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LadyPact -> RE: on your list of requirements (12/31/2009 10:30:13 AM)
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Speaking of things written around here in purple..... lol. (Thanks for the compliment if that was directed at Me, btw.)
I realize this is a deviation from the original topic, but since it came up during the thread, it's worth addressing. It goes to the familiar stance of 'know the laws regarding your play' credo. I'm not here to bash anyone's kink (rape play while intoxicated) at the same time, it's important for folks to know that, in some states, even if prior consent was obtained during the evening, it can still be a convictable offense. In about a third of the States, such as CA where I live, you might want to be darn careful in engagin in this activity if you'd like to remain a free man.
INTOXICATING ENCOUNTERS: ALLOCATING RESPONSIBILITY
2. The Man’s Responsibility California’s rape statute is representative of the minority approach, which assigns responsibility to the man when there is an allegation of nonconsensual sexual intercourse with an intoxicated woman. The rape-by-intoxication provision states that “[r]ape is an act of sexual intercourse accomplished . . . [w]here a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused.”[1] This provision prohibits sexual intercourse with a victim incapable of providing legal consent as a result of intoxication, regardless of whether actual consent was given.[2] Therefore, the main issue is whether the victim had the capacity to exercise the reasonable judgment required to give legal consent.[3] If “the level of intoxication and the resulting mental impairment [was] so great that the alleged victim could no longer exercise reasonable judgment[,]” then the victim was prevented from resisting.[4] The statute does not require that a victim become so intoxicated that she is physically unable to speak or display a lack of actual consent.[5] However, mere intoxication “to some degree,” or intoxication that “reduced the [woman’s] sexual inhibitions” is not sufficient.[6] As one California prosecutor explained from her experience prosecuting rape-by-intoxication cases, the intoxicated victim must be so “out of it” that she does not understand what she is doing or what is going on around her.[7] It is not a situation where the victim just “had too much to drink.”[8] Under this statutory scheme, a woman who is voluntarily intoxicated may use this provision to raise an allegation of rape. The jury then determines whether the victim met the requisite level of intoxication to render herself incapacitated.[9] Therefore, from the minority perspective, the woman’s severe intoxication inculpates the man accused of rape. The man assumes the risk of responsibility for rape when he engages in sexual intercourse with a voluntarily intoxicated woman.
[1].Cal. Penal Code § 261(a)(3) (West 2003). [2].People v. Giardino, 82 Cal. Rptr. 2d 315, 321 (Ct. App. 2000). [3].Id. [4].California Jury Instructions, Criminal §ALJIC 1.23.2 (West 2003). [5].Giardino, 82 Cal. App. 4th at 464. [6].California Jury Instructions, Criminal §ALJIC 1.23.2. [7].Telephone Interview with Nancy O’Malley, supra note 56. Ms. O’Malley has been with the Alameda County District Attorney’s Office for nineteen years. Id. Other than her responsibilities as Chief Assistant District Attorney, she is also the current chair of the Sexual Assault Committee for the California District Attorney’s Association (CDAA). Id. [8].Email from Nancy O’Malley, Chief Assistant District Attorney, Alameda County District Attorney’s Office, to aAuthor (Oct. 7, 2003, 07:58:04 PST) (on file with author). [9].See Giardino, 82 Cal. App. 4th at 470 (citing People v. Griffin, 117 Cal. 583, 585 (1897)); cf. Telephone Interview with Nancy O’Malley, supra note 56 (explaining that, in reality, if a woman is intoxicated the prosecutor needs independent corroboration of the woman’s level of intoxication to get a conviction, though it is not a legal requirement).
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