The nation's top party school could get a sobering jolt from a change in state law that puts alcohol on a par with date-rape drugs as an aggravating factor in certain sexual assaults....Discuss.
Wisconsin had been the only state to exclude alcohol as a potential legal intoxicant in rape cases before the law change...
And while prosecutors say it is likely to be used only rarely - in cases in which victims don't pass out but are so impaired by alcohol they are "unable to appraise their own conduct," as one advocate put it - the change was heralded by experts who work with assault survivors.
"Alcohol is the No. 1 date-rape drug, and we've felt strongly that our statutes should reflect that reality," said Jill Groblewski, spokeswoman for the Wisconsin Coalition Against Sexual Assault....
Under state law, having sexual contact with a person incapable of consent because they are under the influence of an intoxicant is defined as second- degree sexual assault. The offense is a Class C felony punishable by a fine up to $100,000 and a prison sentence of up to 25 years.
Dane County District Attorney Brian Blanchard... stressed that the somewhat lower bar on consent standards for victims does not extend to perpetrators, who can be charged for crimes whether they have been drinking or not.
"Alcohol is not an excuse," he said. "It's our job to help jurors understand that people who want to commit sexual assault many times are going to take unfair advantage to get what they want."...
UW-Madison Police Chief Susan Riseling ... praised the change in the law, calling it "recognition that just because someone has used alcohol doesn't mean they are any less a victim/survivor."
June 29, 2006
"Alcohol is the No. 1 date-rape drug."
The Wisconsin State Journal reports:
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44 comments:
For me, as a guy, the whole idea of "date rape" is scary. This opens things up to women changing their minds after the fact. Regretting what they did, and making the guys pay for it.
I look back over my life, and have to say that I cannot remember a situation where my first night with a woman did not involve at least some alcohol. And, I suspect that most guys have similar experiences. Many, if not most, women seem to use it to reduce their own inhibitions, at least about extra-maritial sex.
I am not heartened in the least about the idea that prosecutors will use their discretion here. What that means to me is that if a woman can pull the right strings, she can get a prosecutor to prosecute under this, and the guy most likely doesn't have a good excuse. Unless BAC proof is required, which I doubt, I don't see any protection here against prosecution of what many, if not most, at least singles, would consider to be voluntary behavior on the part of women.
Yes, drink yourself into oblivion, but worry not! The State Will Protect You! You needn't fear the consequences of your decisions. Sure, you chose to go out and drink and drink and drink, but it's not your fault that you did something that maybe you wouldn't do in the stone cold sober light of day because legally you couldn't give consent. It's not your fault!!
As MadisonMan says, It's not your fault! Personal responsibility is a thing of the past, I guess. Chalk yet another one up for the professional victimhood movement.
Were I on a jury considering such a case (highly unlikely given my views), I would hold out for nullificaiton.
I think that if my wife hadn't taken advantage of me while I was intoxicated, we might not be married with two lovely children.
I expect the next law on the books will classify chocolate as a controlled substance given it's reputation as a mood enhancer, and some say, aphrodesiac.
"Oh no, your honor, it wasn't me! It was the Mars bar that said yes."
So the State will protect you if you make bad decisions when drunk, unless that bad decision involves getting into a car? Equally bewildered over here...
Under state law, having sexual contact with a person incapable of consent because they are under the influence of an intoxicant is defined as second- degree sexual assault. The offense is a Class C felony punishable by a fine up to $100,000 and a prison sentence of up to 25 years.
OK, supose I get drunk, and the woman doesn't look as good in the morning as she did in the bar. Obviously she took sexual advantage of me when I wasn't capable of informed consent. Should I call 911?
This is terrible for the institution of bad drunk sex, an important element in any young person's personal development.
But it's good for chocolate makers and florists. Just send the woman send something nice the morning after, and everyone's happy.
confirmation word: hvacvuwl, the horrible evacuation of Univ of Wis lovers.
Also a plus, I predict this law will make it easier for Wisconsin guys to try out some hot man-man action.
Message to young men:
Charge date rape first.
"Just send the woman send something nice the morning after, and everyone's happy."
Be careful what you say on the card! It could be used against you in a court of law...
You have all pointed out quite well why this is a bad law--it assumes that MEN ARE BAD and women are helpless children. Maybe if, as is usually the case, both parties are stinking drunk, they could check in at the jail and spend the night together there. The man can then be found guilty on his way out next morning and get credit for time served.
LarryK (and everyone): Note what this statutory change actually did. It removed an exclusion of alcohol as a disabling substance. The prosecution still has to prove the elements of rape. The question is whether the alleged victim gave consent. Read about the young woman in the article. Do you think it shouldn’t be a crime to take advantage of an incapacitated person (as she described hereself)? Picture a person that that the accused could clearly see didn’t know what was going on, not just the usual situation where someone gets drunk and consents to something she later regrets. Before the statutory change, people who did something quite despicable couldn’t be prosecuted unless the victim was completely unconscious.
LarryK
Part of the problem here is that it appears that this is heading in the direction of statutory rape - for example, here in CO, consent is irrelevant if the victim is under 15 and the other party at least 4 years older.
Thus, it seems like the point of this is that apparent consent when the "victim" is drunk is not considered to be consent, because that party is legally considered incapable of giving consent.
So, you are left with the situation where the one party has regrets the next day, complains to the cops, etc. And the fact that this party appeared to give consent is considered irrelevant because of a legal inability to give consent when drunk.
This would be fine, except that, as has been pointed out, a lot of sex, esp. for the first time with a given partner, is done under the influence of alcohol. The result then, is the apparent potential criminalization of a large percentage of at least initial sex between (typically) two adults.
I agree that the case is disgusting. The remedy is worse, however, as it will be used by an aggressive prosecutor out to make her name such that the statutory change will be dumbed down when actually applied in successive cases over time. Eventually, it makes women able to cite 0.08% intoxication (one beer) as negating the possibility of consent. Just imagine the additional charges available to the case at Duke.
Let's just Dworkinize the whole copulation thing and flat out declare all sex as rape, and make the patriarchy repsonsible.
This will infantilize women more than it helps. Funny how feminism eschewed the male patriarch only to replace him with the State as Protector.
Once again, the government will try to save us from ourselves. The nanny state expands again.
Could this have implications for the Duke rape case?
Ann,
It was too bad about the girl, but then, again, she waited 15 months to complain, and that alone is probably sufficient to keep them from prosecuting. There are very good reasons that, even absent alcohol here, they were unlikely to get a rape conviction.
I think that they gave the game away with the quote "Alcohol is the No. 1 date-rape drug". This law is all about criminalizing "date rape".
So, you have two people drinking together. They go off and have what appears to be consensual sex. Happens all the time at your school. A lot. The next day, she has regrets, and goes to the police. He says that she consented. She says she was too drunk. What is his defense there? She didn't seem that drunk? That most likely won't work, because, at least until someone is falling down drunk, many don't appear nearly as drunk as they are. Besides, alcohol affects different people differently. Some can drink a lot without losing that much control. Others can't.
Wisconsin had been the only state to exclude alcohol as a potential legal intoxicant in rape cases before the law change, sponsored by Sen. Cathy Stepp, R-Sturtevant.
Typical Republofascism, never willing to take responsibility for their own crapulent behavior, always seeking to put the blame on a minority and have their will enforced at gunpoint by the DA and conservo-activism judges.
Note to Bruce and Pogo: Tonight, you pukes will sleep with your guns. Your days of finger-banging ol' Mary Jane Rottencrotch through her pretty pink panties are over! You're married to this piece. You will be faithful!
Re: "...and have to agree with Bruce and (the first paragraph of) Pogo."
Awww. No one ever agrees with my second paragraph!
LawDog,
I can see it right now, at a typical rape case:
She: I was drunk.
He: I was really drunk.
She: I was really really drunk.
He: I was falling down drunk.
She: I was falling down and couldn't get back up drunk.
He: I threw up three times.
She: I threw up four times.
Yes, theoretically, they should not be able to get a conviction here, since the guy's drunkedness should be sufficient. But is is realistic to believe that the standard will be applied evenly between a claimant and a defendant here?
I like the Colorado law a lot better. There, if the claimant voluntarily gets drunk, then tough - apparent consent is consent. But if the "actor" gets the other party drunk w/o their knowledge, consent doesn't count. Also, being drunk doesn't negate the "knowingly" element for the actor either.
I guess this simply means that women should not be allowed to drink. Obviously the state believes that they are incapable of controlling their actions after they do.
Re: "Most women and men have integrity and won't deny something to which they freely consented."
Unless, of course, consent occurred after a beer or two, invalidating the agreement. Maybe instead of condoms, student dorms can hand out breathalyzers and consent contract forms.
I wonder if there's a student notary service available at 3 a.m.
MadTown
I think you are being a bit optimistic. Most of the initial sex between two people that I know about occurs with at least some alcohol in both the parties. It is just the way it happens.
You maybe would like everyone to sit around like adults, discuss it, and then come to a sober agreement. But that just isn't the way it happens in the real world.
Maybe, it is that for some women, it is being caught up in the moment. And maybe it is just more romantic to just get swepted off their feet into bed. But it sure seems like there are a lot of women who use alcohol in just this way - to reduce inhibitions in order to do what they subconsciously want to do.
So, are you suggesting that a guy should stop what he is doing, when he is so turned on he can't see straight, and the woman is going, come on, and he should say, sorry, but you might not be sober? That maybe, another time, after a signed agreement?
Pogo,
A studen notary service wouldn't do any good, unless it was coupled with a breathalyzer. The whole premise here is that consent while under the influence of alcohol is not consent, so notorized written consent under the influence would not be any more compelling than mere verbal consent.
Pogo,
This might be what you're thinking of (moderately NSFW).
The sure antidote to 'scary' is consent. Talk. Ask. Consent. Repeat.
Most women and men have integrity and won't deny something to which they freely consented.
Agreed if you are so stupid and lacking in integrity that you would try to have sex with someone who’s drunk, then you deserve to suffer whatever legal consequences come your way.
Bruce,
You're right. The Student Union should have a 24 hr Breathalyzer-Notary service. On call, maybe.
Let's call it the 'Drink, Depose and Disrobe' service. I think only the consent form and alcohol content results need be witnessed, though, because, well, 'nuff said.
Re: "if you are so stupid and lacking in integrity that you would try to have sex with someone who’s drunk, then you deserve to suffer whatever legal consequences come your way"
But only men can be prosecuted for this, of course, because women are victims.
Pogo,
"Man proposes, woman deposes."
Thorley said: "Agreed if you are so stupid and lacking in integrity that you would try to have sex with someone who’s drunk, then you deserve to suffer whatever legal consequences come your way."
And how, pray tell, do you really know when someone is drunk enough that they should not be held accountable here? Obviously, Pogo's notoriziation and breathalyzer testing service would work - but short of that?
I am reminded of a girl who died a year or so ago here at a college here in CO from alchohol poining. Guys at a fraternity gave her some booze, but it turns out she had been drinking all afternoon before even getting there.
The problem is that in many cases, you just don't know how much someone has been drinking before you meet them that night. W/o a BAC test, you don't know if they are sober, mostly sober, or drunk. This is esp. true if you don't know them that well in the first place (and sometimes, even then, you don't know).
I think people should sign a preschtupptual agreement.
Actually, since consent is a defense, the consent standard is being raised, by, IMHO, a great extent. The statute is making this defense significantly harder to assert.
The way it typically works is that the claimant says they had sex. The actor (term under CO law for the perp) claims that the sex was consensual. Now, this can be negated by a showing that the claimant was drunk and so couldn't legally give consent.
I will admit that this does make some sense in reality. One young woman I know passed out at a party and woke up to a guy having sex with her. She went directly to the police, they did the rape stuff, etc. But his defense was consent, and, thus, it turned into a he says/she says thing. Our complaint, besides that she was passed out when it started, was that she was underage and the DA had a prima facie case of statutory rape, which they didn't persue.
That said, the article made clear that one of the purposes of this new law was to prosecute date rape cases, where apparent consent had been given (which was not the case above). But the problem is that this negates the very real defense that the actor (usually the guy) was under the very real impression that there had been consent. The other party may have been begging for him to go on, but that doesn't matter now in Wisc. if they were also drunk at the time. And this opens up a lot of morning after regret "date rape" charges.
So, no more good wine with that nice dinner that has been the traditional way to woo a woman.
Most of the commenters seem to be grasping at myths about "date rape" that deny that a real rape could have happened. The fact is that real rapists - who know they didn't get consent - are going to reinforce those myths, not admit that they exploited a girl's or woman's inability to stop them from committing rape.
The dismissal of this serious crime is not only appalling, it is encouraging to those who believe exploiting the incapacitated is normal male behavior. These rapists believe you and they are no different.
The example of fraternity members who gave a girl alcohol before she died of alcohol poisoning was especially disturbing. They contributed to her death, but rather than holding them responsible for their actions, the commenter let them off the hook because the girl arrived under the influence.
The consensus among the men commenting on this post seems to be that women are to be held accountable for their actions after consuming alcohol, but men are to be excused because they couldn't know any better.
As a survivor of date rape, I have a low tolerance for those who attempt to deny that what happened to me and others like me wasn't really rape and that we are just vindictive women playing the victim if we contact law enforcement.
Marcella,
I think you're missing the point. We're not denying that rapes occur when women are drunk. I think the point is that this makes it even easier for women to claim rape when there was mutual consent at the time but the woman later regrets the actions. This new law would allow her to negate her consent by claiming to have been unable to consent.
The real concern is that women can now withdraw consent after the fact if they choose to. Basically men are at the mercy of the woman's whim as to whether she wants to press charges or not after every consensual encounter.
Lizrd Gizrd,
Just because you and other men have a fear of false accusations doesn't mean it matches what happens in most criminal cases that are called incidences of "date rape."
If we were to believe everything accused rapists say, we'd have to believe real date rape is as mythical as the unicorn.
If a man isn't absolutely 100% sure he has true consent, that will be remembered the next day, he should stop.
One of the inciting incidents of Tom Wolfe's novel "A Man In Full" is when a white co-ed at the University of Georgia gets drunk and sleeps with the football team's star running back. Her father, a prominent local businessman, presses charges against the running back, to save face in Atlanta's high society, which looks down upon miscegenation. Can you see something like this happening at the University of Wisconsin, a big football school in a very white (though seemingly racially tolerant) state? I'm sad to say it, but I can.
It might change the dating scene a bit; like insisting that the lady buy her own drinks.
Also, I believe this state legislator mischaracterizes date rape. She says that alcohol is the #1 date rape drug, but she must be using a non-plain-english definition of the word "rape." I think what she meant to say was "alcohol causes more people to have sex they regret than any other drug," and that is probably the case, but its also something entirely different.
Some scumbag frat guys probably find drunken girls lying around their frat house at 3am and take all sorts of disgusting liberties with them. That's not "date rape," though, that's just plain old rape. Perhaps changing this statute is the only way to prosecute somebody like this. But, I agree with the other commenters that this is going to have all sorts of potentially dangerous consequences.
One might draw an analogy to the sodomy laws. Sodomy laws were passed in many states to provide prosecutors with a means to incarcerate sexual predators whose actions didn't rise to the level of rape, which at common law was VERY difficult to prove. Back then, it required an uninterested eyewitness, who would testify that the woman did everything in her power to resist for the entire duration of the intercourse. Sodomy gave prosecutors another cause of action, sure, but it lead to decades of discrimination against gays, blackmail, selective prosecution, you name it.
The concept of date rape is stupid. Either something is a rape or it isn't. Date rape, in everyday usage, means one of two things: 1) a rape where the woman knew her attacker, or 2) an event where a man misinterprets a woman's signals and goes too far. In both of those examples, either its rape, or its not rape. In murder, it doesn't matter whether the victim knew the attacker or not, or whether the attacker bought the victim dinner beforehand. Why should it matter for rape?
On the second meaning of the definition of date rape (where a man misinterprets signals), I disagree. If a woman is only giving "signals" that can be misinterpreted, there is no consent. And if there is no consent, there can be no false allegation by the non-consenter.
What many men seem to be claiming is that their guesses about a woman's consent when she is under the influence of alcohol should be good enough. If they guess wrong, then the woman who presses charges should be considered a liar.
When a decision makes the difference between whether an action is legal or a crime (maybe even a felony), I wouldn't want to make that decision based on a guess.
The only problem with the phrase "date rape" is the way some people use it to imply that it is an oxymoron. To eliminate it from all discussion, or to only allow those who mock the term to use it, is to eliminate the emphasis about how many girls and women are raped by their dates.
Allow me to clarify: When men misinterpret a woman's signals and go too far, that is rape. The point I was trying to get across is that, even in that scenario, that, to me, is just regular rape.
What I was trying to get at was that the regular crimes can be very difficult to prove in court, so the legislature as added additional causes of action to allow the state to prosecute where they would otehrwise not have a very strong case. That's fine, but in so doing they run an enormous risk of generating unintended consequences, as with the sodomy laws.
TCD: "Are you saying that false accusations never happen?"
The best way I can answer this is to say that the odds of a drunken college student being falsely accused when he got full consent from a drunken partner are lower than the odds that he'll stumble drunk into the nearest body of water and drown.
That is a real and proven problem, not speculation fueled by the defenders of accused rapists.
Why we are 99.9% sure it is NOT a serial killer
TCD: "Or that if false accusations do happen, then too bad, too sad for the poor schmuck who gets accused?"
Nope, but if a man proceeds based only on the lack of a "No," or the woman's inability to say anything at all, that man is no poor schmuck. He created the situation, but wants to be seen as the victim.
First: I'm a lush who enjoys getting loaded and seeking out other lushes for drunk sex. To paraphrase Bukowski, you might not think that's particularly noble or honorable of me, but it is my life.
That said, I'm offended by the implication that, as a lush, I ought to be deemed incapable of consenting to sex. In your infinite wisdom, should I be allowed to own property? Should I be counted as 100 or 60% of a person for census purposes? The right to engage in consensual sex with whomever I choose is my right as an adult and I'll be [darned] if I'm giving it up!
Also two thoughts: 1. with equal protecion under the law, you can't pass a law that applies to only men, blacks, or Methodists. Thus, any inebriate should fall under this law, and as more men drink to excess than women (if you doubt me, hit a bar at 10AM or so), this new law should logically be more used by men. 2. If I should happen to live my life in such a manner as to never draw a sober breath (not that I need the encouragement!), does this mean that I can never be called into account for my sexual behavior?
So what if the girl is drunk and the guy isn't? And she, thinking he is her friend, gets into the car with him and his friends so that they can drive her home from the party... And his friends, who are also sober, are watching them have sex but do not stop the girl? Even though they have known her for some time and know that she is a virgin and doesn't want to have sex yet? Well now she's not a virgin.... Is that fair to the girl?
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