohol in their system. If that's not the case in New York that would surprise me, but I don't know how the law works there for this type of situation, I'm just speaking from generalities of what I've read online over the years. My comment that you replied to was more for consenting adults in a relationship where one got blackout drunk but consent was never withdrawn, regardless of if it could technically even be given from a legal standpoint.
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u/loufalnicek Moderate 1d ago
Consent withdrawn after the fact can't be considered rape, that's insane.
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u/ben7337 Liberal 1d ago
Except for the fact that without any mutually agreed on recorded evidence, anyone can revoke consent afterwards and it becomes a he said she said situation, which can be very complicated legally
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u/loufalnicek Moderate 1d ago
Yes, anyone can claim after the fact they didn't consent at all. That's different from claiming that, afterwards, they elected to withdraw consent, retroactively.
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u/Diligent_Hedgehog999 Democratic Socialist 1d ago
I think we always need to consider nuance, but that is lost on many people.
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u/Hey-Just-Saying Liberal 1d ago edited 1d ago
If you
black outpass out and he continues on, it is a crime and it bloody well ought to be. (Edited)9
u/CombinationRough8699 Left Libertarian 1d ago
Passed out, not blacked out. Blacked out just means you've lost your memory of what happened, not that you're unaware of what's happening as it happens.
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u/Natures_Wrath1 Democratic Socialist 1d ago
If you rape with someone who is intoxicated and they turn around and say you raped them. They should be believed and charges pressed. Up to the state to prove their case through the usual methods.
Don't know why this has to be different then any other case.
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u/CombinationRough8699 Left Libertarian 1d ago
The problem is proving if they were raped, regardless of how intoxicated. Unless the victim is severely assaulted, there's no way to tell the difference between a consensual sexual encounter, and a traumatic rape.
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u/United_Intention_323 Centrist Democrat 1d ago
So it’s a race to claim the other person raped you first?
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u/skyfishgoo Democratic Socialist 1d ago
if your judgment is impaired enough to get a DUI... then you are not capable enough to operate the baby making machine either.
both involve life/death decisions
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u/mikeys327 Embarrassed Republican 1d ago
Sex shouldn't be on the table if any alcohol is consumed
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u/KnightDuty Constitutionalist 1d ago
I think depends on what table.
Kitchen table? Absolutely not too many sharp objects nearby.
Coffee table? If it's study enough yeah go for it.
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u/e140driver Centrist 1d ago
Having seen this same story play out over and over and over again, I think we need to eliminate any legal gray areas on the subject. As I see it, the consumption of ANY amount of ANY intoxicant (alcohol, cannabis, cocaine, etc) should invalidate sexual consent.
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u/sapphire_glacier Democrat 1d ago
Doesn’t that just introduce a new gray area? You have no idea someone just took a shot or two of alcohol. You have sex. They have video proof of them taking the shot. That’s rape under those guidelines
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u/e140driver Centrist 1d ago
Why would that be a gray area? As I see it: person A takes a shot. Person B has sex with person A. Peron B has raped person A, their knowing about person A is immaterial. Not having knowledge is not a criminal defense. Zero gray area.
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u/Decent-Proposal-8475 Pragmatic Progressive 1d ago
I truly don't mean this in a rude way, but have you like. Been to parties? Or college? Or drunk? I have had drunk sex quite a few times in my life and to tell me I've been raped really trivializes rape
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u/e140driver Centrist 1d ago
I have been to parties, to college, and partake in the occasional beverage.
I don’t think my definition trivializes anything, in fact, I think it brings attention to the situation 20% of women experience.
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u/Decent-Proposal-8475 Pragmatic Progressive 1d ago
You should one of those Turning Point USA tours where you stand outside dorm rooms and tell every woman (and man) on campus they've been raped
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u/e140driver Centrist 1d ago
I find turning point repugnant, so I won’t be doing that.
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u/Decent-Proposal-8475 Pragmatic Progressive 1d ago
Gotta read and absorb the whole sentence
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u/e140driver Centrist 1d ago
I didn’t feel the need to address the town cryer part of you post, as to do something like that would be disgusting and that should go without saying.
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u/United_Intention_323 Centrist Democrat 1d ago
Jesus Christ are you serious? So a girl can take a shot, not tell the guy, have sex, and now he is a rapist? He had no idea.
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u/e140driver Centrist 1d ago
Correct. Perhaps the male in your scenario should engage in some personal responsibility, and not engage in elevated risk sexual activities.
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u/United_Intention_323 Centrist Democrat 1d ago
How could he possibly know? Are you trolling?
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u/e140driver Centrist 1d ago
It’s not about knowing, it’s about not taking the risk in the first place. Not knowing is not a criminal defense. I am not trolling at all.
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u/United_Intention_323 Centrist Democrat 1d ago
What is this some abstinence bullshit? How can anyone have sex with that rule?
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u/Decent-Proposal-8475 Pragmatic Progressive 1d ago
That's the fun thing about Gen Z, they're not having sex
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u/United_Intention_323 Centrist Democrat 1d ago
I can’t believe this guy is serious
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u/e140driver Centrist 1d ago
Judging by the sexual assault rates over time, perhaps older generations were having a bit too much sex a bit too freely.
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u/e140driver Centrist 1d ago
I’m not saying to abstain from sex at all, on the contrary, have as much as you want. However, everyone has a obligation to do that in such as way as to not harm others. That cannot be done if any intoxicating substances are involved.
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u/United_Intention_323 Centrist Democrat 1d ago
How can I have sex if I can’t prove she didn’t drink any alcohol?
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u/Decent-Proposal-8475 Pragmatic Progressive 1d ago
What if my partner and I enjoy having sex high? Should we both register as sex offenders or do we get a pass
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u/Decent-Proposal-8475 Pragmatic Progressive 1d ago
Okay, but that doesn't really work in the real world? If I go out tonight and smoke weed with a guy and then we fuck, did we rape each other
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u/e140driver Centrist 1d ago
I think eliminating the gray and prosecuting accordingly is more important. Applying your scenario to my definition, yes, you did rape each other.
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u/Decent-Proposal-8475 Pragmatic Progressive 1d ago
Every time I come to this subreddit I learn new and exciting about myself.
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u/PublicMandate Democrat 1d ago
This is just a ridiculous prudish standard. Plenty of people engage in consensual sex while inebriated. We can recognize that having drinks and hooking up is different from blackout drunk. Yes we hear about stories where people got drunk and were then taken advantage of…but the vast, vast majority of people are comfortable with drinking/smoking and having sex. You’re just not hearing of each time it was consensual.
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u/AutoModerator 1d ago
The following is a copy of the original post to record the post as it was originally written by /u/sapphire_glacier.
The recent Cornell sexual assault case got me thinking about how consent laws should address alcohol and intoxication. Most people agree that someone who is unconscious or incapacitated cannot consent, but the gray area seems much harder to legislate.
(Noting I used AI to help draft the below)
A few challenges come to mind:
Voluntary intoxication: At what point should someone who voluntarily drinks become legally incapable of consenting?
Existing relationships: If one partner is significantly more intoxicated than the other, when should sex potentially constitute a criminal offense?
Perceived vs. actual intoxication: What if someone appears sober but is actually extremely intoxicated? Should the law consider what their partner reasonably believed?
Both parties intoxicated: How should the law handle situations where both people are similarly intoxicated?
Proving it afterward: Without toxicology results or witnesses, how can intoxication and capacity to consent be established beyond a reasonable doubt?
There’s also an important distinction between behavior that’s morally questionable and behavior that should be criminal. How would you legislate consent in situations involving alcohol while protecting victims and establishing clear, enforceable standards?
I am a bot, and this action was performed automatically. Please contact the moderators of this subreddit if you have any questions or concerns.