Rape legal in NYC if the victim is sufficiently drunk...

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Rape legal in NYC if the victim is sufficiently drunk...

Postby Czhorat » Thu May 26, 2011 6:20 pm UTC

..and you remember to sing "Living on a Prayer" to her.Story here

Not much to add here, except that I hope that the civil suit is successful and complete ruins the remaining lives of these two lowlives. I'm angry, embarrassed for my city, and have the utmost sympathy for the victim for having to go through what must have been a nightmare on the witness stand only to see an aquittal.


Spoiler:
Two New York City police officers were found not guilty on Thursday of raping a drunken woman who had been helped into her apartment by the officers while on patrol.
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John Marshall Mantel for The New York Times
Officer Kenneth Moreno, May 9, 2011.
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The verdict provides some measure of vindication for the officers, Kenneth Moreno and Franklin Mata, and brings to an end a criminal case that drew outrage across the city when the officers were indicted in 2009.

Still, the jury convicted both officers of three counts of official misconduct for entering the woman’s apartment, but found them not guilty of all other charges, including burglary and falsifying business records. The officers had both admitted to violating their duties on the night in question; Officer Moreno testified that he cuddled with the drunken woman in her bed while she wore nothing but a bra.

Both officers face up to a year in jail on each count when they are sentenced June 28 before Justice Gregory Carro of State Supreme Court in Manhattan.

The officers, who are suspended with pay, also face administrative charges from the Police Department, though Officer Moreno’s lawyer, Joseph Tacopina, said that their careers as officers was likely over.

Appearing tense and tight-faced in front of the courthouse, Officer Moreno said he was not angry.

“I’m glad it’s over,” he said. “It’s a lesson and a win.”

When a reporter asked Officer Moreno what he meant by lesson, Mr. Tacopina interjected, saying, “Well, we’ll just leave it at that.”

The case presented a formidable challenge for prosecutors: there was no DNA evidence suggesting that either officer had committed a sexual act, and the victim was admittedly drunk and had only a foggy recollection of the night in question.

As the verdict was read, Officer Mata looked straight ahead, while Officer Moreno cast his eyes downward, placing his fingertips on his lips.

After the verdict was delivered, Officer Moreno’s mother, Aida Moreno-Ruiz, called a relative from her cellphone. “Hey, Freddy,” she said. “It’s over. It’s over. Not guilty.”

She said in an interview that she knew that her son was “not capable of doing something so ugly.”

“Thank God it’s over and the truth came out,” she said.

Prosecutors had accused Officer Mata, 29, of standing guard while Officer Moreno had sex with the woman.

After initially helping the woman into her apartment, the officers were captured by surveillance cameras re-entering the woman’s East Village building three times.

Officer Moreno, 43, testified during the nearly two-month-long trial that he was a recovering alcoholic and had developed a rapport with the woman that night, when she confided in him that her friends were mad at her because she drank too much. They flirted, he sang Bon Jovi’s “Livin’ on a Prayer” to her and she actually came onto him, wearing nothing but a bra, he said. He testified that he kissed the woman on the forehead and snuggled with her in her bed, but insisted that they did not have sex.

But the woman, now 29 and living in California, told a much different story. She said she did not have a drinking problem and would never have said something like that to the officer.

The woman, who was drinking heavily at a Brooklyn bar while celebrating a job promotion, conceded that she had blacked out on many details of the evening. Still, she testified to vivid memories of hearing police radios crackling and Velcro tearing open, of feeling her tights being rolled down, and then of being penetrated as she lay dazed, face down on her bed.

After the verdict, Officer Moreno said the woman was “mistaken and confused.”

He added that, “my intention was from the beginning just to help her.”

When the officers were indicted in 2009, Raymond W. Kelly, the police commissioner, who typically does not speak about pending cases against his officers, broke protocol to make a statement.
“It is outrageous that officers summoned to assist a woman would end up allegedly taking advantage of her,” the commissioner said at the time. “The public needs to know that the police will be there to protect them, and they can know that.”
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John Marshall Mantel for The New York Times
Officer Franklin Mata, May 24, 2011.
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On Thursday, Mayor Michael R. Bloomberg released a statement saying, “There were very serious charges raised during this trial, and now that it’s over they can be addressed by the Police Department’s strict review.”

When she testified last month, the woman, who has a $57 million lawsuit pending against the city and the officers, broke down several times while on the witness stand when recalling what she said happened to her.

“I couldn’t believe that two police officers who had been called there to help me had instead raped me and left me face down in a pool of vomit in my bed to die,” she said during her testimony.

Although more than 35 witnesses testified, the trial was highlighted by combative, dramatic cross-examination between Coleen Balbert, an assistant district attorney, and the officers. Ms. Balbert attempted to portray the officers as presenting self-serving stories to conceal what they did to the woman.

One crucial piece of prosecution evidence was a secretly recorded conversation days later between the woman and Officer Moreno. In the recorded conversation, Officer Moreno told the woman that he had worn a condom, but only after he had denied numerous times that he had sex with her. His lawyers argued that he lied to her about wearing a condom because she had threatened to make a scene in his precinct station house.

Officer Moreno also made other statements during the conversation that suggested he had had sex with the woman.

Although the defense never conceded that the two had sex, a central point of argument in the case was whether the woman was too drunk to consent to sex. Under the prosecutors’ theory of rape, they had to prove that the woman was physically unable to consent to sex, meaning that she was either unconscious or unable to speak when she was penetrated.

Defense lawyers pointed to surveillance footage of the woman walking on her own as she entered the building in front of the officers as evidence that she was conscious and able to communicate. They also contrasted what the woman told some friends shortly after the alleged rape — that she thought she was raped — with the certainty that she was expressing on the witness stand. Her spotty recollection of that night, the defense said, was enough to raise reasonable doubt over whether she was raped.


EDIT: Added the remainder of the story
Last edited by Czhorat on Thu May 26, 2011 7:25 pm UTC, edited 1 time in total.

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Re: Rape legal in NYC if the victim is sufficiently drunk...

Postby Роберт » Thu May 26, 2011 6:33 pm UTC

More like: if we can't prove reasonably that you were raped, we aren't going to convict the people you accused.

Sucks, but there's no better solution.

Your title is way off, a big part of the defense was that she wasn't too drunk to consent, and there is no proof of any sexual intercourse happening, just the witness of a woman who didn't have a good memory of the event. I hope she wasn't raped.

I'm suspicious that she actually was, considering the officer told her he wore a condom. However, it looks like there was reasonable doubt.
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Re: Rape legal in NYC if the victim is sufficiently drunk...

Postby Lostdreams » Thu May 26, 2011 6:36 pm UTC

It doesn't help that they were cops.
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Re: Rape legal in NYC if the victim is sufficiently drunk...

Postby natraj » Thu May 26, 2011 6:36 pm UTC

Yeah, but they had the guy recorded admitting that he did it. D: What a horrifying story. And people wonder why some of us don't go to the cops for help when we've been raped ever.
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Re: Rape legal in NYC if the victim is sufficiently drunk...

Postby Czhorat » Thu May 26, 2011 6:37 pm UTC

Or, more accurately:

We have a justice system that still doesn't take credible reports of rape as seriously as it should, and people are much too willing to blame the victim. Because women like making false reports of sexual assault. Nothing is more fun for a woman than being portrayed as a drunken slut in court.

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Re: Rape legal in NYC if the victim is sufficiently drunk...

Postby jakovasaur » Thu May 26, 2011 6:39 pm UTC

Seriously, what a god-awful thread title. You seem to
have serious reading comprehension issues

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Re: Rape legal in NYC if the victim is sufficiently drunk...

Postby Chen » Thu May 26, 2011 6:44 pm UTC

Czhorat wrote:Or, more accurately:

We have a justice system that still doesn't take credible reports of rape as seriously as it should, and people are much too willing to blame the victim. Because women like making false reports of sexual assault. Nothing is more fun for a woman than being portrayed as a drunken slut in court.


I don't see how the justice system could have taken this report any more seriously. They prosecuted the two officers, who were found not guilty due to insufficient evidence and/or reasonable doubt.

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Re: Rape legal in NYC if the victim is sufficiently drunk...

Postby iChef » Thu May 26, 2011 6:47 pm UTC

Lets all hold our fire until we see how the civil suit plays out. This was a jury trial, not the system protecting their own, and the jury didn't see enough evidence to convict. I agree it looks fishy as hell. I certainly hope that the civil trial goes the other way if indeed this guy did commit the rape. I also expect much harsher punishment from the police department. Even if there wasn't a rape why the hell were these guys hanging out in some drunk woman's apartment taking a nap?

I might add it sounds a little fishy from both sides. On one end the officer's conduct was deplorable. On the other this woman was causing enough of a scene to need the cops called, admitted she was so drunk she could hardly remember the nigh in question and at some point made plans to have breakfast. This does not excuse the officer's behavior AT ALL, but when such serious accusations are flying it is very important to get some concrete evidence.
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Re: Rape legal in NYC if the victim is sufficiently drunk...

Postby Aaeriele » Thu May 26, 2011 7:10 pm UTC

New York Times wrote:Under the prosecutors’ theory of rape, they had to prove that the woman was physically unable to consent to sex, meaning that she was either unconscious or unable to speak when she was penetrated.


So apparently it's also not illegal if the victim isn't sufficiently drunk.

New York Times wrote:Defense lawyers pointed to surveillance footage of the woman walking on her own as she entered the building in front of the officers as evidence that she was conscious and able to communicate. They also contrasted what the woman told some friends shortly after the alleged rape — that she thought she was raped — with the certainty that she was expressing on the witness stand. Her spotty recollection of that night, the defense said, was enough to raise reasonable doubt over whether she was raped.


So if she thought she was raped while still recovering from the immediate trauma, and now that she's had some time to process, she's certain of it, that means that there is now a reason to doubt her?

The hell?
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Re: Rape legal in NYC if the victim is sufficiently drunk...

Postby Dream » Thu May 26, 2011 7:18 pm UTC

natraj wrote:Yeah, but they had the guy recorded admitting that he did it. D: What a horrifying story. And people wonder why some of us don't go to the cops for help when we've been raped ever.

In fairness, this probably went to trial precisely because they were cops, not civilians. No prosecutor would take a case where the complainant's story was that she was drunk and couldn't remember properly but she was pretty sure she was raped, especially when her only support for her lack of consent was her opinion that she would never do something like that. But they might take the case if the defendants were police, and a whitewash would look very bad, not to mention that they had a certain conviction for the attendant misconduct charges. Even though a conviction was not secured, and in my opnion rightly so, this seems to be a case of police being held to a higher standard than ordinary people. A very rare case, but nevertheless, a case.
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Re: Rape legal in NYC if the victim is sufficiently drunk...

Postby Ulc » Thu May 26, 2011 7:21 pm UTC

Before anyone comments on here

Please read the second page of the article instead of just what the OP posted!

Before reading the second page it was much more unclear what had happened, but it's pretty clear after reading that.
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Re: Rape legal in NYC if the victim is sufficiently drunk...

Postby natraj » Thu May 26, 2011 7:24 pm UTC

Dream wrote:especially when her only support for her lack of consent was her opinion that she would never do something like that was so drunk the entire night was blacked out and therefore couldn't possibly have consented whether she wanted to or not.


Fixed that for you. And they had an audio recording of the one cop admitting that he had sex with her. So she was too blacked-out drunk to be a reliable witness, but sober enough to have sex? That... doesn't really fly.
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Re: Rape legal in NYC if the victim is sufficiently drunk...

Postby jakovasaur » Thu May 26, 2011 7:30 pm UTC

The article makes clear that before he admitted to using a condom, he told the woman multiple times in that conversation that he did not have sex with her. His defense was that she was threatening to report his misconduct, and he thought if he just admitted he used a condom then she wouldn't report him. That is not the same as an unqualified admission of guilt. Christ I hope you're not ever on a jury.

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Re: Rape legal in NYC if the victim is sufficiently drunk...

Postby Dream » Thu May 26, 2011 7:34 pm UTC

natraj wrote:
Dream wrote:especially when her only support for her lack of consent was her opinion that she would never do something like that was so drunk the entire night was blacked out and therefore couldn't possibly have consented whether she wanted to or not.


Fixed that for you. And they had an audio recording of the one cop admitting that he had sex with her. So she was too blacked-out drunk to be a reliable witness, but sober enough to have sex? That... doesn't really fly.

Umm, I don't know if you drink much, but yes, it is perfectly normal to be sober enough to consent at one point in the night, and black out the memory of that period through excessive drinking before or after it. That's a very, very common occurrence among heavily drinking people.

Adn the recording also contained the officer repeatedly denying he had had sex with her, and relenting under repeated questioning:
In the recorded conversation, Officer Moreno told the woman that he had worn a condom, but only after he had denied numerous times that he had sex with her. His lawyers argued that he lied to her about wearing a condom because she had threatened to make a scene in his precinct station house.
You may want very much to believe the admission instead of the repeated denial, but in evidence both will carry equal weight.
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Re: Rape legal in NYC if the victim is sufficiently drunk...

Postby SecondTalon » Thu May 26, 2011 7:36 pm UTC

But that's not how consent or consent laws work. It doesn't matter what I say when I'm stone-cold sober : if I get shitfaced, I can no longer consent.
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Re: Rape legal in NYC if the victim is sufficiently drunk...

Postby Aaeriele » Thu May 26, 2011 7:37 pm UTC

Dream wrote:Umm, I don't know if you drink much, but yes, it is perfectly normal to be sober enough to consent at one point in the night, and black out the memory of that period through excessive drinking before or after it. That's a very, very common occurrence among heavily drinking people.

It seems to me if someone is drunk enough that the police are helping them back their apartment, it'd be safe to say that they're not sober enough to be able to give fully-aware consent, and thus it would be irresponsible to accept consent from such a person. No?
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Re: Rape legal in NYC if the victim is sufficiently drunk...

Postby Роберт » Thu May 26, 2011 7:39 pm UTC

Aaeriele wrote:
Dream wrote:Umm, I don't know if you drink much, but yes, it is perfectly normal to be sober enough to consent at one point in the night, and black out the memory of that period through excessive drinking before or after it. That's a very, very common occurrence among heavily drinking people.

It seems to me if someone is drunk enough that the police are helping them back their apartment, it'd be safe to say that they're not sober enough to be able to give fully-aware consent, and thus it would be irresponsible to accept consent from such a person. No?

What does it matter if she gave consent for sex or not if the didn't have sex?
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Re: Rape legal in NYC if the victim is sufficiently drunk...

Postby Telchar » Thu May 26, 2011 7:45 pm UTC

Aaeriele wrote:
Dream wrote:Umm, I don't know if you drink much, but yes, it is perfectly normal to be sober enough to consent at one point in the night, and black out the memory of that period through excessive drinking before or after it. That's a very, very common occurrence among heavily drinking people.

It seems to me if someone is drunk enough that the police are helping them back their apartment, it'd be safe to say that they're not sober enough to be able to give fully-aware consent, and thus it would be irresponsible to accept consent from such a person. No?


In the real world, but we're in New York and the applicable statute was reference earlier. It's shitty but it appears that under New York law the jury made an accurate assessment of the facts.
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Re: Rape legal in NYC if the victim is sufficiently drunk...

Postby Aaeriele » Thu May 26, 2011 7:46 pm UTC

Роберт wrote:What does it matter if she gave consent for sex or not if the didn't have sex?


I was not commenting on whether or not they had sex. Consider a big "if they had sex" disclaimer appended to the front of that.

(I honestly don't know what physically happened. I'm just pissed off at the "she might have been sober enough to give consent which would justify sex" line.)
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Re: Rape legal in NYC if the victim is sufficiently drunk...

Postby Dream » Thu May 26, 2011 7:50 pm UTC

SecondTalon wrote:But that's not how consent or consent laws work. It doesn't matter what I say when I'm stone-cold sober : if I get shitfaced, I can no longer consent.

But if you get drunk, you'll likely be several different levels of drunk over the course of the night as you drink more and subsequently sober up. And you can consent when drunk, otherwise any sex above some BAC would be statutorily rape. For instance, I can feel a beer and two glasses of wine in my system as I write this. I'm clearly capable of consent right now, in spite of being for legal purposes drunk. If I had sex now, and in the following half an hour drank a bottle of scotch, I would quite possibly forget completely that I'd had sex at all. And it works the same way on the down-slope too: If I'm sobering up after getting home from the pub, and have sex, I might still blank the whole night from having drunk so much earlier in the evening.

That's where the cctv of the woman walking unaided comes in. It's hard to believe she became incapable of walking, comprehending or refusing sex a short time after walking straight and unaided. At the same time, it is extremely plausible that in spite of being able to walk, she still forgot the period surrounding that thanks to excessive alcohol consumption earlier in the evening. It's much more likely that the cops thought she might be up for sex, and decided they needed to accompany her home as an excuse to try their luck. They have rightly been convicted of a criminal offence for that behaviour.
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Re: Rape legal in NYC if the victim is sufficiently drunk...

Postby Aaeriele » Thu May 26, 2011 7:54 pm UTC

Dream wrote:And you can consent when drunk, otherwise any sex above some BAC would be statutorily rape.

Er, no? You can consent before getting drunk and then have sex while drunk.

The world would honestly probably be better off if a non-drunk person having sex with a drunk person who "consented" while drunk rather than beforehand was considered rape; people would stop doing it and we'd have many fewer arguments over whether a person "really" couldn't give consent.

I say non-drunk-with-drunk because that is the case where it is clear someone should have acted responsibly.
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Re: Rape legal in NYC if the victim is sufficiently drunk...

Postby Роберт » Thu May 26, 2011 7:57 pm UTC

Dream wrote: It's much more likely that the cops thought she might be up for sex, and decided they needed to accompany her home as an excuse to try their luck. They have rightly been convicted of a criminal offence for that behaviour.

While it's entirely possible that she was raped, I find this scenario plausible as well, and I agree with Dream in that the made a rightful conviction where they could.
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Re: Rape legal in NYC if the victim is sufficiently drunk...

Postby Dream » Thu May 26, 2011 8:01 pm UTC

Aaeriele wrote:
Dream wrote:And you can consent when drunk, otherwise any sex above some BAC would be statutorily rape.

Er, no? You can consent before getting drunk and then have sex while drunk.

Show me a statute that says that any alcohol impairment at all removes the ability to consent to sexual activity, or just drop it.

And yes, my point still stands: blacking out an event through drunkeness does not in any way mean that that event took place while drunk at all, let alone severely drunk. There is no causal relationship there for anyone to be able to say that because this woman can't remember clearly, she must have been some level of drunk that negates any consent she may have given, or implies that no consent was given at all.
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Re: Rape legal in NYC if the victim is sufficiently drunk...

Postby Silknor » Thu May 26, 2011 8:02 pm UTC

@Aaeriele:

Which still just leaves you at trying to define when someone is drunk, because the colloquial meaning and the legal one aren't likely to be the same (nor the same as the legal limit for driving), nor is there a consistent colloquial one that applies easily to all people. And, my guess would be that under such a law, the prosecution would still have to prove that the defendent, or a reasonable person, would've realized the victim was drunk, under that standard.
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Re: Rape legal in NYC if the victim is sufficiently drunk...

Postby Aaeriele » Thu May 26, 2011 8:04 pm UTC

Dream wrote:
Aaeriele wrote:
Dream wrote:And you can consent when drunk, otherwise any sex above some BAC would be statutorily rape.

Er, no? You can consent before getting drunk and then have sex while drunk.

Show me a statute that says that any alcohol impairment at all removes the ability to consent to sexual activity, or just drop it.


I was not talking about what the law currently says, I was arguing the implication that it would have to say one of two things.
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Re: Rape legal in NYC if the victim is sufficiently drunk...

Postby Aaeriele » Thu May 26, 2011 8:06 pm UTC

Silknor wrote:@Aaeriele:

Which still just leaves you at trying to define when someone is drunk, because the colloquial meaning and the legal one aren't likely to be the same (nor the same as the legal limit for driving), nor is there a consistent colloquial one that applies easily to all people. And, my guess would be that under such a law, the prosecution would still have to prove that the defendent, or a reasonable person, would've realized the victim was drunk, under that standard.


I'd still rather have court cases revolving around whether the defendant realized the victim was drunk, than whether the victim was "lying".

(oops, sorry for doublepost)
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Re: Rape legal in NYC if the victim is sufficiently drunk...

Postby Dark567 » Thu May 26, 2011 8:08 pm UTC

Aaeriele wrote:I'd still rather have court cases revolving around whether the defendant realized the victim was drunk, than whether the victim was "lying".
If its a criminal case its not revolving around either one. It's revolving around whether or not the defendant is lying.
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Re: Rape legal in NYC if the victim is sufficiently drunk...

Postby Aaeriele » Thu May 26, 2011 8:11 pm UTC

Dark567 wrote:
Aaeriele wrote:I'd still rather have court cases revolving around whether the defendant realized the victim was drunk, than whether the victim was "lying".
If its a criminal case its not revolving around either one. It's revolving around whether or not the defendant is lying.


Maybe in an ideal world.
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Re: Rape legal in NYC if the victim is sufficiently drunk...

Postby Dream » Thu May 26, 2011 8:15 pm UTC

Aaeriele wrote:
Dream wrote:
Aaeriele wrote:
Dream wrote:And you can consent when drunk, otherwise any sex above some BAC would be statutorily rape.

Er, no? You can consent before getting drunk and then have sex while drunk.

Show me a statute that says that any alcohol impairment at all removes the ability to consent to sexual activity, or just drop it.


I was not talking about what the law currently says, I was arguing the implication that it would have to say one of two things.

No you weren't, you were objecting to the idea that consent can be given while intoxicated, and proffering the alternative that consent given before intoxication is sufficient (or required) in order for sex during intoxication to be consensual. That ridiculous, for reasons far too numerous to detail here.
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Re: Rape legal in NYC if the victim is sufficiently drunk...

Postby Dauric » Thu May 26, 2011 8:16 pm UTC

Aaeriele wrote:
Dream wrote:And you can consent when drunk, otherwise any sex above some BAC would be statutorily rape.

Er, no? You can consent before getting drunk and then have sex while drunk.

The world would honestly probably be better off if a non-drunk person having sex with a drunk person who "consented" while drunk rather than beforehand was considered rape; people would stop doing it and we'd have many fewer arguments over whether a person "really" couldn't give consent.

I say non-drunk-with-drunk because that is the case where it is clear someone should have acted responsibly.


As I pointed out in another thread not everyone shows the same signs of being drunk. One Jamie Hyneman of Mythbusters fame becomes positively not-quite-completely-reserved when his BAC would indicate he's completely shitfaced. If you're sober dealing with someone who doesn't show outward signs of being plastered (and you just met them at the bar) you might think that they're not drunk and accept whatever consent they extend whatever their actual state of mental acuity is.

Though in this situation I agree with you for a different reason: They're Police Officers. When it comes to "Someone should be acting responsibly..." the uniform and the badge kinda says "The community expects -this- @$$hole to be acting responsibly, it's why we pay his salary."
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Re: Rape legal in NYC if the victim is sufficiently drunk...

Postby Heisenberg » Thu May 26, 2011 8:23 pm UTC

Dream wrote:And you can consent when drunk, otherwise any sex above some BAC would be statutorily rape.
No, at a certain point, you become incapable of consent. At that point, consent cannot be maintained, and is therefore withdrawn, so yes, if you're nailing someone who can't remember their name, they can't consent, and it's statutory rape.
Dream wrote:If I'm sobering up after getting home from the pub, and have sex, I might still blank the whole night from having drunk so much earlier in the evening.
Assuming that your story is possible, and even typical, which I doubt based on my own experiences, you've constructed a great argument as to what happened in this scenario. She didn't remember much, being ridiculously intoxicated and incapable of consent, but as the night progressed and she sobered up, she distinctly recalled being face-down on the bed with a cop's dick in her. That's all we really need to make a case right there: (1) Too drunk to be capable of consent (2) Cop's dick in her.
Dream wrote:That's where the cctv of the woman walking unaided comes in. It's hard to believe she became incapable of walking, comprehending or refusing sex a short time after walking straight and unaided.
You've never been black-out drunk and capable of walking at the same time? I have. And hey, I was incapable of consent at the time.

As an aside, I think your bar is a little low. If you're seriously suggesting "If you can stand, you can consent to sex" be ingrained in law, I'm going to have to respectfully disagree.

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Re: Rape legal in NYC if the victim is sufficiently drunk...

Postby DaBigCheez » Thu May 26, 2011 8:28 pm UTC

Dream wrote:
Aaeriele wrote:
Dream wrote:
Aaeriele wrote:
Dream wrote:And you can consent when drunk, otherwise any sex above some BAC would be statutorily rape.

Er, no? You can consent before getting drunk and then have sex while drunk.

Show me a statute that says that any alcohol impairment at all removes the ability to consent to sexual activity, or just drop it.


I was not talking about what the law currently says, I was arguing the implication that it would have to say one of two things.

No you weren't, you were objecting to the idea that consent can be given while intoxicated, and proffering the alternative that consent given before intoxication is sufficient (or required) in order for sex during intoxication to be consensual. That ridiculous, for reasons far too numerous to detail here.


...That seems to me to be a pretty clear "Here is a scenario where, were you unable to consent while drunk, having sex while above some BAC would not necessarily be statutorily rape." Which would disprove your original statement that "were you unable to consent while drunk, having sex while above some BAC would necessarily be statutorily rape" meaning your conclusion does not follow.

If A = 'one can consent while drunk' and B = 'any sex while above some BAC is necessarily statutorily rape', you are saying "If not A, then B" and she is offering a scenario wherein if not A, then not B. Don't then turn around and declare her argument irrelevant by way of 'she was saying it is not necessarily the case that A!'.

SIDE NOTE: I also take issue with the claim that "consent given before intoxication is neither conceivably sufficient nor conceivably necessary in order for sex during intoxication to be consensual", but the egregious logic failure above felt more relevant to me.
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Re: Rape legal in NYC if the victim is sufficiently drunk...

Postby SecondTalon » Thu May 26, 2011 9:01 pm UTC

Dream wrote:
Aaeriele wrote:
Dream wrote:And you can consent when drunk, otherwise any sex above some BAC would be statutorily rape.

Er, no? You can consent before getting drunk and then have sex while drunk.

Show me a statute that says that any alcohol impairment at all removes the ability to consent to sexual activity, or just drop it.

Like Wisconsin's 940.225(2)(cm)?
(Class C Felony) Has sexual contact or sexual intercourse with a person who is under the influence of an intoxicant to a degree which renders that person incapable of giving consent if the defendant has actual knowledge that the person is incapable of giving consent and the defendant has the purpose to have sexual contact or sexual intercourse with the person while the person is incapable of giving consent.
?
Illinois 720 ILCS 5/12‑13
(2) commits an act of sexual penetration and the accused knew that the victim was unable to understand the nature of the act or was unable to give knowing consent; or
? - while I can't find a working Illinois definition of Knowing Consent, the references I do find explicitly say that you cannot give knowing consent if intoxicated.

And before you or anyone else points it out.. yes, there's language in there about the perpetrator knowing that the victim was unable to give consent. If you're sober, it's true that you may not know if someone is so drunk they cannot give consent as they seem fine... but you still know that they've been drinking and should realize that if they want to fuck you now, they'll want to fuck you tomorrow morning when they're sober.

I can find some others, I'm sure. But at the end of the day, there's US States that have statutes that pretty much say that fucking while one partner is intoxicated is a crime. Period. End of story. Any and all previous relationships don't matter. Whether or not the victim objects and presses charges is entirely up to them. To make a vague analogy, if you go into my garage and take my lawnmower without telling me (and thus I cannot consent) it's theft. When I find out later, my reaction to the theft is going to depend on a shitton of factors and I'm justified in jokingly demanding a pack of beer as payment and I'm justified in calling the cops on you. My reaction does not change that a crime took place, it just determines if any legal action will be taken.
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Re: Rape legal in NYC if the victim is sufficiently drunk...

Postby Heisenberg » Thu May 26, 2011 9:13 pm UTC

C'mon Talon, you know when you leave your garage door open, you're pretty much asking for it.

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Re: Rape legal in NYC if the victim is sufficiently drunk...

Postby Telchar » Thu May 26, 2011 9:15 pm UTC

Heisenberg wrote:As an aside, I think your bar is a little low. If you're seriously suggesting "If you can stand, you can consent to sex" be ingrained in law, I'm going to have to respectfully disagree.


That limbo bar was actually already set by the state of New York as referenced in the article and earlier in the thread.
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Re: Rape legal in NYC if the victim is sufficiently drunk...

Postby Dream » Thu May 26, 2011 9:16 pm UTC

SecondTalon wrote:I can find some others, I'm sure. But at the end of the day, there's US States that have statutes that pretty much say that fucking while one partner is intoxicated is a crime. Period. End of story.

That language you just pointed out means that that is entirely wrong. Not period, not end of story. It specifically states that the point isn't the intoxication, it is the capability of the person. You can have drunk as much as you like, and having sex with you is STILL about whether you can decide to have the sex, not about whether you would have made the same decision sober, and that is before you even remotely approach the threshold of incapacity or blacking out. Consent is NOT about inhibition, it is about CHOICE.

The point in general is still that drunken amnesia is no indicator of consent or capability during the time forgotten. Drunken amnesia reaches much farther than just the period of high intoxication. It also doesn't discriminate between very-drunk-but-competent and very-drunk-and-passed-out. You can forget events you were very much in control of yourself and the situation during.
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Re: Rape legal in NYC if the victim is sufficiently drunk...

Postby Silknor » Thu May 26, 2011 9:19 pm UTC

SecondTalon, the Wisconsin statute, by itself, sheds no light on the question.

Has sexual contact or sexual intercourse with a person who is under the influence of an intoxicant to a degree which renders that person incapable of giving consent


All that says is there's no consent if they're incapable of giving consent. It does nothing to say what level of intoxication renders a person incapable of giving consent. Possibly that's defined elsewhere in the statute, possibly it's a standard set by case law. But you can't determine what level of intoxication meets that standard just by the text you quoted.
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Re: Rape legal in NYC if the victim is sufficiently drunk...

Postby Heisenberg » Thu May 26, 2011 9:25 pm UTC

Dream wrote:and having sex with you is STILL about whether you can decide to have the sex, not about whether you would have made the same decision sober,
So if a girl keeps saying no, I just need to keep buying her drinks until she 'stops saying no,' amirite?
Dream wrote:You can forget events you were very much in control of yourself and the situation during.
But you could never actually know that, since you can't remember it. So your unbelieveable assertion is also physically impossible to prove.

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Re: Rape legal in NYC if the victim is sufficiently drunk...

Postby Belial » Thu May 26, 2011 9:30 pm UTC

Dream wrote:You may want very much to believe the admission instead of the repeated denial, but in evidence both will carry equal weight.


Hahahahah. Only because it's a cop talking to a civilian and not the other way around.

A hundred denials followed by a single admission is how most police "interrogations" go. Take a guess which one ends up in evidence, and how sympathetic the courts are to the idea that badgering and threats on the part of the cops constitute coercion.

In most criminal cases, a confession, under almost any circumstances short of the cops putting a gun to your head, is the end of the case. Just take the plea, if offered, and run. If you want an example of the courts giving cops special treatment, this is it. Only for a cop would they believe "Oh, well, I didn't really mean it..."
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Re: Rape legal in NYC if the victim is sufficiently drunk...

Postby jakovasaur » Thu May 26, 2011 9:31 pm UTC

Heisenberg wrote:
Dream wrote:You can forget events you were very much in control of yourself and the situation during.
But you could never actually know that, since you can't remember it. So your unbelieveable assertion is also physically impossible to prove.

I used to blackout and leave myself voicemails like "You left your backpack in so-and-so's car", because I knew that I wouldn't remember. That seems like evidence that I was in control even though I didn't remember the event afterwards.


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