Discussion List for campus-based and allied personnel working to end gender-based violence on campus.

["Kaplan, Claire (cnk2r)" <>]

I sent a backchannel note yesterday but haven't seen this type of idea on the 
list.

it isn't just that we don't blame even drunk victims who get run over by 
drunk drivers -- the law is explicit that the intoxication of a victim is 
IRRELEVANT in criminal law in general b/c criminal law is not subject to 
comparative negligence CIVIL law principles -

that is -- there's only guilty or not guilty when it comes to crime -- 
whereas in civil law, you can have lots of "responsible people" -- one 
defendant is 30% liable, another is 10% and even the victim can be 
adjudicated 30% responsible, etc -- so apportionment of moral AND legal 
responsibility is common in some legal venues and, of course, in society, 
too.  But NEVER in criminal law (though defense attorneys boldly exploit all 
sorts of cultural ideas to dupe the jury into voting not guilty based not on 
the law but on some moral idea that a victim CAN be responsible for her own 
victimization.

And our legal system does almost nothing to combat this - even though it is 
unlawful, unfair, bigoted, etc. (we don't even allow jury screening to keep 
out members of NAMBLA or to figure out whether the people who sit in judgment 
believe, as a basic premise, that a drunk woman DESERVES to be raped.  How 
can we possibly expect the real world to understand rules that the law SAYS 
exist but in name only.

I teach about "sex with a buzz" all the time -- to articulate why two drunk 
people are not both "equally" responsible for ONE person's crime --

The first important point is that a person can be doing naked cartwheels down 
the middle of Main street - and while it might not be the best way to reduce 
one's risk of being harmed, it is never, ever consent -- and consent is the 
only behavior that matters.

The other thing to emphasize is that while being drunk CAN mitigate an 
offender's state of mind in a "specific intent" crime context (such as murder 
- where the intent to kill or premeditation CAN be vitiated by even voluntary 
intoxication -- usually it means murder gets bumped down to manslaughter -- 
though I emphasize that this is the rare exception to the rule -- most states 
give no consideration to whether a defendant was drunk on the theory that the 
law shouldn't reward behavior that might inhibit the ability to restrain 
violent conduct) - But rape is a general intent crime -- which means, even in 
the minority of states, intoxication has no effect on the law because doing 
the act is all that matters.  Only the victim's state of mind matters because 
consent is hers and hers alone to give.  Assigning ANY weight to HIS state of 
mind necessarily causes a dent in her exclusive authority to control her own 
body and to exclusively exercise her own autonomy.  In short -- to give his 
state of mind weight is to set up a deeply offensive constitutionally 
dangerous principle such that his drunken or mistaken state of mind can trump 
her ACTUAL nonconsent.

Relatedly, the reason it's morally appropriate to care less about the 
offender's drunkenness is that he is the harmdoer -- and she isn't.  (not 
that she couldn't be -- i'm using the typical case example)  In other words 
-- it isn't a crime to drink or get drunk -- so we shouldn't penalize the 
behavior in a criminal justice setting when the drunkenness isn't connected 
to behavior that harms another.

And maybe most important is this:  intoxication is a bit like mental illness 
in that it can render a person less able to protect herself.  Our laws claim 
that no person should be more vulnerable to crime than another.  And the way 
we promote this idea is, in part, by NOT having comparative negligence 
principles apply in criminal law - - AND by insulating the judgment of guilt 
from assessments of WHO the victim is in society.  In other words - if a 
mentally ill person is less able to protect herself from a criminal act than 
a mentally healthy person, we need to make sure this doesn't translate into a 
pathway to reasonable doubt on the theory that her illness is her fault and 
we mustn't blame the perpetrator for HER weaknesses.  Her weaknesses, like 
the weakness that comes with intoxication, are VULNERABILITES, not 
LIABILITIES - and it has to be this way lest we put targets on the backs of 
the mentally ill or chronic alcoholics - by allowing the blaming strategy to 
be legitimized as a litigation tactic and "justification" for crime.  We 
really can't expect a civilized legal system to protect the powerful from 
crime more than the weak - but in practice that's what we do.  And part of 
the problem is, we don't talk about it or complain enough.  And so the system 
becomes the means by which social prejudices and rape myths become acceptable 
exploitable "norms" in court.  i write about this quite a bit in my book, And 
Justice For Some.

On a separate note - a good way to use drunk driving cases is to point out 
how clearly established the rule is when the victim is intoxicated.  If a 
victim is walking along drunk on the side of a road -- and she gets hit by a 
drunk driver -- the ONLY person whose intoxication matters is the driver -- 
UNLESS the victim literally jumps into the road to commit suicide.

by analogy -- a victim can be drunk and naked and it has NOTHING to do with 
the criminal behavior of the harm-doer unless she literally jumps onto the 
penis of the rapist (and even then -- one might be able to argue that she was 
too drunk to consent, though if one can jump with such precision i suspect 
the level of intoxication isn't high enough to deflate the capacity to 
consent -- but it's possible)

Finally -- if a drunk victim is incapable of consenting -- her intoxication 
is absolutely relevant - but NOT because it excuses the perp's conduct -- to 
the contrary -- it is relevant to show the nature of the perpetrator's harm, 
that his conduct is exacerbated by the act of causing harm to a person who 
lacked the capacity to allow or disallow an intimate intrusion.  Again, our 
laws don't even come close to explaining this point well to jurors which is 
why defense attorneys routinely get away with using a victim's intoxication 
to explain and forgive the defendant's behavior.

Unlike some activists, I don't argue against sex with a buzz, however, - I 
just get the message out there that it's a buyer-beware world -- and if the 
drunk offender gets it wrong -- HE assumes the risk of prosecution.  Just as 
a woman would assume the same risk if SHE were the aggressor who took 
advantage of a drunk male.  A rare incident to be sure - but it's all about 
exploiting vulnerabilities and being very black and white about who bears the 
risks and responsibilities.


wendy murphy