It's statements like these that are confusing people though (or at least confusing too people):
idiggory, King of Bards wrote:
I originally cited the numbers because someone asked what legal limits would be used in a rape trial. In most states, that's .08, in some it's .1, because that's what they use as the legal definition of "drunk."
Whether or not that matches the point of intoxication at which a jury would otherwise convict someone is another question entirely.
Either way, a victim being over the legal limit is likely going to be deemed unable to consent by a court.
Looking into it, I'm guessing you're right. I've only ever heard the legal definition being used.
You clearly seem to think that there's some common use of "drunk means you can't consent" in our legal system. But I (and I assume most of the other posters) have never heard of this anywhere. I'm not aware of a single jurisdiction anywhere in the US that uses whether someone is drunk, much less some legal BAC "limit" to determine if someone can legally consent to sex and thus whether the person was raped or not. You keep saying this (many more times than those I just quoted), but it's simply not true.
The legal limit for driving a car
is .08. There is no limit for consenting to sex. At least not that I've ever heard of. So when you say something like "in most state it's (legal limits used in a rape trial) .08 or .1", you're saying something that's complete nonsense. And I think that's what people are reacting to with a "huh?" kind of response. At least I certainly have been.
For the most part, it seems that an initiative to give some firm definition to the point at which consent no longer exists is still largely up for debate, and it falls to individual juries to make the decision. That's particularly problematic, because they don't have any definition to go off of - all I can find legally is circular reasoning. Someone is unable to give consent if they are intoxicated, and someone is intoxicated if they can give consent. That wording is atrocious, considering the same legal systems define intoxication as .08.
Again. Drop the assumption that people can't legally give consent to sex if they are drunk. That's where you keep getting into trouble.
It SEEMS that the point at which juries start to have widespread agreement is probably somewhere around .15, where low-tolerance individuals will hit the blackout phase (high tolerance individuals will make it to .2, assuming they were going slowly and didn't vomit, before hitting the blackout phase).
No. Did you just make that up? There is no widespread agreement, among juries in rape cases or anywhere else. No one but you thinks that being drunk means someone can't consent to sex. Everyone else believes that being unable to consent to sex means you can't consent to sex. Whether that's because you are passed out from drinking, or are asleep, or in a coma, or mentally deficient, or paralyzed, etc doesn't matter. If you don't give consent and someone has sex with you anyway, they have raped you. It's really that simple.
So let's just say that consent is impossible somewhere in the .15-.2 range, give or take. Does that work?
What works better is whether the person actually gives consent. You're trying to create rules that aren't needed. I can't tell by looking at someone what their BAC is. I can tell if that person is passed out and/or non-communicative. That's the standard we should use. What causes that is irrelevant. It's the lack of consent that matters.
It just feels like you're trying to create a case where someone can appear to give consent in every external way, but is somehow not responsible for having done so because they weren't in full control of their faculties. But as several people have said, this contradicts with how we deal with intoxication in other areas of our law. We don't allow you to drive while drunk, not because you aren't considered capable of making the decision to drive, or to be held responsible for that decision, but because you are physically incapable of driving safely. Now if the crime was having bad sex, you could argue for legal BAC limits. But the decision to have sex is still something you make and are responsible no matter how drunk you are, just as you are responsible for the decision to get behind the wheel of a car.
People who are drunk are responsible for their choices and actions. As long as they are making a choice and taking an action, it's on them. This absolutely should apply to sex as well. It should only be rape if the person didn't make a choice at all and didn't take an action (ie: passed out, incoherent, etc). Trying to create some zone of intoxication where people aren't responsible for their choices or actions is a really poor way to address the issue at hand IMO. It gives people a pass for their actions because "I'm too drunk". It pushes responsibility on everyone around them, and the result will likely be more victims, not fewer. We need to teach people to take responsibility for their actions and make their own decisions about what they do, not give them a great excuse for bad behavior.