Hans Bader: Intoxicated Is Not Incapacitated

While there is no shortage of issues to be taken with California’s new “Yes Means Yes” law, one of the fallacies being passed around is that it prohibits sex between intoxicated persons.  Indeed, this may well be a purpose to the buzz surrounding the law, as it’s a trope that any woman who is under some undefined state of influence from drugs or alcohol is incapable of giving consent.  This lends itself to the notion that she can awake the next day and decide whether the prior evening’s activities were fine or rape.

Hans Bader, who has forefront of keeping tabs on such laws, and their related impacts, asked that I post his letter to the editor to the San Francisco Chronicle (which inexplicably calls itself the SFGate on the interwebz):

“New law redefines consent at college” (Sept. 29) claimed that California’s new “affirmative consent” law regulating college sex “says that a person cannot give consent if they are intoxicated.” But it does not say this. What it actually says is that “consent” is absent when “the complainant was incapacitated” due to alcohol.

Most intoxicated people are not legally deemed “incapacitated” and can consent, as law professor Anne Coughlin and the Foundation for Individual Rights in Education have noted.

Many happily married people have sex after drinking. While some liberal Democrats who sponsored SB967 wanted to ban sex between intoxicated people, the final version of the bill does not do so.

Admittedly, the new law is disturbingly vague in other ways. Its co-sponsor, Assemblywoman Bonnie Lowenthal (D-Long Beach), said, “Your guess is as good as mine,” when asked how an innocent person could prove “affirmative” consent.

Hans Bader, Washington, D.C.

Among the many things we’ve seen with regard to this battle, whether it’s defined as eliminating sexual assault or eliminating personal responsibility, is a strong tendency to deliberately misstate the proscriptions, whether to understate problems with laws that eviscerate due process or to overstate prohibitions to scare young men into believing that they are committing “crimes” when they’re not, or to empower women to believe that “crimes” by men are whatever they want them to be.

As Hans notes, the California affirmative consent law is fraught with problems, so much so that not even its sponsor was capable of enunciating how one would be capable of defending against an accusation.  But as bad as it is, let’s not make it worse by allowing the word to spread that it prohibits consensual sex because one or both of the parties involved was intoxicated.  That is not what the law prohibits.

Then again, the question remains as to what the California Lege meant by incapacitated.  A dictionary definition offers “unable to act, respond, or the like,” which suggests a person who has passed out is clearly incapacitated. But I doubt any reader needs a description of the various states along the spectrum of intoxicated, from the mildest of buzzes to praying to the porcelain god to passed out.  And then there is the “black out” scenario, itself inherently problematic since one can appear cognizant at the time, but claim a black out afterward.

So while it’s clearly not a violation of the California law to engage in consensual sex merely because one or both parties have been drinking, it’s not clear where the line is drawn for incapacitated.  Whether this means complete incapacitation or whether the lines will be held to be some fuzzy thing, defined by the side with the most adjectives at its command, or by the judge or college tribunal most sensitive to seeing women as human beings fully capable of managing their own lives or too fragile and victimized to take personal responsibility for their actions.

As the sponsor of the law sought to have the line set at intoxicated, so that any woman whose judgment was impaired in any way would have the latitude to deny consent after the fact on account of her volitional conduct, making the man, regardless of his state of intoxication, culpable, the law enacted did not go that far.

The buzz about the law shouldn’t accomplish what the law does not.  Yet, this is pale comfort given the ill-defined language, combined with the laws many other flaws.


19 thoughts on “Hans Bader: Intoxicated Is Not Incapacitated

  1. John Barleycorn

    I am still going to include on the dean’s lawn couples “rape” grope-ins while intoxicated to “incapacity” in the protest pamphlet.

      1. John Barleycorn

        Nope Phil is way to twangy and far too nerdy, in a nasal sort of way, for the bubble wrapped babies.

        The situational interpretation of incapacitated is funky as a matter of law. Only some funk will do.

        The remixed theme song for street theater application purposes:


        And of course an extended light jazzy funkadelic score to accommodate the On the Lawn Grope-Ins. This one ought to facilitate a dozen or do “affirmative consent” verses the lyrics of which are destined to be written shortly.


  2. Fubar

    The buzz about the law shouldn’t accomplish what the law does not. Yet, this is pale comfort given the ill-defined language, combined with the laws many other flaws.

    Stupid buzz was the foremost intention
    That inspired this bizarre law’s invention:
    Stay alert, stay alive.
    Don’t drink if you drive
    Or have sex.[1] Each invites intervention.

    FN 1. Fact: I heard that interpretation yesterday, confidently and enthusiastically stated by a chirpy and empty-headed caller in support of the misbegotten law; in a radio broadcast originating in San Francisco, now archived and available nationwide. I am appropriately very afraid.

    1. John Barleycorn

      Fubar, don’t go too hard on her she may have just gotten back from the auditions my porn production company was having yesterday. We are currently writing the scripts and recruiting talent for the Affirmative Orgy Train. All-Aboard Consent Will Leave You Speechless series.

      One of the writers resigned today and we may need some help. What are your rates and do you mind if I send the outlines over for your consideration?

      Here is brief look at the final scene of the first flick where the audience firsts gets to meet Mr. McFeely the speedy delivery man (the esteemed one’s agents have not gotten back to us yet but that part might also be open if we can’t afford the NYC talent and he turns us down. Any interested SJ back page readers please send your resume to the studio).

      A corner penthouse office in the Pacific Telephone Building in San Francisco is littered with first drafts of national legislation during the upcoming winter holiday recess of congress. Amongst all the sexual tension and paper chaos Nicholas Dirks is on his back half on the desk giving oral to Dianne Feinstein, the final national legislation draft by their side. (We need a title for the draft. “It’s On Us” has been copyrighted by the Whitehouse).

      Dianne is straddling Nick’s face while squatting on top of the desk while Nick receives oral from Nancy Pelosi whom Jerry Brown is attempting to hump from behind while standing on some law books to get the right angle.

      Anyway, in-between the logistics as well as the grunts and moans Nancy, Nick, and Dianne are having a discussion about how sexy it was to expand affirmative consent to cover partaking in any speech activities and not just applying affirmative consent to fucking.

      When Nick gives a wrong response Dianne shuts him up with her muff and Nancy stops a stroking for a bit as her and Dianne work out the language.

      Meanwhile, Jerry keeps asking for Nancy’s affirmative consent to add another law book to the stack he is standing on while humping her in-between shouting out random sayings like “I told you my first twirl in the governor’s mansion was just a warm-up!”.

      Mr. McFeely enters the final scene to pick up the final national legislation draft just as the orgy ends and the participants are attempting to put their clothes back on.

      He is shocked but merely smiles as he is given his Speedy Delivery package and instructions.

      Mr. McFeely then sets forth to make his way across the country to DC via train while picking up testimonial position papers from various assorted law and woman’s studies professors across the nation on campuses that are torn apart with constitutional demonstrations and riots by the students with lots of fucking going on in-between.

        1. John Barleycorn

          Hell yeah!

          What’s a guy to do with his spare time while hanging out in Oakland for a bit looking for new action figure production facilities other than to get into the Reality Porn Biz?

            1. John Barleycorn

              Figured you would balk at the compensation in the contract.

              But the weather is pretty nice out here, should you choose to reconsider.

              No worries. If I can get Fubar on board I am going to take Reality Porn to the next level.

              Everybody has to have a hobby.

            2. John Barleycorn

              Well what do you say Fubar?

              I have been hanging out at the Oaks Card Room for lunch while I have been out this way.

              Friday at noon?

              The esteemed one shoukd be good for 50-100 grand which ought to cover a good chunk of your fees.

            3. Fubar

              You in Fubar?

              [ As luck would have it, I was out when this most artistically productive colloquy transpired.

              I think your reality porn script will face some difficulty inducing willing suspension of disbelief in viewers. Everybody knows Jerry’s taste in women ran more toward Rose Bird’s style than Nancy’s or Diane’s. I think Rose’s big hair would explain it. But a good hair stylist on the set could fix that.

              For an opening McGuffin, shoot somebody in a Guy Fawkes mask chiseling the word “privacy” from a granite display of California’s Constitution, Article 1, and running off with a bag of the pulverized granite chips in one hand while wielding an open bottle of Sriracha hot sauce in the other.

              To add to the general atmosphere of political tension, Mr. McFeely should be openly carrying a .44 or .45 hog leg protruding from his open pants zipper. Unloaded of course, but ready for action in case anybody wants to make his day.

              Although your setting in the SF PacTel wiretap room is clever, you could achieve more historical accuracy by setting the scene in an abandoned geodesic reactor containment dome designed by Buckminster Fuller. And add some flashbacks to squadrons of drone helicopters spraying for Mediterranean Fruit Flies during scenes of approaching petite mort.

              Set the scene for the flashbacks early with a scene of the protagonists quaffing shots of Malathion while commenting on its bouquet and generally salubrious aphrodisiac qualities.

              An occasional intercut shot of Sam Hayakawa snoring would augment the sense of reality as well. You can probably find some newsreel file footage for that.

              With those small changes and some good casting choices I think you have a winner.

              Peccavi nimis cogitatione, delectatione, consensu, verbo et opere.

            4. John Barleycorn

              RIP Rose.

              Not to worry Fubar, Rose’s ghost has been in from the inception and is going to play a critical role in the series.

              We cannot decide if Rose should be wearing a white judicial robe or black one in a critical scene that comes into play in another film near the end of the series as she visits a judge handing out a death sentence. Note: She is going to be wearing a red robe mid series where she cuckolds the wet dreams of Senators the night before they pass legislation to make Affirmative Consent crimes, capital crimes. It will be tricky including the death penalty TV commercials that got Rose bounced from the CA Supremes top seat back in the day but it is coming together.

              Meanwhile, while acknowledging that the California market is critical to profitability you must summon all of your inclusive geographical powers, now that Andrew Cuomo is in things should get more interesting.

  3. TM

    Fun fact, there is an app for that now.

    Saw on the news last night that there is an app where by people have to log into an account through the app and confirm that they are engaging in consensual sexual relations. According to the pretty, blonde news lady, it is supposed to be the future of college dating. Totally going to cure the whole “campus rape epidemic” thing.

    Also saw the follow up to the kid with the cat and lasers in his yearbook photo on the news last night.

    Slow news day.

    1. SHG Post author

      Please let us know how that works out. The app, not the kid with cat and lasers. Or both, as they’re not mutually exclusive.

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