No, it's lack of judgement. Total inability to judge, in fact.
> The perpetrator might reasonably think you're sober enough to make your own decisions. Especially if they are also inebriated.
It doesn't matter what the perpetrator thinks. And especially? Is the perpetrator less guilty of rape depending on his blood alcohol level?
It does matter in most jurisdictions. Rape is usually not a strict liability crime. Conviction requires both an act (actus reus) and criminal intent (mens rea) on the part of the defendant. (Statutory rape, on the other hand, often is strict liability with only an actus reus requirement).
Generally if an act can be legal or illegal and the defendant believes that they are doing the legal version, the mens rea requirement is not met and the defendant is not guilty. Many jurisdictions do require that the defendant's belief be in good faith and their mistake be one that a reasonable person could make.
For an example of the kind of thing the prosecution must typically prove, here are California's jury instructions for "rape of intoxicated woman or spouse" [1].
I think it may be the only thing that can decide the difference between a crime here or not. If the other person gives consent, then how you judge their ability to make their own decisions here is the difference between having intent to rape or not having intent. Intent matters in a lot of crimes, I don't think it matters in rape cases - I could be wrong.
> Is the perpetrator less guilty of rape depending on his blood alcohol level?
So the victim has no responsibility if blood alcohol level is too high for good judgment, but the perpetrator is responsible no matter their blood alcohol level and judgment? That seems self-contradictory.
As in other forms of battery, intent matters in rape, but it is thr defendant’s intent to commit the requisite form of physical interaction, not the defendant’s intent with regard to the absence of consent by the alleged victim.
> > > Is the perpetrator less guilty of rape depending on his blood alcohol level?
Interestingly, legally, the answer (in the US) is yes if the intoxication makes him incapable of being cognizant of the nature of the act, because it makes him incapable of thr requisite mental state. But there is a huge caveat: in general, voluntary intoxication has been specifically adopted into law as not defeating the mental state requirement for a crime (or, equivalently, as satisfying it for any mental state up to and including specific intent).
> So the victim has no responsibility if blood alcohol level is too high for good judgment, but the perpetrator is responsible no matter their blood alcohol level and judgment? That seems self-contradictory.
Well, no, its not self-contradictory. If your voluntary intoxication causes harm to yourself, you suffer the consequences as much as if you had chosen the outcome (and that’s true whether or not someone else is punished for their role).
If your voluntary intoxication causes unlicensed harm to someone else, society has decided that you suffer the consequences as much as if you had chosen the action, as well. No inconsistency.
Exactly. That's why they're called 'victim' and 'perpetrator'.
If the victim got triple blackout drunk, the only person they'd hurt is themselves. But the rapist, in addition to physical damage, inflicts deep, lasting psychological damage upon their victims. It's not just "regret".
If "he gives consent", then she isn't a perpetrator. By definition.
If one of the parties gets drunk, they can't give consent. Again, by definition.
> If one of the parties gets drunk, they can't give consent. Again, by definition.
Say she comes on to him, and he responds enthusiastically. But he's too drunk to give consent by your definition. Then she's just committed a rape? From her POV, also drunk, she made a move, he reciprocated, all in all it was a pleasant evening.
She clearly didn't mean to commit a crime in this case, and both their judgment was impaired. Whose fault is it?
I don't think it's fair to say it's all her fault - and I don't think a court of law could find fault here, fairly, with no witnesses and no evidence.
So drunk people should never have sex? What if they're in a stable relationship?