DoubtingThomas wrote:Say two drunks have consensual sex, but forget everything next morning. Who would be the victim?
Res Ipsa wrote: There would be no victim. As you stipulated, the sex was consensual.
DoubtingThomas wrote:I am confused again, I thought drunks couldn't consent to sex, especially if they are drunk enough to "forget everything next morning".
Okay, so there are a few concepts that we have to keep distinct and can't substitute for one another. Let's start with "consent." I'm going to use the legal definition in my home state.
"Consent" means that at the time of the act of sexual intercourse or sexual contact there are actual words or conduct indicating freely given agreement to have sexual intercourse or sexual contact.
So, consent is a communication from one person to another that can take the form of words or conduct. If that communication occurred, the sex is "consensual." In your hypothetical, you stated that the sex was consensual. Note that it is the time of the act that counts. Consent expressed earlier, before the person became unconscious, doesn't count. And consent can always be withdrawn.
Capacity to consent is a separate issue. If I'm unconscious, I physically cannot consent. In my state, having sexual contact with such a person is rape. Note that it is the time of the act that counts. If I am, for whatever reason, unable to appreciate the consequences of my action, I mentally cannot consent. In Washington, having sexual contact with such a person is rape.
"Drunk" is an imprecise term that refers to intoxication as the result of alcohol consumption. Being drunk does not mean one lacks mental capacity to give consent. I've been drunk many times in my life. On maybe one of those occasions I was drunk to the point of lacking mental capacity. (That resulted in Señor Tequila and I going our separate way for close to 20 years....) You can drink enough to reach a point of lacking mental capacity to consent. You can drink enough to reach a point of lacking the physical capacity to consent. Heck, I've seen people that I thought were still pretty darn coherent pass out -- they appeared to lose physical capacity without ever losing mental capacity. At any rate, the point is that someone can consent to sex when they are drunk. That's why when you say two drunk people have consensual sex, my response is: no victim, no crime. In general, when you're thinking through the issues we're talking about, the term "drunk" really isn't helpful.
"Forgetting everything the next morning" is a separate issue. When we are talking about rape v. not rape, what counts is (1) whether the person had the physical and mental capacity to consent; and (2) whether consent was given. The ability of the participants to recall the consent is relevant only in terms of evidence. For example, suppose two people decide to get a little drunk, have sex, and video tape themselves. The tape shows that they do drink a fair amount, that they do appear to understand they are going to have sex, and that they both enthusiastically consent to it. However, one of them the next day can't recall either the sex or the consent at the time. There still was consent at the time, as shown by the tape. The absence of recollection does not change the fact that consent was actually given at the time. Absent a tape, the fact that one partner doesn't recall the consent is simply one fact to be considered when deciding whether consent actually occurred.
In law, we distinguish between "ultimate facts" and "evidential facts." The former is the factual issue that will determine the result of the case. The latter is the collection of facts we use to try and determine the ultimate facts. The ultimate facts are: did the parties consent and did they have the capacity to consent? What the parties recall are evidential facts.
Does that clear up my response?
Res Ipsa wrote:It almost sounds like you are viewing woman through the lens of the Eve myth -- that women are are out there just waiting to trick you into getting arrested for rape or taking your money. Is that part of what this whole conversation is about?
DoubtingThomas wrote:Of course not! I think women are generally more honest and kind than men. I myself trust women more. I am a gentlemen, that is why I have a girlfriend I apologize if my question sounded insulting. Thanks for setting me straight.
DoubtingThomas wrote:You said we shouldn't take advantage of drunks, and I completely agree. I simply wanted to know your opinion. Forget strip clubs, let me change the example. In some Casinos they give free alcohol. Some drunks waste all their savings or lose everything in the Casinos. So, are drunks victims in that case? or they should have known better?
I think you are employing some very common Mormon stereotypes to a broad range of folks and trying to cram them into binary categories that don't really fit. Just for starters, are "people who should have known better" and "victims" really mutually exclusive categories? If so, why do you think that?
Maybe try starting from the proposition: under what circumstances, if any, is it moral to "take advantage" of a fellow human? You'd have to figure out what it means to "take advantage" of a fellow human, but you'd at least work your way up from some general notions of morality into specific cases. As an example, you could work through the question of vulnerability of the other person. Does it change things if they are old and senile. If they are are young children. If they are starving. If they are ill. If they are addicted to alcohol. If they are high. Does it change things if you are broke. If you're disabled. If you're rich. If you are the person's boss. I can't pretend that you'll develop some bright line rules to handle all cases. But thinking through the issues will, I think, give you some general sense of how to build a moral code.
In my opinion, life doesn't come packaged in neat little categories that can be arranged into formulas like "If X is Y, then Z." Life is complicated, and general rules that sound good in a vacuum tend to crack and crumble when faced with specific cases. I find it impossible to apply a single rule across many specific cases consistently. I think that's because being consistent requires two things: (1) treating things that are the same in a similar manner; and (2) treating things that are different in a different manner. And, any two cases are alike in some ways and are different in others.
All of that is a long-winded explanation for why I really don't have opinions of the questions you are asking. I don't believe you can neatly sort people into bins marked "victim" and "should have known better." And even if I could, the label on the bin wouldn't really tell me what to do in specific cases.
“The ideal subject of totalitarian rule is not the convinced Nazi or the dedicated communist, but people for whom the distinction between fact and fiction, true and false, no longer exists.”
― Hannah Arendt, The Origins of Totalitarianism, 1951