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affirmative consent

Is Intoxication a Defense to Rape?

Although rape can certainly be committed by the use or threat of violent force, the crime of rape encompasses other forms of non-consensual sexual intercourse in which the perpetrator lacks the consent of the victim. California legislators recently passed a law making the standard of consent for sexual activity on that state's college campuses "affirmative consent," meaning both partners must both say "yes" to sex, as opposed to just not saying "no." The bill also makes it clear that neither the victim being too intoxicated to consent, nor the perpetrator being too intoxicated to confirm consent can be used as a valid excuse for lack of affirmative consent. The law's language does raise the question, however: Is intoxication usually a defense to rape? When the Victim is Intoxicated Rape is characterized by the lack of consent given by the victim. But what if the victim is intoxicated to the point where they are unable to provide consent? If the victim is too intoxicated to provide consent, sex with the victim would likely be considered rape by intoxication. Generally, any situation in which the victim is unable to say "no," such as being intoxicated, asleep, or unconscious, may be considered rape if sexual contact occurs. When the Perpetrator is Intoxicated But what about situations in which the perpetrator is too intoxicated to recognize the need to obtain consent or the lack of consent on the part of the victim? As with the majority of crimes, voluntary intoxication will not typically work as a defense. In some instances so-called "involuntary intoxication" -- such as when a person's drink is spiked or he or she is otherwise drugged without knowledge or consent -- may be used as a defense to a criminal act. But generally, any time you voluntarily consume drugs, alcohol, or other intoxicating substances, the crimes you commit while under the influence are still criminal. When Both Victim and Perpetrator are Intoxicated What if both the victim and the perpetrator are intoxicated? Although this may make proving the facts of the incident difficult for law enforcement, regardless of who's intoxicated or how intoxicated they are, the fact remains: Engaging in sexual intercourse without the other person's consent is probably rape. Related Resources: Men Can be Legally Raped: New FBI Definition (FindLaw's Blotter) There is no 'Legitimate Rape,' Legally Speaking (FindLaw's Blotter) Conor Oberst's Rape Accuser Admits She Lied (FindLaw's Celebrity Justice) NYC Tourist, 20, Raped in Midtown Manhattan (FindLaw's Blotter)
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Calif. ‘Yes Means Yes’ Sexual Assault Bill Awaits Gov.’s Signature

California lawmakers approved a groundbreaking "Yes Means Yes" bill on Thursday, in an attempt to fight the growing problem of sexual assault on college campuses. The bill must be signed by Governor Jerry Brown before it becomes law, but if/when it becomes effective, all California colleges and universities will have to change their standards. The Los Angeles Times reports that the bill would require "affirmative consent" between college students hoping to have sex -- removing silence or lack of resistance as signs of consent. SB 967 Requires a Sober 'Yes' for Sex The "Yes Means Yes" bill, officially known as California SB 967, seeks to create more institutional protections for college students who may be sexually assaulted by their peers. Authored by state senators Kevin de Leon and Hannah-Beth Jackson, SB 967 sets the standard for consent to sex a bit higher than some colleges have in the past. And that standard is "affirmative consent." The consent of affirmative consent is best understood by the bill's slogan: "yes means yes." The old "no means no" doesn't create a very high burden on would be sexual assaulters to ascertain whether their partners' silence, intoxicated state, or lack of resistance is really tantamount to a "yes." And with the very serious charge of rape being a possibility for sex without consent, this is not a situation to trifle with. With only a "yes" (or each partner affirmatively consenting), can many of their sexual assault fears be silenced. The "affirmative consent" standard also would not allow accused rapists to claim that an intoxicated victim consented or that the accused was too intoxicated to confirm consent. For college students, this may mean a sobering new reality about drunken sex. Critics Worry About Consequences Not everyone is a fan of "Yes Means Yes." Writing for TIME, Cathy Young notes that this law will create "a disturbing precedent for government regulation of consensual sex" and place many young students at the mercy of "vague and capricious rules." While the California criminal law regarding sexual assault will not be altered by SB 967, disciplinary action from a rape accusation may lead to suspension or even expulsion. Students can still appeal these disciplinary actions, but the burden in school rape cases would certainly be shifted to the accused. According to USA Today, Gov. Brown has until the end of September to sign or veto the "Yes Means Yes" bill. Related Resources: California bill defines what it means to say 'yes' to sex (The Washington Post) 55 Colleges Facing Title IX Sexual Violence Investigations (FindLaw's Blotter) 5 Legal Tips for Sexual Assault Victims (FindLaw's Blotter) Calif. Egg Law Challenged in Federal Lawsuit (FindLaw's Law and Daily Life)
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