I'd clarify the law so it is penetrator, penetrated. If a girl pegs a guy, then she'd be the guilty one. The penetrated position is the more vulnerable one.

> The penetrated position is the more vulnerable one

But the core issue is whether there was consent, not whether one position was more 'vulnerable'.

NicoleK, in Florida where I live, the law states that if a person is incapable of giving informed consent then any sexual contact with them is by definition sexual assault.

Period.

Of course, that puts us in the ridiculous position of charging both parties with sexual assault. Unless you want to take the position that "equal protection under the law" only applies to women?

> The penetrated position is the more vulnerable one

Interesting assumption, but I don't buy it.
So a 40 yr old woman molests a 12 yr old boy and she's the vulnerable one. Nope not buying it.

We're not talking about pedophilia, we're talking about 2 drunken adults.

Sometimes there are situations where a crime isn't possible to prove. When that happens, people are tempted to create overly-broad laws and definitions that result in sweeping innocent people into jail along with guilty ones (to try catch the guilty ones that might have gotten off), because the idea of a guilty rapist going free disgusts us. But, "innocent until proven guilty" is a core foundation of our justice system for good reason; the idea of putting innocent people in jail should disgust us equally.

Long story short, sometimes there is no ideal answer and we have to learn to accept that - bad policy because "well, we must do something!" is not an answer.

If a court can decide a 'he said / she said' based on 'vulnerability of position' then we are literally just saying "let's put innocent boys in jail so we catch the guilty ones".

"The penetrated position is the more vulnerable one." NicoleK

Please present your reasoning on this.

Elsewise, there are times and places where you CANNOT give consent. This is where a 12 year old is too young to give consent, people who are unconscious, obviously...

but drunk? it's like when I go over the speedlimit on my bike [have done many times downhill]. I'm not required to be licensed, my bike is not required to have a speedometer, usually the cops just roll down the window, and say slow down.

So, you're both a bit tipsy, and fall into each others arms. Do you HAVE to get a breathalyser in order to decide if they can give consent? Do the results have to be Notary certified? Contract?

"Well of course not, that would be ridiculous. That's WHY the guy is always at fault. THAT'S easy."

Hmmm -- here's a goofy idea: What if cops started arresting students for public (and often underage) drunkenness, and colleges expelled a few of the most hammered, to encourage the others? Wouldn't that put a damper on the shit-faced culture, which would in turn reduce worries over which people are too impaired to control themselves or to give consent?

Or am I barking up the wrong tree here?

The penetrated position is the more vulnerable one. - NicoleK

So if the girl swallows one mouthful of beer and the guy had seven shots of tequila, she is the one too drunk to consent?

[sarcasm] It's not possible to rape men, even if they're passed out cold. 'Cause, you know, every single one is a slut with no standards who'll stick it in anything, anytime. [/sarcasm]

Thanks for the sarcasm tags, Sosij. They're sadly necessary in this day and age.

Hmmm -- here's a goofy idea: What if cops started arresting students for public (and often underage) drunkenness, and colleges expelled a few of the most hammered, to encourage the others? Wouldn't that put a damper on the shit-faced culture, which would in turn reduce worries over which people are too impaired to control themselves or to give consent? -- Old RPM Daddy at June 27, 2014 10:39 AM

Are you talking about Prohibition? We all know how the war on Drugs is working out.

Thiis is news? I was a college freshman in 1992. It was made clear to us in orientation that if both parties were drunk the man could be considered a rapist, and that female consent was meaningless if she was intoxicated regardless of the situation, i.e., having sex with your drunk girlfriend could also be rape if she chose.

Are you talking about Prohibition? We all know how the war on Drugs is working out.

No. I'm talking about public drunkenness.

It's very much not like Prohibition. That did not ban drinking, it banned the production and sale of alcoholic beverages. If you had a cellar full of booze manufactured before January 17, 1920, you could drink it up legally, under federal law and the laws of most states.

"Public Drunkenness" and other such laws were local ordinances and occasionally state laws, which often antedated federal Prohibition, and remained in force after Prohibition was repealed. Although some of these ordinances were and still are overbroad (e.g., laws against consumption of alcohol in public), their primary target was not drinking in general, but those who became a nuisance when they drank.