Barry and Bob have a back-and-forth on one of Web’s post about the extent to which sex that is derived from the impairment of judgment that comes with alochol consumption should be considered rape.
Barry:
There’s always the argument that, if it’s possible to consent to sex while under the influence of alcohol when normally you wouldn’t, then the person loses some of that right to use it as a defense the moment they take that first drink. One might say by taking that first drink, you open yourself to the possibility that one might lead to another, and another, and another and eventually waking up next to a guy (or girl) you don’t know and terribly afraid of something you (or they) did that night.
To me, sure there’s a lot of grey areas in that forbidden land of who said what and when and under what degree of impairment – but it’s the responsibility of each individual to not drink if there’s a chance that such an unwanted event could occur.
Bob:
Barry, you could a organize society according to the rule you propose, but we have not. In general, I cannot agree to sell my house for you $10 when I am drunk. Neither can a nurse get me to consent to giving her my kidney as I am coming off of general anesthesia (despite my having known fully well that I would be groggy when I got out of it.)
The problem with Bob’s example is that it is something where a “take-back” is possible. You can invalidate a contract, but you can’t un-make a night of groggy sex. Of course, if you agree to sell your kidney under the influence and it is taken before you sober up, that’s somewhat more comparable. Though even there you have expectations at play. A man or woman that gets drunk knows that there are certain risks involved from something relatively minor like coyote ugly to something severe like rape. There is no expectation that a kidney-seller might want you to become a vendor on the spot.
That being said, I’m probably more sympathetic to Bob’s point of view than I am Barry’s. A woman that gets drunk and gets raped may share some moral and logistical culpability, but I could not even remotely support a regime where she bears moral culpability in all cases. For one thing, the man may have been less than forthcoming about what he put in the mixed drinks and it should not be up to her to prove otherwise.
When it’s obvious that the man got the woman drunk for the sake of fornication, it’s pretty clearly rape. When a woman gets drunk independently and a man (knowing that her judgment is impaired by alcohol) and in a sober state takes advantage of her, that’s something less severe than forcible rape but is extremely serious nonetheless.
But there are a lot of gray areas. If a woman is in extreme emotional turmoil, she may consent to actions that she would later regret. Her state-of-mind may be such that it’s actually worse than if she should be drinking. I can imagine scenarios in which this is actually worse than taking advantage of someone that got independently drunk. The woman is less likely to have been put in that awful emotional place as voluntarily as the woman got drunk, for instance. The problem is that opening up a law to this effect, criminally prohibiting sex because the woman was not emotionally prepared for it, opens doors that few have seriously suggested opening and even if I did oppose the criminalization of having sex with a drunk woman, one wrong need not justify another.
Another area of concern when it comes to rape law is that when a drunk woman has sex, there is a not-unsubstantial likelihood that the man is drunk as well. What is the right approach when that is the case? Most of the time the woman will not feel taken advantage of and would not press charges. But what if she does? Being drunk is not a defense against committing other crimes. Even something like solicitation, where there that’s exactly the sort of misjudgment that alcohol would set free to roam. Should in that vein, why should we make an exception for rape?
Some women (and some men, to be sure) are rather unsympathetic to this plight. The idea is that he should have thought of that before he got drunk. But of course that same argument could be used for the woman, as Barry suggests. The second prong to the argument is that consensual drunken sex wouldn’t be brought to the courts because the hardship a woman faces when making rape accusations would make it so that she would only step forward if it were something serious. There is definitely some truth to this as I would bet a substantial sum that unreported rape cases are much more frequent than false accusations. But relying on the honor and judgment of women can be a pretty serious risk to impose on men.
One of the stimying problems in the discussion is that by and large men are far-and-away more likely to be accused of rape and women are far-and-away more likely to be raped. That puts each side of the gender divide of having to assess the risk to the other. No great surprise, men often assert that women should assume the risks (or assumed them with the behavior that led up to the act) and women assert that men should.
Though it does happen, men are rarely raped and so it’s hard to fully appreciate a woman’s fear of it and why it’s so important that women that are raped have as many rights as possible. If you make it harder to make the accusation, there will be fewer stepping forward and more ways for men to evade responsibility for their acts. Women, on the other hand, are rarely (falsely or otherwise) accused of rape and so it’s hard for them to fully appreciate men’s fear of it and why we’re often very apprehensive about making rape charges easier to make. The easier it is for women to make substantive accusations of rape, the more vulnerable they are even if they’ve done nothing wrong.
As I say with regularity, it’s easy to be cavalier about the risks assigned to others than to ourselves.
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Essentially I was trying to make the same argument as those who say, if you dress provocatively and walk around in a dark alley late at night, you’re probably going to get attacked. It’s not your fault, but you did something that increased your chances of getting attacked/mugged/raped immeasurably just by putting yourself in that circumstance.
The same with drinking – if you think there’s a possibility that you might end up sleeping with a guy (let’s be truthful with the gender roles here) after a night of drinking at a bar, or a frat party, or an office party, etc, then don’t drink! Don’t do anything that might put you in the position of not being able to make an informed, coherent judgment on later. If you do, you share some culpability by willingly putting yourself there.
By the same token, if you’re not the type of person that would sleep around with someone anyway then I wouldn’t worry about getting drunk and jumping in the bed – usually a person’s moral center still stays more or less intact even when drunk, it’s just the inhibitions get lowered. If it’s against your religion or personal moral code to sleep around, then you’re probably not going to do it when drunk. If I ever get drunk, I’m most likely not going to shoot someone in cold blood because that’s not in my moral code. But there are people who would kill people but while stop when sober, let their guards down when drunk and do it.
I guess if you get drunk at a party of wild kidney-snatchers or house-buyers, then caveat emptor. But I don’t know of many circumstances where those things have come to a bad end in that way…
We step back into the shoes of possibility Perhaps we can try to assess the “responsibility” for sexual conduct in each case? For purpose of discussion, we are discussing what is commonly termed “date rape” – no physically abusive force/restraint is being used, nobody is unconscious for the session, and no physical injuries (beyond what is normal when two uncoordinated people have sex, such as a pulled muscle from overenthusiastic positioning or a bumped noggin on the headboard) occur.
I have also kept the listing as neutral as possible (“Party 1/Party 2” instead of “man/woman” since the situation could just as easily involve same-gender sex and we really don’t care if it was a man or woman who was the “agressor”) to try to focus on the core question, which is where the “responsibility” lies.
– (Base) – Party 1 and Party 2 meet and have sex. No drugs/alcohol involved.
– (A) Party 1 deliberately plies Party 2 with alcohol (or drugs), Party 2 doesn’t know about it (or at least not the extent). Legally Party 2 is ineligible (due to alcohol/drugs) to consent. Party 1 remains sober throughout. Sex occurs.
– (B) Party 2 gets too drunk/stoned/high to legally consent, Party 1 comes along later (or concurrently but without deliberately encouraging this state), remains sober, and knows that Party 2 is ineligible to consent. Sex occurs.
– (B.2) Party 2 gets too drunk/stoned/high to legally consent, Party 1 comes along later (or concurrently but without deliberately encouraging this state), remains sober, but is not aware that Party 2 is ineligible to consent. Sex occurs.
– (C) Party 1 and Party 2 both get drunk/stoned high but Party 1 is “more sober” than Party 2 (in a “grey area” where Party 1 may or may not have been able to consent, but Party 2 definitely was not), and is aware that Party 2 is ineligible to consent. Sex occurs.
– (C.2) Party 1 and Party 2 both get drunk/stoned high but Party 1 is “more sober” than Party 2 (in a “grey area” where Party 1 may or may not have been able to consent, but Party 2 definitely was not), and is not aware that Party 2 is ineligible to consent. Sex occurs.
– (D) Party 1 and Party 2 are exactly, precisely equally in the same mental state throughout the night and mutually ineligible to consent. Sex occurs.
The answers to each side of the aisle will probably reveal something about the person doing the answering.
Interestingly, you get the same sort of arguments over the question of protection (hormonal, condoms, etc) as to whose responsibility it is to have it on hand, and to use it correctly, and the rest. In the end I’d say the responsibility is “both”, as in “both have the responsibility to say no if protection isn’t present”, but you get all sorts of arguments over it when the discussion is raised. The “X side should always be the one carrying a condom” crowds can be pretty darn vicious to each other, and god forbid you should say that perhaps both sides ought to be carrying.
Barry, I don’t suspect that there are a whole lot of women that don’t know what you’re saying. Including the ones that do drink a lot. I’ve never remotely had a conversation wherein a woman has said “I keep getting drunk and end up sleeping with random men and I don’t want to and I don’t know what to do about it.” Either they do those things and don’t regret it or they don’t do those things. They’re not likely the ones that would accuse rape (unless there was something more substantive than getting drunk and having sex). It’s actually more likely the ones that don’t get drunk often and wake up ashamed and looking for an excuse. Elsewise, the accusation is more likely deliberate attempt with a specific goal (attention, sympathy, revenge, getting caught having had sex and evading responsibility, etc) and they’re not really acting in good faith to begin with.
Your analysis is good, Web, though I may not be entirely on board with your terminology depending on what you mean:
For purpose of discussion, we are discussing what is commonly termed “date rape” – no physically abusive force/restraint is being used, nobody is unconscious for the session, and no physical injuries (beyond what is normal when two uncoordinated people have sex, such as a pulled muscle from overenthusiastic positioning or a bumped noggin on the headboard) occur.
What you’re describing above isn’t rape, much less date rape. I am thinking (given your comment about uncoordination) that you are assuming alcohol (or drug) involvement in the sex.
Either way, “date rape” often includes physical force so I wouldn’t use that term to specifically describe sex/rape that was induced by alcohol or drugs.
In fact, when I hear the words I think of a case where two people went on a date, went back to his or her apartment, he was too forward and when she struggled he physically forced her. It can occur with alcohol or GHB or other ways, too, but “date rape” and alcohol-induced (or drug-induced) rape are two different spheres with some overlap.
The other thing that I would like to mention, just to make sure that we’re all on the same page, is that there is an important distinction between discussing rape as it occurs when a woman is physically forced to have sex compared to rape when a woman is too drunk to consent. There is absolutely no sharing of the burden in the former case. Arguments that because she dressed a certain way or went to a certain party or something like that she was in some way morally responsible for being held down while a man had his way with her over her physical and audible objections will not be tolerate on Hit Coffee. I would extend the protection to cases where a “participant” in the sex was drugged or unconscious while the man did all of the work.
Whatever mistakes one makes prior to getting raped, they have no moral culpability in the act. They paid dearly (and inordinately) for whatever lapses in judgment they may have made that lead up to the act. There are cases where people that feel like they (or more likely, a group that they belong to) are feeling targetted try to spread the blame around a bit. In the above cases, that holds no truck here.
And to be absolutely, positively clear, I do not at all believe that’s what Barry, Web, I (obviously) or anyone else in this conversation is trying to do. I’m putting this out there for any future participants in the conversation.
S[o] in that vein, why should we make an exception for rape?
The symmetry. If they were both drunk, there’s no clear case to be made regarding who raped whom. In the case of crimes like murder and coercive rape, there’s a clear agressor and a clear victim, regardless of who drank what.
Besides, the whole case for sex-with-a-drunk-girl-as-rape is based on the premise that being drunk absolves you of responsibility yoc sexual activity. But then that absolves the guy, too. And if drunkenness doesn’t resolve you of responsibility, there’s no rape.
Another problem is that this involves a judgment call that normal crimes don’t. “Would stabbing this guy be murder?” and “Does this car belong to me?” and even “Did she give consent?” are easy questions to answer, and the vast majority of people don’t have any trouble with them even when completely plastered.
“Is she too drunk to give meaningful consent?” is tough even for sober people; ask ten, and you’ll get eleven different answers. And that’s an oversimplification—the real question is what the DA and jury will think. It’s reasonable to expect someone who may himself be intoxicated not to have sex with a woman who’s literally passed out. I don’t think it’s reasonable to expect him to be able to tell whether she’s sober enough for her consent to count.
A related unsettling thought: A woman may be in the midst of a blackout without showing any obvious signs of it. She may give consent and not remember it the next morning. A reasonable conclusion for her to draw under the circumstances is that she was raped while passed out, but she may in fact have been fully conscious.
Will:
GHB is often referred to as a “date rape drug,” so referring to sex with a woman under the influence of GHB as “date rape” is consistent with conventional use of the term.
Interestingly, there’s some evidence that the use of date rape drugs is hugely overhyped, and that the vast majority of women who believe themselves to have been drugged in fact simply drank too much alcohol.
I guess I wasn’t clear. My point wasn’t that alcohol or drug induced rape wasn’t date rape, but rather that date rape was not necessarily alcohol or drug induced. I changed my wording in the original comment to clarify my meaning.
Brandon,
The notion of a woman being confused or misdiagnosing herself is a great example of something that can scare the crap out of men but that many women would look at and say that it’s pretty rare that it would happen so we shouldn’t make rape charges harder to bring on account of them.
Good point about the symmetry. The same rationale is used for Romeo and Juliet exemptions to statutory rape laws, so it’s not novel.
Will,
I think the key question is what the burden of proof should be. By law and custom in the US, it’s supposed to be “presumed innocent until found guilty beyond a reasonable doubt in a court of law.”
The problem is that for the charge of rape (in particular for the set of circumstances being discussed), that is not necessarily the case. In a situation where alcohol/drugs may have impaired memory and cognitive function, it’s even weirder to try to prove the case “beyond a reasonable doubt”.
It’s this instance where I think advocacy groups have screwed things up; there are many cases (not just for rape, but other things) where our justice system is inadequate merely because the only things we are able to rely on are (fallible) human memory and the claim that both people, upon “penalty of perjury”, will tell the truth (as far as they believe it to be the truth at least) in the witness box.
Of course, people lie in the witness box for any number of reasons, and memory is indeed faulty (even moreso after drugs and alcohol have been involved). When the material facts (where they went, that they drank alcohol, that there was sex at some point) are not in contention, we reach a point where the idea of “proving” rape (or more to the point, proving whether or not there was consent) to the standard of beyond a reasonable doubt is virtually impossible.
Does this mean charges shouldn’t be brought? I don’t know. I do know that a lot of the punitive things “victims’ rights” advocates have managed to slip into the system prior to trial can really mess up someone’s life even if they are found innocent, not to mention the cost of retaining a lawyer and the damage to any other interpersonal relationships the accused may have. And these are not things that go away after they are found innocent (or even “not guilty”), either, because there’s always someone willing to claim they lied on the witness stand, or who simply remembers the charges and forgets the verdict.
I don’t think there is an easy answer, and you’re right that the two sides of the equation will each have their own take, but on the whole I think the balance has gone too far to one side currently.
At a gut level I agree with your assessment, Web. The problem is that we’re both men. That makes it difficult for us to fully comprehend the horrors involved with the fear of being raped. It allows us to be more “objective” about standards of proof, fundamental rights to face our accusers, and so on. There is far less urgency to recognize the extent to which rape is a crime in many ways unlike any other. We can understand this at the head level and we can certainly empathize with victims. But rare is the circumstance where we should be worried about being sexually assaulted for the crime of being alone with a woman that we don’t know very well.
Likewise for the women, though. I think that on some level they do understand the horrors that would occur if they were hypothetically accused of a crime that it can be exceptionally difficult to demonstrate that you did not do (and having more of a burden to do so than for other crimes). But I don’t think that they can fully understand how it feels to be at some level of risk of accusations of sexual impropriety when alone in a room with a woman or rape when you have sex with one.
You can look at this a couple of ways, I guess. Women are paranoid in the former instance as men are in the second. Or that men are more objective in the former case and women in the latter. Of course most everybody on both sides of the gender divide will agree that rape and false rape accusations are both serious, but they will also view that which threatens them (or their gender) as the bigger threat overall and they will conclude that we should generally err on the side that offers them (or people of their gender) more protection.
I guess the one major problem I have with this argument as it’s moving is that neither side is saying the basic problem – “we should generally err on the side that offers them (or people of their gender) more protection” really means that someone wants to change the burden of proof, while I know of no other crime where someone wants a lesser burden of proof than we have today.
I think that rape is a crime unlike just about any other. Or perhaps I should say that sexual crimes are unlike other crimes. Indecency with a minor is another crime that’s treated in a relatively similar manner.
We’ve also cut corners in drunk driving where a defendant can be actively harmed for asserting his rights and is in some ways guilty until proven innocent.
I think a lot of it is a response to the notion that enforcement of the law almost completely breaks down unless it’s treated a little bit differently.
Interesting that no women were chiming in on this particular post. I see points on both sides. As a woman, I’ve just never been drunk enough to the point where I would have had sex with a man that I didn’t want to so it’s hard for me to gauge how women can use it as an excuse (unless they’re unconscious). But at teh same time, I see Barry’s point in that I made a conscious effort to know my limits so that I don’t get into any trouble.
Alas, I only have part-time female readers that ever comment (you, Spungen, and Beth). Posts like this probably don’t help that much…