A Philosopher's Blog

Defining Rape III: Intoxication

Posted in Ethics, Law, Philosophy, Politics, Universities & Colleges by Michael LaBossiere on June 30, 2014
A half-drunk glass of beer

A half-drunk glass of beer (Photo credit: Wikipedia)

Not surprisingly, most sexual assaults on women in college occur when the women are intoxicated. One reason for this is obvious: an intoxicated person is far more vulnerable to sexual predators than a sober person. Another reason for this is definitional: most (if not all) colleges have a policy that sexual activity with an intoxicated person is, by definition, sexual assault. While the practical and legal aspects of this are important, I will focus on the matter from the standpoint of morality.

From an oversimplified moral (and also legal) standpoint, rape is sex without consent. Consent could be lacking for any number of reasons, but the focus here will be on the impact of intoxication on a person’s ability to given consent. To be a bit abstract, the philosophical concern here is about what might be called the person’s consent agency (or agency of consent). Roughly put, this is the capacity of the person to give proper consent. What counts as proper consent will no doubt vary based on whether the matter is considered in moral, practical or legal contexts. What is also not in doubt is that people will disagree considerably about this matter. However, it should suffice for the purposes of this brief essay to go with an intuitive view of proper consent which involves the person having the capacity to understand the situation and the ability to consciously agree. Setting aside the complexities of the matter, I will now turn to the discussion of intoxication.

Intoxication is, obviously enough, a proportional impediment to agency of consent. Or, in plainer terms, the drunker a person gets, the less capable she becomes of giving consent. This is because intoxication reduces a person’s ability to understand and to consciously agree (or, as people say, being drunk makes you stupid). When the person has no consent agency at all, having sex with that person would clearly be rape (that is, sex without consent). Since this agency can be impaired rather than merely eliminated, there is the rather important matter of sorting out at what point consent agency is lost. As with all such things, there will be a significant gray area between the paradigm cases and this area will be the most problematic. I will get the easy paradigm cases out of the way first.

One paradigm case is that in which the perpetrator intentionally intoxicates his victim using what is known popularly as a “date rape” drug of some sort. This would clearly be a case of rape. To use an analogy, if someone drugs my Gatorade so she can take my wallet when I am unconscious, she has committed theft. This would seem to be indisputable.

Another paradigm case is that in which the perpetrator is an opportunist: he does not drug his intended victim with a “date rape” drug, but finds someone who has rendered herself unconscious or incapacitated through intoxication. This would also be a clear case of rape since the victim is incapable of consent. Continuing the analogy, if I pass out in a drunken stupor and someone takes my wallet, she has committed theft. Naturally, I could be justly chastised for being so careless—but this would not change the crime.

A third paradigm case is that in which a person is unimpaired and gives consent—this is a clear case of consensual sex. To use an analogy, if I am unimpaired when someone asks me for money and I hand her some, she is not a thief. So much for the clear cases, now is the time for the grey territory between being unimpaired and being unconscious due to intoxication. Somewhere in this large territory lies the point at which a person loses her consent agency and is incapable of actual consent.

One obvious problem with finding the boundary at which consent agency ends is that this point might occur well before a person has lost the capacity to engage in behavior that would indicate clear consent by an unimpaired person. For example, an intoxicated woman might say “yes” to a request for sex or even actively initiate the act and then actively and enthusiastically participate. Despite the appearance of consent, the woman might actually be incapable of consent—that is, she can engage in consent behavior but has actually lost the capacity to consent.

If this can occur, it would create a serious moral and practical problem: how can a person tell when another person is capable of consent behavior without being able to give actual consent? This would obviously be important for the person interested in sex as well as those involved in any legal proceedings that might follow.

It might be countered that as long as a person can engage in consent behavior, the person still has agency of consent. That is, the apparent consent is actual consent. This does have considerable appeal in that the only practical way to determine consent is by observing external behavior. After all, a person does not have epistemic access to the mental states of other people and cannot discern whether the “yes” is a proper “yes” or merely “yes” behavior without true consent. It also would provide a clear basis by which potential witnesses can judge the matter—they merely need to report behavior without speculating on the cognitive state of the person. This view could be seen as a presumption that behavior indicates agency.

This view does have considerable appeal. To use an analogy, suppose I I drink enough that I tell a sober friend to drive me to a White Castle so I can buy sliders (something I would never do while sober—and hence have never done) and the folks at White Castle accept my order (shouted into the drive through). When I wake up the next morning and find the empty boxes and White Castle receipt, I could hardly claim that White Castle committed theft by accepting my money. I would certainly regret my decision, but my bad judgment is not the fault of White Castle—as far as the employee could reasonably know, I wanted those sliders.

It is worth noting that a decent person would certainly take into account apparent intoxication and out of a sense of ethics or politeness refuse to accept what seems to be offered freely. To use an analogy, if one of my friends is drunk and says “I love you man, here take my car. No, I mean it. You are the best friend ever!” I certainly would not take his car—even though doing so would hardly be theft. Likewise, if a woman is drunk but making it clear she wants to have sex with a man, the decent thing for the man to do is refuse, escort her safely home and, if necessary, guard her from the less virtuous when she passes out. However, if he accedes to her request, it would seem odd to claim that she had been raped.

One might also raise the point that it is better to err on the side of caution and assume that a person who is impaired to almost any degree has lost the capacity for consent, regardless of the person’s behavior. This, however, seems to be too low of a standard and there is the practical problem of recognizing such a low level of impairment. However, advances in technology could certainly allow smart phones apps for testing intoxication and perhaps an app could be created that combines a blood test for intoxication with a means to record a video of the consent onto a secure (court accessible) server.

The last matter I will consider is a scenario in which both parties are intoxicated. In some college sexual assault hearings the man has countered the charge by asserting since both parties were intoxicated, they sexually assaulted each other. This defense has not, apparently, proven successful. However, the underlying principle is certainly sound. To be specific, if sex without consent is rape and being intoxicated precludes consent, then if both parties are intoxicated, then they are raping each other. So, if both are intoxicated, both are guilty. Or both innocent. To use an analogy, If Sally and I are both drunk and start handing our money to each other, either we are both thieves or both not thieves.

In terms of the innocent option, the main argument would be that just as intoxication impairs the agency of consent, it also impairs the agency of culpability. Agency of culpability is the capacity to act in a way that legitimately makes the person accountable for his (or her) actions. As with the agency of consent, this can be impaired in varying degrees or completely eliminated. As with agency of consent, agency of culpability rests on the ability to understand a situation and the capacity to make decisions. In the case of children, these tend to be linked: minors are incapable of giving certain forms of consent that adults can and are also often held to different standards of culpability.

Given that agency of consent and agency of culpability are so similar, it seems reasonable to hold that what impairs one would also impair the other. As such, if a person was so intoxicated that she could not provide consent, then it would seem to follow that she would also be so intoxicated that she would not understand the need to get consent or whether she was assaulting  another person or not. Thus, if two people are both too intoxicated to consent, they are also both too intoxicated to be culpable.

The obvious counter is that people are held accountable for actions they take while intoxicated. As some truly novice lawyers have found out, the “too drunk to know better” defense does not work legally. It also tends to fail in a moral context in that a person is accountable for willingly becoming intoxicated and is thus responsible for actions taken while intoxicated (unwilling intoxication can change matters). As such, it might be the case that agency of consent can be eliminated by willingly becoming intoxicated, but that agency of culpability cannot be washed away with alcohol.

If this is the case, then when a man and a woman have sex while both are adequately intoxicated, they are raping each other. However, there seem to be few (any?) cases of women charged with raping men—or both parties being charged with rape. Even a cursory search of the web will reveal that men are (almost) uniformly presented as the aggressors while women are the victims. However, if drunken sex constitutes rape, then it would seem that college men are also being raped—by definition. Yet there is little or no concern or outcry regarding this. I will address this matter in my final essay on this subject.

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Another Litter Rant

Posted in Environment, Philosophy by Michael LaBossiere on October 28, 2013
English: Garbage in Romania

(Photo credit: Wikipedia)

As a runner, I cover a lot of ground on foot. While this allows me to be part of the world in a way that driving through it in a car does not, it also means that I get to see all the trash that people just throw to the ground.

While some folks are content to complain about the trash, I’ve generally followed what a friend of mine said years ago: “talk into this hand and do something with that hand: which gets something done?” So, my response to litter is to pick it up. Then write a self-righteous blog about it latter. The blogging is mostly therapeutic-I feel a bit better after a good rant.

One thing that annoys me about litter is how needless it is. After all, if a person can carry an item to a place, then can surely carry it out again-or at least carry it to a trash can. But, this is apparently a bit too hard for some folks-on a typical run in the park by my house, I end up carry a few armfuls of debris from the trails to the trash cans and recycle can.

When I run on the roads, I also see a lot of trash-many people seem to think nothing of throwing out bottles, cans, food containers and other trash. Presumably it is too much for them to just bring the trash with them to their next destination. I can understand it when people toss out really awful things-like bags of vomit. However, throwing beer cans or Styrofoam trays into the road seems to be either laziness or contempt.

Ranting on, one thing that also annoys me is when people litter in the park by throwing their trash out into the woods. While they are presumably trying to hide their crime, they just make it harder to get their trash-especially in places that have thick and thorny vegetation. So, I’d like to ask folks who simply cannot avoid littering to just leave their trash by the side of the trail-that way it is easy for me or the park workers to get their trash. If one must be an ass and litter, at least don’t be a bigger ass and make it hard to pick it up.

Fortunately, I am not alone in my litter picking. There are two women in my neighborhood area who walk everyday and carry bags to clean up the messes left by others. They are good citizens and get the idea that public spaces are not dumps. Naturally, expecting everyone to pitch in and clean up is probably expecting too much. But expecting people not to litter is expecting the very least they can do-which is surely not too much.

Rant terminates. For now.

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The Return of the Fourth King’s Game

Posted in Humor, Miscellaneous by Michael LaBossiere on December 15, 2012
Pile of gorgeous gifts

 (Photo credit: Wikipedia)

Like most people, I accumulate stuff that I no longer want or need and I like to get rid of it. I also like Christmas gift giving. As an experienced game master, I also really enjoy tormenting others (in the context of the game, of course). Back in 2010 I combined all of these into the much dreaded King Bob’s Game-an event my gaming group has learned to fear and loath.

The theological basis for the game was inspired by the Three King’s Day celebration in Puerto Rico. This is a very pleasant, but very hot, place to visit and I certainly recommend going there. The Spanish fortifications in San Juan alone are worth the trip.

As the story goes, three wise men or kings (not the same thing at all, of course) brought the baby Jesus some gifts. While this served as the theological foundation for the massive commercialization of Christmas, it also gave rise to Three Kings Day, which is celebrated in Puerto Rico. The gist of the holiday is that children put out grass and water for the Kings’ camels and they get small gifts in return. This holiday is on January 6th.

Fortunately, a little research revealed that there was a 4th king, King Bob. Unlike the Three Kings, Bob was not great with directions and ended up arriving at the wrong city, albeit a few days before the other kings arrived in the proper destination.

Since King Bob could not find the baby Jesus, he decided to give away the gifts via a game, which is now known as King Bob’s game. Alternatively, it can be called The Game of the Fourth King.

Here is how the game is played.

 

What You Will Need

Gifts: At least 1 wrapped gift per player, preferably more. Cheap gifts are best.

A typical twenty-sided die

 (Photo credit: Wikipedia)

Dice: Ideally you should have a D20 and some D6s, but for non gamers six sided dice will do.

The Roles

There are two roles in the game: King Bob’s stand in and player. King Bob supervises the game but does not play. He also does not get any gifts. Optionally, King Bob can also play and get gifts, but that is bad theology.

Everyone other than King Bob’s stand in is a player.

Setting Up the Game

King Bob sets up the game by creating a pile of the wrapped gifts and defending them from the greasy hands of the players until the game starts. Each player should have a die (or dice) and a board or piece of paper is needed to keep track of the order of play.

Initiative

Gamers will be familiar with this, but non-gamers will not. For the non-gamers, this is how you determine the order in which the players take their turns. To determine this, each player rolls a die (preferably the standard D20). The player with the highest roll goes first, the player with the second highest goes second and so on. In the case of a tie, reroll until it is settled.

Starting the Game

The game starts with the player who has the highest initiative. S/he selects one gift from the pile and DOES NOTopen it. Shaking and such is allowed. The second player then has his/her turn and so on for each player until it is back to the first player. After the first player has selected his gift, the other players will have more options and the first player will also have these options on his/her second turn.

Playing the Game

After the first player has a gift, the second player has his turn and so on until everyone has had a turn. The first player then has his second turn and so on. During play, a player has options. Only ONE option may be taken each turn. A player can take a different option each turn, but is not required to do so.

  • Pick a Gift: the player selects a gift from the pile but DOES NOT open it. The next player then takes his/her turn.
  • Open a Gift: the player opens one gift that s/he has in his/her possession and opens it. The next player then takes his/her turn.
  • Steal a Gift: the player attempts to take a gift from another player. The player who is trying to steal the gift is the thief and the player who has the gift is the defender. The defender has the option of allowing the theft or resisting. If the defender allows the theft, the thief gets the gift and adds it to his/her collection. If the defender decides to resist, then the thief and the defender each roll a six sided die. If the defender matches or exceeds the thief’s roll, then s/he keeps the gift. If not, the thief adds the gift to his/her collection. The next player then takes his/her turn. Defender does not count as the defending player’s turn and s/he can defend as often as needed.
  • Inflict a Gift: the player attempts to give a gift to another player. The player who is trying to give the gift is the giver and the player who has the gift is the defender. The defender has the option of allowing the giving or resisting. If the defender allows the giving, the defender gets the gift and adds it to his/her collection. If the defender decides to resist, then the giver and the defender each roll a six sided die. If the defender matches or exceeds the giver’s roll, then the gift remains with the giver. If not, the defender adds the gift to his/her collection. The next player then takes his/her turn. Defender does not count as the defending player’s turn and s/he can defend as often as needed.

 

Ending the Game

The game ends as soon as no more gifts remain in the gift pile (that is, the players possess all the gifts). Players must take their gifts with them when the game ends, mainly because the game is often played with the intention of getting rid of bad gifts or items that King Bob no longer wants.

Drinking Variant

A Kranz (wreath) of Kölsch beer.

(Photo credit: Wikipedia)

Some people enjoy adding a drinking element to all games. In this case, a player who loses a roll has to take a drink.

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