Note the part where they define reasonable judgement as "In order to give legal consent, a person must be able to exercise reasonable judgment. In other words, the person must be able to understand and weigh the physical nature of the act, its moral character, and probable consequences. "
Been drunk doesn't preclude anything after the "other words" which is the actual definition of reasonable judgement provided.
Second are you familiar with the term "the cart before the horse? What you linked were jury instructions, which is done at the end of a trial. In order to get to that point you must pass all the barriers explained by Cad. So as a DA, using jury instructions to justify a charge is the literal use of cart before the horse. You have to use the current statutes to justify the charge. If I'm wrong about this mechanic, can a lawyer point it out? I'm curious about it.
Third the point that you also forget is the
"AND
4. The defendant knew or reasonably should have known that the
effect of (a/an) (intoxicating/anesthetic/controlled) substance
prevented the woman from resisting."
If the guy says, no she didn't looked drunk, you are not satisfying the standard. In the absence of corroborated evidence that will attest to her state, is still a she says, he says scenario. How do you know as the DA how drunk she was, just her word? If there is no other witness, your hands are tied.
For a while there I thought you had taken the high road and left with your dignity.
1) Does just being drunk mean one is not capable of reasonable judgment? Of course not. It's a matter of degree. Certainly, it is possible to be drunk enough to be incapable of reasonable judgment. There's no litmus test to figure out whether or not someone is drunk enough to be considered incapable of reasonable judgment, so we look at a variety of factors to make that determination. See the prosecutor's guide for more info on how this is done.
2) Jury instructions, as I have already stated, are so the Jury has a clear and unambiguous understanding of the law. The prosecutor has to prove that the victim was not capable of reasonable judgment, and the jury must understand what is meant by "reasonable judgment". What would be the point of proving something (beyond a reasonable doubt) to the jury if the jury doesn't understand what has been proven?
3) No, sir, I did not forget that. For fuck's sake, I mentioned it REPEATEDLY.
Like I said, if enough evidence shows that she was beyond the point of "reasonable judgment"AND it can be shown that the guy in question either knew or reasonably should have known, then he's found guilty. For instance, if he was carrying the girl over his shoulder into a hotel room while she sang showtunes and had pee running down her leg, we can surmise that he knew damn well she was not capable of reasonable judgment.
Let me put it this way:
Can it be proven that she was not capable of reasonable judgment?
Can it be proven that the guy knew or reasonably should have known she was not capable of reasonable judgment?
If the answer to BOTH is "Yes", he's found guilty of rape.
If the answer to EITHER is "No", he's found not guilty.
Those quotes are from LAST NIGHT.
If we can show that the victim exhibited behavior that made it clear to those around her (including the accused) she was excessively drunk, then "She didn't look drunk" means nothing. If we can show that the accused behaved in ways that could be considered "predatory", then, again, "She didn't look drunk" means nothing. This is how the prosecutor goes about proving his case.
If you're describing a scenario where nobody saw the guy or girl, and there is no physical or circumstantial evidence that shows she has been raped, then guess what? The guy is found NOT GUILTY, as I have said REPEATEDLY.
How many more have you got left?
EDIT: You're right, though. If it comes down to his word VS her word, then nothing can be proven and the prosecutor's hands are tied. I've never said or implied otherwise.
