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I think a key detail here is that alcohol is a helluva drug. It's quite easy, especially as a smaller, younger woman to overestimate your tolerance. Either of you also might not know what's in the punch exactly, or how long you hit the keg.
So, the ethical thing is to look at the person as you're getting to bed and ask "ok, but really, is it OK to have sex here?" I think if she'd never in a million years have sex with you after a moderate amount of alcohol, no. If in the heat of the moment and a bit buzzed, she'd probably have said yes, you're at least in grey territory, potentially fine, depending on the details.
In most other situations "I made a bad decision because I had too much to drink" does not carry much legal weight. Assuming the women in your scenarios do in fact consent "in the moment", how can you invalidate this consent without also invalidating (for example) a woman's decision to go driving while in such a state?
ie. 'drunk woman decides to drive and crashes into a pole' --> prosecute her (I think?); but 'drunk woman decides to sleep with some gross nerd' --> prosecute him (?!)
Your framework seems to be denying women significant agency; seems a bit patriarchal to me.
The key difference is that only in the rape story has anything been done to her by someone else.
When driving, the damage is to the pole. Heck, let's say she ("S") kills someone else ("E"). S has violated E's rights, so S should be prosecuted for murder (or property damage to the pole). No one did anything to S, except insomuch as S did it to herself, so no one should be prosecuted (or held morally responsible) for anything that happened to S.
When S is raped, the damage is entirely to S. This was done to her by someone ("R"[apist]), who should be prosecuted. Debateably, S did something to herself too, but undebateably (well, it is themotte, but I feel pretty good about this one), there is the key difference that something was done to S in this one.
Further, in my version of the setup, she really hasn't decided to sleep with the nerd ("can't count to ten"). Past some level of drunk, you're on autopilot, and anyone who steers you transgresses. So yes, I absolutely do deny people agency once they are blackout drunk. I put that agency in the hands of society/morality to protect them. Enormously practical? No, so go be monogamous and sober, but still better than a free-for-all on drunk coeds.
Meta: the overall negative scores on most of my participation on this topic is fascinating. The categories are very fuzzy and my arguments were clearly not perfect, but I would have guessed mild positive. Thoroughly enjoyed the back and forth, all, even having "lost."
Double meta: downvotes are not supposed to be disagree buttons, in theory, but I think we use them mostly that way...and I like it.
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In the case where the woman was drunk enough to make decisions she might regret later, but not comatose or whatever you are trying to conflate the (much more common!) situation with by "can't count to ten" or whatnot, the person she is hurting is the man. A rape charge for something she agreed to at the time is pretty harmful.
Why is it the man who's responsible for evaluating the woman's level of agency in her current state? Aren't people supposed to do this for themselves?
(Please don't motte & bailey this anymore; nobody thinks it's ok to have sex with someone who's literally losing consciousness -- I am talking about intoxication well below this state. If you want to continue in that direction, you need to very clearly specify what level of intoxication you think makes it categorically no longer OK to have sex)
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This is stealing a bunch of bases. The question is whether S, who got drunk on her own accord and had sex with T ("T"[roll], because the guy kind of resembles one) apparently consensually, was raped at all. Your proposal appears to be that "T" should have known that he's an uggles and there's no way in hell the hottie "S" would have had sex with him if she was at all compos mentis. The alternative is that "S" was responsible for her own behavior while drunk and if she had sex with some guy she wouldn't have had sex with sober, well, that's on her.
"Blackout" drunk refers to a state where someone is apparently acting normally, but is not forming long-term memories. Alcohol does not produce this sort of suggestive state; the drug usually associated with that is scopolamine, but that's controversial.
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There's a word for a guy who consistently engages in that sort of reasoning (not just in this particular case, but in general) and that word is "virgin". It's very easy for a certain sort of guy (think Scott Aaronson) to convince himself that any particular woman is out of his league. The kinds of guys who think they're God's gift to women aren't going to engage in that sort of reasoning, and if they did, they'd always answer "it's fine". So all this sort of rule does is ratify turning the self-abasing into volcels.
Plus, of course, the guy in this situation has probably also been drinking.
The hypothetical as I am thinking about it is that the man is knowingly much less drunk. If everyone is very drunk, I think that's less of rape and more of "play stupid games, win stupid prizes" all around.
I think your point stands for a smallish group of those you're describing, "white knight" types, who should yes in fact move in the drunker/less-rigidly-consent-requiring direction.
But, in general, I prefer the word "adult." I found dating got exponentially easier as I started advertising being a ~sober, boring, responsible adult instead of being maximally able to consume booze/etc.
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How am I supposed to know this? What does even mean? She’s at a bar/club/house party - a milieu where everyone is aware that at least some number of people there are interested in meeting prospective sexual partners. She’s unaccompanied by a man, so I have no reason to believe she’s spoken for. She’s talking to me and hasn’t wandered off or thrown a drink in my face or whatever, so clearly she’s at the very least not actively repulsed by me. So why would I assume she would “never in a million years” have sex with me?
If you have to ask, the answer is no. I.e., I think the moral thing is to view the default as "no consent" and require positive evidence to move to "consent." If you can't count to ten, you can't give that evidence. I don't even think that's overdone liberal nonsense, of which there's a lot on this subject.
Concretely, if she's so much drunker than me and hotter than me that I can not picture her feeling less than grossly violated tomorrow, then the sex feels very rapey. If I think we're both buzzed and we might both feel a little gross about it tomorrow, then shrug, she made her choices.
I in practice solve these complex moral dilemmas by being old, boring and sober. It's remarkable how much complex modern feminist 'BUT WHAT IS CONSENT EXACTLY' goes away if you allow the answer to be even as serious as "a thing two people who are multiple dates do while sober".
Right, as I said to @hydroacetylene, I’m in agreement with you about the clear and obvious superiority of conservative, monogamy-centric sexual norms over the Wild West chaos we have now. However, if the chaotic world of presumed equal agency between men and women is going to continue to prevail, and women are going to continue to drink publicly and to at least sometimes fully consent to sex with men under circumstances which are inherently ambiguous, it strikes me as profoundly unjust to insist that men shoulder the full burden of consequences while women shoulder none.
I have at no point intended my comments to be gendered, although I have almost certainly said man (by which I meant less drunk/larger) and woman (by which I meant more drunk/smaller). Heck, apply it to nonbinary dragonkin.
So, we may agree on ~everything.
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