Look, Ma, I'm A Trendsetter

I write one little innocent post about drunkenness and personal responsibility and now the entire blogosphere is aflame with discussion. But seriously, though, I think that Amanda is dismissing an important point. As I noted in my previous post, its questionable whether American society's treatment of responsibility/culpability and intoxication is internally consistent. Consider the following from Amanda's post:

Many states laws say that its rape if the woman has had n drinks. The guy could have 3 times that much and still be held liable for his actions. Why is he held to a higher standard?

He didn't get the memo that states raping is a crime, but being raped is not.

I think that Amanda is engaging in circular reasoning at this point. Its a crime because we've defined it as a crime, and we've defined it as a crime based, in part, on a particular understanding of how alcohol affects the judgement of the victim. The commenter is questioning, however inarticulately, this understanding, and so deserves a fuller reply than what Amanda provides. Again we return to the question of how alcohol affects judgement. But before we proceed I'll stop and say that, after consideration, I'm more than a little iffy about the changes to Wisconsin law. I suspect that the law was originally intended to go after people who are slipping a little GHB into someone's drink when they are not looking. That's clearly a no-no, so I've no problem with that. But very often the alcohol is consumed voluntarily and knowingly by the victim, and quite possibly the rapist had no hand in said administration. While alcohol may facilitate rape, the above would seem to indicate that the nature of the facilitation and the degree of culpability assigned to both parties is different. Bluntly put, its one thing if someone slips a roofie in your drink, and quite another if you get drunk off your ass on your own. So alcohol should not automatically be lumped together with other drugs. So now, back to alcohol and judgement. Again, as I wrote about previously, the operating theory regarding alcohol and rape victims seems to be that intoxication eliminates their ability to give consent to sex. Even express consent (a "yes" or similar) which would be accepted in other circumstances cannot be accepted in the case of an intoxicated person. The implication would seem to be that an intoxicated person cannot make decisions on their own, nor can they be held accountable for the decisions that they make. But, as Amanda's commenter pointed out, there's an asymmetry here. If the rapist is intoxicated they are still held responsible for their actions. Which would seem to present a problem: being intoxicated, isn't their judgement impaired as well? Consider the following case: Two parties engage in intercourse, but both parties are intoxicated. Further assume that there was no coercive activity on the part of either of the parties. If you've been to college you know that this kind of thing happens all the fucking time. Questions:

• Was someone raped, and if so, who?
• Was mutual rape taking place, since both parties were intoxicated?

Interesting, yes? I'm guessing that the "common sense" answer to the above are "no" and "no". But as a legal technicality (again, IANAL) isn't there some sort of mutual rape going on, because someone is engaging in intercourse with an intoxicated person? Because of the absolute standard that an intoxicated person cannot give consent it would seem that the lack of coercive activity or intent on the part of either party doesn't matter. Now consider the following scenario: Two intoxicated persons engage in intercourse, but there is coercive activity on the part of one person. However, because this person's judgement is impaired, they don't recognize that they are being coercive, and thus do not intend to commit rape. But the common sense answer here is probably that they did commit rape, even though they were intoxicated. My question to you, the gentle reader, is "Why?". If the victim cannot be held morally responsible for their behavior in this instance then how can you hold the rapist responsible for their activity?