The furor and controversy over the date-rape scene in Observe and Report (which I have not seen, only read about), a recent incident at my university, and the New York Times article (discussed in Broadsheet) on how we might discuss sex differently with boys and girls have prompted an internal discussion about exactly what drunken sex acts constitute rape--and why. It's an important discussion, and certainly full of its own legal and ethical quandaries, so I thought I'd share my thoughts--inarticulately, most likely--and get some other perspectives on it.
Before you read this, please consider that more than anything else, I'm looking for other insight into this issue, as the only things myself, my boyfriend, and two friends in an international finance study group have been able to come up with is, "well, there's a whole fucking lot of grey area." And maybe, that's all there is to be said. In writing this, I will try really, really hard not to fall into the Dr. Amy trap of "I'm right, you're wrong, shut the fuck up." (Note to the good doctor, if you read this--I actually really like 98% of your blog, and almost everything you write is fascinating. That said, you have a dogmatic tone that can sometimes be...troubling.) I'm also not saying that getting wasted and screwing a stranger is admirable or good or a desirable way to conduct one's life, but it happens all the time and will continue to happen. So I'm not trying to legitimize this behavior, but understand why it might be different from rape.
There seems to be a very thin line between drunken sex--in which, according to a personally conducted and not-at-all random survey, about 85% of people I know have happily indulged--and rape. It could be argued--it has been argued--that all drunk sex is rape, as at least one and often both parties are unable, legally, to provide informed consent.
What I have in mind here is the following extremely common scenario: a bunch of shitfaced people are standing/leaning around at 3 AM near the exit of the local bar or in the kitchen of a crowded but emptying party. Shitfaced Guy and Shitfaced Girl, who may already know each other and may not, strike up a Shitfaced Conversation. One party leans in, laughing, whispering, repeating a poorly-articulated sentence, or accepting a light for his/her cigarette, the other party slurs something stupid in response, and eventually Shitfaced Guy and Shitfaced Girl engage in a Shitfaced Makeout Session. The two make their shitfaced way to someone's apartment where clothes come off, some sexual shenanigans are obligatorily (but probably not altogether legally acceptably) consented to, they pass out for a few hours, and Hungover Guy and Hungover Girl wake up to each other, maybe remembering what happened, maybe not, maybe regretting what happened, maybe not.
The sixty-four-million dollar question: is this rape? And the slightly less lucrative question: who raped whom? Neither party was technically able to give consent--just like if Shitfaced Guy/Girl were handed a contract after the same amount of drinks and signed it, she/he may not be responsible for that contract later on, nor was either party's consent while drunk "true" consent. But I just can't wrap my head around the idea that such a horrible crime as rape could be the same as something someone does when he/she is drunk, and later regrets (or doesn't regret--I know several happy couples who would never have met were it not for a night of heavy drinking and a serendipitous introduction by mutual friends).
Here are some drunken sex scenarios that are DEFINITELY rape, paired with similar circumstances that don't seem like, but may be rape:
1a) Sober Guy meets Shitfaced Girl (or vice-versa; I know guys to whom this has happened, and emotionally--technically legally, too, although our legal system seldom recognizes sex crimes against men--it's just as bad) and thinks to himself (herself), "Hey, I'm pretty horny and this is a sitting duck if I ever saw one. Let's go, babe!" Shitfaced Guy/Girl may say, "okay, sure, yeah, I'd totally love to fuck you!" but that doesn't matter because...she (he) is impaired and the person seducing her (him) is not. Totally rape, because one party was using the other's drunkenness in order to manipulate them for the purpose of sexual gratification.
1b) Drunk Girlfriend stumbles in the door after a night out with friends to her Sober Boyfriend. Suppose their relationship is still intact, but waning--they don't have sex that often anymore. Drunk Girlfriend jumps Sober Boyfriend's bones (and Sober Boyfriend smiles to himself and thinks, "Hell yeah--I love girls' nights out!"), which may or may not have happened that night had Drunk Girlfriend been Sober Girlfriend instead. Did Sober Boyfriend rape Drunk Girlfriend? We can't use their relationship to decide if this was rape or not, as our legal system recognizes marital and "relationship" rape. So does the fact that boyfriend was sober and girlfriend was drunk--and therefore consented to, perhaps even initiated, acts she may have not done if she hadn't been drinking--make this rape? Personally, I don't think so, but according to the legal definition of consent, it's still iffy.
2a) Douchebag Guy and Unsuspecting Guy go to a bar for drinks after seeing a movie for their first date. Douchebag Guy thinks Unsuspecting Guy is hot and wants to get laid; Unsuspecting Guy thinks Douchebag Guy is nice enough, would maybe consider sleeping with him sometime in the future if other stuff goes well, but has absolutely no intention of sleeping with him tonight. Douchebag Guy buys Unsuspecting Guy shots and drinks, all the while slowly sipping his beer or glass of wine. Unsuspecting Guy's inhibitions wane, his thought process becomes blurry, and he finds himself staggering into Douchebag Guy's apartment door, and then his bedroom. He wakes up the next morning thinking, "What the fuck happened? What the fuck did I do? What the fuck was I thinking?" Douchebag Guy informs him that he got pretty wasted (glossing over the fact that he was the one who encouraged Unsuspecting Guy to drink so much in the first place) and that they had consensual sex. Unsuspecting Guy goes home feeling lousy, used, hungover, and angry at himself. Clearly rape, because, again, the intention of Douchebag Guy was to get Unsuspecting Guy drunk for the purpose of having sex with him, rightly assuming that this was not something Unsuspecting Guy would do sans alcohol.
2b) Teetotaler Guy and Social Drinker Guy go out for dinner and drinks after the same movie for their first date. Both like each other a lot, and both are willing to sleep with the other one assuming this date goes well. Teetotaler Guy has a few lime and tonics, but doesn't mind that Social Drinker Guy--who has had a long week and is a little shy, so feels he needs some social lubricant to get up the courage to kiss Teetotaler Guy-- has a few pints, or mixers. Social Drinker waves at some friends who walk in, introduces them to Teetotaler, and Teetotaler looks on while the whole group does shots together. Social Drinker Guy gets a little sloppier than he intended, but is still having fun, and still really enjoys his date with Teetotaler; Teetotaler is enjoying his time with Social Drinker as well. Social Drinker finally--FINALLY--kisses Teetotaler after walking him to his apartment building, things get a little heavy, and Teetotaler invites him inside, at which point they have consensual(?) sex. Slightly Hungover Guy wakes up to Cheery Teetotaler Guy frying bacon, flipping pancakes, and brewing coffee; they have a delightful breakfast together, and a few years later they move to Boston (or Des Moines, now!), get married, and live happily ever after. Or not. Whatever. Social Drinker was drunk, Teetotaler was sober--so, was Social Drinker's consent true consent? Did Teetotaler rape him? I don't think so, because Social Drinker would have consented even without the alcohol. But neither Teetotaler (nor a judge, or jury, or police officer) would know that; and the only reason we know that is because I'm pulling this scenario out of my ass and decided that that's how it would be.
It seems like the things that make drunk sex rape are 1) a disparity in cognitive ability between alleged rapist and alleged victim (i.e. rapist sober, victim not), 2) the intent of the alleged rapist (using a drunk person for sex, or plying a sober person with booze so that they will have sex), and 3) the perceptions of the alleged victim ("Holy shit, why did I do that? What happened, and what was I thinking?" versus, "That was awesome! I should really go out more often!").
But the problem with those criteria are the following: (1) is a necessary condition, but I don't think it's sufficient for the purposes of identifying rape. In the (a) scenarios above, there was a cognitive disparity that the rapist manipulated; in the (b) scenarios, there was a cognitive disparity, but it didn't really matter for either party.
Which of course brings us to (2) and (3), but even these don't seem reliable for legal purposes. For one thing, intent is a ridiculously difficult thing to prove or even measure, as obviously people can lie. (Note: that goes out the window, of course, if the alleged rapist deliberately used roofies or a similar date-rape drug. Yes, alcohol is the most common date-rape drug, but that's the point of this post!)
And the perceptions of the victim, while a perfectly reasonable criteria for the purposes of seeking mental health care and help afterwards, is not usually sufficient for prosecution--and it's also unfortunate, I think, if the intentions of the alleged rapist were pure, i.e. she or he really thought the person wanted to have sex with them and took their consent at face value, or didn't even realize that the other person was so impaired. And while I don't want to demean people who have been raped while they were drunk, it's an extremely fine line. I mean, we have a habit of doing things we regret when we're drunk--we make total asses of ourselves dancing on the bar or singing karaoke, we send texts or make phone calls we wish we hadn't afterwards, some of us pick or join fights we otherwise never would--and some of us fuck people we otherwise never would.
I've done this exactly once. I don't remember a lot of what happened, but I was angry at myself and ashamed the next morning. The guy in question was tipsy, but not nearly as drunk as I was; we're still friends; I know him well and he's a good guy; and we apologized profusely to each other (he, especially, to me--he said that he knew I was drunk, but didn't realize how drunk I was, and was flattered and happy when I started chatting him up). From then on it's been a little awkward but in general, all good--we both treated the incident as just a misunderstanding between friends. This happened when I was 19 and ever since, when I'm drunk, I try to pay close attention to what kind of signals I'm sending people and, in the event I meet someone I like, I take some time to go to the bathroom and ponder whether or not I would actually want to sleep with that person were I sober. Surprise, surprise, most of the time the answer is no--and even if it's yes, I'm more cautious and tend not rush into things so quickly. I've never had another one-night-stand, and that's just dandy, as that kind of arrangement isn't really for me.
While the incident described above was an icky and thoroughly regrettable one, it was an important lesson to learn. I was lucky, too. I fucked up with someone I trust, who I know to be a good person, and whose intentions were pure; I didn't get pregnant or an STD; I didn't get taken home by a serial killer and disappear. But as horrible as it was, I just can't consider it rape. The sticking point is criterion (2); his intentions were completely innocent, and even if I did something I regret when I was more drunk than he was, I knew that he considers it just as much a mistake as I did.
So, OSers, what do you think? What makes drunk sex different from rape? Or are they the same thing?
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Comments
Mostly I am of the opinion that each individual is responsible for everything that happens to him/her while he/she is drunk...whether the drunken state was insigated by someone else or not.
My personal opinion:
If you drink booze or smoke a joint...you are gonna get horns on. If you do the deed...regret it if you have to...but NEVER call it rape!
And I have a daughter.... once she says "No!" leave her be.... or you'll have me to contend with.
While I understand your argument about informed consent, I have to strongly disagree there.
I do not think it should be called rape if both parties are willing participants, engaged in the act. Even if that willingness is alcohol-induced, I do NOT think that constitutes rape. Coercion or violence obviously do. Incapacitation, also yes. But impairment? No.
I suppose drunken sex is different from rape, but the line between the two is very fine and often blurred, with or without vodka.
This was an excellent essay, by the way. Highly rated.
The perspective I'm interested in is primarily the would-be perpetrator of what I'll call from now on "maybe rape." How responsible are you for how someone conducts him or herself when he/she is intoxicated? Is it always unethical and legally dangerous to fuck someone who is (or who you suspect to be) drunk?
I tend to err on Frank's and Beast's side--I am a mostly free and more or less rational agent, and I am responsible for my actions, drunk or sober. Taking responsibility for my safety means I turn down offers from guys I don't know to buy me a drink; if I decide to accept one of those offers, it means doing my best to keep an eye on that drink (if he slips a pill in it, I pass out, and he kidnaps me then that's obviously rape, for the record!), and accepting one, maybe two drinks--not five or ten or twelve.
But, I do other risky stuff that I know is risky--I generally don't want to spend money on cabs, so I take a bus that stops four blocks away from my house, even late at night. Thank god I've never been mugged or raped, but if it happened and they caught the schmuck who did it his lawyers would blame me for walking alone at night, saying I was being irresponsible. The same way we may blame someone for having too much to drink and waking up with a stranger and regrets--even if she said yes (or implied it by removing clothing or some such thing), no matter how intoxicated she was. So the line is a lot thinner than "you just shouldn't drink so much, or it's all your fault if you sleep with someone you don't want to.
I agree completely with perdidochas--intent is what matters, but we can't measure that. So using what we're able to empirically find out, where the hell is the line? I'm still not sure.
Wow, we are attracted to womens bodies. It has a lot less to do with any imaginary patriarchial society than half a million years of evolution. It seems like everyone BUT us is entitled to a libido. I don't run around telling lesbians they are evil wor wanting women, why do they insist on doing it to me? Even terms of endearment are considered sexist or derogatory. It's one thing at work but even outside work, you have to watch what you say, or words meant as terms of affection are taken as condescending. These women don't need a lawyer, they need Thorazine. Lighten up. People drink and have sex regardless of what the fucktards at places like Rutgers try to pass.
By reading your post, I think you need to go and turn yourself in for rape. He was the drunker of the two of you.
Until somebody actively does something to cause the drunk act with the intent to get someone to have sex then it's just a mistake like lending them $20 that you will never see again.
Drinking or drunk should be beside the point, except to say that if you drink to the point you are unable even to say "no", you ARE responsible for what happens, just as you would be responsible for what happens if you drove your car in that condition.
On the other hand, if you are unconscious, that's another matter. If someone has sexual relations with an unconscious person has indeed committed rape.
Incandescent--yeah, that was a dumb example. The point I was trying to make was that we all assume different levels of risk, and to some people (not the most responsible and pragmatic among us, but...) not getting as wasted as they want, wherever and whenever they want, trustworthiness of present company be damned, is as silly and unthinkable a constraint as never ever walking alone at night is for me. The counterpoint, obviously, is that if you're willing to assume higher levels of risk, fine--just be prepared for the consequences, and for the fact that you might have to shoulder some of the responsibility for bad things that happen to you. A street or sidewalk is a public good, and thus anyone has the right to walk there and not fear for his or her safety. But doing deliberate things, like drinking or taking drugs, even though one is aware of what might happen and how those actions might change his or her behavior--it's a much bigger gamble, you're right.
Tom--my definition of rape has nothing to do with it, and the whole point of this post is that I'm not sure what my definition of rape is. However, the legal definition of rape is not it--according to the laws in my state and (I think) nationally, anyone who is sober or less drunk and has sex with a person who is (more) drunk EVEN IF that person is conscious and says yes, or does things that imply consent such as removing clothes or reciprocating kissing, touching, etc. has committed rape, due to the lack of informed consent.
The law recognizes that people operate differently in different states of mind, which is the whole basis for crimes of passion laws. It's also the basis for informed consent with regard to contracts and, yes, sexual consent. If I drink ten martinis and sign a contract stipulating that I will give the guy who beat me at pool my firstborn, my car, and my left kidney, that contract won't hold up in court because I wasn't in my right mind when I signed it and am less responsible for actions that involve consenting to something. Same principle holds for consenting to sex, in theory. But for all the reasons given in my post, I don't agree with this approach--at least not entirely. And I completely agree with you that such a definition of rape takes away the disgusting and reprehensible nature of the crime, which is another reason I disagree with it.
Nonsense. No means no and yes means yes. Are people supposed to walk around with breathalizers and determine how intoxicated the other is? Do you believe you belong in prison for having sex with a drunk guy while you were sober?
As long as people are adults. Any consent is consent as far as I am concerned. Sex is not a contract, it is a natural act. Criminalizing it when two adults consent is assine. I don't know how many times a girlfriend of I were near passing out from being tired more than drink and neither stopped and neither made much of it.
A guy that gets a girl drunk and has sex with her is only rape if she passes out or says no. If she consents it is not within his expertise to determine anything else other than adults are not children and shouldn't need a breathalizer and written consent, which some schools are asking for. As far as I am concerned there is no grey area. If a woman says yes to sex, it means yes. If she says no it means no. Which doesn't mean I am the type to try to get someone drunk to take advantage, but god knows how many times me or a girlfriend had been drinking and at no time were we delusional.
Also, the line between really, really, blackout drunk--but still conscious--and passed out drunk is an incredibly blurry one, as well, and often the only difference is about five minutes. So if sex starts when the person is wasted and halfway through they're passed out is the whole thing rape, or just the second half? I'm tempted--barring happy marital/relationship examples and the like--to go with the former. But then again, if the drunk person in question is fine with it the next morning, or remembers consenting....ah, ambiguity. It's all grey, is the point. Your line is rather more strict than mine, but such is life.
I think intent matters, and even if the (a) scenarios would not make it through our justice system as rape (and they wouldn't), I think ethically they absolutely are.
Also while I get that your point is that we are responsible for our conduct even if intoxicated--with which I tend to agree--the shooting example doesn't apply here. For one thing, you'd be the perpetrator of a crime, not the victim. For two, the informed consent stuff only applies to things we can agree upon and consent to with another person such as contracts or having sex. Informed consent applies to stuff that is legit when you're not impaired, underage, or mentally disabled. Since shooting someone is illegal no matter what--unlike having sex or signing a lease--that's not in the same ballpark. But I understand and sympathize with your general point about responsibility.
Or what if the woman says no.. as in "Oh, no, not that!"
How many ways are there to say no? Do you have to scream it? Do you have to have your hands on your hips and stomp your foot?
Do you have to be pushing him off of you? Or what if you say, "No, not tonight," and you're married to the guy? But, he wants sex anyway....
There are a million ways to say no... and not always mean it.
But if you are raped, you know because it's like being pregnant. You were either raped, or you weren't, even if you didn't say no.
Something you didn't mention was the possible motive for someone to call something rape when it wasn't. I think mostly these encounters are just as you describe: misguided drunken indulgences that are later regretted by both parties. But they mostly happen in college where parents aren't around and "authorities" aren't involved. I know of a case in high school where a drunk girl and drunk guy had sex in the middle of a party (where parents weren't home, not the home of either kid in question), with all kinds of witnesses. Needless to say, cell phones were whipped out and pictures taken. Apparently some of them reached the parent of the girl and BINGO, she now called it rape. According to witnesses, she had been treating it like the usual embarrassment to which she had been complicit until her outraged parents found out, and now she needed a reason to suggest she didn't have consensual sex. I don't know whatever happened after that.
Anyway, yeah, it's very, very gray. I think you mostly have your finger on the pulse of what's happening and what most people think.
btw, I'm surprised this didn't get the front cover. The editors usually like provocative stuff like this.
Kudos to you-- good stories, good treatment of the subject-- lots of good stuff to think about and consider! Thumbs definitely up.
Your points are correct, but you should be telling your daughters the same thing. If they are at a party and are actively working on getting an inebriated guy in the sack and don't have an explicit YES (or no answer at all) they should walk away, EVEN if they're stinking drunk too. Because you don't want any ambiguities or problems.
Date rape can happen to anyone.