The current way alcohol rape is prosecuted is wrong

Before becoming a college student, I was required to take many hours of on-line alcohol education before I was allowed to move into my dorm. Although I do think that it is fairly reasonable for a college to make an investment in the future well being of their students, something that upset me was the constant reiteration of how the college will prosecute alcohol rapes:

Should a male and a female have sex under the influence of alcohol or other drugs, and afterwards the female decides she did not want to have sex, this will be prosecuted as rape, even if she consented at the time.

I do not mean to say that it is OK to have sex against someone's consent with anyone; I'd personally have to say that the only thing worse then rape is murder. I cannot describe how saddened, confused, and mad I would be if my girlfriend was raped, or if, heaven forbid, I was raped. I can however, describe how mad I would be if I was wrongly accused of rape, or if I was prosecuted for having sex with a drunk girl when I was drunk.

Why would I be mad about this? The way that universities and the law treats alcohol this way fucks the guy in the situation. Suppose you go to a party and have a few beers and meet a cute girl, who also has had a few beers. You two hit it off, and go back to one of your place's, where you start hooking up. Before you put a condom on, and enter her, you ask her:

Can I enter you?
Get inside of me already!

The next moring, you wake up next to someone whom you barely know. You're feeling kind of awkward, and you get your stuff together, as the girl is crying. You talk to her and ask her what is wrong and she says:

I didn't want to have sex.

and you think to yourself, "Why'd you tell me you wanted to then?" You say your goodbyes, and leave. Later that day, you are in hot shit, sitting in front of a judge who tells you that you are here because you may have raped a girl. As you sit there, you think to yourself "My life is ruined. If I get convicted, I'm going to go to prison, I'll be kicked out of college, and I'll be known as a rapist for the rest of my life."

College-aged males have been convicted as rapists for stuff like this. How is this fair? I mean, I'm sorry to the girl that feels like she was raped, but she did say something to the effect of "I would be fine having sex with you right now." What is the guy supposed to do in this circumstance? Not have sex with girls he meets at parties? Yes, I do suppose that is an option, and that is the option that I would choose, but this is how many college students meet members of the opposite sex. He wants to have sex with a girl, and she seems to want to have sex with him. As far as someone can rationally tell in that situation, there is consent. Is a guy supposed to make a girl sign a fucking contract that she won't change her mind about whether she wanted to have sex with him?

Even worse, in the online alcohol education classes, they put the entire responsibility on the guy. What if a girl has sex with a guy when they are both drunk, and the guy later decides that he didn't want to have sex and that it was against his consent? According to what they've instructed us, the male in this situation has no recourse.

How is that fair?

I somehow think that rape hurts regardless of what sex you are. Or, I guess I should say non-consensual sex, since in many places, rape of a male either is rarely prosecuted, or is not criminal.

Women can be rapists too.

The whole point of this here, is that college administrations and the police are treating males highly unfairly when it comes to alcohol related rapes, where consent was given at the time. I wish that situations never happened where these problems would be encountered, but the reality of the situation is that college aged males are being treated unfairly, and the lines of what consensual sex is are blurring. After what happened at Duke and the blurring of the lines when it comes to alcohol and consensual sex, I'd honestly have to tell any of the guys that I go to school with to not have sex with a girl they weren't in a relationship with, because I don't know what consent even means anymore.

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My full apologies to anyone who has been raped due to alcohol or drugs. I don't advocate not prosecuting legitimate rapes, I just really worry for the future of a world where the concept of what two consenting adults is, is eroding.

As a result of all the exposure rape and abuse of women is getting in the popular press, there is an enormous amount of pressure on both the police services and the prosecuting authorities to prosecute these and related offences vigorously.  Similarly, there is a lot of pressure on courts to deal severely with persons convicted of these offences.  The result is that one seems to deal almost with a type of reverse onus situation, in that when someone is charged with rape or some sexual offence, the accused is almost invariably regarded as being guilty until he has succeeded in proving his innocence.  Technically, the accused is still regarded as innocent until proven guilty, but the general approach in my experience seems to be that it requires less from the prosecution to prove rape that it would in other offences not of a sexual nature.

In South Africa, the law of evidence traditionally approached the evidence of a rape victim (or victims of other sexual offences) with circumspection, as it was considered all too easy for a girl to shout “rape!” after the fact when she finally comes to the realisation of the enormity of what she got involved in.  The result was that a “cautionary rule” developed in our common law which required that a court must deal with the complainant’s evidence in a very careful fashion, in order to avoid the innocent being convicted.  By their very nature, offences of a sexual kind rarely have any witnesses except for the perpetrator and the victim.  The result is that it is extremely difficult to corroborate the evidence of the complainant, especially in cases where intercourse is proven to have taken place, and it is only the say-so of the complainant that supports the claim that she was raped.

In consequence of the enormous pressure on courts to deal severely with perpetrators of these offences, the South African Supreme Court of Appeal some years ago abolished the cautionary rule in approaching the evidence of a single witness in sexual offences.  Instead, we now deal with this kind of evidence on the basis of it being the evidence of a single witness (as any other single witness’ evidence would be dealt with), and a court must therefore be cautious in adjudicating this evidence, requiring corroboration of good quality. 

This, however, still does not solve the problem.  The fact of intercourse together with an allegation that there was lack of consent, creates an enormous problem for the accused.  How does he prove a statement (consent) when the person who made it denies having done so emphatically?

Without wishing to create the impression that all rape victims are untrustworthy witnesses, it must be understood that there is grave danger in the way these offences are dealt with, with the ensuing risks of incorrect conviction.  The truth of the matter is unfortunately, that males have only themselves to blame, because for too long these offences were committed without the victims obtaining proper redress.  The reaction, however, has been more severe that necessary. 

Having said that, while I have much empathy with the victims of the false cry of rape, the solution to the dilemma is not apparent, and if ever found, will not be an easy one to employ.

Perhaps the solution lies in getting the initially willing partner to sign an indemnity, stating that he or she fully inderstands the act, the consequences and consents thereto.   Result:  Clinical sexual intercourse, but without the risks of being falsely accused.  Oh, and be sure to get the willing partner to sign the document before he or she has any beers.

I wasn't sure how to phrase this writeup. It's hard for me to write about this subject, so I apologise in advance for clumsy phrasing or inadequate conclusions.

When I saw the title 'The current way alcohol rape is prosecuted is wrong', I thought it would be a node arguing for harsher prosecution. I'd be inclined to agree with that sentiment, but then I'm biased. The police called me yesterday to tell me that based on the evidence I've provided, they can't arrest the person who raped me. A voluntary interview followed by nothing is the best I can hope for. I can't even begin to put down in words how much this hurts me. I was drunk. He was less drunk. He did not have my consent, and he knew that. I can't doubt that he knew that. I'd told him before, over and over, that no, no I didn't want to ever have sex with him. I had a boyfriend who I was just beginning to really fall for. He knew that, too. What followed wasn't sex but rape: it wasn't about having sex with me, it was about taking revenge on me for not letting him fuck me when he asked the first few thousand times. Intention is key.

I know rape can be a hard thing to define. I know that for someone who was innocent of any offence to be prosecuted would be a terrible thing. But while I've never met anyone who's been successfully prosecuted for rape, guilty or otherwise, I've heard story after story of the guilty getting away with rape. My aunt has been raped on a number of occasions and while she's reported it each time, not once has she secured a successful conviction. On the last occasion, the police assured her that the evidence was irrefutable. Her case never reached the courts. The boy who raped me is going to continue joking about it, telling people I'm a slut, following me around. All I can do is report it to the police and have them ignore me. I appreciate that an innocent person being convicted of rape would be terrible, but the police units that dealt with me, my aunt and other people that I know have displayed such incompetence that I fail to see how any case would make it as far as court, let alone one involving an innocent party.

In the UK, over two-thirds of rape cases drop out at the police investigation stage, failing to make it as far as the courts. One quarter of cases reported as rape cases are subsequently 'no-crimed' by the police. Approximately 5% of reported rapes end in eventual conviction. One wonders how many of those involve the innocent, since these convictions generally only occur in the face of overwhelming evidence. As for 'campus rape', as Patrick Cronin says in his article 'The right rape statistics', which can be found in full on the LA Times website, those who suggest that "most campus 'rape' cases exist in the gray area of seeming cooperation and tacit consent, which is why they are almost never prosecuted criminally" are confusing "a reluctance to prosecute with the absence of crime".

The way that alcohol rape cases are investigated is poorly-managed and harmful to the victim. It took me three weeks to come forward, and then only after much persuasion from a nurse I knew, my sister and my then boyfriend. Partly because of that, and also because the case involved alcohol, I was treated at all times as an unreliable witness. There is a distinct lack of education and information available to both men and women on the subjects of rape and consent. I'm not stupid. I've hooked up with guys before, while drunk. I know the difference between sex and rape.

I guess the only way to be sure is for all men and women to act like my ex-boyfriend, who always, always made sure he had my consent. Even if it was obvious, even if I hadn't been drinking, he always made sure I was comfortable with what was happening. It's not irritating. It doesn't interrupt the flow of events. Quite the opposite, in fact: it gave sex an undercurrent of tenderness and caring, which made it so far removed from what had happened to me that it didn't even seem in any way connected.

In order for a crime to be committed, you need two things: Actus Reus or Guilty Act, and Mens Rea or Guilty Mind.

In "alcohol rape", assuming there is a clear guilty action (rape) and no question of consent, there is still the absence of Mens Rea. Intoxication is a valid legal defense. In the eyes of the law, the person who committed "alcohol rape", if they were drunk, was actually temporarily out of their mind, and is therefore not fully responsible for their actions. How were they supposed to know what they were doing, they were Drunk!

This does not mean the victim of "alcohol rape" doesn't feel violated, often far from it. But no matter how clear cut it may seem to the victim after the fact, in the eyes of the law, it is not right to punish the perpetrator with a full sentence.

Now, in a sample case between two intoxicated people, who are both emotionally involved in the case, and therefore biased, and no outside witnesses, Proof beyond a reasonable doubt becomes almost impossible to establish. When the stories don't agree, or worse, are fuzzy on the details, perhaps changing with multiple retellings due to alcohol's effects on memory, how on earth is one coherent version going to be established? A case like that is very uncertain, and the most likely verdict is "Not Guilty"

Now, it becomes even more complicated if consent is in question, which it usually is in these cases. Perhaps the person wouldn't have consented under different conditions, if they were not drunk, for instance, but this could hold true of both parties, and is not provable. Did the person really consent? Was it informed? Was it obtained under force? Perhaps they were misunderstood, or changed their mind later. All this is hard to determine from a hazy retelling.

Naturally, we feel deep sorrow for any victims of alcohol rape, but because people are Innocent until Proven Guilty under the U.S. legal system, and we require a proof beyond a reasonable doubt, these cases are almost impossible to prosecute, and are seldom as clear cut as the victim's assertions.