You know how the argument goes:
“If you can get drunk, get into an accident and then be responsible for decision to drive, why can’t you be held responsible for agreeing to have sex while drunk? Why is it rape?”
If you are looking superficially, the argument looks pretty solid. However, it is also invalid. Let’s see how.
NOTE: I am not a legal expert or a professional philosopher, this is what I concluded through researching/thinking about it for myself. Here I wish to present the thoughts and arguments against the initial premise. There are a lot of people who would present it better, so please leave a comment with your own thoughts.
So, my initial thoughts are - I THINK it's because they committed an ACTION themselves. By driving, you are committing an action. You do not need your own consent. You do not need to consent to your own crime. You are making an action. It also wouldn't excuse you if you are drunk and try to rape somebody. You do need to consent to an action that ANOTHER PERSON takes that has the potential to harm you, otherwise a bank could get you drunk and get you to sign some rather nasty documents, for example.
But what about if a woman gets really drunk and wants to have sex/initiates it? My thoughts are that is not a moral action either as quite possibly also very much against the law – or at least it should be. Reasoning is - You can get drunk and demand that somebody cuts your ear off. That doesn't mean that they are allowed to do it. You cannot give permission (even if you demand it) to an act that might be hurtful to you in this state. You have the potential to be the injured party.
Clearly there are nuances, and you could go into minutia, but I think this is the difference. But when you get drunk and DO the action AGAINST someone personally or their property, it's not you anymore who can get hurt. It is you who are "doing the hurting" to somebody else. Like I said before - a bank could get you drunk and get you to sign whatever. The opposite also cannot be allowed - that somebody robs a bank and then later says - sorry, I was drunk.
So, this is basically the argument – being drunk is about actions and consent. You do have to give consent to an action that is being done to you. You do not have to give consent to yourself for performing an action.
We could leave it at that, because this is how it seems to me that the law is written. But it even gets stranger – because in some countries you are not even fully responsible in all circumstances for driving drunk – bars have an obligation to make sure the guests do not get too much to drink.
“In the context of alcohol sales and service, this means that both the licensee and servers have a legal obligation to protect patrons and others from harm that can result from the activity of drinking, whether that harm occurs on or off the premises.”
- Alcohol and the Law
Also, during research it, I did found a note what must be done for someone to be proven guilty:
- Alcohol prevented a person from resisting/encouraged bad decisions
- The person on trial knew/should have known this.
Rape of Intoxicated Woman or Spouse
Basically, drunk sex is between two people, where one person is taking advantage of another person’s condition. Drunk driving is a situation where one person did a guilty act themselves. By the very definition, one does not even need any determination of responsibility as in one case a VICTIM got drunk. Being raped is not an action. Raping or robbing are actions.
An action in law is treated under a “Guilty Act” doctrine. To quote Wikipedia:
The relevant circumstances might include consent in the case of rape. The act of human sexual intercourse becomes a wrongful act if it is committed in circumstances where one party does not consent and/or one or more parties concerned are below the age of consent.
I recommend that you read about the “Guilty Act” on Wikipedia.