Continuing the discussion from my previous post Anna C has left a new comment on your post "Defining Rape When Vulnerability Created By Others...":
Interesting post. A few more thoughts - if the girl hadn't been drugged, would your opinion of the guy's actions be the same? Because for me, I think the key issue is that she was incapable of consenting - and so by definition the sex was rape - whereas the key issue in your mind is whether he should have had sex with anyone in the state that she was, regardless of whether she was drugged or not.
You said that if "there is any possibility at all that she is impaired or not freely consenting then proceeding is rape". I wouldn't quite agree here - even though I don't know exactly how some of these date-rape drugs work, I would imagine that at least sometimes it is impossible to tell whether someone has been drugged or is simply a bit tipsy (eg if they are acting more "happily" than normal but haven't vominted or anything). Under your reasoning, does it mean that any guy who has sex with an even slightly tipsy girl is raping her? Because there is the slight, slight possiblility that she is incapable of consenting...
I don't think the idea that "she was really raped but he isn't really a rapist" is competely redundant. Let me propose another scenario. Imagine a new date-rape drug was produced. This drug renders women incapable of legal consent, yet has no obvious physical symptoms. This drug is slipped into a woman's drink at a party by a would-be rapist - however his intentions are thwarted (perhaps he has an accident and has to leave the party). She ends up having sex with another guy there - from his point of view, it just seems like a normal one-night stand - she isn't acting in a strange manner or anything.
I would consider the girl to be a rape victim - because someone had sex with her while she was incapable of consenting. Yet I wouldn't consider the second guy a rapist, because he had no way of knowing that she didn't want sex. In this case, I would hold the guy who drugged her accountable for what happened - since he took away her capacity to consent. What do you think? Would you really think that the second guy was a rapist?
(By the way, astraea, he did ask the girl what was wrong - they had a conversation. He didn't see her looking upset and then just pounce on her.)
This is such a fascinating issue - but, sadly, not just a theoretical one, as you mentioned. I'd love to hear a lawyer's perspective on this case - I know there have been several cases in the UK recently about what exactly constitutes consent.
Sex with someone who is tipsy can be freely and legally consensual, but the legal burden for ensuring that this is what is happening belongs to the person who wants to have sex with someone who appears to be tipsy. "I didn't know." cannot be a viable defense. If there is even the slightest chance that someone isn't capable of consenting then proceeding is making the choice to risk being a rapist and to risk a genuine accusation of rape.
If the girl hadn't been drugged with GHB and everything else was the same, my opinion of this boy's guilt remains the same.
The two issues: her ability to give meaningful and legal consent and his culpability in having sex with her when she is incapable of giving legal consent are directly linked. Claims of ignorance cannot be a viable defense if you in reality are serious about being opposed to all rapes and if you are serious about preventing all rapes.
Allowing gaps in knowledge to be a workable defense judges rapists not by the crime they committed or the harm they inflicted through their actions but judges rapists by a general opinion of that rapist's MO.
You fall into this trap by viewing the boy in the Law and Order episode as better than the rapist who drugged and pounced on this girl. His decision to not immediately pounce is not an indicator of innocence but shows strategic thinking which anticipates how his actions will be judged. He let another rapist do much of the dirty work for him even though he did not witness that rape. The only meaningful difference between these two rapists is one of strategy and whether the possible OD of this girl would have been caused by one guy's action or another's failure to act.
The same would be true in the alternative scenario you propose. GHB isn't the only drug which can be slipped into someone's drink. Someone who has a chance for a one-night stand needs to know for sure that the other person is capable of giving meaningful and legal consent and is doing so. If that person precedes on a guess or an assumption then any subsequent rape claim based on inability to consent must be viewed as valid and that person deserves to be charged with rape.
That boy would be a lot more careful to not cause a rape if he understands that doing so will result in his serving jail time.
When acts are based on not having proof that someone is impaired either by substance or situation those are still deliberate acts -- just ones with a higher level of deniability than is available to the rapist who drugs or who pounces.
This gives us rapists who never ask for sex while someone is sober or indicate any interest in sex with that person and then when their target is vulnerable they exploit that vulnerability only considering whether their actions will cause them to be charged or convicted of rape. If this boy believes this girl would want to have sex with him then he needs to wait until he is sure she is capable of giving legal consent and is capable of easily rejecting his advance.
The same pattern happens when a girl has previously rejected a boy's advances or who has ended a relationship. Once she's impaired, asking again or isolating that girl is not an effort to legitimately change her mind but is an effort to overcome her clearly communicated rejection.
The decision to not wait to act until impairment is not even the slightest possibility is a rational choice based on selfish goals. That reality disproves claims of true ignorance.
Making only rape victims responsible when they are raped in certain scenarios is dangerous and actively encourages rape in those scenarios. This is evident when rape prevention messages seek to change only the behavior of potential rape victims.
Resisting viewing those whose actions cause someone to be raped as real rapists actively encourages people to rape -- no matter what disclaimers are given.