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Reply #47: I'm not an attorney. Maybe you could contact one to find the specific law? [View All]

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uppityperson Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Dec-13-10 09:19 PM
Response to Reply #37
47. I'm not an attorney. Maybe you could contact one to find the specific law?
Here some are links to those who may be able to give you the exact law. /
(clip)The first question is simple to answer from the perspective of current American law: Rape exists whenever either party was incapable of giving consent. But what if neither party regrets the encounter? Or what if they both regret the sex but choose to forget the subject entirely?

Under American law, rape is a criminal matter: It is an offense against the people and is prosecuted by district attorneys, and victims can be legally summoned to appear in court to testify that they were raped. Whenever notice of rape reaches a district attorney or police officer, the state can decide, unilaterally, to prosecute. The victim can be compelled to testify under threat of subpoena, even if the victim doesnt think any rape occurred. So this situation is, at law, a crime. But of course, if both parties choose to forget the subject, nobody will ever know.

As to who raped whom: This is much more complicated. There are 50 different answers, one for each American state. Some crimes require both actus reus (the deed) and mens rea (guilty mind). Mens rea requirements for rape differ by jurisdiction. In some states, rape is a crime of strict liability, and the non-consensual sex itself is sufficient to establish rape. So in some states as Katie Rodriguez 11, Avital Ludomirsky 11, Amanda Yamasaki 11 and Jillian Hewitt 11 said in their response column to Neagu whoever initiates the sex guy or girl is responsible for the rape. But besides these strict-liability jurisdictions, some American states also require intent to commit sex with knowledge that the conditions for rape existed: So, in theory, a very drunk person could mount a legal defense that he or she did not realize that the other party was also too drunk to give legal consent. This could be grounds for acquittal....(more)
Physical contact is "unwanted" if the victim did not legally consent to such contact. Saying "No!" clearly demonstrates a lack of consent. However, someone doesn't necessarily have to say "No!" nor physically object to demonstrate this lack of consent. While it does vary from state-to-state, in many states, if the person is intoxicated, he/she is incapable of giving legal consent to such contact.
Sexual contact with an intoxicated person then becomes sexual assault, regardless of what type of intoxicating substance the victim was under the influence (e.g., alcohol, narcotics, "date-rape" drug). If you think that you may have been the victim of a sexual assault, you are urged to call the police immediately. Please visit our answer board; you may find pertinent information on laws in your State.
My 17 year old daughter recently got drunk and had sex with a 19 year old boy. She had been kissing him, then passed out and came to with him on top of her. She told him to stop and he did. Does this qualify as rape. If so, should we take further action or should both of the kids be held equally responsible for their actions?

In California, a person cannot consent to sexual activity while intoxicated. This would be treated as a forcible rape case, a felony.

Also, it is illegal for a 19 year old to have intercourse with a 17 year old, regardless of intoxication.
Informed consent is a phrase often used in law to indicate that the consent a person gives meets certain minimum standards. As a literal matter, in the absence of fraud, it is redundant. An informed consent can be said to have been given based upon a clear appreciation and understanding of the facts, implications, and future consequences of an action. In order to give informed consent, the individual concerned must have adequate reasoning faculties and be in possession of all relevant facts at the time consent is given. Impairments to reasoning and judgment which may make it impossible for someone to give informed consent include such factors as basic intellectual or emotional immaturity, high levels of stress such as PTSD or as severe mental retardation, severe mental illness, intoxication, severe sleep deprivation, Alzheimer's disease, or being in a coma.
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  -I think some liberals view women as children. ZombieHorde  Dec-13-10 01:58 PM   #0 
  - Mmm, I must be getting hungry...  1955doubledie   Dec-13-10 02:13 PM   #1 
  - Your 2nd example is interesting. Is it rape if a woman has sex with a drunk  kelly1mm   Dec-13-10 02:20 PM   #2 
  - There's a level of, for lack of a better word, participation...  Recursion   Dec-13-10 03:07 PM   #4 
     - I've seen it happen  guitar man   Dec-13-10 04:37 PM   #20 
     - sufficient cocaine can do that  Sen. Walter Sobchak   Dec-15-10 05:09 PM   #93 
     - Roofies dont make you pass out, nor does 4 loco.  WingDinger   Dec-13-10 04:46 PM   #21 
     - It is possible for a man's physiology to act without the participation  Crunchy Frog   Dec-13-10 09:44 PM   #52 
        - Yes. Many men are sometimes "functional" when they are asleep. nt  ZombieHorde   Dec-13-10 09:47 PM   #54 
  - So society has no duty to protect those under mental impairment?  blondeatlast   Dec-13-10 02:41 PM   #3 
  - They can legally waive Miranda, can't they? (n/t)  Shandris   Dec-13-10 04:12 PM   #11 
  - DU is difficult today. nt  ZombieHorde   Dec-13-10 04:17 PM   #13 
  - I am having a hard time posting today.  ZombieHorde   Dec-13-10 04:19 PM   #14 
  - 2nd example is wrong imo. Drunk people (men/women)are unable to legally consent to anything.  uppityperson   Dec-13-10 03:15 PM   #5 
  - let's see if this one shows in "my du" or if replying to bug reply doesn't  uppityperson   Dec-13-10 03:23 PM   #6 
  - No doubt, something is wrong today. nt  ZombieHorde   Dec-13-10 04:21 PM   #15 
  - So, according to you, when two drunk adults have sex they're both rapists?  TexasObserver   Dec-13-10 03:30 PM   #8 
  - Yes. It may seem odd, but yes. Being intoxicated means they cannot give legal consent.  uppityperson   Dec-13-10 04:15 PM   #12 
     - I would ask: To what law do you refer to?  Xicano   Dec-13-10 07:45 PM   #28 
     - Prollee to the one that voids any contracted signed while under the influence.  lonestarnot   Dec-13-10 08:13 PM   #36 
     - Then you should be able to cite the statute which makes it so.  TexasObserver   Dec-13-10 08:20 PM   #37 
        - I'm not an attorney. Maybe you could contact one to find the specific law?  uppityperson   Dec-13-10 09:19 PM   #47 
           - When an adult couple is arrested for raping each other, it will be a first.  TexasObserver   Dec-13-10 09:34 PM   #50 
           - I doubt it would happen, a lawsuit like that, but it could.  uppityperson   Dec-13-10 09:41 PM   #51 
           - We're talking about criminal cases, not civil lawsuits.  TexasObserver   Dec-13-10 09:54 PM   #56 
              - Drunk people (men/women)are unable to legally consent to anything.  uppityperson   Dec-13-10 09:56 PM   #57 
                 - That is simply incorrect.  TexasObserver   Dec-13-10 10:16 PM   #62 
                    - A point of clarity:  darkstar3   Dec-13-10 10:21 PM   #64 
                    - Can't sign a consent to surgery either.  uppityperson   Dec-13-10 10:25 PM   #66 
                    - Deleted sub-thread  Name removed   Dec-13-10 10:22 PM   #65 
           - Every week, every night, all over America, drunk adults have consensual sex.  guitar man   Dec-14-10 07:56 AM   #70 
              - Well bully for your parents. Of course we do. Just need to be careful  uppityperson   Dec-14-10 11:50 AM   #78 
           - I think you have a skewed interpretation that should be rebuked.  TheKentuckian   Dec-15-10 05:12 PM   #94 
              - Have you ever driven and come across a stop sign and no cars around?  uppityperson   Dec-15-10 06:30 PM   #98 
  - Does that include a sobriety test?  The Straight Story   Dec-13-10 03:55 PM   #10 
  - Drunk is not safe to drive, inebriated is not safe to walk.  ZombieHorde   Dec-13-10 04:25 PM   #16 
  - I do. The ones under 18, at any rate. nt  Occam Bandage   Dec-13-10 03:23 PM   #7 
  - I call them girls, as opposed to women, but I do appreciate a smart ass. ;) nt  ZombieHorde   Dec-13-10 04:26 PM   #17 
  - Oh, boy.  Warren DeMontague   Dec-13-10 03:53 PM   #9 
  - My wife and sometimes share a bottle of wine and have fun.  ZombieHorde   Dec-13-10 04:29 PM   #19 
  - Between committed partners I can see some degree of implied consent (morally as well as legally).  blondeatlast   Dec-13-10 05:04 PM   #22 
  - Yep - 99% of the student body, male & female, at my alma mater, for starters. n/t.  apocalypsehow   Dec-13-10 06:04 PM   #24 
  - I imagine we often infer only those things that validate our opinions...  LanternWaste   Dec-13-10 04:29 PM   #18 
  - When you say "some liberals," do you mean some liberal men or are women included? It's not  Liquorice   Dec-13-10 06:00 PM   #23 
  - Are you saying some people feel mocking men is more OK because men are the cause of  ZombieHorde   Dec-13-10 07:44 PM   #27 
     - No I'm not saying that. I'm saying that men are the aggressors in most  Liquorice   Dec-13-10 08:01 PM   #31 
  - Some men use alcohol as a rape drug  Nikia   Dec-13-10 07:26 PM   #25 
  - I feel like I am still in control of my sexuality when I drink.  ZombieHorde   Dec-13-10 07:50 PM   #30 
     - Your experience isn't universally applicable. eom  Hello_Kitty   Dec-13-10 08:51 PM   #43 
        - You make a good point. Some humans may have a will which is easily conquered by alcohol, but  ZombieHorde   Dec-13-10 08:56 PM   #44 
           - I'm not really liking your rhetoric here. eom  Hello_Kitty   Dec-13-10 09:16 PM   #46 
              - I am trying to clearly state my interpretation of the replies I am reading.  ZombieHorde   Dec-13-10 09:27 PM   #49 
  - You put both feet in it with your second example.  darkstar3   Dec-13-10 07:43 PM   #26 
  - "If they won't fuck you sober, it's rape."  ZombieHorde   Dec-13-10 08:24 PM   #38 
  - Internal consistency would dictate "yes".  darkstar3   Dec-13-10 09:00 PM   #45 
     - Pretty much any rule about human behavior is going to have some weird exceptions, but I think your  ZombieHorde   Dec-13-10 09:22 PM   #48 
     - "if neither party regrets the sex, then the sex was not rape."  darkstar3   Dec-13-10 09:45 PM   #53 
        - Would the caveat have to be applied in reverse?  ZombieHorde   Dec-13-10 09:57 PM   #58 
        - You're not talking about a law,  darkstar3   Dec-13-10 10:01 PM   #60 
           - God dammit, I thought I had a wicked point.  ZombieHorde   Dec-13-10 10:52 PM   #67 
        - If one's spouce gets drunk and has sex with someone outside of the marriage,  ZombieHorde   Dec-14-10 11:51 PM   #83 
        - Tough to answer based on that small amount of information.  darkstar3   Dec-15-10 01:16 PM   #87 
           - I agree human behavior is complex and varied.  ZombieHorde   Dec-15-10 01:22 PM   #88 
              - It would be easier if people could separate  darkstar3   Dec-15-10 01:38 PM   #89 
        - A person has the right to say no at any point... except afterwards. n/t  lumberjack_jeff   Dec-16-10 09:53 AM   #109 
     - I am in agreement with you here.  uppityperson   Dec-13-10 10:04 PM   #61 
        - Well, in order, thank you, and you're welcome.  darkstar3   Dec-13-10 10:16 PM   #63 
  - How is she to know that I wouldn't have sex with her if I was sober? n/t  lumberjack_jeff   Dec-15-10 12:13 PM   #86 
  - I think guys just have a sicker sense of humor about castration but also rape etc... I don;t think  bettyellen   Dec-13-10 07:46 PM   #29 
  - I agree. nt  Liquorice   Dec-13-10 08:08 PM   #32 
  - I don't think more women should be prosicuted for rape, I just don't think drunk sex  ZombieHorde   Dec-13-10 08:11 PM   #33 
  - So when a drunk man and woman have sex...  Lucian   Dec-13-10 08:13 PM   #34 
  - I think each situation is different. In some situations, neither of them are rapists. nt  ZombieHorde   Dec-13-10 08:28 PM   #40 
  - I think Bill Maher is a sexist pig.  undeterred   Dec-13-10 08:13 PM   #35 
  - Some of his jokes about women don't seem like jokes.  ZombieHorde   Dec-13-10 08:26 PM   #39 
  - He truly seems to believe that all women exist for the purpose  undeterred   Dec-13-10 08:50 PM   #42 
  - he is absolutely disgusting  Skittles   Dec-13-10 08:47 PM   #41 
  - You just HAD to dig up this topic, didn't you?  Odin2005   Dec-13-10 09:53 PM   #55 
  - I think this tread has been mostly constructive, and many of the replies have been  ZombieHorde   Dec-14-10 12:11 AM   #69 
  - I'm sorry, I'm trying to understand this...  HEyHEY   Dec-13-10 10:01 PM   #59 
  - I don't think women always stick together. I don't see a lot of  ZombieHorde   Dec-14-10 12:10 AM   #68 
  - How do you think conservatives view women?  Jim__   Dec-14-10 08:08 AM   #71 
  - I think many conservatives view women as designed by God to be inferior.  ZombieHorde   Dec-14-10 08:26 AM   #72 
     - I'm not clear on how your observation pertains to liberals, as liberals.  Jim__   Dec-14-10 09:09 AM   #73 
        - I grew up Roman Catholic, so that is the religous group I pick on the most.  ZombieHorde   Dec-14-10 09:47 AM   #75 
  - "thoughtful", now that's funny.... n/t.  okieinpain   Dec-14-10 09:20 AM   #74 
  - No. Regardless of gender, you cannot properly consent if you're impaired by drugs or alcohol.  lightningandsnow   Dec-14-10 09:56 AM   #76 
  - My wife and I sometimes have some drinks and then have some fun.  ZombieHorde   Dec-14-10 10:30 AM   #77 
  - you ain't got no pancake mix  snooper2   Dec-14-10 11:51 AM   #79 
  - Especially those under 18.  ChairmanAgnostic   Dec-14-10 12:04 PM   #80 
  - After many years  caty   Dec-14-10 04:39 PM   #81 
  - "Instead of using differences as weapons, we should use them to help each other."  ZombieHorde   Dec-14-10 11:42 PM   #82 
  - Nice. Can we not want to "take care" of each other without implying diminution?  DirkGently   Dec-15-10 04:53 PM   #91 
  - Here you go  ismnotwasm   Dec-15-10 12:26 AM   #84 
  - I am hoping to take a women's study course at my university.  ZombieHorde   Dec-15-10 12:13 PM   #85 
  - I disagree for the most part.  DirkGently   Dec-15-10 04:34 PM   #90 
  - Not all sex is male + female. Some is male + male, or female + female, etc.  ZombieHorde   Dec-15-10 05:29 PM   #95 
     - Don't disagree with that. But male + female + booze = more threat to the woman.  DirkGently   Dec-15-10 06:25 PM   #97 
        - Are you saying women are intellectually inferior to men? nt  ZombieHorde   Dec-15-10 07:03 PM   #100 
           - What does intellectual capacity have to do with rape?  DirkGently   Dec-15-10 10:13 PM   #101 
              - The ability to consent comes from the mind. nt  ZombieHorde   Dec-16-10 10:30 AM   #110 
  - These neat reversals never work for me.  Sparkly   Dec-15-10 04:59 PM   #92 
     - I am not reversing anything other than the opinion men are intellectually superior to women. nt  ZombieHorde   Dec-15-10 05:50 PM   #96 
        - No, you are using "reversal" as a test of gender bias.  Sparkly   Dec-15-10 06:49 PM   #99 
        - Yes. Moreover, equality is not sameness.  DirkGently   Dec-15-10 10:35 PM   #103 
        - There is nothing in our culture and there is nothing in a women's physiology which makes her  ZombieHorde   Dec-15-10 11:01 PM   #106 
        - "less competent than men" -- of course not.  Sparkly   Dec-16-10 09:27 AM   #107 
           - You have not seen the claim, if she's drunk, it's rape?  ZombieHorde   Dec-16-10 10:45 PM   #111 
        - If the genders are not interchangeable, they are not equal.  lumberjack_jeff   Dec-16-10 09:51 AM   #108 
        - The poster is correct. No neat reversal is possible here. Rape is not an intellectual contest.  DirkGently   Dec-15-10 10:30 PM   #102 
           - Your edit is what I am talking about. We both seem to agree on this subject.  ZombieHorde   Dec-15-10 10:49 PM   #104 
              - Sorry, maybe I missed the point at the jump. I wouldn't assume sex with a drunken woman must be rape  DirkGently   Dec-15-10 10:55 PM   #105 

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