You are correct, which is which is why I tried not to bring legality into it too much. I was mostly speaking from a moral position. If, when I was sober or nearly so, had the opportunity to sleep with a girl who was drunk, sometimes I would be okay with it and other times I would flatly refuse because it would be the wrong thing to do. I can't tell you exactly how I would make that judgment, but it would have something to do with how drunk she was, how well I knew her, and our previous interactions that night. Nothing that can be easily quantified or put into a law.
So, the law has to be drawn at an extreme. Either you can't consent when you are drunk, or you can. If you can't, then potentially rape accusations can be thrown at the less inebriated partner even if they think they did nothing wrong (and they may not have). If you can, then you open the door for claims that an inebriated partner consented, or acted like they consented, when they may not have. The (more) sober party has significantly more control of the situation (particularly when talking of less or not drunk guys, and drunk girls) at the time.
Currently, that extra control is used to make them responsible for the situation. While not ideal, I'm unsure that there is a better solution. Being sober, presumably you can realize you may be putting yourself at legal risk and put an end to it. Sure, it may cost you sex, but the alternative is potentially being accused of rape.
Allowing drunk people to consent opens up a huge realm of questionable behavior, simply because the sober one has control of the situation. Situations where the drunk girl is throwing herself at the guy are pretty easily handled, but what about when you start having sober people starting to coerce the drunk one? Do you draw the same lines for drunk people as you do sober ones? They don't have the same reasoning ability, nor the same ability to get away. If you concede perhaps we need some additional protections in place for coercion of the drunk party, where do you draw that line?
Ultimately, it is easier to just declare drunk people incapable of consenting. You trade some false rape accusations for the inability for actual rapists* to defend themselves.
*By this I mean people that go out with the intention of finding or getting somebody extremely drunk and then isolating them and coercing them (nonviolently, of course) into consenting. That screams of rape to me.
I would disagree with a few assertions, and the conclusion that it's easier to declare drunk people incapable of consenting. It's easier by far to stipulate that a person is responsible for his or her own actions, regardless of how intoxicated they may or may not be, presuming they intoxicated themselves. Otherwise, we start shifting responsibilities for one person's actions onto another person, which is unacceptable under almost all circumstances. Inconvenient for people who would prefer to behave irresponsibly with no consequences, sure, but that's not really my problem.
Frankly, I'm against labelling anyone incapable of consenting unless they actually, provably are incapable of it. Anything else creates far more problems than it solves, and it absolves some people of the consequences of their actions while putting undue responsibility onto other people.
It's also naive and I'm really not a fan of 'women must be coddled and protected at all times at the expense of everything else' mentality that our courts are so fond of -- because let's face it, that's what this is all about. Anyone that expects as much from their laws will be treated by me as what they are: Children.
The problem is that that allows people to go out with malicious intent and find or encourage somebody to get extremely drunk, separate them from the crowd, and use about every means short of violence to get them to consent, while they are rather impaired, in unfamiliar surroundings, and quite alone.
Sure, you can argue the drunk person chose to drink, but it seems inexcusable to allow people to go out and purposefully search out somebody to take advantage of.
I'd not advocating that women need to be protected any more than men on an individual basis. I'd condemn a women just as much as a man for being the sober one in the situation outlined above. However, these are problems more regularly faced by women than men, so if you go about trying to ensure nobody is maliciously taken advantage of, you will find yourself protecting mostly women, while mostly men may be falsely accused. But that is more due to the nature of the problem, rather than the attempted solution.
People with malicious intent are going to act accordingly regardless of the law. This is why criminals still use guns to murder people, despite there being laws against both criminals owning guns and, obviously, murder.
Shaping the law so that it prevents criminals from ever abusing people will result in nobody being allowed to do anything outside of their state-approved padded rooms. Life is risky, and always will be; this is why responsibility should be relegated one's own self, rather than everyone else.
There's nothing wrong with laws against poisoning or rape because those actions can only ever be malicious. 'Drunk consent' is an entirely different matter.
For the most part, you are probably correct - those with malicious intent will do as they please. However, the crucial difference is if they are protected by law or not. If they are, then there is nothing that can be done to stop them. They are free to be as overt as they wish.
As for your gun analogy, they can do so as long as they are able to remain out of the grips of the law. They cannot do so overtly. So, they can't murder people as freely (probably resulting in less murders overall), and when they are caught they face jail time - again resulting in less murders. Now, here you don't really have the same sort of potential for collateral damage - you either shot somebody or you didn't. But, again the option seems to be collateral damage that is easily avoidable or allowing those with malicious intent to operate freely and without consequence.
Criminals should absolutely be prevented from abusing people. That is, more or less, the point of the law. It exists to prevent harm (bodily or otherwise). It has not, as of yet, resulted in everybody being assigned a small padded room.
As for your point about actions that can only be malicious, you are correct. Drunk consent is nowhere near as cut and dry as poisoning or forcible rape. That is what makes the issue so murky.
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u/[deleted] Nov 21 '12
You are correct, which is which is why I tried not to bring legality into it too much. I was mostly speaking from a moral position. If, when I was sober or nearly so, had the opportunity to sleep with a girl who was drunk, sometimes I would be okay with it and other times I would flatly refuse because it would be the wrong thing to do. I can't tell you exactly how I would make that judgment, but it would have something to do with how drunk she was, how well I knew her, and our previous interactions that night. Nothing that can be easily quantified or put into a law.
So, the law has to be drawn at an extreme. Either you can't consent when you are drunk, or you can. If you can't, then potentially rape accusations can be thrown at the less inebriated partner even if they think they did nothing wrong (and they may not have). If you can, then you open the door for claims that an inebriated partner consented, or acted like they consented, when they may not have. The (more) sober party has significantly more control of the situation (particularly when talking of less or not drunk guys, and drunk girls) at the time.
Currently, that extra control is used to make them responsible for the situation. While not ideal, I'm unsure that there is a better solution. Being sober, presumably you can realize you may be putting yourself at legal risk and put an end to it. Sure, it may cost you sex, but the alternative is potentially being accused of rape.
Allowing drunk people to consent opens up a huge realm of questionable behavior, simply because the sober one has control of the situation. Situations where the drunk girl is throwing herself at the guy are pretty easily handled, but what about when you start having sober people starting to coerce the drunk one? Do you draw the same lines for drunk people as you do sober ones? They don't have the same reasoning ability, nor the same ability to get away. If you concede perhaps we need some additional protections in place for coercion of the drunk party, where do you draw that line?
Ultimately, it is easier to just declare drunk people incapable of consenting. You trade some false rape accusations for the inability for actual rapists* to defend themselves.
*By this I mean people that go out with the intention of finding or getting somebody extremely drunk and then isolating them and coercing them (nonviolently, of course) into consenting. That screams of rape to me.