Commenter Archive

The (probably unsatisfying) answer is that it would depend on the case law and any relevant statutes in the jurisdiction as well as the given facts of a particular case. Generally speaking voluntary intoxication in itself will not render a contract voidable but there might be a point at which a person is so intoxicated that they lack capacity to contract. Again, I'd imagine different jurisdictions take different approaches to where they draw that line and whether or not there are other caveats.

I don't see your point. In your scenario the individual consuming alcohol is still making the choice to consume alcohol. There's no coercion. The person is chosing to consume alcohol by accepting drinks and can cease drinking at any time. What that individual consents to do with lowered inhibitions is that persons own responsibility. Whether or not a person was encouraged by others or by the context of a social situation to become intoxicated isn't relevant to whether or not consent was given in a particular sexual encounter. To suggest otherwise is to deny an individual's agency in their own conduct.

If a person is incapacitated then it's a different story because that person is incapable of consent but I don't think thats what you're arguing. Provided a person is capable of consent, that person can make their own choices about what they do or don't consent to, including when intoxicated. When there is consent to sexual activity, even if such consent is provided while intoxicated, that is not rape under the law, nor should it be.

As jr stated, I'm not sure there's any good evidence to support that assertion though I'm certainly open to considering it if there is. That said, on a more fundamental level, I don't understand how, absent force or a threat of force, one person is capable of "get[ting]" another person drunk (drugging someone without their knowledge is, of course something different). These are adults we're talking about, not children. Are we really at a point where we think a person can sign a contract or join the military, but can't decline a beer or a shot?

I doubt college now is much different from when I was there, which was less than 10 years ago. There was a lot of binge drinking and ill-advised decision making, including regarding sex, that resulted. However, intoxication is not the same thing as being incapacitated. Intoxicated people are still capable of consent even if they aren't so happy about what it is they consented to, be it shooting bottle rockets from their bare hands or having sex with someone they wished they hadn't.

As for the idea that a person's opinion on a political blog is somehow causing people not to report horrible crimes committed against them, well... count me as unconvinced.

I don't think your comparison is sound. Changing the law so that a wife may deny her husband consent to sexual activity is premised on the argument that a woman retains autonomy over her body when she is married. It's an important change signifying that a wife is not her husband's property, as she, to varying degrees, would have been understood to be in the past.

The arguments coming from college campuses, as far as I can tell, seem to be that if a woman regrets her consent after the fact, the conduct of her sexual partner may, subject to the discretion of a federal compliance bureaucrat, be rape, and/or that women cannot consent due to being overwhelmed by social forces of inequality. These arguments are premised on the idea that women are not capable of or sufficiently competent to consent to sexual activity (quite Victorian if you ask me). In practice this approach is in utter conflict with the idea that women are equal to men, that the accused are entitled to the presumption of innocence and due process, and even with the concept of mens rea. I think Laura Kipnis said it best, when she called them "intellectually embarrassing."

This is why I still struggle a bit with condemning Cosby without reservation. I'm not going to argue his innocence (or his guilt) but what he said in that deposition is not nearly as definitive as many people seem to believe. Voluntary intoxication in itself does not make a person incapable of consent.

From what I gather from college campuses, we are in the process, at least socially, of defining down 'rape' to include conduct that I don't think rises to rape under the law. I can understand why this revelation might change peoples image of Cosby as a squeaky clean paragon of morality but that's not the same thing as being a rapist.

This view will probably not be popular but i think that if there's anything we should have learned about rape accusations over the last year or so it's that until they've been subject to appropriate scrutiny the presumption of innocence should prevail. It doesn't mean that rape never happens or that all credible accusations shouldn't be investigated with the utmost seriousness but until then they remain just accusations.

There are I think a number of issues where that type of wholesale rejection makes sense, it's just that it doesn't have to do with the merits of a particular policy or argument but rather arises from a lack of trust between the two sides. Obvious examples would be abortion and gun control. It's tough to give any ground if you think that your opponent is going to leverage any concessions that you might be able to accept (or even agree with) into future changes that you wouldn't.

Well I do agree on the scorecard point (that was the intent of my original comment but I can see how it looked like I was saying the opposite).

I'm not sure if I agree on the shaft theory though (can we call it that?). Two examples come to mind. The first is the debate over the size and shape of the welfare state, with most Democrats fighting to maintain the status quo and, at least a vocal portion of Republicans, arguing for substantially shrinking it or tearing it down altogether. There also wasn't anything conservative, in the colloquial sense of the term, about the George W. Bush administration and executive power.

I don't really disagree with any of this. I'd never argue that there aren't plenty of stupid libertarians out there or stupid libertarian ideas. Indeed there are a number of issues on which I find libertarian thought frustratingly myopic. However, I do also get annoyed by liberals/progressives/Democrats who smugly see themselves as enlightened on all things regarding race but seem to have a blind spot for the state pushing people around as long as it's their guy(s) pulling the trigger, or at least their guys nominally in charge of the guy(s) pulling the trigger.

There are of course conservatives who are similarly hypocritical. However, I like you have a strong preference for urban living so I don't run into as many of those types to debate. That's more of a family gathering thing for me.

I think this is wrongheaded for a couple reasons. First, you've made the assumption that we can generalize about what minorities want and that all of them want the same things. Yes, we could probably look at some polls and get a sense of what the majority of a given minority group want from a policy perspective but these groups are comprised of individuals with their own beliefs and needs. I would submit that the view you just expressed is patronizing, and while it sounds a lot nicer, it isn't much different than conservatives blaming problems in minority communities on some type of generalized cultural or moral failing shared by the group. After all, they're all the same, right? Are we just erasing individuals who don't meet a certain stereotype from existence?

Second, it implies that when we give members of minority groups the reigns of state power that they are then not capable of implementing policy that is disproportionately bad for their own group. The war on drugs (mainly crack cocaine) was strongly endorsed by black politicians who ran DC in the 1980's to disastrous results for the predominantly black citizenry. Hell, even now black people are well represented in the government in Baltimore, including on its police force (take a look at the officers accused in the Freddy Grey murder). Are the black individuals whose lives and families are being ruined by state power taking some type of solace in solidarity with their local political class? I'm white so I can't really say, but I somehow doubt it.

Like it or not libertarians (at least in theory) are on the right side of these issues when it comes to the protection of minority rights in a manner that your average Democrat in office is not. The better argument against most forms of libertarianism is that it fails to acknowledge that extreme inequality and entrenched poverty can be just as destructive to individual liberty as an arbitrary and violent state apparatus. This is an argument I happen to agree with.

As a side note, there was some libertarian push-back on Paul's view on the Civil Rights Act. An example if you're interested:

http://www.cato.org/publications/commentary/why-rand-paul-is-right-wrong

This is a smart comment. Our system of government is rigged against permanent majorities. It was only 10 years ago that the Republicans were making similar claims. The Republican party does have a demographic problem but I suspect they'll always evolve just enough or learn to move the fences on certain promises in a manner allowing them to hold substantial power.

The only place I'd disagree with you is your implications about Maryland. The state legislature remains solidly in Democrat hands. Larry Hogan won primarily because Martin O'Malley spent his last years in office prepping a presidential run in a manner that alienated a lot of people and his would be successor failed to contest the election.

You make a solid point about parts of the Republican base attempting to re-brand itself as "libertarian" after 2008 but the rest of this is arguing against a "libertarianism" that only exists in your mind. It's a heterodox view, and maybe more accurately is understood as a critique of state power masquerading as a political ideology. It has its merits and its weaknesses and its more and less credible proponents.

Generally speaking, do you include the libertarians (or people with libertarian views) who have been arguing against police militarization, prohibition, the erosion of civil liberties in the justice system, and the war on terrorism, all policies that disproportionately harm minorities, as not believing in the full participation of those minorities in economic and civil life? I know its in fashion to pretend that the whole Clinton-New Democrat wing that's controlled the Democratic party for the last 25 years doesn't exist and/or has somehow not been involved in the creation of numerous policies that have harmed minorities but come on.

Try Bloodlands by Timothy Snyder. It's a look at politically motivated mass killings primarily in the areas divided by then disputed between Nazi Germany and the USSR. It also provides a much better understanding of the Holocaust than most accounts of individual survivors by putting it back into the greater context of the eastern European theater. If you're coming to this from Leningrad then it is a must read.

One thing I will caution is that it may complicate your view of the conflict in certain respects, including regarding the moral superiority of the victors (to clarify it is not at all in a manner that could ever be pro Nazi).

It seems to me that there is a similar level of hypocrisy on the part of conservatives who make government incompetence a significant basis of their political platform but suddenly when the state is killing people insist that the system is trustworthy and should be subject to as little review as possible.

The problem is that there has become an easy market for what I'd call bias confirmation journalism. Everyone can see great examples of it on their Facebook feed at anytime. The OP dug deep for his left wing example of it but all you have to do is google 'uva' and 'rolling stone' to see the same dynamic on the left that Fox News and the O'Keefes of the world have set up on the right. The lesson is that we all need to become more sophisticated consumers of information, lest we start believing in fairy tales about abortion as big business and rape culture.

That’s part of its ideology. It makes an appeal to rationality but it really reproduces an enormous amount of irrationality. This is the way in which it deforms language. It talks about freedom as something that is utterly reduced to freedom from, into individual responsibility; as opposed to being able to translate how private issues get transformed into or can be understood in terms of larger public systemic considerations. That’s a deformation.

I think the issue he's identifying here is that, outside of what is considered the fringes, our political discourse no longer contains values (with a small 'v,' as opposed to Family Values) when it comes to what might broadly be called economic policy. From the Paul Ryan right to the Ezra Klein left our political arguments are cloaked in the language of technocratic government that don't acknowledge that there are value judgments being made. Often left out of these conversations seems to be whether or not the commodification of everything is good for democracy or makes for a well functioning society.

I agree with @tod-kelly that posts of this nature are baffling. When same-sex marriage was put to the vote in Maryland I voted in favor. I'm ambivalent on the idea of state-sanctioned marriage generally but I understand it's something we have and if we're going to have it then I see no reason not to extend it to same sex couples. If we can extend equality and the ability for people to live happily without doing harm to others (expanding the pluralistic society tent as I call it) then I'm all for it.

The reality this post fails to acknowledge is that opponents of same sex marriage had already lost. The Supreme Court only sped up what would have inevitably happened, state by state. However, if opponents of same sex marriage playing the victim card is eye-rolling weak sauce then this type of triumphalism only feeds the paranoia that once made laws against same sex marriage a big winner at the ballot box.

Those who would use opposition to same sex marriage to ostracize need to be very careful about what they wish for, because this isn't the country they think it is. Same sex marriage is one of very few issues in which something that was considered radically liberal only a couple decades ago has now become the norm. Are supporters of same sex marriage ready for people to be fired for being caught donating to Planned Parenthood? Or taking part in a demonstration against the Israeli occupation of the West Bank? Or any number of liberal causes? The reason that same sex marriage has won out is because the argument for a more inclusive society and to allow others the freedom to express love as they see fit is compelling.

The goal should be to make opponents of same sex marriage wonder what it is they were so concerned about in the first place. Scorched earth, on the other hand, will make progress on other important political problems even more difficult.

Your position is similar to what the Canadian Supreme Court held in RE: Secession of Quebec. The court's view was that even if a large majority of the Quebecois wanted Quebec to secede it could not legally do so unilaterally as long as the Quebecois were capable of exercising their right to self-determination within the Canadian system of government.

I see your point in terms of Tsarnaev (or Roof) being fodder for the pro death penalty argument. That said I don't see either case as being particularly good fodder compared to any other mass killer. If a person has come to a philosophical conclusion about the wrongness of the death penalty that person has presumably thought about the really nasty people who would he spared execution if it was stopped.

It's kind of like arguing against the 4th amendment because occasionally evidence is suppressed and a guilty person goes free. The guilty person walking sucks, much as a murderer getting some simple pleasures denied to his victims sucks. However it's something we have to suffer lest we enable greater injustice meted out by the government, which is far more dangerous than any criminal.

I think the response to that argument is that it isn't possible to determine the justness of a policy based on a single data point. Or as I've said to my uncle, it's easy to argue that the death penalty is just when the conversation is about Timothy McVeigh or Osama bin Laden or any person who has committed mass murder against whom overwhelming evidence of guilt exists. Discussing it in those terms removes the death penalty from how it operates in practice. Most capital cases aren't that easy.

The question to ask is whether or not allowing the state to (maybe, after extensive legal process has been exhausted) execute Tsarnaev is worth it if the price is to occasionally have the state execute an innocent person. Improving the process isn't viable. We've been trying for decades to no avail. We can keep tweaking it but as long as it remains a human process it will be fallible.

There's also the question that LWA raises below about whether or not executing even a guilty person debases us as a society, and whether it's ever just for the state to kill a person who does not himself pose an imminent deadly threat to others. That might sound a bit abstract, but think about who the state is most likely to execute, and how inconsistently it executes. Is it worth killing Tsarnaev if the price is having an irreversible punishment that isn't predictably carried out, but when it is we know we're going use it against certain groups and people more than others?

This is an understandable sentiment but I'd advise against it. It isn't justice and it's that exact mentality that allows so many people to be comfortable with citizens being shot or otherwise brutalized by law enforcement. People who oppose unnecessary use of force generally shouldn't embrace it when the (in this case hypothetical) person on the receiving end is someone they don't like.

I agree completely, and I think it's that dynamic that most explains why a given individual commits a crime of this nature. It's a frustrating answer for a lot of people I think because it implies that there might not be much that can be done to stop it (or at least not much that's consistent with living in a free society). Even if we did allow the state to behave in a much more repressive fashion I think the effectiveness would be limited. The knife attacks on elementary schools in China come to mind.

It doesn't mean that we don't have serious problems with race in this country (or gun violence for that matter) but I'm always wary of using an episode of mass murder as the nexus for reform on broader problems, at least in a modern context. During the Jim Crow era through the civil rights movement rampant murder of black people by white people acting in a private capacity to enforce segregation was a problem. At risk of sounding naive I don't think that's really true anymore. Now the big racial problems are disparate impact and entrenched economic inequality (not that there isn't state sanctioned violence that arises from that but I don't think it's the same as an embittered racist coming out of the woodwork to commit murder).

I agree that it's time for South Carolina to, for example, take down the Confederate flag. It might make people feel good but I'm not sure it changes the forces that give American born black people a disadvantage.

I'm not sure this is entirely true. He's most certainly responsible for his own actions and I haven't seen any indication (yet) that whatever problem he was medicating mitigates his criminal responsibility.

Nevertheless I think in the rush to compartmentalize mass shootings into broader political debates we've often overlooked how blurry a line it seems to be between psychological problems and politically motivated mass killers (what we often now call "terrorists," though that's a term I try to avoid). Read up on the people the FBI occasionally arrests (or in some instances entrap) for what are characterized as Islamist terrorist plots. Many of them are, for lack of a better term, losers, who don't seem quite in touch with reality. They remind me more of Dylan Klebold or John Muhammad than Osama bin Laden.

My suspicion is that, at least in this era, it's people who already have some type of personal dysfunction or psychological problem who latch on to outrageous ideologies, as opposed to the ideologies themselves inspiring the violence. I'm not arguing that broader racism still present in our culture or fetishization of firearms has zero role (something that makes me uncomfortable at times even as a gun owner) but I don't think that's the root. After all, we're all exposed to it and yet most people don't commit brutal murders.

I appreciate the warm welcome, and will be sure to be less shy about weighing in.

"...first is the sneaking suspicion one has that the public is simply being acclimatized to the fact of trigger-happy cops beating, shooting, and killing the most vulnerable members of the public on the slightest of pretenses, on mistaken suspicions, or even utterly invented pretenses. At some point, we simply accept this state of affairs as a matter of course and fail to ask the larger question: why is it that a society, as it becomes increasingly market-driven, simultaneously becomes more punitive?"

Long time lurker, first time commenting. I like the proposal but I disagree with the above. There have been people sounding the alarm about this issue for years without much fanfare. Radley Balko of course is the most notable (and he has deservedly finally gotten to a wider audience at the Washington Post). The only thing new is that there has finally been enough backlash from the more abused populations to get the attention of major media outlets. In many respects that's a good thing.

The greater danger I think is that media continues down the path it's already on, which is to make the problem of police militarization solely about race. Now race certainly can't be removed from the equation, and the war on crime and war on drugs, the primary policies that got us here, are inextricably intertwined with race and racism. I think the danger is less acclimation, and more that it becomes just another "law and order" issue drawn along familiar culture war and partisan battle lines.

Again, I can't stress enough that I don't want to downplay race, only to say that it's bigger than that. Police militarization has been on the radar here in a way that it may not have been in other places since a notorious botched SWAT raid in 2008.