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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 10:19 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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